So as of today, Ted Cruz is officially in the race for the Republican nomination for President of the United States. A year ago, I posted the following collaborative article written by Patrick Colliano and myself, which took an exhaustive look at the best and most common arguments put forth by the so-called “birthers” claiming Ted Cruz is ineligible to serve as president. While it continues to attract views and comments, there is one absolutely clear conclusion: ALL of the prevailing legal opinion and case law establishes Cruz to be a Natural Born Citizen within the meaning of Article II of the Constitution, and there is absolutely no support in case law for the “birther” view of the meaning of this term.
As I have said on a number of occasions, I can easily sympathize with many of the arguments put forth about what the citizenship qualification to serve as president SHOULD be, but one simply cannot credibly argue about what it IS. Reasonable people can debate over how to better-clarify the meaning of the term Natural Born Citizen, but at this point, it’s simply not reasonable to argue it has a legal meaning which is clearly NOT supported by precedent and case law. Ted Cruz IS completely legally eligible to run for and serve as president.
The Top Ten “Birther” arguments against Ted Cruz, and why they are completely wrong
by Patrick Colliano and Gregory Conterio
(Christopher Cook, ed.)
Are you confused about the claim that Ted Cruz is not a natural-born citizen, with all its attendant disinformation? Well, here is your answer.
We have gathered together the top arguments of those who challenge Senator Cruz’s eligibility to serve as president, along with exhaustive research and links to original sources, and condensed it all into one, bite-sized yet authoritative piece. We have done all the work for you, assembling a definitive reference you can use any time you hear someone say that Ted Cruz is ineligible to run for and serve as president.
So without any further ado, here are the Top Ten Birther*Arguments against Ted Cruz’s eligibility, and the reasons they are completely wrong.
Argument 1 – “Natural-born citizen” (NBC) and “Citizen at birth” (CaB) have completely different meanings.
Answer – No, they do not. They are synonymous. If you think the idea they aren’t synonymous is silly, you may not need to go on, because unless it is true, the entire debate is over. You would also be in agreement with the Congressional Research Service, which published a paper in 2011 reaching the same conclusion. Trying to argue that they do not mean the same thing is akin to claiming the terms dog and domestic canine mean completely different things. The burden of proof rests with the Eligibility Challengers. I have never heard or read anyone provide any proof whatsoever for the contention these terms have different meanings. There is no case law, and nothing else in the U.S. code or the Constitution itself, lending support to the idea that the two terms have separate meanings. Claims to the contrary are dealt with serially throughout this primer.
Argument 2 – Cruz isn’t qualified because he’s not a natural-born citizen; let him stay in the Senate where he’s doing some good.
Answer – If Cruz isn’t qualified to serve as president, he isn’t qualified to serve in the Senate either, because he is not a citizen at all. There are only two types of citizenship: natural-born, and naturalized. If Cruz is not a NBC, he is not a citizen at all, because he has never been naturalized. I have heard and read many arguments put forth by Eligibility Challengers to the effect that while Cruz is not natural-born, he is still a citizen. The impossibility of this claim is supported by case law.
Argument 3 – A NBC is someone born on U.S. soil, whose parents are BOTH citizens.
Answer – This is false. The term NBC comes to us from English Common Law. This fact is confirmed and supported by judicial precedent. And at the time of the founders, the legal definition of NBC was more sophisticated and complex. It included children born on English soil, as well as children born on foreign soil, whose fathers were English subjects. This was in fact the standard for establishing citizenship at birth for most of the world at the time. The only distinction between then and now is that women are now considered legally equal to men, so that citizenship status may flow from either parent, not just the father. That is unless you want to try to make the argument citizenship status should ONLY flow from the father to the child, and the mother’s status doesn’t count. Good luck making that argument.
Argument 4 – The Framers used the definition of NBC established by Emer de Vattel in his book The Law of Nations, which requires native birth, and TWO citizen parents.
Answer – First, as noted above, the term NBC comes from English Common Law, not from Vattel, who did not use that term in writing his book. Second, there is no evidence the Framers gave Vattel’s work any special weight or influence when writing the Constitution. Vattel was a committed monarchist, and many of his views were antithetical to the Framers. Finally, Vattel did NOT use the two-parent citizens standard in his recognition of what he called “indigènes.”
