2016 Archives

Memorandum: Is Ted Cruz Eligible for the Presidency?

Excerpt

The following  by SMU Law Professor Bryan A. Garner first appeared in the Jan. 14, 2016, edition of The Atlantic.

January 15, 2016

This is a legal memorandum about a subject in the headlines—whether Senator Ted Cruz is eligible to be president. My wife Karolyne goaded me for the opinion last Sunday, and I wrote it over the course of the day. It’s exactly what I would have written if I’d been retained by a client to research the matter. I’m a law professor, but I’ve also been editor in chief of Black’s Law Dictionary since 1994, roles that have left me with an unusual collection of books. Some are exceedingly difficult to track down—which is probably why nobody else writing about the issue seems to have cited them.

I’m a libertarian Republican—but I'm pretty apolitical. I’ve backed no presidential candidate in the current race. I’ve met Cruz only twice, but we haven’t seen each other or spoken in over two years. He didn’t ask for this opinion, nor have I communicated with him about it.


Questions Presented

1. Foreign-born citizens as “natural-born citizens.” Article II, section 1, of the U.S. Constitution provides: “No Person except a natural born Citizen ... shall be eligible to the Office of President.” Does the phrase natural-born citizen include a citizen born outside the United States to one American parent? How did the Founders understand natural-born citizen?

Short answer: Many legal sources, including my own entry in Black’s Law Dictionary (10th ed. 2014), define natural-born citizen as someone who is “born within the jurisdiction.”1 In this phrasing, the term jurisdiction has historically been understood predominantly in its territorial sense. In constitutional contexts, the phrase natural-born citizen has always been contrasted with either alien or naturalized citizen (a foreigner who becomes a citizen). Blood rights are not considered. The common-law meaning of natural-born subject, which is more relevant than the meaning of any post-1789 statute, encompassed the foreign-born child of a subject, as long as the subject-parent was the father.