A Radish Saltant: Citizenship, the Constitution, and Morality: is it 'wrong' to support Cruz?

Who is that masked man? Hero? Villain? Or just another candidate?

Revision 1.01 (See Changelog);

Introduction

There has been much written on the subject of natural born citizenship and whether Ted Cruz is eligible under the Constitution to be president. I have made my position clear and will lay it out again, but that is not what this post is about. Rather, it is about the imputation made that Ted Cruz is wrong--- as in immoral--- for putting his hat in the ring and that his supporters are wrong--- as in immoral--- for supporting him. This imputation has come from some people whom I otherwise respect, so it is important to answer it fully. In order to do so, we will have to get back to first principles, what the purpose of the clause was in the Constitution, and the very meanings of illegality and immorality.

I will argue that Cruz' candidacy may or may not be legal. The term birther is often used pejoratively to pretend that there is no issue. That being said, it is a convenient label for the "nativist-leaning strong natural-rights-based natural born citizen interpretation position" which is otherwise too darn long to read and type repeatedly (but you should read "birther" where I use it to mean precisely that). I argue that Cruz is a natural born citizen (hereafter NBC), but it cannot be absolutely proved one way or the other. Law on citizenship, immigration, and naturalization is messy and complex. I do not object to people who wish to vote against him on that count, but I think they are mistaken and I do object to the idea that people are immoral or 'traitors' for disagreeing. Along the way, I will also outline a few of the potential positions on NBC I do find immoral.

This post is not written for lawyers but for the lay person attempting to understand the underlying legal issues. As such, some liberties must necessarily be taken with terms of legal philosophy which would otherwise require substantial study for the reader to approach. As this subject is already complex enough, I try to avoid that when possible and provide some sources for further reading for the truly masochistic. For this reason, I have tried to keep citations understandable for people who want to dig more without conforming to, say, standards for a law review.

The Natural Born Citizen Clause and Originalism

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... [US Constitution, Article Two, Section 1, Clause 5]

The inclusion of the clause is believed to have come from a letter of John Jay (Federalist Papers author and later Chief Justice of the Supreme Court) to George Washington:

Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the american army shall not be given to, nor devolved on, any but a natural born Citizen. [Jay 1787]

The problem is that the term "natural born" is not defined in the body of the Constitution. This is not uncommon: the Constitution is a compact document which does not define most of its terms. Terms in the body are either legal terms of art defined in British common law (e.g. "Habeas Corpus", "Right To Keep and Bear Arms", "Privileges and Immunities", etc) or use the plain language meaning (according to usage at the time it was written).
That seems reasonably straight-forward except that there is incessant argument about how to interpret or "construct" the meaning of the text from its words. There have been entire books written on this subject, but to vastly simplify, the schools of thought range from the "living Constitution" theory which--- in its strict form--- posits that the text of the Constitution does not matter per se; the document as a whole needs to be interpreted in the context of modern times and the will of the people as expressed through their democratic institutions. On the other end of the spectrum is originalism, in its strict form stating that all Constitutional terms must be interpreted in historical context as the language was understood at drafting or ratification.
In practice, neither extreme makes sense and most jurists do not belong in either category. The living constitution approach goes against the express purpose of the document to delegate limited powers to the government and to require a substantial process for its amendment. It also effectively puts the interpretation of the document in the hands of the very people (the agents of the federal government) the document is intended to limit. In particular, for purposes of this conversation, a proponent of the living constitution in some form is unlikely to even care whether a candidate strictly meets the NBC requirement.
Strict originalism makes no sense in part because the Constitution uses common law terms which were understood in the common law itself to require context and change with the time (e.g. "due process" or "cruel and unusual punishment") or to depend on terms which change with the time (the right to keep and bear arms in common law applied to the "common arms of the day"). Clearly these terms may not be understood solely in historical context. Additionally, many of the framers were not themselves legal experts; they themselves were learning some concepts as they went, they may not have strictly understood or agreed on certain definitions, but they did keep some specific references on hand that we know they worked from and relied on during the process and that they considered authoritative.
Although there are many schools of thought which fall between these two extremes, Ronald Dworkin, in "Taking Rights Seriously," outlines the general requirements that any approach must have if it is rationally compatible with the expressed intent of the Constitution. In general, these approaches depend on interpretation of the actual text ("textualism"), attempt to understand but do not solely rely on historical context, particularly the public intent of the framers, and do so with an appreciation of the natural (or "fundamental") rights our system is designed to protect which, if rights are to mean anything at all, must trump other considerations of law [Dworkin 1980 pp 131-149]. We follow that approach here. The Constitution Society [Roland 2016] also has a good online reference for constitutional construction and the pitfalls of certain approaches.

