by Ron Smith, ©2016

Article I, Section 8 of the Constitution assigns the making of “an uniform Rule of Naturalization” for immigrants

(Feb. 17, 2016) — Far be it for me to ascribe motive to those who are promoting the presidential candidacy of Ted Cruz even though it’s crystal clear that he’s a naturalized citizen and therefore, not eligible to be president or vice-president of the United States.

I honestly have no any idea if they simply haven’t read what the Supreme Court has said on the issues involved, or if they’ve read it and don’t care, or if they’ve read it and don’t agree, because it has to be one of those three options if you’re trying to say that a guy born in Canada to an American woman and a Cuban father can occupy the Oval Office and be in sole control of our military as Commander-in-Chief.

And while the eligibility issue is usually framed as a debate over the definition of what is a ‘natural born Citizen’, we instead only need to look no further than what a ‘naturalized’ citizen is since it’s long been recognized that naturalized citizens can’t be president (think Arnold Schwarzenegger).

When we put Cruz under that microscope, we find that the first-term Senator from Texas clearly fits the description of a citizen who owes his citizenship to the naturalization laws of the U.S., and therefore, is a ‘naturalized citizen’. Not in the same way ‘full’ way that Schwarzenegger is since he was born abroad and neither parent was U.S. citizen, but naturalized nonetheless.

Arnold Schwarzenegger is a “fully” naturalized U.S. citizen since he was born in Austria with no U.S. citizen-parents and therefore, not eligible to be President.

Simply put, Cruz is a naturalized citizen as a result of having less than 100% alignment with the most-commonly used definition of a natural born citizen, which is born in the U.S. to two parents who themselves are U.S. citizens.

From Minor v. Happersett (1875) describing ‘natural born Citizens’:

“…it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

In fact, using that standard, Sen. Cruz is only 33% ‘natural’ born, and 66% ‘unnatural’ born. Hardly the kind of DNA makeup that would make Founding Father John Jay sleep well at night after he issued his written warning to George Washington in which Jay said:

“Permit me to hint, 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.”

If your birth circumstance does not comport with the above definition, one needs to look outside the Constitution for how to become a citizen of the United States. According to the Constitution itself, the only place to look is to the U.S. laws that govern the ‘uniform rules of Naturalization’ that Congress was specifically charged with establishing under Article 1, Section 8 of the Constitution.

And once your citizenship status is granted ‘solely’ by virtue of those ‘naturalization rules’ – as is the case with Cruz – then you’re considered to be a ‘naturalized citizen’. While some may disagree with that, it’s not any more complicated than if one eats beef to then say they’re a ‘beefeater’, and that’s exactly what the Supreme Court has said.

Here’s how Supreme Court Justice Hugo Black, who 4 years earlier wrote the majority opinion in the citizenship case of Afroyim v. Rusk, said it in Rogers v Bellei (1971):

Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word “naturalize” in this way has a considerable constitutional history. Congress is empowered by the Constitution to “establish a uniform Rule of Naturalization,” Art. I, Sec 8. Anyone acquiring citizenship solely under the exercise of this power is, Constitutionally speaking, A NATURALIZED CITIZEN.” (emphasis added)

Also, in United States V. Wong Kim Ark (1898), the Supreme Court said this:

“…A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens…”

So it’s clear that if your citizenship does not naturally derive itself automatically from the combination of your place of birth in the U.S. and the U.S. citizenship of your birth parents, then you are a naturalized citizen.

Two Kinds of Naturalization – Critical to Understanding of The Debate

1. Citizen AT Birth – Commonly Referred to as ‘Collective Naturalization’

Many people insist that Ted Cruz is not a naturalized citizen since he did not have to go through a formal process and instead, obtained ‘automatic citizenship at birth’. And while parts of that statement are true, the part that’s missing is that ‘automatic citizenship at birth’ to children born abroad is not granted by any words in the Constitution, and instead is found in section 8 U.S. Code § 1401 of the U.S. NATURALIZATION laws.

It was under that same authority that Congress was able to naturalize the people of Louisiana, Hawaii and Alaska when those states were added to the republic without those new citizens needing to go through a formal ‘process’.

So, yes, Cruz was a citizen at birth – even though born in Canada – but his U.S. citizenship came ‘solely’ from the laws of naturalization of this country, and not ‘naturally’ as a result of being born in the USA to two citizen-parents.

