At Balkinization, Sandy Levinson has this amusing post on the statutory aspects of the matter (with interesting twists and turns in the updates and comments). And Garrett Epps has an interesting piece inThe Atlantic on the English practice of naturalizing potential monarchs, which the framers wanted to avoid:Would the Founders Have Cared Where Ted Cruz Was Born?
I think Ted Cruz is a natural born citizen. But it’s a mystery to me why any one thinks it’s an easy question. Consider:
(1) The argument is that anyone who is born a citizen is a natural born citizen. But that’s a questionable claim on its face, because it ignores the word “natural”. A purely textual reading would demand that there must be some “born citizens” who are not “natural” born citizens, or the word “natural” would be superfluous (violating the “Surplusage Canon,” see Scalia & Garner, Reading Law, pp. 174-75).
(2) The argument is that Senator Cruz is a “natural born citizen” because a statute made him a citizen at birth. The ordinary meaning of “natural” in this context is exactly to the contrary, however. “Natural” means the opposite of “created by statute”: for example, natural law versus statutory law; natural rights versus positive rights; natural person [an individual] versus legal person [a corporation or other entity]. So this view also violates the “Ordinary-Meaning canon” (Scalia & Garner, pp. 69-70).
(3) As to history, it seems fairly clear that the original meaning of “natural born subject” (that is, what it first meant, though not necessarily what it meant in the eighteenth century) in English law was a person born within sovereign territory. And a person in Senator Cruz’s position (born abroad to a citizen mother and a non-citizen father) would not have been born an English subject even under eighteenth-century English statutory law, which gave natural-born-subject status to people born abroad whose fathers were English subjects. (See Henry Henriques, The Law of Aliens and Naturalization, pp. 33-44). Further, continental scholars such as Vattel, who thought a child’s citizenship followed the citizenship of the parents rather than the place of birth, also thought it was the fathers’ citizenship that mattered (Vattel, Law of Nations, book I, sec. 219 (referring to the “law of nature” as establishing this)). Thus there is no supporting historical practice prior to 1789.