By Prof. J. Stephen Clark

Questions have arisen lately about the eligibility of Texas Senator Ted Cruz to be president because he was born in Canada. While plenty of people may doubt that he is fit to be president, they ought to make their case to voters on the merits. They should not use a wart on the Constitution to disqualify him from the ballot.

The wart in question appears in Article II, Section 1, Clause 5 of the Constitution, which prescribes the qualifications to be president. Among them is the stipulation that the president must be a “natural born” citizen, a term that is not defined. Opponents of Cruz, led by noted “birther” Donald Trump, have questioned whether Cruz qualifies as a “natural born” citizen under this provision. His birth connection to the United States is that he was born in Canada to an American mother while she was living there. Some say that is not enough for him to qualify as “natural born.”

Examining the same historical evidence bearing on the meaning of the constitutional term, commentators have divided on the question. Those who say that Cruz should be deemed “natural born” and thus eligible to be president rely on 18th-century English statutes as the source for interpreting the constitutional term. Under those statutes a child born abroad to a British subject was deemed “natural born.” These commentators also cite a federal naturalization statute enacted by the First Congress in 1790. Like the British statutes, it deemed a foreign-born child of an American citizen “natural born.”

The opposing view derives from a 2005 law review article, which has been elaborated by other commentators. It relies on English common law, which generally did not deem a child “natural born” if born to a British subject living abroad. These commentators also cite the same 1790 American statute but note that it literally provided that children born abroad should only be “considered as” “natural born.” This distancing language, they say, indicates an understanding that the children were not actually “natural born” but were to be treated as such for statutory purposes as a kind of useful legal fiction.

Both sets of commentators have been too hasty. They have dived straight into the historical evidence and forced it to yield a definitive “yes” or “no.” They have failed to pause at the threshold and establish a rule of construction to guide the inquiry. How strictly or leniently should the constitutional requirement of “natural born” citizenship be construed? Answering that threshold question organizes the assessment of the historical evidence.

A rule of construction is a useful device for dealing with the reality of ambiguity in constitutional interpretation, and there is ample ambiguity here. Whether to give weight to the English statutes or the unmodified common law is perhaps the crucial point, yet neither choice seems obviously incorrect. The language of the 1790 American statute also has plausible alternative readings, depending on how much weight one places on the phrase “considered as.” A rule of construction controls ambiguity in the constitutional inquiry by prescribing, at the outset, how much evidentiary certainty will be necessary to justify adopting one or another interpretation.

Setting a rule of construction in this case is easy. For multiple reasons, a court should construe the disqualification narrowly, applying it only to cases about which there is no serious historical dispute. That means courts should approach this interpretive question by presuming that a citizen is eligible to be president unless the historical evidence establishes otherwise beyond any reasonable dispute. If two interpretations of the constitutional term “natural born” are fairly supportable, a court should adopt the one that renders an American citizen eligible to be president.

What are the multiple reasons for construing the disqualification narrowly? First, the policy rationale underlying the “natural born” requirement has always been dubious, with overtones of conspiracy theory. The requirement reflected anxiety that a wily foreign royal, with true loyalty to a European monarch or the Pope, might immigrate and somehow intrigue himself into the presidency, from which untold mischief would follow. Never having much sound basis in reality, this fear has even less credibility today. As a result, there is no serious policy rationale for the disqualification at all, which means there is also no sound policy rationale for giving it a broader scope than absolutely required by the historical sources.

Second, the disqualification of citizens because they are not “natural born” is itself offensive to contemporary values. Few defend disqualifying even loyal immigrants who clearly are disqualified under the provision, such as Arnold Schwarzenegger and Jennifer Granholm, the former governors of California and Michigan. The very presence of the disqualification is an embarrassment to the country’s identity as a nation of immigrants. Both sides in the Cruz debate generally agree that the disqualification is repellent and should be cut out of the Constitution. Although that cannot be accomplished without a constitutional amendment, the disqualification certainly need not be given a broader scope than the historical evidence manifestly requires.

Third, the disqualification is an affront to core constitutional values that have been entrenched in the Constitution subsequent to the adoption of this provision. Today, we regard a purposeless restriction on legal entitlements as fundamentally unfair and, as such, a denial of due process. Likewise, an arbitrary discrimination against people, particularly one touching on national origin or condition of birth, contradicts our commitment to the equal protection of the laws. The irrebuttable use of birth as a proxy for loyalty is offensive to these values. The Due Process Clause or its equal protection component may not necessarily have modified the “natural born” requirement, although that is a possibility. But there is at least no need to exacerbate its tension with these core constitutional values by giving the disqualification a broader scope than is incontestably required by the historical sources.

Fourth, the disqualification seriously intrudes on the prerogative of the American people to govern themselves. It is true that constitutional constraints inevitably have the countermajoritarian effect of constraining majority rule. Here, however, the specific theory rests on a distrust of voters to make competent choices in selecting their own political leaders. That paternalistic assumption has been severely undermined by the 19th-century delegation to voters of the choice of presidential electors, by the 17th Amendment’s adoption of direct election of Senators, and by repeated amendments to expand voting rights. As the Court observed in Bush v. Gore, “[h]istory has now favored the voter” in presidential elections. The disqualification should not be interpreted to intrude on voter choice more broadly than the historical sources incontestably require.

Nor is this proposition seriously undermined by the 22d Amendment. Although it interferes with voter choice by restricting presidents to two terms, it does not rest exclusively or even primarily on the assumption that voters lack the competence to make wise choices. Rather, it is animated by real concerns about the ability of an incumbent president to use the very powers of his office to entrench himself in power, even against voter preferences. That concern is very different from presupposing that voters are incapable of assessing the loyalty of candidates and thus need a prophylactic disqualification that is maddeningly blunt and grossly overbroad.

Set against these arguments for construing the disqualification as narrowly as the historical evidence will permit is what? What competing values are served by condemning a broad swath of the American citizenry as too disloyal to be entrusted with the presidency? The country once adopted a similar presumption of disloyalty in the case of Japanese Americans in World War II. Resting disloyalty assumptions on national origin and condition of birth, as the disqualification does, is uncomfortably similar to that experience of using race to ascribe presumptive disloyalty to an entire class. Again, even commentators who argue for the broader interpretation of the disqualification in the case of Senator Cruz do not pretend that it is defensible as a matter of policy. The only value really supporting their approach is adherence to legal formalism in interpretation–that is, pressing the evidence to a definitive answer while “neutrally” ignoring its consequences. That is just not enough.

The term “natural born” is undefined and ambiguous. There are very good reasons for establishing a rule of construction that gives this disqualification of citizens a scope that is no broader than necessary to comport with incontestable inferences from the historical evidence. Given the readily contestable choice between English statutes and English common law and between competing interpretations of the 1790 American statute, those arguing for the disqualification of Cruz cannot meet this appropriately high burden of evidentiary certainty. There is sufficient evidence to support a credible reading of “natural born” that would include children born to Americans abroad. That conception results in a narrower disqualification and, for that reason, is the better interpretation.

Ted Cruz may be unfit to be president, but he should not be disqualified by birth on the shaky basis of historical evidence that is truly contestable. Our values require greater certainty than that.