Commentary

Ted Cruz’s Canadian Play

Unlike the three witches of Macbeth, I’m not known for my clairvoyance. But two-and-a-half years ago, when the non-secret came out that Ted Cruz was born in Canada, I wrote an op-ed debunking the idea that the Texas senator’s presidential ambitions were thus strangled in the crib.

One editor declined to run it because he figured it was a distraction that would soon blow over. Fair enough: in the dog days of 2013 it did. But with the Trump tornado rampaging across the land, the 2016 campaign has let slip the dogs of birtherism—which may end up biting The Donald himself, given that his mother was born in Scotland.

Cruz’s eligibility isn’t a hard constitutional question. Under Article II, Section 1, to be eligible for the presidency, you have to be a “natural born citizen.” The original public meaning of that term, combined with statutes enacted by the First Congress, indicate that it means both birth within the nation’s territory—set aside the controversy over birthright citizenship—and birth abroad to American parents in a manner regulated by law.

Cruz’s eligibility isn’t a hard constitutional question.

In other words, anyone who is a citizen at birth—as opposed to someone who naturalizes, or who isn’t a citizen at all—can be president. So the only question is whether Cruz was a citizen from the moment he emerged into this world. Under the law in place when he was born, babies born to one citizen-parent who has lived in the United States for at least 10 years, including five after age 14, are citizens at birth. Nobody disputes that Cruz’s mother meets that standard. (President Obama’s mother doesn’t, by the way—she was too young when he was born—which is why his birthplace matters.)

And that makes logical sense: The Founding Fathers didn’t want their newly independent nation to be taken over by foreigners on the sly—particularly royal foreigners—and their main concern was loyalty, not abstruse legal technicalities. That’s why children of Americans are fine.

I mean, does anyone seriously doubt Ted Cruz’s loyalty to this country? He wears cowboy boots to argue at the Supreme Court, for gosh sake, and is the ur-Tea Party member of Congress. You can certainly disagree with him, you can definitely dislike him, but calling him un-American is a lexicological nonstarter.

Imagine the counterfactual: Ted Cruz is some sort of Manchurian (or Manitoban) Candidate, come down from the north with a secret plan to make the United States more like Canada. Apparently he’s for government health care, a small military, and, most importantly, an NHL team for his hometown of Houston. He wants to impose the metric system on our children—Lincoln Chafee, call your office!—make maple syrup the national condiment, and replace the Super Bowl with the Grey Cup, the halftime of which will feature a medley of sea shanties sung by Alan Thicke and Celine Dion (or if you change the channel, you can watch the Labatt Bowl or reindeer calves cavorting on a plush hockey rink).

Does that sound believable to you? It reminds me of the last movie of that late, great John Candy, “Canadian Bacon,” where the Ontario native plays a Buffalo cop convinced of a coming Canuck invasion. He films public service announcements with the ominous message, “Canadians, they walk among us.” You know, it makes me reconsider Scott Walker’s proposal for a wall on the northern border.

In short, it may have been politically advantageous for Ted Cruz to renounce his Canadian citizenship before making a run at the White House, but his eligibility for that office isn’t in doubt. As superlawyers Ted Olson and (pre-birther) Larry Tribe wrote about Panama-born John McCain, Cruz “is certainly not the hypothetical ‘Foreigner’ who John Jay and George Washington were concerned might usurp the role of Commander in Chief.”

Under the Constitution, there are only two types of citizens: natural-born and naturalized. It’s bizarre to argue that someone born in Cruz’s circumstance was naturalized—or that there’s some third category of citizen that exists only in the context of presidential eligibility.

Then again, perhaps those witches in the Scottish play were right and we should look at “natural born” in an entirely different sense. Maybe we should ask not for a birth certificate but a medical record assuring us that Rafael Edward Cruz was not “from his mother’s womb untimely ripped.” It gives a whole new meaning to “American Caesar.”

Full disclosure: I’m a naturalized citizen of both Canada and the United States—immigration was so nice, I did it twice—and like most immigrants, I do a job most natural-born Americans won’t: defending the Constitution. Also, I’ve known Ted Cruz since his days representing Texas before the Supreme Court.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.