Who can be President and what is a Natural Born Citizen?

There are two ends of the spectrum as which just about everyone agrees: (1) A person born in the United States to parents both of whom are United States citizens is a "natural born Citizen"; and (2) a person born outside the United States to parents neither of whom is a United States citizen is not a "natural born Citizen" even if citizenship later is obtained through naturalization. These are what law professor Lawrence Solum refers to as "cases of inclusion and exclusion".

Under the law existing at the time of their birth, each became a citizen of the United States at birth. Rubio and Jindal by the 14th Amendment, Cruz by statute...

We should all just admit that we don't really know for sure what "natural born Citizen" means or meant between the points of inclusion and exclusion... I believe the proper constitutional outcome is to leave the issue to the political process...

More constitutional law scholars are weighing in on the question of Ted Cruz’s eligibility to be elected president, and most seem to concur with the conclusion that, under the best reading of the phrase “natural born citizen,” Ted Cruz is eligible to be elected President of the United States.

On CNN.com, Yale law professor Akhil Reed Amar, arguably the nation’s most prominent liberal originalist scholar, argues that Cruz is a “natural born citizen,” while also stressing that this is a question for the political process, and not the courts...

One is textualism: the Constitution means what its words say. The historical context of the words is important when a modern plain meaning is not self-evident. A second theory, adopted by many liberals, relies on a “living Constitution”: the Constitution means what is most consistent with fundamental constitutional values as applied to present circumstances. The third theory, championed by many leading conservatives, is originalism: The Constitution means what ordinary people would have understood it to mean at the time it was ratified, which is 1788.

Under either a textualist or a “living Constitution” theory, Cruz is a “natural born Citizen,” eligible to be president; under an originalist view, however, he isn't. It's the conservative theory that would exclude the conservative Cruz from presidential eligibility.

To an originalist, a “natural born Citizen” is a person who is a citizen of the United States under “natural” principles of law in 1788. Two such principles were then in play in the U.S. Jus soli — the law of soil — was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born. Jus soli was viewed as a part of the common law of England, which was adopted by the American states. Jus sanguinis — the law of blood — held that a child's citizenship flowed from the parents' allegiance, regardless of place of birth...

The upshot is that to an originalist, someone like Cruz — born in a foreign country (and therefore not a natural born citizen of the United States by jus soli) and to a Cuban citizen father (and therefore not a natural born citizen of the United States by jus sanguinis ) — is not eligible to be president...

...these laws would cause a textualist to conclude that Ted Cruz, born in Canada to a U.S. citizen mother in 1970, is a “natural born Citizen” eligible to be president.

Finally, living constitutionalists would interpret “natural born Citizen” in accordance with present circumstances and social conditions. Supreme Court case law is their main source because judicial decisions reflect an accommodation of legal doctrine with contemporary reality.

But the Supreme Court has never directly decided the meaning of “natural born Citizen.”..

In drafting the U.S. Constitution, the Founders relied heavily on the work of Swiss philosopher Emerich de Vattel. In his 1758 legal treatise, The Law of Nations, Book One, Chapter 19, in a section titled "Of the citizens and natives," Vattel defines the term "natural born Citizen" as follows:

"… The natives, or natural-born citizens, are those born in the country, of parents who are citizens… The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country (emphasis added)."

When the Founders met in Philadelphia in September 1787 to approve the final draft of the U.S. Constitution, the physical scars of the War of Independence from Great Britain were still visible all around them and a deep-seated animosity toward all things British colored every aspect of their daily lives. So is it even conceivable that, just five years and eleven months after the British surrendered at Yorktown, the Founders would have presented to the states for ratification a Constitution that would allow an individual with divided loyalties – e.g. an individual with dual US-British citizenship – to serve as president of the United States and commander-in-chief of the army and navy? Not likely. It is a preposterous notion on its face. To believe that they would have done so requires a willing suspension of reason...

What is likely, even probable, is that the Founders drafted Article II, Section 1 so as to reflect Vattel’s definition of a "natural born" citizen. That is precisely why the Framers found it necessary to include in Article II, Section 1 the often overlooked and little understood words, "or a Citizen of the United States, at the time of the Adoption of this Constitution…" (It was not until the 35th fifth anniversary of the signing of the Declaration of Independence that the first natural born citizens became eligible to serve as president or vice president of the United States.)...

Since the Founders intended that only "natural born" citizens should ever serve as president or vice president… excluding naturalized citizens and those with a history of dual nationality… and since there could be no 35-year-old "natural born" citizens during the first 35 years of our nation’s history, it became necessary to provide an exemption of limited duration covering those citizens born prior to July 4, 1776...

...If it is sufficient for a person to have only one U.S. citizen parent in order to be considered a "natural born" citizen, then dual citizens could become President, including dual citizens of countries hostile to the United States.

Likewise, if the Constitution allows persons born outside the U.S. with only one U.S. citizen parent to qualify as President, then many persons could be dual citizens of their country of birth. This is Ted Cruz's situation. Such persons could have divided loyalties to their place of birth or to the non-citizen parent's country of origin.

