by Jay Marshall Wolman
Despair thy charm,
And let the angel whom thou still hast served
Tell thee, Macduff was from his mother’s womb
-Macbeth, Act V, Scene 8
There’s been a lot of talk lately over whether Senator Cruz is eligible to the office of President. The Constitution requires that the President be a “natural born” citizen. Article II, Sec. 1, Cl. 5. Folks have made a lot of originalist/textualist type arguments to help understand this clause.
I want to weigh in from a similar perspective, but one that I think can help frame the discussion. Two former Solicitors General basically referred first to English statutes in effect at the time of the Revolution and then the Naturalization Act of 1790 to support their understanding that foreign born subjects of citizens are naturally born. The problem, though, is that does not tell us what the term meant in 1787 under the common law.
If English statutes were imported, the Naturalization Act of 1790 would have been unnecessary. Presumably, the Framers, the same folks who wrote the Constitution three years earlier, thought it necessary as those born abroad would not otherwise be citizens from birth. OK, so if Ted Cruz was born in Canada in 1788, he would not have been a citizen from birth. Similarly, we can imagine a scenario where a xenophobic Congress never adopts any naturalization laws. In that case, when Ted Cruz was born in 1970, there didn’t have to be laws on the books that would have made him a citizen, let alone from birth, and everyone would agree he would not be eligible to the office of President. [More realistically, immigration laws can contain sunset provisions, so we can imagine that citizenship to those born abroad could sunset the day before he was born and emergency legislation enacted the day after restoring the provision. During that one sunsetted day, Mr. Cruz would not have been an American.]
The question then becomes, can Congress enact a law that makes someone Constitutionally eligible if they otherwise would not be? Let’s look at the whole clause:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
Congress also has the power to “fix the standard of weights and measures”. Art. I, Sec. 8, Cl. 4. Can Congress redefine the word “year” (a measure of time) as something other than 365 (1/4) days to make it so, perhaps, you might not be eligible until the Earth goes around the sun 70 times rather than 35? It can redefine the word for any purpose, except a Constitutional one. That would require an Amendment as it would alter the meaning of the word “Year” from what it was in 1787. So why is “natural born” any different?
If you believe Congress can pass a law that changes the meaning of the Constitution (without express authority to do so, such as the ability to add a state, thus altering the meaning of “within the United States”), then Sen. Cruz is eligible. Otherwise, no.