Jan 27th 2016

Ted Cruz is not eligible to run for president: A Harvard Law professor close-reads the Constitution

by Einer Elhauge

Einer Elhauge is the Petrie Professor of Law at Harvard Law School and Founding Director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics.

The argument that Ted Cruz is eligible to run for president initially looked strong, then probable but uncertain.  But closer examination shows it is surprisingly weak.

The constitutional text provides that a president, unlike other elected officials, must be a “natural born citizen.”  This language could not mean anyone born a citizen or else the text would have simply stated “born citizen.”  The word “natural” is a limiting qualifier that indicates only some persons who are born citizens qualify.  Moreover, when the Constitution was enacted, the word “natural” meant something not created by statute, as with natural rights or natural law, which instead were part of the common law.

At common law, “natural born” meant someone born within the sovereign territory with one narrow exception.  The exception was for children of public officials serving abroad, which does not help Cruz because his parents were not serving the United States when he was born in Canada.  The case of John McCain was entirely different because he was born in a U.S. territory (the Panama Canal Zone) and to U.S. parents who were serving the U.S. military.

The argument for Cruz rests on some old statutes, namely English statutes enacted before the U.S. Constitution and U.S. statutes enacted just after.  But neither turns out to be persuasive on closer examination.

The English statutes extended natural-born status to persons born abroad whose father was any English subject, rather than only a public official.  Some argue that the constitutional framers meant to refer to this statutory redefinition of the term “natural born.”  But that position contradicts the ordinary meaning that the word “natural” indicates a non-statutory meaning.  Moreover, Prof. Mary McManamon offers convincing evidence that the Framers meant the common law meaning.  James Madison himself said in 1789 that the U.S. used the place of birth rather than parentage.  In any event, Cruz’s father was not a U.S. citizen when he was born (again unlike McCain), so these English statutes do not help Cruz.

The U.S. statute in 1790 provided that “children of citizens of the United States” that are born abroad “shall be considered as natural born Citizens.”  This has been thought the strongest evidence for Cruz’s position since so many 1790 congressmen had participated in the Constitutional Convention.  However, this statute did not say these children were natural-born citizens.  It instead carefully said they “shall be considered as” natural-born citizens, suggesting that Congress thought they were not natural-born citizens but should be treated as such.  Indeed, there would have been no need to pass the statute if they were already understood to be natural-born citizens.

Further, when this Act was reconsidered in a few years, Madison himself pointed out that Congress only had constitutional authority to naturalize aliens, not U.S. citizens, and reported a bill that amended the statute to eliminate the words “natural born” and simply state that “the children of citizens of the United States” born abroad “shall be considered as citizens.”   This indicates that Madison’s view was that children born abroad of U.S. citizens were naturally aliens, rather than natural born citizens, and thus could be naturalized by Congressional statute but should not be called “natural born.”  Congress adopted this amendment in 1795.

The contrary position also has two difficulties.  It defines a “natural-born citizen” to mean anyone who Congress has defined to be a citizen at birth; that is, anyone born a citizen.  This effectively reads the word “natural” out of “natural born citizen.”  It also means Congress can by statute change the constitutional limit on who can run for president, when the whole point of constitutional limits is typically that Congress cannot change them.

In short, both textualism and originalism cut strongly against Cruz being a natural-born citizen.  Some argue that living theories of constitutional interpretation cut in favor of Cruz, but even living theories start with text and history, and it is not clear why the principle animating the clause would merit a different conclusion in current times.  Presumably modern equal protection norms would bar a sexist rule that said children born abroad with one U.S. parent were natural born only if that parent were a man.  But that is no argument against the interpretation that persons are natural born citizens only if born in a U.S. territory or to a parent serving the U.S. abroad.

The concern at the time was obviously that foreign-born persons might not be as loyal to the U.S.  One might think that concerns about disloyalty are odd for persons who have lived in the U.S. as citizens for a long time, but that oddity was also true at the founding.  Moreover, no one claims the clause means that naturalized citizens (who may have lived in the U.S. since they were small children) are eligible to run for president, even though they had to do far more to prove their loyalty to the U.S. than someone born abroad who happened to have one U.S. citizen parent.

The line between those born in the U.S. versus abroad to U.S. parents certainly seems debatable.  But it is no less sensible than the alternative line between those born abroad to U.S. parents versus those have been naturalized citizens for decades.  This is one of those issues where general principles (even living ones) do not dictate any particular dividing line, and we need some technical fixed rule.  Unfortunately for Ted Cruz, that technical rule does not permit his candidacy.

First posted on Salon.com.


Einer Elhauge is the Petrie Professor of Law at Harvard Law School and Founding Director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics.  He served as Chairman of the Antitrust Advisory Committee to the Obama Campaign.  He teaches a gamut of courses ranging from Antitrust, Contracts, Corporations, Legislation, and Health Care Law.  Before coming to Harvard, he was a Professor of Law at the University of California at Berkeley, and clerked for Judge Norris on the 9th Circuit and Justice Brennan on the Supreme Court.  He received both his A.B. and his J.D. from Harvard, graduating first in his law school class.

He is an author of numerous pieces on range of topics even broader than he teaches, including antitrust, public law, corporate law, patents, the legal profession, and health law policy.  His most recent books include: Obamacare on Trial (2012), available at www.amazon.com; Research Handbook on the Economics of Antitrust Law (Edward Elgar Publishing Ltd. 2013); The Fragmentation of U.S. Health Care: Causes and Solutions (Oxford University Press 2010); Statutory Default Rules (Harvard University Press 2008); U.S. Antitrust Law and Economics(Foundation Press 2011); Global. Antitrust Law and Economics (Foundation Press 2011); and Global Competition Law and Economics (Hart Publishing 2011). He also published the following article entitled, Treating RAND Commitments Neutrally(Feb 2014), available at http://ssrn.com/abstract=2398579.

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