Argument 5 – The Supreme Court case “The Venus” establishes a legal precedent defining the meaning of NBC
Answer – No, it does not. There is no such language in the opinion written in this case. Eligibility Challengers point to a quotation of Vattel’s The Law of Nations that is contained in the ruling, and claim it creates legal precedent establishing a definition of NBC. The trouble is the Venus was not a unanimous decision by the court. The passage quoted comes from the dissenting opinion of Chief Justice John Marshall. Dissenting opinions do not carry any legal authority or precedent. And as has already been established earlier, Vattel is not regarded as either the source of the meaning of NBC, or even particularly influential upon the Framers.
Argument 6 – The Supreme Court case Shanks vs. DuPont establishes a legal precedent defining the meaning of NBC
Answer – No, it does not. There is no such language in the opinion. The case is somewhat complicated, and concerns the question of when a woman by the name of Ann Shanks actually lost her citizenship status in order to determine the disposition of her estate after her death, not whether or not she was a citizen. The particulars took place during a unique time in history, that being the War for Independence with Great Britain, and Shanks’ citizenship status was controlled by a combination of factors, including her father’s choice to support the Colonials as opposed to the British, her age at the time of his death, and the particulars of the Treaty of Paris, which established the terms to end the war. The only precedent concerning citizenship established by this case is that one cannot gain or lose citizenship through marriage, even if that marriage is to an alien of a belligerent nation.
Argument 7 – The Supreme Court case Dred Scott vs. Sanford establishes a legal precedent defining the meaning of NBC
Answer – No, it does not. There is no such language in the opinion. As with The Venus, eligibility challengers are relying again on a quote taken from Vattel incorporated in one of the opinions written in the decision, but once again it is not the majority opinion of the court, but a separate opinion written by Justice Peter Vivian Daniel, and as with The Venus, it carries no legal weight or influence. AND as has been established elsewhere, Vattel was still not the source of authority for the meaning of NBC. (Apparently, however, he was quite influential on Supreme Court Justices writing minority opinions!)
Argument 8 – The Supreme Court decision Minor vs. Happersett establishes a legal precedent defining the meaning of NCB
Answer – No, it does not. There is no such language in the opinion. You can find a detailed analysis of the case here. I find the fact eligibility challengers ever refer to this case to be really ironic. Minor was a suffrage-era case in which a woman, Virginia Minor, argued that being a citizen by birth, she could not be denied the right to vote. The Supreme Court agreed that she was a citizen by birth (obviously), but that did not give her any such right—indeed, that the Constitution did not guarantee anyone such a right. The irony is the precedents this decision does establish actually defeat many of their own arguments. These include the Court’s finding that Congress could define the meaning of NBC, and that there were only two types of citizen, NBC and naturalized.
Argument 9 – The Supreme Court case United States vs. Wong Kim Ark has nothing to do with the question of NBC, because Wong Kim Ark’s citizenship “came from the 14th Amendment.”
Answer – This case is something of an “inconvenient truth” for eligibility challengers—first, because it is one of the most important court cases in U.S. history dealing with citizenship, and second, because rather than supporting their argument, it undermines it. It is truly shocking to see how many eligibility challengers don’t bother to read the cases they cite, as you will sometimes hear them claim that this case somehow proves their contentions about the definition of NBC. Quite the reverse is true. Wong Kim Ark clearly establishes English Common Law as the source of the Framers’ understanding of NBC, and that anyone born on U.S. soil, regardless of their parentage, obtains their citizenship at birth. By the way, this precedent also covers Sen. Marco Rubio, who some eligibility challengers also like to claim is not a NBC because his parents were not citizens at the time of his birth. Rubio was born in the United States, and so is a NBC.
Argument 10 – The Supreme Court case Perkins vs. Elg establishes a legal precedent to the effect that NBC requires TWO citizen parents
Answer – No, it does not. There again is no such language in the opinion. The typical claim is that the opinion says the only reason Perkins was a CaB is that her parents were both naturalized citizens, and this means you must have TWO citizen-parents in order to be a CaB. The opinion says nothing of the sort, and in fact actually makes clear the fact that her status as a citizen is established by her birth on U.S. soil alone.
