As expected, the question of whether Sen. Ted Cruz is eligible to hold the office of the president based on his Canadian birth is now front-and-center thanks to Cruz's GOP presidential nominee rival Donald Trump. Constitutional scholars are dusting off their crystal balls as they are asked to discern what the Founding Fathers really meant by "natural born" citizen. Let me join the chorus of opinions by saying that based on the original framework of the Constitution and the 14th Amendment, Sen. Ted Cruz does not appear to be constitutionally eligible to hold the office of the president.

Article II, Section 1, Clause 5 of the Constitution states: "No Person except a natural born Citizen ... shall be eligible to the Office of President." The original structure of the Constitution does suggest that "natural born" was meant to contain a geographic component of birth in the United States. The "Inhabitant" requirements for senators and representatives in Article I of the Constitution clearly were intended to be geographic. Since the qualifications stated for president contain no other obvious parallel geographic reference, it would seem the framers meant the "natural born" citizenship requirement for president to refer to those born geographically in the United States.

The framers, however, contemplated later migration into the United States and authorized Congress in Article I, Section 8, Clause 4 to provide means of acquiring citizenship by naturalization for those who were not natural born citizens. Thus, as originally drafted, the Constitution recognized only two means of acquiring national citizenship – "natural born" citizens (birthright citizenship), and naturalization.

Originally, however, neither the Constitution nor anything else clearly defined birthright citizenship. Until after the Civil War, it was widely assumed that one was a citizen of the United States if one was a citizen of any state, leaving state law to define national, as well as state, citizenship. This omission in the Constitution formed a basis for Supreme Court Justice Taney's decision in the infamous Dred Scott decision, holding that a slave taken to a free state did not and could not become a citizen of that state or of the United States. To correct this omission and to overturn Dred Scott, after the Civil War the country adopted the 14th Amendment, a constitutional provision that has hardly been discussed in the recent debate of presidential citizenship qualifications. The first sentence of the 14th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.



This language made both national and state citizenship a matter of federal, rather than state, law. More importantly, the 14th Amendment explicitly states precisely what was only implied in the original document – there are only two classes of citizenship, birthright citizens and naturalized citizens. Those "born ... in the United States" are constitutionally citizens of the United States, while those who were born elsewhere derive their citizenship from federal law, rather than the Constitution. The authority to pass such laws, including the laws that made Ted Cruz, George Romney or John McCain automatically citizens of the United States, derives from the naturalization power set forth in Article I, Section 8, Clause 4 of the Constitution.

The problem is that in modern parlance, naturalization has come to be understood not as the legislatively conferred citizenship but as a process of acquiring citizenship. Cruz, McCain and George Romney did not have to go through any process to acquire their citizenship; Congress conferred that citizenship automatically by statute. These are not the only examples, however, of automatic naturalization by statute without any process or request. For example, United States citizenship was statutory conferred on all Native Americans living within the United States by the Indian Citizenship Act of 1924, even though some tribes actually objected, then as now.

Thus, naturalization as a term seems to have two very different meanings: (1) legislatively conferred citizenship either automatically or pursuant to some process, and (2) the more recent understanding, the process for acquiring citizenship where Congress has prescribed such a process. The Constitution appears to adopt the former reading on the issue of presidential eligibility, however much modern language usage employs the latter. In his recent comments on whether he is a "natural born" citizen, Sen. Ted Cruz appears to confuse or obfuscate these two.

The more natural reading of the language and original understanding of the "natural born" citizenship requirement therefore would seem to be that one needed to be born, as the 14th Amendment put it, "in the United States," rather than that one had an American parent. The Constitution, as opposed to any statute, prescribes birthright citizenship, not lineage, as the constitutional definition of acquiring citizenship at birth. Any statute expanding that definition to take into account the massively increased mobility of American citizens since the rural agrarian roots of the Constitution in 1787 would provide a means of automatic naturalization. In short, the framers of both the original Constitution and the 14th Amendment seem to have distinguished between constitutionally and legislatively conferred citizenship. Those who acquire their citizenship by virtue of birth in the United States are, according to the 14th Amendment, constitutionally conferred citizens, which also seems to be the original understanding of "natural born" citizens. All others must secure their citizenship through legislative enactment, i.e. naturalization, whether with or without any required process or prerequisites.