I ended Part II quoting the 1790 Act that defined "natural born citizen" in a way that includes those born abroad of American parents (well, father), and pointed out how unlikely it is that the Framers meant something different in the Constitution.
However, for the satisfaction of those insistent on common law, there remains a real question: was there a settled common law treatment for persons born outside the US of an American parent and an alien parent? As best I can find, there was a settled treatment of such mixed persons, but it was not by reason of common law as such, but by reason of statutory law from very early on. Remember, there were people coming into the colonies every day by ship (and by other means, from the north and south and west), and they didn’t have to register or apply for legal status to be here. But being a subject of the king was handled by a much older law than the colonies.
As Blackstone explains:
THE first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such 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, such as are born out of it. …. WHEN I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration,23 for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s ambassadors born abroad were always held to be natural subjects:24 for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium [a restoration of rights upon return to one’s country]) to be born under the king of England’s allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. St. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it has been so adjudged in behalf of merchants.25 But by several more modern statutes26 these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain. … NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king’s ligeance;
Of course because England was a monarchy and all its people were subjects of the sovereign, they did not speak of ‘natural born citizens’ but of ‘natural born subjects.’ And the principles laid out by which, from early days, the king and government recognized persons to be his existing even subjects born off English soil to be within his ‘ligeance’ and ‘natural born subjects’ are much as I suggested above. The kicker here, though, is that even the authority of Blackstone agrees that the MAKING of a person into a subject / citizen, after birth, is putatively a use of the power of the legislature to TREAT him as if he satisfied the criteria that a person ‘born into’ the state would have ‘naturally’. That’s what it means to be naturalized(tm). And if a person doesn’t have to go through ‘naturalization’ and be granted his citizenship by legislative grant, because he naturally has the condition ‘from birth’, he is a ‘natural born citizen’ as the concept is intended.
[I note for the sake of completeness that even so firm an authority as Blackstone can be a bit goofy: in saying “The common law indeed stood absolutely so; with only a very few exceptions”, he muddles the meaning of “absolutely”, and his example (diplomats) muddles the meaning of “common law”. For if an English diplomat’s child is born in France, within the English embassy, such embassy is considered to be part of England – not by nature but by a legal pretense granted by the French government. I will also point out that the “general principle ‘every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once’”ought to have had, and indeed must have had, limits. I have made this point before: someone who is merely traveling through a land must obey (i.e. ‘owes obedience to’) the laws of the land through which he is passing, but by the very nature of things he cannot give his whole allegiance to the sovereign of that land. (And no prince has ever demanded that travelers give their full allegiance to him during their travel through). Hence he must not disobey those long-term laws of his homeland that control him with respect to actions and characteristics defined over months and years and decades, even if they would conflict with the local law in his short trip. As an example, US law taxes US citizens on their world-wide income, including income earned during a brief tourist stop in France, and a US citizen does not fail to fall under that US law during the French interlude merely because of being outside of the US in a place that defines “income” differently – he cannot define his US income differently while in France. Therefore, in principle, a child born to parents merely passing through a foreign land as transitory visitors cannot REALLY and NATURALLY be a full-fledged citizen of the land in which he is born no matter what custom might seem to say about the matter. Custom is not particular enough for the case. If you think it seems to say that such a child born as a preemie in America during his French mother’s 2-week vacation in her 7th month of gestation is in the natural order of things an American citizen and naturally owes allegiance to America and remains subject to American laws e.g. on registration for the draft, then that is proof positive that you have misunderstood what that customary law really is, for such a stance defies all reason and common sense as well as practice. ]
The American Founders were well aware of the British standards that controlled the meaning of ‘natural born subjects’ and how that rule was applied to those in the colonies, because it must have been a constant matter before the authorities (whether this man or woman had, or had not, the requisites to be a subject). They borrowed effectively the exact same concept of ‘natural born subject’ to clarify the matter in the Act of 1790. It is inconceivable that they meant by the expression SOMETHING ELSE in 1787 when they wrote the Constitution and in 1788 and 1789 when they led the states to approve it. Also, by making it a matter of law in 1790, and then defining to be “natural born citizen” just what England had said about the matter, if they thought that this heretofore had been determined by ‘common law’ rather than statutory law, it is inconceivable that they intended that the law so stated was anything other than declaratory law. Blackstone again:
Statutes are also either declaratory of the common law, or remedial of some defects therein. Declaratory, …, and for avoiding all doubts and difficulties, to declare what the common law is and ever has been.
So this is Mistake 5: I find it bothersome that a law professor would fail to mention how declaratory law restates customary law, and that there was an explicit law in the US that defined “natural born citizen” only 1 year after the Constitution became ratified, as (at a minimum) declaratory law. And that no later law ever explicitly redefined the term so as to reverse that particular category of ‘natural born citizens’ statutorily: No statute ever said “a person born abroad of a parent who is a an American citizen is NOT a natural born citizen.”
Mistake 6: I find it not only unpersuasive, but akin to intellectual dishonesty, for a law professor to harp on ‘common law’ in this situation saying that we must use the common law meaning “natural born means being born in the territory,” when the laws of England from which the colonies had been ruled had STATUTORY law controlling just this very matter for 400 years, a period that well exceeds even the Catholic Church’s definitions for ‘immemorial custom’. A reminder from Blackstone, again, adding “remedial” after the “declaratory” law:
Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever.
If custom had been silent about the special case of birth outside the country to subject parents, statute was not, from the 1300s on. There can be no plausible argument that we must resort to the common law meaning of ‘natural born citizen’ as “only those born within the territory” when the English government had not done so for 400 years. If Madison said (and I have not seen an actual quote) that the meaning of the phrase in the Constitution was that meaning ‘under common law’ (and meant it strictly speaking), then he was perhaps mistaken, possibly deceived by the extreme age of the statute into thinking that the law was that of custom.
Mistake #7: Amar appears (to me) to put the cart before the horse in citing the 14th Amendment as the reason Cruz is a born citizen:
The Constitution says, in the 14th Amendment, that anyone born in the United States and subject to our laws is a U.S. citizen.
Why? Well, because then you have the question “what does ‘subject to our laws’ mean” for this purpose. Hmmm? Well, a person who is a citizen is subject to our laws….. Hey, he does come close to stating what the amendment actually says.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.And if you think about it, if everyone born here is a citizen, then everyone born here is subject to our laws generally speaking anyway, aren’t they? The only exceptions being those born to foreigners (like foreign diplomats) who are naturally subject to other laws (and thus subjects OF another country). The category “subject to our laws” is somewhat vague, because EVERYBODY who is here is subject to our laws to some extent (even foreigners, even diplomat foreigners on some matters). So if you make a Venn diagram, “subject to our laws” would seem to be equal to or larger than “born or naturalized”, and include the latter completely. But more significantly, I don’t think that this provision can be taken to be definitional of the word “citizen” because of the context of the amendment, and because it is seemingly circular if it’s a definition. It is, rather, a way of blocking an abuse: it blocks a state constructing any sort of second-class ‘citizenship’ status that is only sort of ‘citizen’. This prevents a state from redefining away freedom for blacks: there is to be no such thing as “citizen for X purpose and not-citizen for Y purpose.” But the expression is not intended to generate THE underlying meaning of “citizen” for all purposes - we already had that meaning.
8th Mistake: trying to make an issue of “considered as” instead of “is”, as in “shall be considered as a natural born citizen”. If the question is “how do we change a foreigner so that he is ‘treated as if he were by nature a citizen’ ”, the answer is “naturalization”. But if the question is rather “who is by nature a citizen”, using “considered as” is not intended to convey a pretense of status but a RECOGNITION OF status: “all persons in the following categories (a) through (h) are considered citizens from birth.” Now, maybe the expression “considered as” in the given case is actually intended in the former sense of something like a legal pretense or legal fiction, but you have to make that case, not just assume it. And since the language in 8 USC 1401 says all 8 categories “are” citizens, not “considered”, you’ll have your work cut out for you.
9th Mistake: That with Congress the matter cannot be determined by statutory law, because the Constitution only gives Congress power over “naturalization”, that’s all. Perhaps this is just a riff on 5 and 6, but the argument brings in the Constitution so I treat it separately: In order for Congress to state a law on “how to become a citizen when you aren’t one already”, Congress has to be able to STATE for the record “who is a citizen already”. That’s an inherent legislative function: to declare what is already understood as the common law rule, for clarity and certainty. It makes no sense for Congress to try to generate a process for “becoming” citizen and then attempt to apply that to people who are already citizens. So it must have the power to say who are already citizens as declaratory law. Now, we might worry about Congress pretending to specify a declaratory law that goes well beyond what was always understood for who is a citizen, without authority to do so, especially if that law contradicted a state law on the subject in any serious way. But the 1790 law in addressing children born abroad to citizens did not do so. The provision under 8 USC 1401(g) does not do so either.
