The answer to the question of whether Ted Cruz is eligible to be president of the United States lies deep in the recesses of English political history, according to a constitutional law expert who has researched the issue.
Mary Brigid McManamon, a law professor at Widener University’s Delaware Law School, makes the case that Ted Cruz is not eligible to be president because “natural born citizen” applies only to those born within U.S. territories. She wrote a Washington Post op-ed this week arguing as such, and previously wrote a 2014 legal paper on the topic.
What is certain is that the Constitution’s definition of “natural born citizen” has not been tested and remains open to interpretation. As Michael Ramsey, a former clerk of Justice Antonin Scalia, put it in a 2013 essay otherwise defending Cruz’s eligibility: “[I]t’s a mystery to me why any one thinks it’s an easy question.”
TPM talked with McManamon by phone Wednesday to ask her a few more questions about her theory, which she said rested on English common law stretching all the way back to 1350.
In her Washington Post op-ed, McManamon quotes 18th century English jurist William Blackstone, who said natural born citizens are those born within the dominions of the crown of England, and aliens are those born outside of it.
But he’s not the only source for her argument.
“He just summarized it,” McManamon told TPM. “I went back as far as 1350 and read all the case law I could find on it, all the statutes I can find on it and in addition, I went and found all the records of naturalization for the two centuries before 1700.”
She pointed out that England is an island nation, and through it history, its citizenry was made up of a lot of merchants who settled abroad.
“They have kids, and those kids are not natural born citizens. But the Parliament passed a couple of statutes that would help them out a little bit,” she said — statutes like one in 1350 that let foreign-born children at least inherit from their English-born parents, as at the time it was illegal for an alien to inherit from someone who was English.
“It doesn’t make them citizens, it just says, ‘Let’s let them inherit’,” she said.
She also looked at the statutes passed in response to the wars that rocked English history.
“When they had their civil war and Oliver Cromwell took over, loads of people who had been loyal to the monarchy fled. They didn’t want to live there under Cromwell, and again they had kids when they were living abroad,” McManamon explained. Later, after the Restoration of the British monarchy, some of the exiled loyalists and their offspring wanted to return to England. “So Parliament said, ‘Well, since you had kids living abroad between this date and that date, those kids can come in and get a cheap naturalization.”
To get a naturalization at the time cost an average person’s annual pay, so Parliament wanted to reward those who remained loyal to the crown with a discount.
“But again they are not natural born subjects, they have to be naturalized,” she said.
In the Washington Post op-ed, McManamon hypothesized that those defending Cruz’s eligibility were getting their logic from an article in the Harvard Law Review Forum by former solicitors general Neal Katyal and Paul Clement, which she said in the op-ed, was based on “three radical 18th-century British statutes.”
“The three statutes that Katyal and Clement are relying on were a complete turnaround,” McManamon told TPM. “They were — for the very, very, very first time — [when] Parliament says, ‘If your dad is a natural born subject and you’re born overseas, you can be a natural born subject too. But up into that point it had been completely the opposite under the common law: that you cannot be natural born.”
She said the three statutes — which came under Queen Anne, King George II, and George III — were in part motivated by a desire to scale back earlier efforts to bring more Protestants into England that had to be scaled back.
“They passed a statute that allows any Protestant who moves to England to get cheap citizenship and they broaden that for children who are born abroad, and they got too many foreign Protestants — according to Parliament — so they changed that, but they left it for the children born abroad,” she said.
“George II and George III get rid of, ‘Any Protestant can come over and get a cheap naturalization,’ but left it that children of fathers — not mothers, children of fathers who were natural born — but were born abroad, could themselves be natural born. They didn’t have to go through a naturalization process,” she said.
Though the framers didn’t incorporate the entire body of English common law and statutory law into the Constitution, when they did include a common law term, they meant for it to be interpreted by the common law definition — an idea the Supreme Court has repeatedly re-enforced, McManamon explained.
“What Clement and Katyal and virtually everybody else who writes in the area look at is what happened with Queen Anne and George II and George III, and [they] say, ‘Oh the common law is different, therefore that’s what we adapted,’” McManamon said. “But we didn’t when you read the words of James Madison and you read the congressmen debating statutes.”
She cited James Kent and Supreme Court Justice Joseph Story — American legal scholars who wrote early histories of the Constitution — as well as the words of Madison himself as supporting a more narrow definition of who can become president
“They say clearly that you have to be born within the U.S., and if you are naturalized by any statute — whether it’s by birth, because you’re born to a natural born parent, or otherwise — you can’t be president,” she said. “They’re very specific about that.”