Patriots of America endorse Donald Trump for President. He transcends all other candidates. But if he wins the GOP nomination, an important question will be his running mate. What if Trump picks Ted Cruz for second spot on the ticket? Conservatives need to get united on this because it’s a distinct possibility. Nominees often choose one of their strongest challengers especially if they come from a state with lots of electoral votes. Cruz is from Texas (38 electoral votes). Trump is from New York (29 electoral votes). Only California has more votes (55) than Texas and New York.
Unfortunately numerous political activists out there are pushing the idea that Cruz is ineligible to be President (which would make him ineligible also to be Vice-President) because he was born in Canada and has only one parent (his mother) who is a natural born citizen. Yes, Cruz was born in Calgary, which is where his parents worked for several years in the oil fields in the early 1970s. But does this make him constitutionally ineligible? Let’s find out.
Natural Born in the Eyes of the Founders
The major point made by the “anti-eligible birthers” regarding Ted Cruz is that the Founders subscribed to the famous Vattel definition of “natural born citizen” from The Law of Nations. It required TWO natural parents in order for an offspring to be “natural born.” So what the anti-eligible birthers are saying is that this was the “original intent” of the Founders, which makes it part of the Constitution.
I certainly agree with the use of “original intent” in interpreting the Constitution. But did the Founders clearly state in wide agreement that they subscribed to Vattel? No, they did not, probably because there wasn’t wide agreement on the question among them. This is the only way to determine “original intent,” to glean from the published opinions of the Founders in such works as The Federalist Papers and their assorted personal writings, papers, and letters throughout their lives.
What the “anti-eligible birthers” are doing, though, is assuming that since Vattel and The Law of Nations were popular at the time, this must have been the Founders intent. But this requires the Supreme Court to agree upon. And until that takes place, the question must be left up to the lower courts in our day to determine the issue.
Moreover, I would think that if there was wide agreement on the “TWO parent Vattel requirement,” the Founders would have written it into the Constitution and not made Article II, Section 1, Clause 5 so short and vague regarding what a “natural born citizen” actually was. This is a pretty important issue that is easy to be specific about if there was wide agreement on it. It requires one sentence to define a natural born citizen. So perhaps the Founders purposely left it vague because they couldn’t agree on the issue themselves.
Thus we are left with what the present legal consensus on the eligibility issue maintains. And, as we will soon see, it maintains that an individual must have ONE natural born citizen as a parent.
Also crucial to this dispute is that most anti-eligibility advocates rely on the case of Minor v. Happersett (1875), which said that Virginia Minor was a citizen because her father and mother were citizens. But, and this is most important, it did not say that the Constitution requires BOTH parents to be natural citizens in order for an offspring to be a citizen.
Chief Justice, Morrison Waite, stated the following in the case: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” He went on to cite common law as his authority only to declare Minor to be a citizen. He did not go further and say definitively what a “natural born citizen” is to be or not to be.
In fact, the Supreme Court has never ruled on the definition of “natural born citizen.” So it is left up to the various lower courts and legal minds of the country to offer opinion on its exact meaning. We have no certainty in other words.
Immigration and Nationality Act of 1952
But Article I, section 8, clause 4 of the United States Constitution gives the United States Congress the power to establish a uniform rule of citizenship. The Immigration and Nationality Act of 1952 sets forth in one of its passages the legal requirements for the acquisition of such citizenship:
“For persons born between December 24, 1952 and November 14, 1986, a person is a U.S. citizen if: 1) the person’s parents were married at the time of birth, 2) one of the person’s parents was a U.S. citizen when the person was born, 3) the citizen parent lived at least ten years in the United States before the child’s birth, and 4) a minimum of 5 of these 10 years in the United States were after the citizen parent’s 14th birthday.” https://en.wikipedia.org/wiki/United_States_nationality_law
After 1986, in sections 3 and 4, the ten years is reduced to five and the minimum of five years is reduced to two. Sections 1 and 2, however, remain the same.
Thus according to the law of the land, all that is necessary for someone to be a “natural born citizen” is for ONE of their parents to be a natural born citizen, which Cruz’s mother is. Does this then make Cruz eligible to be Vice-President under Trump? Yes it does. Chester A. Arthur met opposition on this very issue (U.S. mother and an Irish father), and he was not denied the Vice-Presidency in 1881 (and then the Presidency upon Garfield’s assassination) because of it. This sets a strong precedent.
But is Cruz perhaps ineligible to be Vice-President because he was born in Canada? On this question, the answer is emphatically, “No!” The Naturalization Act of 1790 (passed three years after the Constitution was adopted) is the source for this. It states:
“Children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural-born citizens.” http://www.enotes.com/topics/act-march-26-1790
Since the beginning of our country then, the courts have very rightly determined (in accord with the Naturalization Act of 1790) that any child of a natural born citizen, even though born outside the country, is an American citizen at birth. Cruz’s mother is a natural born citizen, and she and her husband worked in the oil fields during the early 1970s in Calgary. Ted Cruz was, therefore, a dual citizen of America and Canada upon his birth in 1970. He grew up in America from age four on and has renounced his Canadian citizenship. No court in the land will deny him eligibility for the Vice-Presidency or Presidency because he was born across the border in Calgary.
Of course, Trump may not wish to put Cruz on the ticket because he, himself, pressured Obama to prove his eligibility in 2011; and thus he might not want to subject himself to constant media harassment on the issue. But if Trump does choose Cruz as his running mate, conservatives need to have their facts straight regarding the eligibility issue.
The anti-eligibility case against Cruz is a non-starter. It would be quickly dismissed if any legal firm tried to take it to court. It has no constitutional merit under the history of jurisprudence in America.
Nelson Hultberg is a freelance writer in Dallas, Texas and the Director of Americans for a Free Republic www.afr.org. A graduate of Beloit College in Wisconsin, his articles have appeared in such publications as The American Conservative, Insight, Liberty, The Freeman, The Social Critic, The Dallas Morning News, and the San Antonio Express-News, as well as on numerous Internet sites.
He is the author of The Golden Mean: Libertarian Politics, Conservative Values
Email: NelsonHultberg (at) afr.org