Let’s get to some fact-gathering instead of law: what are the details of Cruz’s beginning? His mother was an American citizen from birth (born in Delaware). His father had left Cuba in 1957 to attend the University of Texas, and later obtained asylum when his student visa expired. He became a geophysicist, and ran a company in Calgary which provided computer-driven seismic maps to the oil industry. Ted Cruz was born in 1970 in Calgary. Cruz Senior became a Canadian citizen in 1974. But the oil industry went into hard times there. The Cruz family moved to Texas in 1974 and remained in the US. Cruz Senior became a naturalized US citizen in 2005.
There is some debate whether Mrs. Cruz became a Canadian citizen, but I did not find any documented claim she was so when Ted was born. It seems highly improbable that she did before her husband did in 1974, so even if she did become a Canadian citizen then it would not affect hers or Ted’s citizenship in the US as of 1970. In any case, American law does not provide that you lose American citizenship if you take on citizenship to another country, it requires that you also ‘intend’ to relinquish American citizenship. According to the State Dept., you can lose citizenship: http://bmkllp.com/newsletters/immigration/loss-of-citizenship-for-us-born-citizens/
through an affirmative action on the part of the citizen to renounce his or her citizenship or through the committing of several actions listed in § 349 of the Immigration and Naturalization Act (INA). U.S. citizens who lose their citizenship are said to be “expatriated.” INA § 349 states that a citizen, whether a U.S. citizen by birth or naturalization, shall lose his nationality by voluntarily performing certain acts with the intention of relinquishing United States nationality. The fact of intention is critical; it is not the mere performance of the actions mentioned in § 349. Seven types of conduct are currently listed in the INA as expatriative. The potentially expatriating acts are: (1) applying for and obtaining naturalization in a foreign country, provided the person is at least 18 years old; (2) making an oath of allegiance to a foreign country, provided the person is at least 18 years old; (3) serving in the military of a foreign country as a commissioned or noncommissioned officer or when the foreign state is engaged in hostilities against the United States; (4) serving in a foreign government position that requires an oath of allegiance to or the nationality of that foreign country, provided the person is at least 18 years old; (5) making a formal renunciation of U.S. citizenship to a consular officer outside of the United States; (6) making a formal renunciation of citizenship while in the United States and during time that the United States is involved in a war; and (7) conviction for treason or attempting by force to overthrow the U.S. government, including conspiracy convictions. Nobody I know of claims they can prove Mrs. Cruz lost her American citizenship by 1970 under the above standards.
Nobody I know of claims they can show Mrs. Cruz lost her American citizenship by 1970 under the above standards.
So, if I have these facts right:
(A) According to current law Cruz was a citizen by birth, and it does not distinguish between mother and father for this purpose.
(B) There is no explicit statute that defines the term “natural born citizen” anymore.
(C) There was at one time a statute that defined “natural born citizen” (in 1790), and under that law Cruz would have been recognized as a natural born citizen – but for a clause that distinguishes between mothers and fathers for this purpose. Such law did not contradict common law.
(D) Common law as such has never been explicit about children born away to citizens temporarily away.
(E) The principles underlying common law permit/imply that children born away to citizen parents would be recognized as citizens by nature – at least in some cases.
(F) Long-standing English law provided a meaning that included those born abroad of a subject parent.
(G) Statutory law is explicit about citizenship by birth but not about “natural born citizen”.
(H) Statutory law supercedes common law when made to clarify or correct defects in common law.
(I) Constitutional law makes only 1 important distinction in citizenship privileges, and that regards those who are “natural born citizens” versus those who are not.
(J) Current statutory law makes only 1 distinction in citizenship types, and that regards those who are “citizens at birth” versus those who are naturalized(tm). And does not require of a child born abroad that both parents or the father be American citizens, only one parent.
If anyone thinks that there is something that shows Ted Cruz truly is not a natural born citizen - as under the Constitution - something other than what was handled above, let’s have it. I cannot locate such a reason. If the term “natural born citizen” is not today completely coextensive with “citizen of the United States at birth” under 8 USC 1401, then very likely it currently HAS no definitely determinable meaning, and any attempt to assign a different meaning than “citizen of the United States at birth” would be no better than an ex post facto assertion of will.