And so it begins. I told you this would come back to haunt Senator Ted Cruz. He is not eligible to be the president of the United States, and now that eligibility is being officially challenged in New Jersey.
New Jersey’s secretary of state has scheduled a hearing to make Cruz prove he is eligible to run for president under the Constitution, after a write-in presidential candidate in New Jersey filed a challenge. Washington-area law professor Victor Williams is arguing that Cruz’s Canadian birth makes him ineligible.
Even if we strip away the common law and originalists views and replace it with a living constitutionalist view to apply to Cruz’s case, he still falls short
And you know what? As I see it, Williams is right, and here’s why.
Cruz continues to argue publicly that he’s a citizen of the United States and he’s absolutely correct in that assertion. But here’s the problem: James Madison and his forefather companions did not make just plain old ordinary citizenship the threshold for presidential eligibility. Nope. They established a different threshold, one that Ted Cruz doesn’t seem to meet.
What Madison and gang established as the standard for presidential eligibility is not basic citizenship, it is “natural-born” citizenship. Simple translation: it means you have to be born in the territory of what is or will be the United States. Last time I checked, Canada is neither in the U.S. nor is it about to be annexed.
That was the intent of the term “natural-born citizen,” framers were saying that for every job in the U.S., being a citizen was good enough, but to be president, more was required — a test of hyper loyalty if you will.
In fact, Cruz himself would make the best argument against his own eligibility. That’s right, Cruz believes in originalism — that’s the conservative belief that our constitution should be interpreted not as it applies to our laws and standards today, but rather how ordinary people would have understood it to mean at the time it was ratified in 1788.
Using Cruz’s own measure, most constitutional law scholars – including Cruz’s own Harvard law professor Lawrence Tribe – have concluded that Cruz is simply not eligible, “because the legal principles that prevailed in the 1780s and 90s required that someone actually be born on U.S. soil to be a 'natural-born' citizen.”
In fact, Tribe says that our forefathers would have argued “even having two U.S. parents wouldn’t suffice. And having only an American mother, as Cruz did, would have certainly been insufficient at a time that made patrilineal descent decisive."
So what does the term “natural-born” really mean and why? Well, for starters if all we needed to be president was citizenship, why then doesn’t the constitution say that? Exactly!
Legal scholars like Tribe and Mary Brigid McManamon, a constitutional law professor at Widener University, say that to understand what the men who wrote our constitution meant, you have to understand the legal principals that guided them. And those principals are rooted in English Common Law, which state “unequivocally” that "natural-born subjects had to be born in English territory."
In fact, even if we strip away the common law and originalists views and replace it with a living constitutionalist view to apply to Cruz’s case, he still falls short.
Let’s say because people travel more today, we could argue that Cruz’s parents were on vacation or even on an extended business trip when he was born — OK, but that’s not true. They were there for years and chose to become Canadians. It would also be reasonable to exempt Cruz from the constitutional threshold if his parents were serving as diplomats or in some military capacity (as in the case of John McCain), mandating them to live outside the U.S. Unfortunately for Cruz, that scenario also does not apply.
Ted Cruz is born in Canada in 1970, to two parents who had lived there, of their own choosing, for at least four years. What’s worse, each of his parents applied for and received Canadian citizenship under Canadian Immigration and Naturalization Laws, as described by Cruz’s father Rafael who was, ironically, a natural-born Cuban citizen at the time he became a Canadian.
In 1974, the Cruz family moves to the U.S., but Rafael Cruz remains a Canadian citizen and doesn’t become a U.S. citizen until 2005, at which time he applies for and becomes naturalized. That, in and of itself, does not make his son an automatic citizen and certainly doesn’t make him a "natural-born citizen." (I know this because I too am the son of foreign-born parents who filed for citizenship when I was still a minor).
Here’s the clincher: In 2014 (yes, that’s only two years ago), sensing he had a serious problem, Cruz on the advice of his lawyers, “renounces” his Canadian citizenship so he can run for president. Of course, by doing so Cruz finally confirms what many suspected – that he’s a Canadian citizen – a simple, but crucial revelation. Here’s the point: By renouncing his original citizenship, Cruz has only further proven his original citizenship.
Fact is this: Ted Cruz is a natural born Canadian citizen, not a natural born American citizen. Does that mean he is “fraudulently representing himself as constitutionally qualified for the office of president?"
It’s a question that will be asked again and again in state after state. New Jersey is only the first.