Editor’s note: Multiple legal experts have been weighing in both for and against the proposition that Sen. Ted Cruz is a “natural born citizen” and therefore constitutionally eligible to serve as president of the United States. Here is one more perspective.
By Leonard A. Daneman
The following shall be nationals and citizens of the United States at birth:
INA § 301 g. a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States.
Not all, but many legal professionals conclude that because Ted Cruz was a “citizen at birth,” he is Article II eligible to the presidency.
However, at the time of this nation’s framers there were only four ways to become a citizen:
- You were a citizen of one of the states at the time of adoption of the Constitution;
- You were born to a U.S. citizen father (more on the mother later);
- Your father naturalized while you were a minor child; or
- You naturalized after reaching the age of majority.
Under both our First Uniform Naturalization Act of 1790 and the British Nationality Act of 1772, a child was the same foreign nationality as the father. Children were born with the father’s nationality through sanguinity, through blood, a legitimate and natural inheritance.
Now, consider this fact: At the time of the framers and over 100 years of our history, Ted Cruz would have only become a citizen of the United States under No. 4 in the list above.
Based on both British and United States law, even if the mother was born a U.S. citizen, being married to a Canadian or British subject meant her child born in the United States would not be a U.S. citizen. And Ted Cruz was born in Canada.
So, I ask the following:
- Would the framers and Article II as written and intended consider Ted Cruz a natural born citizen?
- Under 1930s naturalization law, did repatriation to the United States of a mother with minor children, married to an alien father, revise Article II as written and intended? (See Intermediate Scrutiny Test)
The answer to both is No.
While naturalization law was once uncomplicated, the women’s rights movement unintentionally created a dichotomy in the legal doctrine of sanguinity, requiring an expansion of naturalization laws to deal with dual nationality at birth and repatriation.
What is Naturalization?
The Illinois Board of Elections recently decided that Ted Cruz was a natural born citizen, stating, “The board distinguished between natural born and naturalized citizens, pointing out that Cruz did not have to take any steps to go through a naturalization process at some point after birth.” (Emphasis added.)
By “process” the board makes a common mistake, only seeing naturalization as that of an adult renouncing one citizenship (Ted Cruz renounced Canadian citizenship in 2014) and being permitted to take the Oath of Allegiance for U.S. citizenship. However, there is more to naturalization, as can be seen in the extensive body of law.
A minor’s nationality is affected by actions of the parents, and which parent’s citizenship applies to the child comes under naturalization law. What happens when the child is born in another country, or to one alien parent? What happens when the child lives as one nationality, but before reaching the age of majority wishes to assume the other? This also falls under naturalization and includes numerous conditions and requirements as part of the legal “process.”
Minor vs Happersett (1875) declared, in a case involving a woman’s right to vote, that it was “never doubted” that the child of two U.S. citizen parents was a natural born citizen. And to this day it is still only that particular birth circumstance (even if born outside the U.S.) that produces a citizen naturally, without having to remove dual nationality of the minor with naturalization law.
The evolution of naturalization law and dual nationality
The 14th Amendment is best-known for its “born in the United States” and “equal protection” clauses. However, it was written specifically for children born of freed black slaves. Because the father had no national allegiance or citizenship to confer to his children (See Dred Scott and the 1866 Civil Rights Act), the legislature had to rely on, for the first time in U.S. naturalization law, birth on U.S. soil (jus soli).
The 19th and 20th century saw changes in the institution of marriage, racial inclusion and legitimization of nullius fillius (children of unwed mothers) that required broader applications of sanguinity (inheritance by blood) if not a complete departure from it (1898). The application of “equal protection” to sanguinity, until then only through the husband, created the previously unheard of concept of Dual Nationality.
Women’s claims to equal citizenship rights 1922-1940
From Yale Law Journal, Volume 123 Number 7, p. 2134-2573 “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” by Kristin A. Collins:
The reaction of some committee members to women’s claims to gender equality reveals a strong commitment to those traditional modes of regulating nationality. For example, in 1922, Richard Flournoy – then an assistant solicitor in the Department of State and later a member of the interdepartmental committee – found the idea that a married woman would maintain her American citizenship upon marriage to a foreigner “very objectionable” on the ground that it was “obviously a direct blow at the principle of family unity” – a reference to the principles of coverture that resulted in women’s loss of independent civil identity upon marriage. In 1934 Congress passed a statute that gave American women the ability to transmit citizenship to their foreign-born children with no explicit racial limitations.
A Woman’s loss of U.S. citizenship: Laws of coverture
Prior to modern women’s rights, when a woman married a man she assumed a subordinate legal status to that of the husband. Before today’s no-contest divorce, communal property and intestate succession laws, inheritance laws didn’t give a woman equal rights to property; they favored the husband’s side of the family.
In the same light, if a woman married an alien, she lost her U.S. citizenship. So, from the time of the framers and into the 1930s, it was understood that only a U.S. citizen husband produced U.S. citizen children, natural born through sanguinity, father and mother together.
American women who married an alien would not only lose U.S. citizenship but produce alien children (1922):
“369. (a) A woman who has lost her United States citizenship by reason of her marriage to an alien eligible to citizenship or by reason of the loss of United State citizenship by her husband may, if eligible to citizenship and if she has not acquired any other nationality by affirmative action, be naturalized upon full and complete compliance with all requirements of the naturalization laws, with the following exceptions: …” (Repealed by act, Oct. 14, 1940)
The 19th Amendment finally extended the vote to women in 1920. The 1922 Cable Act permitted repatriation to the United States if an American woman lost citizenship by marrying a foreigner. Her children would then gain U.S. citizenship with her. Other challenges were based on the “equal rights clause” of the 14th Amendment, successfully comparing coverture to slavery.
Over time, the legal doctrine of coverture was finally eliminated. However, the retention of pre-marital U.S. citizenship created a bifurcated marriage, a dichotomy of nationalities requiring new naturalization laws to determine the child’s nationality and citizenship throughout the course of the marriage/dissolution, until the child reached the age of majority. In fact, Barack Obama had three nationalities from birth to reaching adulthood.
However, to this day a “natural born citizen” must be interpreted how the framers chose it to mean, and why; children of U.S. citizens without alienage had no possible foreign allegiance or affiliation. As specifically expressed by John Jay to George Washington, this was to avoid “foreign intrigue” from the highest office of the land. Only a U.S. citizen “naturally born” was immune from changes in naturalization law, natural law versus naturalization.
Note the 1933 statute addressing children born outside the United States:
Any child hereafter born out of the limits and jurisdiction of the United States whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United Sates previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and reside therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child’s twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Immigration and Naturalization Service of the Department of Labor. Am. June 10, 1933, Ex. Or. 6166, § 14; and May 24, 1934, c. 344, § 1. 48 Stat. 797. [emphasis added]
The term “citizenship at birth” was not yet applied in the law.
Ted Cruz was born Dec. 22, 1970.
Finally, the phrase “citizen at birth” is used in the law.
The laws grew to accommodate women giving birth to children with dual nationality; specifically the 1940 statutes were repealed and replaced in 1952, 8 U.S.C. § 1401(a)(7) [INA § 301(a)(7)] as originally enacted by Act of June 27, 1952:
The following shall be nationals and citizens of the United States at birth:
[A] person born outside the geographical limits of the United States and its outlying possessions of parents, one of whom is a non-citizen, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totally not less than ten years, at least five of which were after attaining the age of fourteen years.
That law was liberalized and codified in 1986 as INA § 301(g); 8 U.S.C. § 1401(g).
Through women’s rights and equality protection under the law, the concept of sanguinity was extended through the mother as it was, previously, only through the father; however, dual nationality was a concept completely foreign to the framers and is, as you can see, the reason for the vast body of naturalization law necessary to remove any alienage created in a child at birth, or even temporary loss of citizenship due to unintentional expatriation of the mother. Only a natural born citizen, a child of two U.S. citizen parents, is immune from and undefined by naturalization law.
Leonard A. Daneman is a paralegal in Albuquerque, New Mexico, trained with a concentration on research. He also wrote “A Timeline of Obama’s Nationalities and Citizenships.”