Ted Cruz's birth certificate distraction

Sandy Levinson

[PLEASE READ UPDATES BELOW AS WELL]

Texas's junior senator Ted Cruz rather flamboyantly made public his Canadian birth certificate in an attempt to prove that he was, after all, a citizen by birth of the United States inasmuch as his mother is clearly listed as having been born in Wilmington, Delaware (and, therefore, a birthright citizen of the United States).  Although there is no conceivable argument that Sen. Cruz is a "14th Amendment natural-born citizen," that should be entirely irrelevant if in fact he was a citizen at birth under US law, as, for that matter, Barack Obama would have been had he in fact been born in Kenya (which, of course, he was not).  But statutes can be tricky, and in order to be a statutory citizen in 1970, when now-Senator Cruz entered the world, his mother had to have lived for five years in the United States following her 14th birthday.   Otherwise, she could not have passed her own undoubted citizenship on to her baby boy.

I assume she did, but truly enquiring minds--including professional journalists--should at least ask where Eleanor Elizabeth Wilson was following her 14th birthday.  Did she, for example, run away to Canada after graduating from high school?  I have no earthly idea what the answer is, but Legal Eagle Ted Cruz, described as a legal genius by all who know him (which I do not), should certainly be aware that his own birth certificate does nothing whatsoever to establish definitively that he fulfills the constitutional requirement to be President.  The only thing that will do that is proof of his mother's whereabouts between her 14th birthday and the time she gave birth to the would-be President. 

Is it really possible, incidentally, that the junior senator had no idea that he was a Canadian citizen until last week?  Was he never at all curious about whether Canada, like the U.S., accorded citizenship to all born within the national territory?  Does he make a general habit of treating his mother's statements of law--"Oh, Ted, you're a 110% American"--as definitive without checking easily accessible Canadian sources. Thus, according to one such source, " Ever since Canadian citizenship was first granted on January 1, 1947, an individual has been considered to be a Canadian citizen if he/she was born in Canada. (emphasis added) This is provided for by section 3(1)(a) of the Citizenship Act, which states that:

3. (1) Subject to this Act, a person is a citizen if
(a) the person was born in Canada after February 14, 1977"

The date listed, incidentally, simply acknowledges that the citizenship law in effect when Ted Cruz was born had been changed in 1977, but the changes made no difference at all with regard to the  reality of birthright citizenship. 

But, as I say, the real issue, for legalists, is the length of his mother's presence in the United States prior to her move to Canada.  I should also say that I think the "Second Class Citizenship Clauses" in the Constitution, beginning with the "natural-born citizenship clause" and moving on to the disability of naturalized citizens to be elected to the House or Senate until seven and nine years after naturalization, respectively, are indefensible and should be repealed by constitutional amendment.  If Democrats had any sense, they would seek out Orrin Hatch, who in 2003 proposed repealing the offensive clause of the Constitution in order to make Arnold Schwarzenegger eligible to run.  Obviously, it went nowhere.  But it was a good idea in 2003, and it's a good idea in 2013.  Indeed, it would be interesting, to say the least, to see if Sen. Cruz would support true equality for all U.S. citizens and allow each and every citizen to dream of growing up to be President, which, for example, Jennifer Granholm could not do because she didn't emigrate from Canada until she was all of three  years old. 

Hell would freeze over before I would vote for our junior senator for any public office, but that is because of his egregious views and has literally nothing to do with any doubts that might exist about the basis of his citizenship.  Though it certainly would be interesting if his mother had not met the durational residency requirement to pass her citizenship along and Ted had never gone through any kind of naturalization process.  That might mean that he isn't a citizen at all even as we speak.  I would be truly shocked if that's the case, but there really is only one way to find out.

UPDATE:  Two excellent posts by Northwestern's Steven Lubet further clarify matters.  He notes that the Senator's mother graduated from Rice, which certainly suggests she meets the residency-in-US-after-fourteen requirement.  Lubet points out that Cruz is the sponsor of a savage constitutional amendment that would require added evidence of citizenship (I.e., beyond what is now required by federal statute, upheld by the Supreme Court against Arizona's protest), so that he certainly shouldn't be satisfied simply with Mama Cruz's assurances that she lived in the US during the relevant period.  He should demand much more (including verification that she in fact remained in Houston and didn't, for example, leave for extended trips to Mexico). 