Historical Context for NBC

Many of the prominent arguments against Ted Cruz as a NBC rely on the text of "Law of Nations" by Vattel [Chitty 1883]. Others (including myself) argue that Blackstone's [1753] "Commentaries on the Laws of England" are the correct source. In the end, however, it does not actually matter to the question because neither source supports the birther argument. We know that the Framers owned, referred to, and frequently quoted both works.

Blackstone

Blackstone first states the obvious that those children born in England to British subjects are 'natural born'. He then expands that to talk about children born abroad to British subject parents:

Yet the children of the king's ambassadors born abroad were always held to be natural subjects:(z) for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father the ambassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2, that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England; and accordingly it hath been so adjudged in behalf of merchants.(a) But by several more modern statutes(b) these restrictions are still further taken off: so that all children, born out of the king’s ligeance, whose fathers (or grandfathers by the father’s side) were natural-born subjects, are now deemed to be natural-born subjects themselves to all intents and purposes; [Blackstone 1753 pp 239]

Blackstone also has some comments on differences between British and French law in this regard. The important point is that Blackstone makes it a matter of law (passed by Parliament) who is natural born and who is not. This is not a fixed concept beyond the constitutional pale of the legislature in common law tradition. So, what about Vattel?

Vattel

Many making the birther argument quote one passage from Vattel's "Laws of Nations" for the idea that natural-born is an extremely fixed and limited term, "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." [Chitty 1883 § 212] However, this is not the whole story, even according to Vattel:

It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also. [Chitty 1883 § 215 (58-59)]

Once again, it is made clear that this is a matter of statute: the status of children born to citizens abroad depend on the law of the nation to which citizenship is claimed and may be affected by matters such as residency of the child and parents. Vattel does not consider the matter to be rigid and unchangeable either.

Common Law Practice and Constitutional Authority

Both authors, Blackstone and Vattel, are simply summarizing common period practice such as this:

[A]ll Children born out of the Ligeance of the Crown of England [i.e. born out of England's jurisdiction], or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively ... are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever. [British Nationality Act 1730]

The Constitution, of course, grants to Congress the power "To establish an uniform Rule of Naturalization". Wait? Naturalization? If a natural born citizen is not naturalized, then does Congress have the power to define law with respect to natural born citizens? Yes, actually. Again, going back to legal practice of the day, laws dealing with the term natural born were commonly lumped under the heading of 'naturalization laws' such as the Foreign Protestant Naturalization Act which made "The children of all natural born subjects born out of the ligeance of Her Majesty Her Heirs and Successors shall be deemed and adjudged to be natural born subjects of this Kingdom to all intents, constructions, and purposes whatsoever." This act, specifically allowed children of exiled protestants to return to England as natural-born subjects.
Some birthers claim that there is a false equivalence between natural born subject and natural born citizen and that, for some reason, natural born citizen is a fixed and immutable category. There is no actual basis for this claim, however, as Vattel, for instance, says the same thing about natural born citizens that Blackstone does about natural born subjects. Even more telling is the fact that there is an early US law, passed by the Massachusetts legislature in 1784 which makes Lafayette and his heirs "natural born citizens" in precisely the same way that prior British acts made returning protestants "natural born subjects":

Be it enacted by the General Assembly of Maryland—that the Marquiss de la Fayette and his Heirs male forever shall be and they and each of them are hereby deemed adjudged and taken to be natural born Citizens of this State and shall henceforth be intitled to all the Immunities, Rights and Privileges of natural born Citizens thereof…

It is also interesting that this act connects the natural born citizen with "immunities, rights, and privileges", strikingly similar to the later language of Article IV and the 14th Amendment. The point, however, is that early Americans believed the terms equivalent and that it was a status which could be dispensed by a legislative body. The Further Reading section delves deeper into the common law issue, the concepts of jus sanguinis vs. jus soli, and the impact of the 14th Amendment on the definition of natural born with references for further exploration.