If it is enough for a person to qualify by being a "birthright" citizen who was born on U.S. soil to parents who are not U.S. citizens (Marco Rubio's situation), what if communist or radical Islamic nations use this as a strategy to infiltrate? Over a period of years, they could send refugees, students, or professors to the U.S. to carry out their plan. What if one of those immigrants has a "birthright" child, posing as pro-American until the time is ripe to seek the Presidency? The only way to stop such infiltration is a strict interpretation of the phrase "natural born citizen" which denies "natural born" status to children who are born in the U.S. to non-citizen parents.

The key phrase to properly interpret the 14th Amendment is this: "and subject to the jurisdiction thereof." Foreigners and their children are not subject to the jurisdiction of the U.S., but are only subject to their country of origin - although they are required to comply with U.S. law while they are on American soil. Not all who must obey American law owe allegiance to the United States.

Why did the Framers include the qualifier "natural born" in the President's citizenship qualification? It is important to understand their intent.

John Jay, the first Chief Justice of the United States, sent a letter to George Washington stating "Whether it would not be wise & seasonable to provide a ... strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen."

Justice Joseph Story noted in his 1833 Commentaries on the Constitution that "the purpose of the natural born Citizen clause was thus to cut off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpose a barrier against those corrupt interferences of foreign governments in executive elections."

The qualifier "natural born" was thus added to the eligibility requirement for the President to prevent the Commander in Chief of the Armed Forces and Chief Executive of the United States from having foreign allegiance, dividing their loyalty.

Although the intent of the phrase "natural born citizen" was clear at the Constitution's signing, we now live with the consequences of ignoring the Framer's definition - a sitting President who is ineligible. No one disputes that Barack Obama's father was not an American citizen. According to the Framers, this fact alone makes Obama ineligible to be Commander-In-Chief of the armed forces. Furthermore, his father was on record as being hostile toward the U.S. and our ally, Great Britain. In Dreams From My Father, Barack Obama, Jr., opined his father's beliefs. By his own written words, Obama's loyalties are divided, just as the Founders warned.

The current Republican Party Presidential field has at least two ineligible candidates. Ted Cruz is ineligible on two counts: His father was not a U.S. citizen, and he was born outside the U.S. Marco Rubio is ineligible because neither of his parents were U.S. citizens when he was born.

At some point, the citizens of this country have to insist on the rule of law. We must adhere to the Constitution, the legal foundation on which all our laws rest...

Tragically, the Democrats made history in 2008 by failing a crucial test. One state Democratic Party certified Obama as "eligible" under the Constitution, and the remaining 49 state parties removed the nominee eligibility certification statement altogether.

Now the conscience of each state Republican Party will be put to the test. Will they follow the lawless actions of Democrats? Or will they follow the Framer's instructions in the Constitution and declare Cruz and Rubio ineligible?

The ballot box may be the final arbiter of the constitutional meaning of the clause. In other words, if you are an originalist, vote against Cruz because he is ineligible to be president.

It's a neat irony: The most conservative constitutional interpreters must find Cruz ineligible to be president; liberals must grin and bear him. Cruz himself purports to embrace originalism as the correct view of the Constitution. To be faithful to his understanding of what the Constitution means, the senator may have to disqualify himself.

Schwartz, saying there has never been a court case on the issue, wants the Supreme Court to rule on Cruz’s eligibility.

“‘Natural born citizen’ has never been defined.”

“Only the U.S. Supreme Court can finally decide, determine judicially and settle this issue now,” Schwartz writes in the filing.

The phrase "natural born" is a legal term of art that goes back to Calvin’s Case, in the British Court of Common Pleas, reported in 1608 by Lord Coke. The question before the court was whether Calvin—a Scot—could own land in England, a right permitted only to English subjects.

The court ruled that because Calvin was born after the king of Scotland had added England to his realm, Calvin was born to the king of both realms and had all the rights of an Englishman.

It was the king on whose soil he was born and to whom he owed his allegiance—not his Scottish blood—that determined his rights.

Not everyone born on the king’s soil would be "natural born." Calvin’s Case expressly notes that the children of aliens who were not obedient to the king could never be “natural” subjects, despite being "born upon his soil." (Sorry, anchor babies.) However, they still qualified for food stamps, Section 8 housing and Medicaid.

Relying on English common law for the meaning of "natural born," the U.S. Supreme Court has repeatedly held that "the acquisition of citizenship by being born abroad of American parents" was left to Congress "in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization." (U.S. v. Wong Kim Ark (1898); Rogers v. Bellei (1971); Zivotofsky v. Kerry (2015), Justice Thomas, concurring.)

A child born to American parents outside of U.S. territory may be a citizen the moment he is born—but only by "naturalization," i.e., by laws passed by Congress. If Congress has to write a law to make you a citizen, you’re not "natural born."

Because Cruz’s citizenship comes from the law, not the Constitution, as late as 1934, he would not have had "any conceivable claim to United States citizenship"...