It actually all boils down to just one argument…
The first thing one must understand is the entire eligibility-challenger argument as it pertains to Ted Cruz is based on two assertions:
- The terms natural-born citizen (NBC) as used in Section 1, Article II of the Constitution, and citizen at birth (CaB) are NOT synonymous, and mean entirely different things.
- The term natural-born citizen had a single, clear, and universally understood meaning among the Framers of the Constitution when employed in the writing of Article II, and that meaning trumps all code law.
Briefly, these two assumptions are vital to ALL arguments made by eligibility challengers, because, as noted earlier, NBC and CaB are synonymous terms, and the definition of CaB is contained in Title 8, Subsection 1401 of the U.S. Code. By claiming the two terms are not synonymous, they believe they can dispense with the definition contained in 1401 altogether. This is vital to their arguments, because under 1401, Cruz is clearly qualified to serve as president. This is not some dodge or loophole as eligibility challengers may imply, this law is many decades old, and predates Cruz’s birth. Subsection 1401 has been the controlling legal authority on the definition of who is a natural-born citizen, a.k.a. citizen at birth, since its codification, and in fact is supported by Supreme Court precedent as well as all our history. Vattel, Wong Kim Ark, Shanks and all the rest is just window dressing.
In conclusion, not a single argument put forth by the eligibility challengers holds up. Each is either a misinterpretation at best or an outright falsehood at worst. Arguing over this issue has become a waste of time much better spent on other things. Unfortunately, there are a few folks who continue to cling to this view, and equally unfortunate is the often venomous attitude they display toward anyone who disagrees with them. Most of the arguments you may encounter will consist of one or more of the claims we have covered above. And most of the time, they will count on you not bothering to actually try to research or verify what they claim a particular court case says. Consider this your “Cliff Notes” on all their arguments—a concise, documented reference to all that is wrong about their claims.
*Birther – Although this term is proudly worn by some, it is often used as a demeaning pejorative, which is not our intent. Unfortunately, it is also the only widely recognized term for those who argue against the eligibility of Cruz, Obama, Rubio and others, based on their misunderstanding (or to be fair, their misrepresentation in some cases) of U.S. law. To avoid the appearance casual insult, we have substituted the term Eligibility Challengers throughout most of this work.
Additional research and documentation can be found here:
Primer on the Eligibility of Ted Cruz for President in 2016: Part 1 – Did Vattel’s The Law of Nations provide the Framers’ definition of Natural Born Citizen? by Patrick Colliano
Primer on the Eligibility of Ted Cruz for President in 2016: Part 2 – An Analysis of Minor vs. Happersett, by Patrick Colliano
Primer on the Eligibility of Ted Cruz for President in 2016: Part 3 – Analysis of The Venus, Wong Kim Ark, Shanks vs. DuPont and other SCOTUS precedents dealing with Citizenship, by Patrick Colliano
About the authors – A very common accusation hurled at anyone skeptical of “Birther” theories is that they are motivated by simple political partisanship, so it is worth noting that Mr. Colliano and Mr. Conterio occupy opposite ends of the political spectrum on most issues.
Mr. Colliano is comfortable being described as generally liberal. No supporter of Ted Cruz, he says ” Even as I was writing my essays, the news was reporting his one-man filibuster of the Affordable Care Act. I had to ask myself again why I was bothering to spend my time and creativity defending this guy. The answer, of course, is that it’s right. If Cruz wins the next Presidential election, especially by a narrow margin, I could end up kicking myself for it. But Ted Cruz, like all candidates for public office, deserves to be judged upon his merits, not rejected on the basis of some ridiculous misconception that he is not eligible.”
Mr. Conterio is unabashedly conservative in his views, as regular readers of WFP will undoubtedly know. He says “I was actually beguiled by the early reports and arguments that Obama may not be a natural-born citizen, but was quickly disabused of the idea after spending an afternoon verifying Obama’s parentage, and going straight to the U.S. Code to see what it says about being a natural-born citizen. I knew at that point it was foolishness. Today, I probably have just as many conservatives who don’t like me as liberals, due to my persistent habit of debunking their claims about Obama, Cruz, or Rubio. It is way past time we move beyond the “birther phenomenon.”