Cruz, Obama, and the Eligibility Clause

Remarkably, we never got an authoritative High Court ruling on what the U.S. Constitution’s presidential eligibility clause actually requires as related to Barack Obama.  As such, Ted Cruz has a big “birther” target on his back.

Because Cruz was born to a foreign father on foreign soil, Donald Trump believes that Cruz is ineligible for the presidency.  The Donald and many others believe that a U.S. birth would have solved Cruz’s constitutional problem. Under that view, there is something magical about a U.S. birth even when dual citizenship is coincident.

Of course, if the founders were insistent upon birth in the United States, they could have – and, I argue, would have – inserted “Native born” language instead of or in addition to natural born language.

In 1790, the First U.S. Congress, in its act on naturalization, clarified that children born abroad to U.S. citizen parents are considered “natural born citizens.”  Otherwise, a child born abroad while his U.S. citizen parents are vacationing could not become president of the United States.

The current status of lower court precedent, embraced by the dominant jurists of the day, holds that the real magic is U.S. citizenship at birth regardless of venue and conflicting allegiances.

Retired Harvard Law professor Alan Dershowitz and UCLA Law professor Eugene Volokh express the sentiment of today’s thinking: they believe that Cruz meets the requirements of the eligibility clause because Cruz is “a natural-born, not a naturalized, citizen.”

There have always been only two ways to become a U.S. citizen: either by birth or naturalization.

Most everyone agrees that naturalized U.S. citizens are barred from holding the high office. In fact, the answer to the question Why are naturalized citizens barred? is the key to understanding the purpose of the natural born citizen eligibility clause.

A naturalized citizen once held allegiance to a foreign government.  He was required to renounce all foreign allegiances to become a U.S. citizen.

So naturalized citizens are excluded from the presidency for clear reasons.  Yet a simplistic rule is used to determine natural born eligibility without any consideration of the reasons naturalized citizens are ineligible.

The rule: anyone born with U.S. citizenship is eligible, period.

But we know instinctively that something is wrong with that rule.  Under the current simplified construct, an anchor baby with two foreign citizen parents can become president of the United States so long as age and residency requirements are met.

Something has gone amiss.

Is it the 14th Amendment?  The amendment is being interpreted in an appalling and untenable way, but no, the amendment is not the relevant factor preventing sound analysis.

As presently interpreted, the 14th Amendment confers U.S. citizenship to anyone born in the United States.  But it does not grant or mandate dual citizenship.  As interpreted, the amendment makes natural born citizens of foreigners with foreign parents.

So should our analysis stop here, ignoring what an Article II natural born citizen was when the clause was ratified versus what a natural born citizen may be today?  Not if we want to get to the understanding of natural born citizen for purposes of presidential eligibility.

A recent piece in the Harvard Law Review Forum concludes that Ted Cruz is eligible for the presidency because he was born to one U.S. citizen parent.  Because Cruz did not have to be naturalized, the authors conclude he is eligible as a natural born citizen.  Curiously, the article does not even mention the word allegiance, let alone dual citizenship, dual allegiance, or conflicting allegiance.

The relevant factor preventing sound analysis is the modern phenomenon of allowing dual citizenship at birth and hence dual/conflicting allegiances.

If the reason for barring naturalized U.S. citizens from the presidency were to disqualify those with previous allegiances to foreign sovereignties, wouldn’t that concern reasonably be the matrix of the natural born citizen clause?

If citizenship were conferred at birth only when no conflicting allegiances existed, that would make the factions of U.S. birth vs. born anywhere with U.S. citizenship irrelevant.  Well, that was the context when the natural born eligibility clause was ratified.  The contemporary understanding of birth with dual citizenship, and hence dual allegiances, was unheard of.  The concept of dual citizenship was and should be an oxymoron.

The 1875 Supreme Court case of Minor v. Happersett explains the former understanding of citizenship:

Before its adoption [14th Amendment] the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection [inter alia, from foreign aggression]. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.

The modern allowance of dual citizenship has confused the understanding of natural born citizen as related to presidential eligibility.  This might be the easiest way to remove the confusion: there are Article II natural born citizens.  And there are natural born citizens with dual citizenship.

We are not being faithful to the clause by simply saying, “He was born a U.S. citizen,” if he was also born a Canadian citizen, as in the case of Cruz, or a British citizen, as in the case of Obama.

The presidential eligibility clause is an important safeguard.  The clause also requires that a candidate be at least 35 years old to be eligible.  What’s at issue here?  A person’s maturity immediately comes to mind.  Yet some people under 35 have more maturity than others over 50.  The requirement does not magically make people mature at 35; it’s a safeguard.

When we hear the requirement “natural born citizen,” what should come to mind?  What is the clause safeguarding against?  A technicality over birth venue?  Is it pointlessly discriminating against naturalized citizens?  Or is the real concern of the clause to safeguard against foreign allegiance and influence?  Just as the founders were not safeguarding against the arbitrary number 34, they were safeguarding not against naturalized citizens per se, but rather against the influence and worldview they might bring to high office as a result of having had foreign parentage and allegiance.

The modern concept of birth with dual allegiances raises the very concern the founders were safeguarding against.

To get it right, we must ask what the understanding of an Article II natural born citizen was at the time of its ratification.  To have been born a U.S. citizen at the time of our Constitution’s ratification meant that one was born with sole allegiance to the United States.  So by necessity, an Article II natural born citizen is one born with natural, undivided allegiance to the United States.  That is reasonably the heart of the natural born clause.

Though the previous definition is intellectually honest and an accurate statement, we must acknowledge that, like many constitutional provisions, the natural born citizen clause has been eviscerated with bad precedent – in this case, to accommodate Mr. Obama.

Short of a constitutional amendment, the original purpose of the clause is gone forever.  It’s not right, but something so monumental is not going to revolve without some degree of revolution.  The requirement of undivided natural allegiance at birth for future candidates would undermine the Obama presidency, and not enough government workers in black robes would ever let that happen.

Alas, from this point forward, the clause effectively means that anyone born a U.S. citizen can become president, regardless of prior foreign allegiance.

I suppose some comfort may be taken in the fact that the unimaginable, worst-case scenario has already happened.  What the founders sought to safeguard against has come to pass: a U.S. president with a foreign, anti-traditional American mindset has inflicted immeasurable havoc upon our system and way of life.  At least the odds of it happening again, especially consecutively, are slim.

Monte Kuligowski is a Virginia attorney.