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.

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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:

Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of children of ambassadors, who are in theory born with the allegiance of the foreign power they represent.

Later, in 1829, William Rawle (1759-1836), another legal scholar and U.S. attorney for Pennsylvania (1791-1799), published “A View of the Constitution of the United States of America” in which he offered,

The citizens of each state constituted the citizens of the United States when the Constitution was adopted. … [He] who was subsequently born the citizen of a State, became at the moment of his birth a citizen of the United States. Therefore, every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution and entitled to all the rights and privileges appertaining to that capacity. … Under our Constitution the question is settled by its express language and when we are informed that … no person is eligible to the office of President unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.

Although the U.S. Supreme Court has not directly tackled this issue, there are statements from justices that touched on the term “natural-born,” such as in Dred Scott v. Sanford, 60 U.S. 576 (1856). Justice Benjamin R. Curtis, in his dissenting opinion, noted,

The first section of the second article of the Constitution uses the language “a natural-born citizen.” It thus assumes that citizenship may be acquired at birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred to citizenship as to the place of birth.

Further cases and commentaries cite the adoption of the 14th Amendment of the Constitution in 1868, which provides in part, “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” This adoption of the subsequent amendment merely sets out to bestow rights of citizenship to certain “persons,” but it does not in any way alter the term “natural-born citizen” as included in Article II of the Constitution. The 14th Amendment is an “act or law” adopted to provide privileges and rights, but it does not change the “Jus Soli” for interpretation of the requirement for eligibility to run for the presidency.

Perhaps another angle to view this point is to consider citizens born in Puerto Rico, the U.S. Virgin Islands, or any other protectorate of the U.S. No one debates that these places are not states, and the inhabitants born there are not eligible to be president of the United States. Should Puerto Rico be admitted as the 51st state of the union, the children born after that date are natural-born citizens and are eligible to be president when they meet the two remaining requirements noted in Article II. Their parents are citizens by law, may vote and enjoy the privileges thereof, but would not be allowed to seek the presidency.

Natural, by definition, means that a human agency did not have a part in the process, which is something that the enactment of statutes fully requires. Article II restricts citizen eligibility to the office of the presidency. Age 35 (don’t want citizens too young or without life’s experience), residency of 14 years (don’t want candidates with mixed loyalties), and “natural-born.” Isn’t it logical that our Founding Fathers, with a clear understanding of the difference between Jus Sanguinis and Jus Soil, chose the latter, which has been reiterated by the legal scholars of that time?

So here we are, two weeks from Super Bowl 50. Has Ted Cruz, born in Canada, had bestowed upon him the rights of a U.S. citizen? Is he eligible for the presidency of the United States? Based upon the review and authorities cited above, it would appear highly questionable at best and in fact, most likely that the answer is no. While Senator Cruz enjoys the full benefits of U.S. citizenship, that does not make him a natural-born citizen. While there is no “natural-born” requirement to be a U.S. senator, there is an explicit requirement in order to be president of the United States.