Senate Minority Leader Harry Reid, D-Nev., along with, from left, Rep. Chris Van Hollen, D-Md., House Minority Leader Nancy Pelosi, D-Calif., Rep. Xavier Becerra, D-Calif., and Rep. James Clyburn, D-S.C., conduct a news conference in the Capitol

Tom Williams | AP Photo

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Sen. John McCain recently cast doubt over whether Ted Cruz is enough of a natural-born citizen to meet the qualifications to become president under U.S. Const. art. II, § 1, cl. 5.  Contrasting to his birth on a U.S. Military base in Panama, he said, “[T]hat’s different from being born on foreign soil, so I think there is a question. I am not a Constitutional scholar on that, but I think it’s worth looking into.” 

A number of brilliant constitutional minds of our generation have already weighed in on the absurdity of this charge.  Andy McCarthy has an eloquent piece at National Review that is a must read.  Our existing statutes grant citizenship at birth to any child born to an American parent who moved overseas for a period of time.  Cruz, as well as others born under similar circumstances, have always been granted citizenship at birth ever since the Immigration Act of 1790, which was passed by a Congress full of members who helped draft the original Constitution.  This is not complicated. 

Our founding was rooted in citizenship by consent passed on from the parents

But for our purposes, I want to hone in on a different point.  Some of the same leftists, like Nancy Pelosi and John McCain, are unsure about Cruz’s citizenship status but they are absolutely certain that the Constitution grants full citizenship to children born in the U.S. to those here against the national will.  Further, they believe that Congress, which has plenary authority over naturalizations, is powerless to stop this invasion of our sovereignty, even prospectively. 

This dyslexic view of citizenship is subconsciously rooted in their statism, which is fully antithetical to our Founding values.  They believe that people are attached to the state by the soil and not through consent and allegiance.  Our founding was rooted in citizenship by consent passed on from the parents, and it was not until the 14th Amendment that birth on soil played a dominant role in determining citizenship.  For example, that a child of an American who moved overseas for a period of time was a natural born citizen was always true—since at least 1790.  On the other hand, that all children of (even) legally domiciled immigrants were granted automatic citizenship in all circumstances at birth on U.S. soil was not fully practiced until the 1898 Wong Kim Ark case, when Justice Gray overturned previous settled law, including his own decision, on how to interpret the 14th Amendment’s citizenship clause.

Obviously, we all believe, as a matter of policy, that all children born to LPRs should be automatic citizens, but that this was constitutionally mandated was never settled law and certainly not practiced with regard to all immigrant families until the late 1800s.  Either way, there is no way this can be applied to children of illegal aliens.  In my upcoming book on sovereignty, I will dedicate an entire chapter to proving this point. 

Be it as it may, McCain and Pelosi believe all illegal alien children are natural born citizens and eligible to run for president even though the eligibility of a child born overseas to American parents is more rooted in our history than even legal immigrant children born in the U.S.  What’s more, to this day there is no statute (much less a constitutional mandate) granting citizenship to children born to illegal aliens.  In fact, barring any statute to the contrary, (8 U.S.C. § 1225) requires ICE to place aliens who are not “clearly and beyond a doubt entitled to be admitted” to the United States into removal proceedings. If they must be deported, they are certainly not eligible to run for president. Birthright citizenship for illegals was borne out of lawlessness and administrative laziness in not requiring parents to show ID in order to obtain a birth certificate in the hospitals (some Texas counties are now clamping down on this, yet they are being sued by illegal aliens—with Mexico filing an amicus brief). 

They have it exactly backwards. 

On the one hand, our Founders were influenced by English Common Law because the heritage of most of our Founders was English.  Also, England was more democratic than other European nations at the time.  However, needless to say, they still considered much of English rule at that time to be lacking in Republican values.  Hence, the revolution.  They got rid of many concepts and laws they didn’t like.  So what is the litmus test for using Common Law?  As Professor Edward Erler observes, Thomas Jefferson liked to say that our system was “a composition of the freest principles of the English constitution, with others derived from natural right and natural reason.” [i],[ii]

This explains why, at the time of our Founding (pre-14th Amendment), they only took on one aspect of the British citizenship—that children born overseas to British subjects, similar to Cruz, were automatic citizens—but they did not adopt jus soli, the principle rooted in feudalism that anyone born on the soil is an automatic subject of the state. We didn't eschew all of Common Law, nor did we adopt all of it.  Hence, we adopted citizenship through consent and allegiance through parental ties, but on the other hand rejected unqualified jus soli.  It was only for the purpose of granting citizenship to blacks who had lived here for centuries under persecution that the drafters of the 14th Amendment mentioned birth in America as a determining factor (along with being subject to the jurisdiction).

