In 2008, “birthers” vehemently and strenuously argued that Barack Obama could not be president. They asserted that the president, whose mother was a citizen but whose father was not, was born in Kenya and therefore could not be a “natural born citizen” as required by Article II, Section 1 of the Constitution. Of course, President Obama was born in Hawaii, so the debate seemed irrelevant-—a matter best left to the conspiracy theorists and Donald Trump. It isn’t anymore.
First-term Sen. Ted Cruz (R–Texas), who is already considered a 2016 contender, was born in Canada to a mother who was an American citizen and a father who was then a citizen of Cuba. It’s the exact same fact pattern: foreign birth, citizen mother, non-citizen father that birthers thought applied to Obama. The only difference is that this time it’s true.
The issue has already come up for Cruz earlier this week when ABC News asked Donald Trump, who has been perhaps the most prominent birther, whether the Texas senator was eligible. “If he was born in Canada, perhaps not,” said Trump. The real-estate millionaire and reality-show host went on to say, ”I don’t know the circumstances. I heard somebody told me he was born in Canada. That’s really his thing.”
Cruz’s birthplace shouldn’t present a legal impediment though. “Natural-born citizen” is an ill-defined term that has not been used in a statute since 1790. Further, courts have never had to adjuciate this issue. The closest it has ever come to presenting a practical problem was during the brief presidential campaign in 1967 of George Romney, the Michigan governor and father of Mitt Romney, who was born in Mexico to parents who were American citizens. This means constitutional scholars debating the issue have to look back to precedents as hoary as a law passed by Parliament in 1350. But, as Jack Markell of the nonpartisan Congressional Research Service notes in a report:
“The weight of scholarly legal and historical opinion appears to support the notion that ‘natural born Citizen’ means one who is entitled under the Constitution or laws of the United States to U.S. citizenship ‘at birth’ or ‘by birth,’ including any child born ‘in’ the United States (other than to foreign diplomats serving their country), the children of United States citizens born abroad, and those born abroad of one citizen parent who has met U.S. residency requirements.”
In short, if you acquire citizenship by birth and do not need to be naturalized, you are natural born.
The irony is that the circumstances of Cruz’s birth almost perfectly mirror the scenario offered by birthers, even down to the fact that the Texas senator nominally entered the world a British subject by dint of being born in Canada in 1970.
The result is a delightful paradox. Any liberals who try to cast doubt on Cruz’s citizenship will likely be using almost the exact arguments they scorned when falsely applied to President Obama. And, of course, any birthers who defend Cruz while still insisting Obama’s tenure in the Oval Office is illegitimate aren’t just being conspiracy theorists. They are being hypocrites as well.