Readers of this blog may recall that during the 2016 presidential campaign I expressed doubt whether Senator Ted Cruz, then a candidate for president, met the Constitution’s requirement that the president be a natural born citizen. I wrote on the subject in several places, also including a newspaper op-ed, and on the Originalism Blog.

As explained below, it now appears I was correct. But at the time I took some flak for my conclusion.

Some conservatives thought I was trying to score campaign points against Senator Cruz. However, I was merely repeating information I had published nearly seven years earlier in the first edition of my book The Original Constitution: What It Actually Said and Meant. (Anyway, I never tailor original constitutional research to political ends; otherwise I would have stayed silent, for I rather admire Ted Cruz.)

In The Original Constitution, I had described the two ways of being natural born:

Essentially, a natural-born citizen was one who met either one of two requirements.  First, a person qualified if born within the United States or within American territory, even if the person’s parents were aliens.  Alternatively, an individual qualified even if born outside the country if the individual’s father was an American citizen not then engaged in traitorous or felonious activities.*

Senator Cruz’s qualifies under neither of the two alternatives—birth in the U.S. or a citizen father.  Cruz was born in Canada, not in the U.S., and his father was Cuban, not American. To be sure, a congressional statute confers citizenship on children born abroad of American mother. Thus, Senator Cruz’s U.S. citizenship or and his qualifications for the U.S. Senate are undeniable. But citizenship by statute does not satisfy the constitutional rule that a president must be a natural born citizen.

At the time, some commentators claimed Cruz was a natural born citizen because he enjoyed his statutory citizenship at birth. But the supporting evidence for this position is weak, especially compared with the decisive evidence on what “natural born” meant to the Founders. The citizen-at-birth argument also cuts against the basic purpose of the “natural born” requirement, because then Congress could manipulate the definition to the benefit of some families and countries and to the detriment of others. Congress could, for example, declare that all future princes of Denmark are natural born Americans and therefore potentially eligible for the presidency, but princes of Sweden are not. It is exceedingly unlikely the Founders wished to permit this kind of manipulation.

A third group of commentators claimed that, at least under an originalist interpretation of the Constitution, only people born on American soil could be natural born—thereby alleging my “citizen-father” exception was wrong. The trouble with this position was that at the time of the Founding, the citizen-father alternative had been enshrined in Anglo-American law for well over a century. There is no reason to believe the Founders, a legally-astute bunch, overlooked it.

Finally, some objected to the sexism of allowing the father, but not the mother, to communicate citizenship to a child. But I was only reporting what the Constitution’s words meant, not my own political views. And the objection overlooks the fact that in founding-era law there were offsetting legal benefits that flowed only through the mother.

During the presidential campaign I was almost alone in my conclusions.

But in January, 2018 Professor Thomas Lee, a Fordham University international law scholar, published an exhaustive two-year study of the founding era definition of “natural born.” Although I am not cited, his study confirms my conclusions in all important details. You can find Professor Lee’s article here.

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* Not mentioned in that passage are exceptions to the first alternative: The child of a foreign invader or foreign diplomat, even if his first breath of air is American, is still not a natural born citizen—or, indeed, a citizen at all. Also, it is unsettled whether the children born of illegal immigrants are natural born or “birthright” citizens.