The “birthers” have returned this election, though President Obama is no longer the target. Despite much ballyhoo, there was little question that Barack Obama was born in Hawaii. That makes him a “natural-born citizen.” That term is now a growing concern for Republican candidate Ted Cruz. Like many, I had put little faith in the growing debate; the law of blood and/or the law of the land makes the child of a citizen of the United States a citizen as well. Period. The growing issue pertains to the definition of a natural-born citizen. This is worth a judicial review and a declarative opinion in order to establish a precedent.

Hugh Marthinsen, Esq., is a preeminent attorney in Tampa, Florida, and a close friend. We were discussing this very issue at our favorite happy hour location when he told me that he had just completed research on this topic for a client with a direct interest in this matter. Of course that client information is privileged, but Hugh generously allowed me access to his efforts for the readers of SOFREP. He did tell me that he was surprised at the direction to which his legal research points and the conclusion.

The Constitution defines presidential eligibility as a three-part test. Article II, Section I, clause 5 breaks out this test:

  1. Be a “natural-born citizen.”
  2. Be at least 35 years old.
  3. Have resided in the United States for at least 14 years.

The critical issue is the definition of “natural-born” citizen, as Cruz is over 35 years of age and has resided in the U.S. for more than the requisite 14 years. The crux of the analysis boils down to whether the term “natural-born” describes a geographic-temporal condition or a birthright due to parentage. As detailed below, the weight of the authority to determine eligibility seems to favor the geography over parentage.

At the time the United States was founded, our constitutional framers were well versed in the foundations and structure of the Enlightenment Age and the classical constructs on which that age was built. The competing legal precepts from classical times on how to determine the citizenship status of children were “Jus Soli” (citizenship determined by place of birth, literally “right of the soil”) and “Jus Sanguinis” (“right of blood”). The latter implies the citizenship of the child is determined by the parents’ citizenship—particularly the father’s.

Both concepts originated in Greece and were later adopted by the Romans. The Romans favored Jus Sanguinis for much of the early empire, but shifted to the rule of Jus Soli in 212 when Emperor Caracalla issued what has become known as the Edict of Caracalla or the Antoinne Constitution. The Romans carried the Jus Soli mentality to Gaul (modern-day France) and to Britannia (our former rulers from across the pond), where it stood as the rule of citizenship well past the time that our Constitution was written. We could look at Jus Soli as a matter of natural law as opposed to man-made law. A natural-born citizen is one who attains his status and rights by no act or law passed by man, but rather due to the law of nature or place of child birth.

This concept would have been known to the framers of the Constitution and practiced as a matter of law as documented by William Blackstone, famed legal commentator and constitutional case law author of England. At the Constitutional Convention in 1787, the drafting of the Constitution was first given to a small group of men known as the Committee on Detail, and their first draft of presidential eligibility simply included the word “citizen” and 21 years of residency. This was later modified by the phrase “natural-born” by the Committee of Eleven.

The Committee of Eleven did not explain their change, though this is not surprising since most of the delegates were already in agreement on the definition of the term: someone born within the jurisdiction of the United States and not owing allegiance to any other sovereign or government. This premise is bolstered by the legal commentaries that followed the adoption of the Constitution. For example, in 1826, American legal jurist and commentator James Kent in his “Commentaries on American Law” noted: