Senator Cruz’s “Birther” Issue: Can He be President? Ask Blackstone.

Alexis de Tocqueville noted, in his Democracy in America (1835), that: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” So, we have been consistent in our national character for nearly two centuries when we consider the eligibility of Senator Ted Cruz for the office of President under Constitutional principles, regarding this political question as one properly left for the judiciary. What follows is an attempt at an even-handed consideration.

Starting with the Constitution.

This is what our Constitution says:

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five years, and been fourteen Years a Resident within the United States.”

It is widely understood that the above language pertaining to “at the time of the Adoption of this Constitution” was to address Alexander Hamilton’s problem: he was born in the West Indies – hence, not “natural born” – but was a Citizen at the time of the Adoption.

Our analysis turns on this language alone: “No Person except a natural born Citizen … shall be eligible to the Office of President.” None of the other requirements, such as age or years resident in the United States are relevant.

The Constitution does not define “natural born Citizen.”

Subsequent Statutory Enactments.

The Naturalization Act of 1790 held: “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens.” This does not end the inquiry, however, since a statute saying that children of citizens will be considered as “natural-born” suggests that, absent the statute, they would not be so considered. Certainly, a statute calling children of citizens “natural born” cannot retroactively alter the meaning of earlier Constitutional usage. It is reminiscent of a riddle attributed to Abraham Lincoln:

“How many legs does a dog have if you call the tail a leg?
Four. Calling a tail a leg doesn’t make it a leg.”

One could argue that calling the children of citizens “natural-born” does not make them so, it just means that they will, under the 1790 Act, be treated as though they were so. Of course, no statute can amend the Constitution and tell us what the Drafters were thinking two years before during the debate – which is silent on the meaning of “natural born.”

The authority of the 1790 Act is certainly not enhanced by its later handling.

The original United States Naturalization Law of March 26, 1790 (1 Stat. 103) limited naturalization to immigrants who were free white persons of good character. It excluded, among others, American Indians, Asians, indentured servants, slaves, and free blacks. It provided for citizenship for children of U.S. citizens born abroad, specifying that this right of citizenship did not “descend to persons whose fathers have never been resident in the United States.” The 1790 law says that children of American citizens born abroad “shall be considered as natural born citizens,” the only such U.S. statute to use this language. The 1790 Law was superseded by the Naturalization Act of 1795, extended by the Naturalization Act of 1798, and ultimately repealed by the Naturalization Law of 1802. Using the “Hitler loved dogs” argument as an argument against dogs, I suppose you could say that if you like the language in the 1790 Law, you are choosing language you like from a fundamentally racist document, subsequently repealed for unknown reasons. This is hard to make into compelling authority in 2016 as to what the Constitution was intended to mean. And, again, on an elementary level, its mandate to consider children born abroad to American citizens as natural-born may simply show that without such a law, such children would not be considered natural-born. Put another way, this is a naturalization statute, making citizens out of those not natural-born.


The Common Law as Known to our Founders: Blackstone’s Commentaries.

In the tradition of the Common Law, absent positive statutory enactments, the “law” is derived from the slow accretion of judicial decisions and precedent over the centuries. To this day, we hold that statutes in derogation of the Common Law are to be narrowly construed. The Constitution specifically incorporates the Common Law adverting to it in the Seventh Amendment right to jury trial:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

So, then, since the Constitution adopts the Common Law, what does the Common Law tradition say about “natural born” citizens?

A summary of early English common law is provided by Sir William Blackstone, whose Commentaries on the Laws of England (1765-1769) were certainly known to our Founders. In David Barton’s Original Intent: The Courts, Constitution & Religion (2011), he notes that Blackstone’s influence in America was so great that Edmund Burke noted it popularity in his famous 1775 speech in Parliament on conciliation with the colonies, and he cited the colonists’ study of law as a source of the conflict with Britain:

“In no country perhaps in the world is the law so general a study… The greater number of the deputies sent to the Congress were lawyers. But all who read (and most do read) endeavor to obtain some smattering in that science. I have been told by an eminent bookseller that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England… This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defense, full of resources. In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance; and snuff the approach of tyranny in every tainted breeze.” [Emphasis added.]

John Adams and Thomas Jefferson each owned multiple editions of Blackstone: Adams’ annotated copies of the 1771 Bell edition and a 1768 Oxford edition are at the Boston Public Library. Jefferson’s signed, incomplete copy of the 1771 Bell edition is at the University of Virginia; the Library of Congress has two other Jefferson copies, a later American edition and an earlier Oxford edition. In his correspondence, Jefferson frequently recommended the work, calling it “the most elegant & best digested of our law catalogue.”

