One can imagine the legal scholar’s conflict when Donald Trump pushes constitutional matters to the fore, as when he questions Canadian-born Ted Cruz’s eligibility for the presidency. On the one hand, this isn’t exactly who you imagined setting your agenda. On the other, loud public squabbles over history and citizenship—no matter their origin—fairly cry for calmer heads.
For his part, Jack Balkin, author most recently of Living Originalism, outlines the key theoretical questions he sees in play at his Balkinization blog:
- whether “natural born citizen” should be understood as a lay member of the public would understand it or whether is a legal term of art;
- whether, if it is a legal term of art, it is a fixed concept whose contours are fully determined by practices and understandings existing in 1788, or whether is a common law concept subject to evolutionary development;
- whether the meaning of “natural born citizen” depends only on English common law authorities (for example, Blackstone's account in 1765), or whether its application depends, as parts of English common law do, on statutory changes that become established parts of customary practice and thus are absorbed into the constitution-in-practice;
- whether the meaning of “natural born citizen,” even if vague in 1788, has become liquidated in practice by congressional statutes (like the Naturalization Acts beginning in 1790); and
- whether the scope of “natural born citizen” cannot be altered by Congress, or whether it should be read together with Congress’s powers under the Naturalization Clause. In the latter case, the Constitution might give Congress the power to determine who is automatically an American citizen at birth and declare such persons natural born citizens for purposes of the Constitution.
From there, he offers his own preliminary view on the question: eligible.
Elsewhere, historian Nathan Perl-Rosenthal, author of Citizen Sailors: Becoming American in the Age of Revolution, joined legal scholar Sam Erman in an attempt to redirect the debate. As they see it, the prevailing arguments over the meaning of “natural born” rest on the notion that the phrase had a single meaning that can be discerned purely from the text of the Constitution—a notion they say is rendered “entirely unwarranted in the case of citizenship law” by two things we know about early American history:
First, in the decades before the American Revolution the British Parliament had repeatedly expanded the meaning of “natural born” by statute, eventually including even children born of British parents on foreign soil. These repeated changes to the law at a minimum point to significant disagreement about the proper meaning of the term “natural born” around the time the Constitution was drafted. It may even be that the more inclusive meaning of “natural born” had already become a rule at common law by the time of the Revolution: Sir William Blackstone, the leading eighteenth-century English legal authority, used the past tense in 1765 when describing the more restrictive common law meaning of “natural-born.”
Second, and perhaps more discomfiting to the modern lawyer’s eye, historians have known for some time that Americans in the early Republic treated national citizenship as an afterthought. Most rights for most people in the early United States inhered in the states, not in the federal government. The Framers spent little time fretting over who was and was not a U.S. citizen. Consider that “naturalization” appears in the records of the first forty years of Congress just 65 times. That is just a handful more times than Congress discussed “spirits” and a tiny fraction of the number of instances in which Congress debated “tariffs,” to take just one other topic that is less on the minds of the general public today than citizenship.
Far from dismissing the question of Cruz’s eligibility, though, they argue instead that jurists and the public should dispense with inconclusive eighteenth century evidence and accept that “the final decision rests with us.”