US Law Applying To Cruz

301 a) The following shall be nationals and citizens of the United States at birth: ..
A person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years." [66 Stat. (1952) 235-36; Title III, ch. 1, section 301(a) and (a)(7), emphasis in the original]

This was the US law applying at the time of Ted Cruz' birth. The law was amended in 1986 to further relax the residency requirements for the citizen parent, but Ted Cruz' mother meets either set of requirements:

The parties have stipulated that the Candidate was born on December 22, 1970 in Calgary, Alberta, Canada; that his mother, Eleanor Darragh, was born on November 23, 1934, in the State of Delaware; that his mother is and always has been a United States citizen, since the moment of her birth; that at the time of the Candidate's birth, his mother had been physically present in the United States for more than ten years of her life, including at least five years after she reached the age of fourteen; and that the Candidate was a citizen from the moment of his birth. [Elliott v Cruz. pp 104-105]

Facts which are stipulated are those which are not disputed by either party. In this opinion by Judge Dan Pellegrini, he holds that 1) the question of whether Ted Cruz is eligible to run for president is not barred by the Political Questions doctrine (i.e. that the court had authority to decide the matter) and 2) that Cruz is a natural born citizen in the meaning of Article II.
The bottom line is therefore, that Congress has Constitutional authority to write law defining who is and who is not natural born and under the law which Congress has written, Ted Cruz is, in fact, natural born.
Some have made a big issue of Ted Cruz' alleged Canadian citizenship which he may or may not have been eligible for at birth. The position of US law on the matter is that neither a US citizen nor the US Congress has any authority over foreign law. We cannot set or change Canada's citizenship requirements. Therefore, if a person who is eligible for US citizenship at birth according to our law and has taken no affirmative action to make any allegiance elsewhere as an adult, they have not given up their status as a US citizen at birth. Examples of what might forfeit that status would be taking a foreign title ("Prince", or "Czar of All the Russias"), actively claiming foreign citizenship or taking an oath of allegiance to a foreign country (e.g. after voluntarily enlisting in their military). No one has accused Ted Cruz of any of these things to my knowledge and therefore, as a matter of US law, they are simply not relevant. If Vladimir Putin, in a dastardly plot to destroy Donald Trump, declared him to be a Russian citizen, it would not affect Donald Trump's legal status under US law in the least, nor his eligibility to run for president (of the US).

What If Congress Does Not Have Authority?

Even if we set aside the work of both prominent period authorities that the question of children born to citizens abroad is not one decided by the legislature and ignore the explicit authority delegated to Congress in Article I § 8, if we assume that the Framers intended natural born to be a rigid and immutable category (a position which I no longer accept but which some people urge us to), where does that leave us? The Constitution itself is not a fixed document: it has been amended a number of times since 1787 and this modifies the question somewhat. If we did wish to go down this somewhat convoluted path, it actually ends us back up in the same place. (This is one of those sections which can be skipped by those not of a masochistic bent.)
First we would have to start with the original meaning of natural born in 1787. We see that from both Vattel and Blackstone above, citizenship follows that of the father. So, if a child is born abroad to a US citizen father, they are natural born US citizens. What of a child born to a US citizen mother? The 14th Amendment requires equal consideration of the law to all born in the US and subject to its jurisdiction. Note that the critical question at this juncture is not whether Ted Cruz is being treated equally under the law because he would only be entitled to run for president if he were qualified under Article II which itself hinges on the natural born question!
In fact, what we want to look at is the rights of Ted Cruz' mother. She has a property interest in the birthright of her son in the same way she has a right to equal treatment under the law in willing real property to her child. Passing a birthright is unquestionably a "privilege and immunity" of citizenship which belongs to all Americans. Saying that a father can pass that birthright and yet not a mother would arguably be unconstitutional under the 14th Amendment. Therefore, the original period definition only conferring natural born status on the children of US citizen fathers would not today pass Constitutional muster. Standing on this definition I would find immoral as it would conflict with the natural law guarantee of equal concern and equal dignity under the law (see Dworkin) for all citizens.
Note that it would be perfectly Constitutional by this argument to deny NBC-status to all children born abroad, and, although this might or might not have been what was intended by the Framers and certainly would have been an easier standard to enforce, it was not what was said by the Framers given the common law definitions above. Several attempts have been made to pass Constitutional amendments clarifying or modifying the NBC requirement in some way over the years, but none of them have yet passed. We can wade into some additional brambles here, but none of them, in the end, actually bear different fruit, so, for the sake of the reader, we will leave the discussion at that.