James Madison mentioned in a 1773 letter that he was reading the work and commented: “I am most pleased with & find but little of that disagreeable dryness I was taught to expect.” Madison included Blackstone in his 1783 list of “books proper for the use of Congress.” When he hear about young Abraham Lincoln studying the law, it was Blackstone’s Commentaries that he was reading. John J. Duff, A. Lincoln: Prairie Lawyer 243 (1960).

So, I am going to conclude that the popular, best-selling Blackstone’s summary of the Common Law will figure very, very prominently in any determination of “original intent” by our Constitution’s Authors. Put another way, the Common Law as described by Blackstone in his Commentaries is likely to be the Common Law understanding of our Founders. What did Blackstone say about “natural born?”

Blackstone on “natural-born subjects.”
In his Commentaries on the Laws of England, Book the First Chapter the Tenth: Of People, Whether Aliens, Denizens or Natives, Blackstone summarizes the Common Law:

THE firft and moft obvious divifion of the people is into aliens and natural-born fubjects. Natural-born fubjects are fuch as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, fuch as are born out of it.

This is the principle of jus soli or ‘right of the soil’: the right of anyone born in the territory of a state to nationality or citizenship and their allegiance to the king. Blackstone then goes on to describes how various statutes, positive enactments by Parliament, extended the rights of the children of subjects born abroad. These are the statutory changes to the Common Law which, like our own American statutes, sought to alter the operation of the Common Law. Reading Blackstone’s Commentaries, it is clear what the Common Law principles are and how Parliament from time to time altered them:

For it is a principle of univerfal law, that the natural-born fubject of one prince cannot by any act of his own, no, not by fwearing allegiance to another, put off or difcharge his natural allegiance to the former: for this natural allegiance was intrinfic, and primitive, and antecedent to the other; and cannot be devefted without the concurrent act of that prince to whom it was firft due.

But by feveral more modern ftatutes thefe reftrictions are ftill farther taken off: fo that all children, born out of the king’s ligeance, whofe fathers were natural-born fubjects, are now natural-born fubjects themfelves, to all intents and purpofes, without any exception; unlefs their faid fathers were attainted, or banifhed beyond fea, for high treafon; or were then in the fervice of a prince at enmity with Great Britain.

THE children of aliens, born here in England, are, generally fpeaking, natural-born fubjects, and entitled to all the privileges….

THESE are the principal diftinctions between aliens, denizens, and natives: diftinctions, which endeavors have been frequently unfed fince the commencement of this century to lay almoft totally afide, by one general naturalization-act for all foreign proteftants. An attempt which was once carried into execution by the ftatute 7 Ann. c. 5. but this, after three years experience of it, was repealed by the ftatute 10 Ann. c. 5. except one claufe, which was juft now mentioned, for naturalizing the children of Englifh parents born abroad. However, every foreign feaman who in time of war ferves two years on board an Englifh fhip is ipfo facto naturalized; and all foreign proteftants, and Jews, upon their refiding feven years in any of the American colonies, without being abfent above two months at a time, are upon taking the oaths naturalized to all intents and purpofes, as if they had been born in this kingdom; and therefore are admiffible to all fuch privileges, and no other, as proteftants or Jews born in this kingdom are entitled to.

The Common Law governing who is a “natural-born” citizen, then, arises from medieval principles of jus soli, citizenship arising from being born on the soil of the King’s domain and an indissoluable allegiance arising themfrom. The very word allegiance and liege refer to feudal duties of vassal and lord, the vassal receiving land and protection in exchange for service due to his lord. It has everything to do with the notion of being bound to the land, just as serfs were agricultural workers bound to the soil. Statutes, preserving inheritance rights in children born overseas to natural-born citizens, permitted children born on foreign soil to be “naturalized” to avoid legal disputes over titles. These statutes, however, are creatures of Parliament, not judge-made Common Law.

It is almost certain that the newly independent United States which expressly adverted to and adopted the Common Law, did not intend to also adopt the positive statutory enactments of the very Parliament from whose governance it had just removed itself by revolutionary means. The young America was not loath to go its own way. In the matter of entails, governing inheritance of property over a number of generations, for instance, the traditional rules that made fixtures attach to the land for inheritance were relaxed, allowing property (such as slaves) to be separated and sold separately from the land. This had the harsh consequence of worsening the conditions of African slaves in post-Revolution America, since families were now broken up whereas before the slaves and their descendants had been fixtures attached to the land and were sold together. The “liberalizing” of the law of entails had odious implications for slaves.

