My constitutional law course, taken in 1973, hardly qualifies me as a constitutional scholar. But I can frame the issue. To qualify to be president a candidate must be a "natural born citizen." This term is not defined in the Constitution. Ted Cruz's mother was an American citizen. His mother, and his Cuban born father, lived in Canada at the time of his birth in Toronto in 1970.
Most legal scholars believe natural born citizen means someone who was a citizen at time of birth, but a significant minority believe it means someone born on US soil. There was a statute in 1795 that could support the temporal scholars, but its repeal in 1795 supports the landers.
Neither the Supreme Court, nor any other appellate courts, have clearly opined on the matter. The intent of the founding fathers lies in the murky mire of 17th and 18th century English common law. Spoiler alert: when you have to use the "way back machine," there is no clear answer.
Other candidates have been in this gray area. Mitt's father, George Romney was born in Mexico. But his candidacy drowned in his New Hampshire tears before the issue was litigated. Barry Goldwater was born in Arizona of American parents, when Arizona was a territory, not a state. In part because Arizona would have qualified as American soil during the term of his presidency, no serious challenge was made to his natural born status.
John McCain was born on a military base in Panama, the son of a Navy Admiral. His case was strong because, although only leased, the base stood as under the sovereign authority of the United States. To clarify the matter, Obama and Hillary joined in sponsoring a unanimously approved non-binding Senate resolution declaring John McCain eligible.
The case most clearly on point is that of President Obama. Members of the birther movement asserted that Obama was ineligible to be president because he was born in Kenya, even though his mother was an American citizen. The movement was undermined by Obama's birth certificate. Cruz fits the birther criteria, born abroad of an American mother.
Invalidating an election would be a constitutional crisis. Ted Cruz should seek a declaratory judgement to resolve this issue now. A strict constructionist court might side with the temporalists or the landers. Or, liberal constructionists might find a middle ground. For instance, a child of an American citizen who resides in this country might qualify, even if the birth was on foreign soil. That would cover vacations, and job assignments of fixed duration.
Ted has loudly asserted that his status is a settled issue. But he was oddly quiet during the birther challenge to Obama. How strange it is to agree with Trump. Perhaps I have a "New York State of Mind."
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