I hate election years. I hate the commercials, the endless flyers, the unsolicited phone calls, the media hype, and the sheer length of time we spend talking about an election before it actually happens. That being said, I do enjoy a good question of constitutional law, and in this election, people are chattering about a seemingly innocuous yet cryptic phrase in our Constitution: “natural born Citizen.” That is, a presidential candidate, in addition to being at least 35 years of age and a resident of 14 years, must be a “natural born Citizen.” The crux (or Cruz?) of the issue is whether an individual has to be physically born on U.S. soil to qualify for the presidency. Or, is being born to a U.S. citizen, regardless of where the birth occurred, sufficient since in that instance one would not have to go through the naturalization process. In the past, this issue did not derail the 1960s campaigns of George Romney (born in Mexico) or Barry Goldwater (born in Arizona before its statehood). Former GOP nominee John McCain (born in the Panama Canal Zone) enjoys a specific congressional resolution declaring him a natural born Citizen. It’s not likely to derail other candidates in the future either. But, if a serious challenge were mounted, what would be the outcome?
As with many legal questions, there is no definitive answer on the phrase’s meaning, so it is not easy to predict a result. The phrase is not specifically defined in the Constitution, and the U.S. Supreme Court has never ruled on the issue. When a legal phrase is ambiguous, lawyers and scholars look to the drafter’s context. For example, if something in a statute is unclear, it is common to review the lawmakers’ discussions and comments surrounding the statute, or to turn to prior versions of the statute to glean intent. Here, scholars look to the Framers, their influences, their experiences with English law, language, and usage, and whatever else the Framers left behind to help inform the meaning of the phrase. Unfortunately, the history of “citizenship” is all over the proverbial and literal map. Citizenship issues were constantly evolving in Britain and in the fledgling U.S., and while some scholars see the answer to this question very clearly, others do not. It may even be the case that our Framers were not overly concerned with citizenship (after all, none of them were born U.S. citizens!), which resulted in the imprecise language, and renders their context potentially unhelpful.
So how would the question arise, and how would it be resolved? Hard to say. Most likely, any legal challenge would stem from a particular state deciding to exclude a candidate from the ballot because she or he was not deemed a “natural born Citizen.” Historically speaking, courts want to stay clear of the issue and have successfully done so in the past by dismissing these cases on technicalities rather than deciding the issue on the merits. But if a sufficiently prominent candidate, like Ted Cruz, was excluded, the federal courts would have a hard time dodging the issue. In all likelihood, the ultimate decision would rest in the hands of the nine justices who sit on the United States Supreme Court – the final arbiter of all constitutional questions.