And Now To the Heart of the Matter

What with one thing or another, we can now deal with the real issue at hand: is it wrong (as in immoral) for Ted Cruz to run for office or for people to support Ted Cruz for office?
At some level this question is silly: if, as laid out above, Ted Cruz is a natural born citizen, then clearly it is not wrong for him to run or for someone like me to vote for him. Even if the above arguments are somehow legally incorrect, however, one would have to suppose malfeasance in both Cruz and his followers to say that it is wrong (as in immoral) to support his campaign. One would have to suppose that we all know that Ted Cruz is ineligible (despite perfectly credible arguments to the contrary) and are supporting his campaign to undermine America or for some other equally villainous and yet completely inexplicable end. The Supreme Court has never directly addressed this question and even in the lower courts, the legal record on the matter is just developing (though all, so far, in Cruz' favor). So, why would it be immoral or some rejection of the Constitution to support his eligibility?
At another level, there is a deeper issue, which is that the natural law interpretation of 'natural born' lends a legitimacy and moral weight to the question it does not deserve. Having a standard for who may serve as president and obeying that standard (whatever it is) is important. I feel very strongly about enforcing the plain meaning of the Constitution when we actually understand what it says and I believe we have a duty to attempt that understanding. Unfortunately, we have never actually agreed what natural born standard is and it has never been adjudicated at a level which could be considered authoritative.
The question as usually put does not actually rise to a level of natural law (except in the Equal Protection sense discussed above). We may have all been endowed by or Creator with "certain unalienable rights", and I firmly believe that to be so, but I do not believe that we were endowed by our Creator with Frenchness, or Americanness, or Missouriness, or Californianness; that is something we choose both collectively and individually. Good faith disagreement on those issues is bound to happen but is not inherently immoral (either way) in the sense that, say, violations of free speech are inherently immoral.
This is not an argument that a nativist view of the Article II standard is per se wrong. If we take for the sake of argument that an excess of nativism is a vice (a strict anti-immigrant stance, for instance, legal or otherwise), it does not follow that nativist preference in the approach to the Office of the President is a vice. Clearly it is important, just as Jay's letter states, that the Chief Executive have sufficiently undivided loyalties! Rather the argument here is that even given a nativist stance on the Office of President, the meaning of the law and the concept with regard to children of citizens born abroad is not and cannot be clear as our Constitution was written. Because the Americanness of an individual is not an objectively measurable or rigid natural law standard, an appeal to a higher morality cannot be expected to resolve the ambiguity in the way that we arguably can with equal protection or free speech. Therefore, disagreement on what precise standard to use cannot be considered a moral wrong.
When the question of Cruz' eligibility for the presidency first came up, I did not support him as a candidate, but I still argued that the birther arguments were incorrect. I began researching the questions when John McCain and Barrack Obama were running and have continued to develop my knowledge of this arcane area of law and of the founding-era sources over time. Although I began with the idea that there was in fact a legitimate question, as I uncovered more sources, as I actually read the commonly cited sources, the questions became weaker, not stronger. After Rand Paul dropped out, it was fairly natural to transfer support to Ted Cruz: no nefarious plot, just support for a good candidate who will, I believe, support good Supreme Court nominations in the next four (or possibly eight) years. Leading up to the rally for Cruz in Springfield, I formally reached out to the campaign to lend my expertise on the convention process and became a volunteer.
As a matter of personal honor, Ted Cruz is a better American than many people I have known of otherwise unimpeachable pedigree. He is an outsider candidate with experience within the political system but who has consistently demonstrated that he is willing to stand up to the establishment for his principles, no matter the personal cost: an outsider-insider. He has, along the way, made enemies in the Texas GOP whose incumbent he defeated to become Senator, in the Bush Administration to whom he gave the honest Constitutional advice he was retained to provide, of the Republican Whip in the Senate when he refused to go along with the party line, etc. He has always been extremely congenial to the grassroots Republican activists like myself and we have returned the favor by organizing a ground-game in our states for his campaign second to none, even the campaigns of past-cycles for Ron Paul where many of us first gained our convention experience and grass-roots organizing skills. I am standing in this election beside people who were my opponents in past elections but who have gained my respect as honorable enemies (I am finding I prefer to have them on my side).
I, for one, will stand with Ted Cruz, and I am not alone. Reject him, reject me, reject us all. Better yet, stand with us and make the country better.