The only way to say someone like Ted Cruz is not eligible to be president is if one were to prove that the term “natural-born” is a term of art that meant something very specific at the time of ratification in a way that would undermine its prima facie meaning—being a citizen at birth.  The only evidence we have from the framers is the 1790 law passed by the founding Congress which explicitly refers to children born overseas to Americans as natural born citizens.  There were no other debates over the issue during the ratification of the Constitution. 

One would have to rely on some of the international law commentators who influenced our Founders in order to gleam some other intent into the term “natural born.”  But if you look at those commentators, they clearly say they opposite.

Chief Justice Melville Fuller, who wrote a beautiful dissent in the Wong Kim Ark case, lays out the full case for citizenship through parental allegiance and not unconditional birthright citizenship. It’s worth reading the entire dissent.[iii]  Among the many gems in this dissent, he quotes from legal scholars who made it clear that parental lineage was a much bigger factor than soil: [iv]

Before the Revolution, the view of the publicists had been thus put by Vattel:

"The natives, or natural-born citizens, are those born in the country of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this in consequence of what it owes to its own preservation, and it is presumed as matter of course that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children, and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country."

Book I, c.19, § 212.

"The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. . . . The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction."

And to the same effect are the modern writers, as for instance, Bar, who says:

"To what nation a person belongs is by the laws of all nations closely dependent on descent; it is almost an universal rule that the citizenship of the parents determines it -- that of the father where children are lawful, and, where they are bastards, that of their mother, without regard to the place of their birth, and that must necessarily be recognized as the correct canon, since nationality is, in its essence, dependent on descent."

While the activist majority opinion in Wong disagreed with Fuller on automatic birthright citizenship for a child of legally domiciled Chinese immigrant parents, they certainly all agreed that children born to American parents had always been citizens.  In fact, Fuller challenges the majority opinion by noting that according to their legal rationale, it would have worked out that anyone born overseas to American parents from 1868-1898 were not citizens, which was clearly not the case. [v]  Either way, it was certainly the case from 1790 onwards.  And whereas in those days the statute defined the scope of this provision based on the father, our current statutes define it based on the father or mother. [vi] 

It’s bad enough to not understand Ted Cruz is a natural born citizen.  But to hear it from the mouths of people like McCain who believe illegal aliens—who under existing law are to be deported—are citizens is preposterous.  And at its core this belief reveals their principles of statism and feudalism rather than consent and allegiance.

Then again, John McCain is correct: He is not a constitutional scholar.        

horowitz conservative conscience


[i] Erler, Edward J.; Erler, Edward J.; Marini, John; Marini, John; West, Thomas G.; West, Thomas G. (2007-02-23). The Founders on Citizenship and Immigration: Principles and Challenges in America (Claremont Institute Series on Statesmanship and Political Philosophy) (p. 19). Rowman & Littlefield Publishers. Kindle Edition.              

[ii] Thomas Jefferson, Notes on the State of Virginia, in Writings, Query VIII, 211. Emphasis added.

[iii] Wong Kim Ark 169 U.S. 649 (1898) (Fuller, C.J., dissenting) https://supreme.justia.com/cases/federal/us/169/649/case.html beginning at 705      

[iv] Id. at 708-709

[v] Id. at 706 [“If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 8, 1868, when the amendment was declared ratified, were, and are, aliens, unless they have, or shall on attaining majority, become citizens by naturalization in the United States, and no statutory provision to the contrary is of any force or effect.”] at 714 [“On the other hand, it seems to me that the rule partus sequitur patrem has always applied to children of our citizens born abroad, and that the acts of Congress on this subject are clearly declaratory, passed out of abundant caution to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere.”] at 714 [“In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this Government. If not, and if the correct view is that they were aliens but collectively naturalized under the act of Congress which recognized them as natural-born, then those born since the Fourteenth Amendment are not citizens at all,”]

[vi] Beginning in 1934, Congress began recognizing transfer of citizenship through the mother. [Naturalization Act of 1934, Section 1, 48 Stat. 797.]

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