Is Ted Cruz a 'natural born Citizen'? Not if you're a constitutional originalist.

Article II of the Constitution states: “No Person except a natural born Citizen . . . shall be eligible to the Office of President.” Donald Trump thinks Sen. Ted Cruz is not a “natural born Citizen” and that he is therefore constitutionally ineligible to be president. Is Trump right? Cruz was born in 1970 in Calgary, Canada, to a U.S. citizen mother and a Cuban citizen father. As to his Article II status, it's all in how you read the Constitution.

There are three leading theories of how to interpret the Constitution today. One is textualism: the Constitution means what its words say. The historical context of the words is important when a modern plain meaning is not self-evident. A second theory, adopted by many liberals, relies on a “living Constitution”: the Constitution means what is most consistent with fundamental constitutional values as applied to present circumstances. The third theory, championed by many leading conservatives, is originalism: The Constitution means what ordinary people would have understood it to mean at the time it was ratified, which is 1788.

Under either a textualist or a “living Constitution” theory, Cruz is a “natural born Citizen,” eligible to be president; under an originalist view, however, he isn't. It's the conservative theory that would exclude the conservative Cruz from presidential eligibility.

To an originalist, a “natural born Citizen” is a person who is a citizen of the United States under “natural” principles of law in 1788. Two such principles were then in play in the U.S. Jus soli — the law of soil — was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born. Jus soli was viewed as a part of the common law of England, which was adopted by the American states. Jus sanguinis — the law of blood — held that a child's citizenship flowed from the parents' allegiance, regardless of place of birth. This principle was prevalent in continental Europe, and in England it was the basis for an exception to jus soli for children born there to foreign ambassadors.

The principle of jus sanguinis in 1788 applied to patrilineal descent only: A person born in a foreign country was viewed as a “natural born Citizen” of his or her father's country. However odious it seems today, a child born of a woman whose citizenship was different from her husband's — much rarer then than today — could not be a “natural born Citizen” of the mother's country. That idea wasn't even considered until 1844 in Victorian England.

The upshot is that to an originalist, someone like Cruz — born in a foreign country (and therefore not a natural born citizen of the United States by jus soli) and to a Cuban citizen father (and therefore not a natural born citizen of the United States by jus sanguinis ) — is not eligible to be president.

In a textualist view of the Constitution, historical context is also important because “natural born Citizen” has no modern plain meaning and the words don't appear anywhere else in the Constitution. Textualists, by contrast to originalists, favor written statutes in mining historical context. In this case, two American laws enacted in 1784 and 1790 are applicable, along with older English statutes which use the similar words “natural born subject.”

In 1784, the Maryland Legislature extended “all the Immunities, Rights and Privileges of natural born Citizen” to the Marquis de Lafayette “and his heirs Male forever.” And, in 1790, Congress passed a law stating that “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States shall be considered as natural born Citizens.” It didn't specify which parent, mother or father or both, but the background principle of jus sanguinis leads to the conclusion that it referred to American fathers.

The 1790 statute, however, was not intended to address presidential eligibility. Rather, like earlier English statutes that referred to “natural born subjects,” it exempted children born abroad from the need to follow any other procedures (“to naturalize”) in order to be considered citizens. Then in 1940, Congress passed a statute dispensing with the need for a child born abroad to a U.S. citizen mother to naturalize.

Taken all together, these laws would cause a textualist to conclude that Ted Cruz, born in Canada to a U.S. citizen mother in 1970, is a “natural born Citizen” eligible to be president.

Finally, living constitutionalists would interpret “natural born Citizen” in accordance with present circumstances and social conditions. Supreme Court case law is their main source because judicial decisions reflect an accommodation of legal doctrine with contemporary reality.

But the Supreme Court has never directly decided the meaning of “natural born Citizen.” Today, a living constitutionalist would likely regard the ancient, sexist patrilineal rule governing the citizenship of a child born abroad as an anachronism. To a living constitutionalist, anyone born anywhere to a U.S. citizen mother or father would qualify to run for president.

People looking to the Supreme Court to settle the debate once and for all are likely to be disappointed. The federal courts have repeatedly refused to allow voters to bring lawsuits disqualifying presidential candidates on the basis of the “natural born Citizen” clause because voters don't have the proper “standing”— their alleged injury is too generalized to justify a court order of relief.

But voters do have recourse: The ballot box may be the final arbiter of the constitutional meaning of the clause. In other words, if you are an originalist, vote against Cruz because he is ineligible to be president.

It's a neat irony: The most conservative constitutional interpreters must find Cruz ineligible to be president; liberals must grin and bear him. Cruz himself purports to embrace originalism as the correct view of the Constitution. To be faithful to his understanding of what the Constitution means, the senator may have to disqualify himself.

Thomas Lee is a professor of constitutional law and international law at Fordham Law School.

Follow the Opinion section on Twitter @latimesopinion and Facebook

Copyright © 2016, Los Angeles Times
A version of this article appeared in print on January 10, 2016, in the Opinion section of the Los Angeles Times with the headline "Is Cruz a `natural born Citizen'? - The answer depends on how you interpret the Constitution." — Today's paperToday's paper | Subscribe