The Independent View: Amicus Brief Saying Ted Cruz Not a Natural Born Citizen

Harvard Law School's Petrie Professor of Law, Einer R. Elhauge, files Amicus Brief saying Ted Cruz not a Natural Born Citizen in a New York case.

This case was brought by Barry Korman and William Gallo against the NEW YORK STATE BOARD OF ELECTIONS and Rafael Edward (“TED”) Cruz, saying Cruz was not eligible to run for President as a Natural Born Citizen. Their case was rejected on the grounds that the selection of a candidate is done by delegates at a convention.

In the Brief, he uses this argument:

The language “natural born citizen” fairly clearly indicates it could not mean anyone born a citizen or else the text would have just simply stated “born citizen.” The word “natural” is a limiting qualifier that indicates only some persons who are born citizens qualify. Ted Cruz’s interpretation simply reads the word “natural” out of the constitutional text.

The Constitutional Framers actually rejected a proposal to make any “born citizen” eligible to be President. Alexander Hamilton had proposed a presidential eligibility clause that omitted the word “natural”, providing that: “No person shall be eligible to the office of President of the United States unless he be now a citizen of one of the States, or hereafter be born a citizen of the United States.” Hamilton Plan, Art. IX, §1, 3 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 619, 629 (Max Farrand ed., rev. ed. 1938). The Framers did not adopt Hamilton’s proposal, but instead adopted the text requiring that a President must be “natural born Citizen.” This indicates that adding the word “natural” was a deliberate choice and that the Framers believed it was an important additional limitation.

Ted Cruz’s interpretation of “natural born” rests on citations to dictionaries written more than a century after the adoption of the Constitution. Thus, “natural law” was distinguished from statutory law, and natural rights were distinguished from statutory rights. Thus, the ordinary meaning at the time was that “natural born” citizenship meant the citizenship that arose as a matter of the natural law that was recognized at common law. In contrast, a “naturalized” citizen meant (and today continues to mean) someone whose citizenship was conferred by statute.

The Constitutional Framers meant to adopt the common law understanding of “natural born.” On May 22, 1789, James Madison, the principal drafter of the Constitution, himself stated in Congress that the United States used the place of birth rather than parentage: "It is an established maxim that birth is a criterion of allegiance. Birth,
however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other."

John McCain was a natural born citizen because McCain actually met both of these grounds. John McCain was both (a) born in a U.S. territory (the Panama Canal Zone) and (b) born to parents who were both U.S. soldiers serving their nation abroad. However, the Constitutional meaning of “natural born citizen” excludes Ted Cruz because he was:

(a) Born in Canada rather than a U.S. territory.

(b) Born to a father who was not a U.S. citizen and to a mother who was a private U.S. citizen who was not serving for the U.S. in Canada.

In defining serving: on a military base, in an Embassy or Consulate.

Under current law, because his mother was a U.S. citizen, he is a U.S. citizen but not a “natural born citizen”.

CLICK HERE to read the 30 page (PDF) Amicus Brief.