This leaves us with a Common Law, stripped from the enactments of Parliament, strongly suggesting that “natural-born” refers to the jus soli principles of citizenship arising from birth on the soil of the country. All adjustments to that principle would be various species of “naturalized” citizenry – the children of natural-born citizens treated as though they were natural-born, but not actually natural-born.

Previous Encounters with this Question Leave it Unresolved.

One of the ironies of our analysis so far is that we have adopted the analytic framework that Senator Cruz has, himself, championed: that of “originalism” or “original intent.” This irony has been noted by Harvard Law School Professor of Constitutional Law, Laurence Tribe, currently the leading scholar who has raised questions concerning the Senator’s eligibility. Professor Tribe was a popular and respected professor when I was at Harvard in the late seventies and was, himself, in years past, placed on the short-list for appointment to the Supreme Court – although the vagaries of politics and the predeliction for ever younger justices allowed this superb scholar to be passed by. He is one of the best-qualified “liberal” appointments never made and that, in my view, was a loss to the Court. Despite the fact that Senator Cruz was his former student and is unlikely to have the endorsement of Professor Tribe, I have no reason to question Professor Tribes assessment that this is an “unsettled” area of law or that the “original intent” analysis would not likely support the Senator’s eligibility of the Office of President.

I have suggested that the Founders would likely have intended to use “natural-born” citizen in its Common Law usage and, further, that we are quite certain what texts they possessed and esteemed and to which they would have turned to clarify this meaning had the question been asked: Sir William Blackstone’s Commentaries on the Laws of England, published the decade before the Revolution. Professor Mary Brigid McManamon of the University of Delaware very recently published a column in the Washington Post suggesting that the Founders would have referred to the Common Law, not “three radical 18th-century British statutes” noting that “[t]he then-new statutes were a revolutionary departure from that [common] law.”


Professor McManamon makes the clear distinction, as I have here, between the Common Law (judge-made law), to which our Founders would have referred, and Parliamentary enactments, which, independence being what it is, they likely would have rejected. Not all “old” law is alike. Reference to statutes can simply reinforce the understanding that the legislative body in question was seeking to change the Common Law. Our Constitution specifically authorizes Congress in Art. I, Sec. 8[4] “To establish an uniform Rule of Naturalization,” but these subsequent statutes, albeit American, would also have been in derogation of the Common Law. So, we are left with Blackstone and his Commentaries linking natural-born citizenship to birth on the soil of the nation.

I conclude that Senator Cruz has a “principle”-problem. If you subscribe to Constitutonal construction using principles of “original intent,” then our Founders in 1788 probably meant “natural-born” subject or citizen to mean born on the land controlled by the United States. Efforts to suggest that we have dealt with this issue before are largely efforts at misdirection, in the spirit of: “If you have the law, pound on the law; if you have the facts, pound on the facts; if you have neither, pound on the table.”

Republican nominee in 1964, Senator Barry Goldwater, was born in Arizona when it was a U.S. territory, still land controlled by the United States. Likewise, 2008 Republican nominee, Senator John McCain, was born in the Panama Canal Zone, a U.S. territory. 2012 Republican nominee, Governor Mitt Romney, was born in Michigan; President Barack Obama, was born in Hawaii in 1961, two years after its admission to statehood. None of these examples are apposite to Senator Cruz’s situation.

There is one example, however, which is on all fours: Mitt Romney’s father, Governor George Romney, was born in Mexico, and, by the time he dropped out of the 1968 race, serious questions about his eligibility had been raised in the press. The candidate was questioned about this on the program “Face the Nation” in 1966 when he was considering a run. At that time, Governor George Romney said: “I was born an American citizen because both my parents were American citizens.” In 1967, House Judiciary Committee Chairman Rep. Emanuel Celler said he had “serious doubts” about whether Romney was eligible for the Presidency. Romney didn’t get far enough in the race for the legality to be tested.

At that time, some legal scholars argued, as some will today, that he was eligible under the Nationalization Act of 1790. But such a statute, in derogation of Common Law, later repealed, cannot govern the original intent of the Founders when they were writing the Constitution two years before. Such original intent, I have concluded, would likely have been governed by the Common Law as embodied in Blackstone’s Commentaries defining natural born as born on land controlled by the United States.

Those impatient for resolution of this issue may need to reconcile themselves with the prospect of a court challenge with ultimate resolution of the issue by the United States Supreme Court. At that time, strict constructionists will be put to the test of principle versus political expediency, as the most “conservative” justices may be most troubled by the “original intent” of the Founders. In the meantime, we may see some spirited law school moot court debates on the subject – with the outcome being uncertain.

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