References

[66 Stat. 1952]: US Statutes, Chapter 66 163-282, 1952. http://library.uwb.edu/static/USimmigration/66%20stat%20163.pdf . The 1952 version is relevant because it is what was in effect at the time of Ted Cruz' birth. The PDF is images only, no searching, no cut-and-paste.
[Blackstone 1753]: Blackstone, William. 1753. Commentaries on the Law of England. E-book. Vol. 1. The Online Library of Liberty. http://scholar.google.com/scholar?hl=en&btnG=Search&q=intitle:Commentaries+on+the+Law+of+England#4.
[British Nationality Act 1730]: British Nationality Act, 1730. United Settlement. Retrieved 3 March 2016.
[Chitty 1883]: Joseph Chitty, Esq., Editor. The Law of Nations or Principles of the Law of Nature Applied To the Conduct and Affairs of Nations and Sovereigns From the French of Monsieur de Vattel. Philadelphia. T. and J.W. Johnson and Co. 1883. http://www.constitution.org/vattel/vattel.htm
[Dworkin 1980]: Ronald Dworkin. Taking Rights Seriously. Harvard University Press. Cambridge, MA. 1980
[Elliott v Cruz]: Elliott v Cruz. Pennsylvania Commonwealth Court. Opinion of Dan Pellegrini filed 10 March 2016. https://www.scribd.com/doc/305408749/Ted-Cruz-Judge-Decision-PA-March-10
[Gifis 2010]: Gifis, Steven H. Barron's Law Dictionary, Sixth edition (kindle). Barron's Educational Series. NY. 2010. ISBN: 9780764143588. http://www.amazon.com/Law-Dictionary-Trade-Barrons-Quality-ebook/dp/B004ASNFZK/ref=mt_kindle.
[Gordon 1968]: Gordon, Charles. 1968. "Who Can Be President of the United States: The Unresolved Enigma." Maryland Law Review 28 (1): 1–32. http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2068&context=mlr.
[Jay 1787]: John Jay, letter to George Washington 25 July 1787 as found in Founders Online. http://founders.archives.gov/documents/Washington/04-05-02-0251. Accessed 16 April 2016.
[Maskell 1968]: Maskell, Jack. Qualifications for President and the 'Natural Born' Citizenship Eligibility Requirement. Congressional Research Service. Washington, DC. 2010. https://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016 .
[Roland 2016]: Jon Roland. Principles of Constitutional Construction. The Constitution Society. 2016. http://www.constitution.org/cons/prin_cons.htm

Changelog

0.1: Initial partial draft, 2016-04-14
0.2: Added placeholder for Jay Adams' letter. Expanded discussion of morality and the nature of natural law. 2016-04-15
0.3: Added note on use of the term "birther" which I have not successfully avoided and I admit is somewhat hypocritical. 2016-04-15
0.4: Added HTML5 sections for navigation and TOC. 2016-04-15
0.5: Added text of Jay letter. First pass clean-up of citiations; bibilography-linking. 2016-04-17.
1.0: Finished fleshing out references. Added Further Reading section. General cleanup. First feature-complete draft. 2016-04-20
1.01: Basic cleanup. Added a few links to definitions of unfamiliar terms. Added a note on nativism and the presidency.
1.02: Removed extraneous word which crept into a quote from Gordon-1968. 2018-11-19
1.03: Corrected date of MA act which mistakenly said 1884 instead of 1784. 2021-06-02

1 comment:

Radish SaltantApril 15, 2016 at 9:11 PM
I added a note in this draft (0.3) on the use of the term "birther" which I am not happy with but have not avoided. As noted here, I use it as a shorthand for the "nativist-leaning strong natural-rights-based natural born citizen interpretation position". Is there a better label for that position which is not pejorative or suggestive of conspiracy theorist but does not take an entire line to refer to?