Attacking Cruz’s Eligibility Is a Blunder Ann Coulter Can’t Afford to Make Right Now (UPDATED)

Ann Coulter’s latest column finally put her argument against Ted Cruz’s eligibility to be President into an extended form we can intelligently judge.

First, it turns out she actually isn’t pulling this entirely from thin air. There are Supreme Court precedents and some basis in the English common law suggesting that “natural born” does not apply to those born abroad to citizen parents, as Cruz was to an American mother in Canada.

But it all amounts to less than what Ann’s made of it. For one thing, “the Supreme Court says so” has never been conservatives’ standard for settling legal questions. Yes, SCOTUS can be useful for articulating the relevant concepts, but they’re certainly capable of being wrong. And there’s ample reason to think they’re wrong here.

For instance, Blackstone — who Ann weirdly suggests Cruz’s defenders haven’t cited — explicitly recognizes such children as natural-born citizens:

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 hath been so adjudged in behalf of merchants. But by several more modern statutes 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.

Elizabeth Price Foley at Instapundit, whose post is one of the best on the subject, further writes that this alone should be enough to settle the matter, “Assuming that modern Equal Protection Clause jurisprudence would not permit any constitutional distinction of children based upon fathers versus mothers who are U.S. citizens (Cruz’s mother was a U.S. citizen at his birth; his father was not)–and there is no legal reason, today, to think that a mother who is a U.S. citizen owes less “allegiance” to the U.S. than would the father.”

Then there’s the matter of relevant statutes. Ann rejects the argument that the Naturalization Act of 1790, which says “The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens,” makes such children naturally born, because she claims that’s a form of naturalization (if you’re naturally born, you don’t need a process to give you your citizenship) and only meant that such children had the normal rights of citizenship.

But here, too, a little added analysis goes a long way. First, there’s the simple fact that it specifically used the phrase “natural born,” when simply “citizens” would have sufficed to convey Ann’s interpretation. The Founders were men who used language very precisely, so Occam’s Razor would dictate that if the First Congress used “natural born” here, they meant it exactly the way they used it in the Constitution.

Second, former Solicitors-General Neal Katyal and Paul Clement posit another theory of the difference between “natural-born” and “naturalized”: automatically possessing one’s citizenship upon birth and not needing to be proactively granted it through a specific process later on. Frankly, I find that a much more intuitive distinction.

Third, the Constitution itself doesn’t expressly define “natural born citizen,” so why shouldn’t the 1790 Act be seen as establishing a precise legal definition for it rather than making non-NBCs into citizens? Yes, the common law had a definition, but as shown above, it shifted more than Ann acknowledges.

Fourth, Andy McCarthy, who I consider the Right’s most consistently principled and thoughtful legal mind, notes that the 1790 Act isn’t the only legislation to have done so:

[C]hanges in the law after 1790 clarified that children born of a single American-citizen parent outside the United States are natural born American citizens “subject to certain residency requirements.” Those residency requirements have changed over time. Under the law in effect when Cruz was born in 1970 (i.e., statutes applying to people born between 1952 and 1986), the requirement was that, at the time of birth, the American citizen parent had to have resided in the U.S. for ten years, including five years after the age of fourteen. Cruz’s mother, Eleanor, easily met that requirement: she was in her mid-thirties when Ted was born and had spent most of her life in the U.S., including graduating from Rice University with a math degree that led to employment in Houston as a computer programmer at Shell Oil.

Finally, and maybe most importantly, Foley notes that Father of the Constitution James Madison had some highly revealing words on the matter:

The key to this passage is the concept of “allegiance” [the aforementioned Blackstone quote – CF]–whether the individual has been born with allegiance to the king, or not. Individuals born with allegiance to the sovereign are ”natural-born” subjects; those lacking such allegiance are not. It is not, as McManamon implies from her selective portion, a question merely of being born within the geographic confines of the country. McManamon’s citation to the James Madison passage confirms this, as Madison acknowledges that “place is the most certain criterion,” but he is not suggesting that it is the only criterion, as he states unequivocally that the “established maxim” is that the ultimate criterion is “allegiance,” of which the place of birth is but one (albeit “certain”) criterion.

Ironically, this better fits Ann’s own (absolutely correct) argument on the matter of anchor babies than her case here. There, she recognizes the relative superficiality of geography compared to the far more meaningful bonds of allegiance that come through parenthood.

This is not the same as Obama Birtherism, which was mired in absurd conspiracy theories about forged birth records. It’s purely a question of competing legal interpretations, and Ann Coulter’s is less arbitrary than the opportunists using the dispute to settle scores would have you believe. But the weight of the evidence is against her and with Ted Cruz.

It’s doubly frustrating to see her dig in on when her voice as the pundit sounding the alarm on the stakes of immigration — which will end everything for conservatives if we don’t get it right — more starkly and persistently than almost anyone else, is just too important to needlessly give those who need to hear it excuses for dismissing her.

UPDATE (1/16/16): Even more clearing up the common-law definition, from constitutional scholar John Eastman:

After the English civil wars of the mid 17th century and the return of a number of English subjects who had departed the realm during the wars, an Act of Parliament determined that all children who, during the period of the wars, “were born out of his majesty’s dominions, and whose fathers or mothers were natural-born subjects of this realm,” were themselves natural-born subjects. (The act was cited in the landmark 1898 Supreme Court case United States v. Wong Kim Ark that ruled that the children of non-citizen lawful permanent residents born in the United States are automatically U.S. citizens.) That position was repeated and made more comprehensive in 1708, during the reign of Queen Ann: “the Children of all natural born Subjects born out of the Ligeance of Her Majesty, Her Heirs, and Successors shall be deemed adjudged and taken to be natural born Subjects of this Kingdom to all Intents Constructions and Purposes whatsoever.” So English law is “clear and unambiguous,” but the clarity is precisely the opposite of what Professor McManamon claimed.


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