Also, one of the discussants below is correct that Barack Obama's mother was only 18 when she gave birth--in Hawaii--to her son.  So this does mean that he would not have been a statutory "natural born citizen" had he been born in Kenya (which he was not). 

The John McCain episode is really quite interesting, for it appears quite clear that he was NOT a citizen at the moment [SEE THE RECANTATION BELOW] he was born in the Canal Zone, though Congress did pass a statute just several months letter according birthright citizenship to children of Americans born in the Canal Zone.  I don't believe the statute made the citizenship retroactive, though even if it did that raises delicious theoretical questions as to how he could possibly be a "birthright citizen" if in point of legal fact, he was not so at the moment of birth, which for those not trained in the legal arts might seem determinative.  The point is that almost no one took the requirement seriously vis-à-vis McCain, which may be additional evidence that it's time to repeal that truly unattractive feature of the original Constitution.

FURTHER UPDATE:  Upon reading Steven Sachs's excellent article responding to Jack Chin's earlier essay setting out the argument why McCain was not a citizen at birth, I am certainly convinced that that I was in error in saying that McCain's status at birth was "quite clear."  Chin's very interesting argument depended on the very specific words of the statute and a distinction between being born within "the limits" of the United States and "within the jurisdiction" of the US.  The Canal Zone was the latter, but certain not the former (like, for example, Guantanamo today).  For Chin that is dispositive.  Sachs argues that there is one need not read the statute so restrictively; many courts collapsed the distinction, which, as practical matter, became relevant, if at all, only after the United States decided to emulate European countries by becoming an imperial power with colonies.   And the statute goes back to 1795, when territories like the Canal Zone (unlike those "territories" that had that status only until they became the states they were expected to be), were certainly not within the contemplation of the Congress.  And, of course, there are very good reasons not to adopt such a restrictive reading unless one believes there is really no way to avoid it.   

I find one of Sachs's most interesting arguments, spelled out in a much longer essay, to be "non-statutory":  i.e. that children born to US military service personnel abroad are automatically US citizens, save for very exceptional circumstances, based ultimately on British common law going back literally centuries and never repudiated by Congress.  (It begins with the observation that a child born to British monarchs while travelling abroad, presumably on matters of state, would be eligible to become king or queen, and the same principle applies to soldiers and diplomats sent abroad to conduct the monarch's business, including warfare.)  From this perspective, the crucial fact is that McCain's father was a high officer within the Navy, and his mother accompanied him to the posting in the Canal Zone, as allowed (and perhaps even encouraged) by law.  Quite obviously, Cruz (who I am confident is constitutionally eligible to be President) cannot make any similar claims.  Indeed, I gather that his father didn't become a US national (and renounce his Cuban citizenship?) until sometime in the 2000s. 

Had any court actually been presented with the McCain case, I would have been sympathetic to the view that the law should be read, if at all possible, to recognize his citizenship, and Sachs provides such a (more than merely possible) reading.  So, although it remains true that "the John McCain episode is really quite interesting," the reason is not what I suggested.  To be sure, an excellent reason for adopting Chin's reading of the materials, which is certainly a possible, even if not compelled, reading, is the belief that it should be made as hard as possible for anyone not a "natural-born" citizen by virtue of having been born within the territorial limits of the US, to become President.  It should be clear that I don't subscribe to this view, and I have my doubts that Chin does either.  What I do remain confident in saying is that the McCain and Cruz episodes could be excellent teaching devices for the interplay of common, statutory, and constitutional law, on the one hand, and practical political circumstances, on the other, where millions of Americans would (properly) find it outrageous if their favorite was disqualified from running for the White House because of true legal technicalities that are impossible to defend on extra-legal policy or normative grounds.  I'm assuming that we treat Schwarzenegger's disqualification not as a "legal technicality," but, for me at least, as a truly unfortunate and indefensible feature of our Constitution that cannot be evaded by skilled lawyering.
Posted 12:12 AM by Sandy Levinson [link]