Ted Cruz is a Natural Born Citizen
There is a strange birther argument being passed around, which you can read here. In summary, there are some law professors who claim that Ted Cruz cannot be president because his mother, and not his father, was a US Citizen.
Let us ignore the fact that a JD is not a PhD, and Constitutional Law is not the same as Constitutional Theory. That is an argument for elsewhere, and it reveals more of the media’s inability to find actual experts than anything else.
“Expert” Laurence Tribe claims in an LA Times opinion piece: “But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an ‘originalist,’ one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption… However odious it seems today, a child born of a woman whose citizenship was different from her husband’s—much rarer then than today—could not be a ‘natural born Citizen’ of the mother’s country. That idea wasn’t even considered until 1844 in Victorian England.”
That is straw man argument through and through. Based on the same rational, Tribe could claim that Cruz believes that women have no right to vote, that slavery should still exist, and that US Senators could not be directly elected.
However, Cruz does believe in the Constitution, which includes the Amendments. The Fourteenth Amendment to the United States Constitution, specifically the “equal protection” clause, would establish that matrilineal descent is just as legitimate as patrilineal descent. Although there can be some arguments over the nature of “equal” protection, the property rights of women and the right to inherit have been thoroughly upheld, so a mother’s right to pass on her citizenship is also true.
I have already shown elsewhere (you can read it here, which came out a month ago and also defends Marco Rubio) that the influential Emer de Vattel’s The Law of Nation (an 18th century work that defined legal terms and concepts) is solidly against the birther claims. Vattel points out that countries made very specific allowances for merchants and businessmen to provide descent to their children born elsewhere. He further allows for nations to specifically define, within their law, how to define citizenship and to whom it can descend. This latter point is exactly what the United States has done.
Oddly enough, Mary Brigid McManamon (JD, not PhD), in a Washington Post opinion piece, tries to use the works of William Blackstone to say that Cruz cannot be declared a natural born citizen. Unfortunately, she quotes Blackstone out of context and does not rely on St. George Tucker’s Blackstone’s Commentaries, the definitive American response to Blackstone’s ideas.
Blackstone’s full argument is that all who are born in a nation are under the control (i.e. owned) by a prince and have no right to set aside their citizenship: “It is a principle of universal law, that the natural born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off, or discharge his natural allegiance to the former.”
It is obvious that the Founding Fathers disagreed with Blackstone on the nature of citizenship. Tucker is very clear in his rebuke: “As my researches have led me to adopt a very different, or, rather, opposite conclusion, it will be the business of this note to examine the subject. If it be contended that this is a principle of the divine law, I should wish to be informed in which of the books of the old, or new testament it is to be found. ”
Therefore, there is no way to say this is a Constitutional issue. There is enough allowance for Cruz receiving the rights to citizenship through birth (i.e. naturally born citizen) via a general Constitutional standard, and the Federal law defining natural born citizenship further allows him such. However, lawyers, unlike scholars, are trained to deceive, twist, and to manipulate, and they stretch the boundaries of the law to suit their needs.
You cannot trust publications like Newsweek to get the story right. All they care about is getting as many clicks on their links as possible, which means they give undue attention to the fringe, the dishonest, and the ignorant.
Let’s focus on the real issues.