2. Citizen AFTER Birth – Commonly Referred to as ‘Judicial Naturalization’

As discussed earlier, Arnold Schwarzenegger is one of the better-known examples of a person who was ‘naturalized after birth’ because he was not born in the U.S., nor did he have two parents who were U.S. citizens. The process that Arnold went through is what we typically think of when we think of being ‘naturalized’, including citing an Oath, etc., but as the Supreme Court has made clear, that is not the only type of naturalization found in the law.

In short, the law makes no distinction for the ‘percentage’ of naturalization needed to make a citizen naturalized and therefore, ineligible to be president. It doesn’t matter if one was born abroad to one citizen-parent (Cruz) or born abroad to no citizen-parents (Schwarzenegger), obtaining U.S. citizenship under both of those circumstances falls under the same word and laws – naturalization.

Put simply, naturalization is like being pregnant…you either are or you’re not. You can’t be ‘partially pregnant’ any more than you can be ‘partially naturalized.’

Naturalization is like pregnancy in that you can’t be ‘partially pregnant’ any more than you can be ‘partially naturalized’.

Naturalized Citizens Can Not be President

From a legal perspective, the Court has said that ‘naturalized’ citizens are not eligible to be president. Here’s how Justice William O. Douglas said it in Schneider V. Rusk (1964):

“We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1.”

And in Luria v. United States, 231 U.S. 9 (1913), the Supreme Court said:

“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency.”


The debate over whether or not Ted Cruz is a ‘natural born Citizen’ is likely to rage for months since the phrase has never been directly litigated in the highest court in the land.

However, what has been litigated is that persons with same birth circumstances as Cruz have been declared in the past to be ‘naturalized citizens’ (see link below to Rogers v Bellei) and naturalized citizens can’t be president or vice-president. And with good reason.

Here’s what Founding Father Alexander Hamilton said in the Federalist Papers less than a year after the signing of the Constitution, and in reference to the natural born Citizen clause, which is a convincing warning as to why we should never let that happen.

“Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.

How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention.”

The Constitution is Bigger Than Ted Cruz

As I’ve debated this issue online with Cruz supporters over the past several weeks, they’re often quick to remind me that ‘no court will touch this’, or ‘if Obama got away with it, what makes you think it will be any different with Cruz?’

Really? That’s what we’ve come down to…not whether something is ‘right or wrong’, but instead it’s become ‘can we get away with it?”

Isn’t the Constitution more important than one guy? I actually had one Cruz supporter admit that he knows Cruz is not eligible, but that we need to vote for him anyway because “he’s the only guy running that will uphold the Constitution”.

Say what? He’s literally telling me we need to be party to an unconstitutional act so that we can elect a guy who’s going to protect the Constitution? Maybe we should start robbing banks to lower the national debt while we’re at it!

Setting aside the issue that Obama was able to at least fake his way into being born in the USA, is the fact that he ‘got away with it’ really the standard we’re going to have for ourselves in the future on such a critical issue? Once we let a guy in who’s only 33% natural born, why stop there?

As Americans, we don’t need another court case to figure this out and instead, we just need to read and apply those cases we already have. Additionally, we need to agree we’re not willing to break the law in order supposedly to save it.

Once we do, we find that Ted Cruz obtained his U.S. citizenship ‘solely’ as a result of being naturalized outside the U.S., which also means he is ‘not subject to the jurisdiction’ of the U.S. based on Rogers v. Bellei, and consequently, he is not eligible to be president or vice president of the United States of America.

For more information, and cases cited:

Related Essay: https://www.facebook.com/notes/ron-smith/this-is-scary-president-cruz-would-not-constitutionally-be-subject-to-the-jurisd/1093074317404707

Attorney Mario Apuzzo: http://puzo1.blogspot.com

Afroyim v. Rusk: https://www.law.cornell.edu/supremecourt/text/387/253

Rogers v. Bellei: https://supreme.justia.com/cases/federal/us/401/815/case.html

United States v. Wong Kim Ark: https://www.law.cornell.edu/supremecourt/text/169/649

Schneider v. Rusk: https://www.law.cornell.edu/supremecourt/text/377/163

Luria v. United States: https://supreme.justia.com/cases/federal/us/231/9/

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  1. I have been saying this same thing since Ted Cruz announced his candidacy. I will NOT argue the natural born citizen definition ANYMORE. That argument is trying to prove the negative “Obama IS NOT a natural born citizen”. INSTEAD I will argue the POSITIVE “TED CRUZ IS A NATURALIZED CITIZENS AT BIRTH and ineligible to be President or VP. My intention is NOT to win an argument, it is to present the truth. I thought ‘conservatives’ always wanted the truth. I was shocked to find out that is NOT true. HOWEVER last night I got 2 Cruz supporters on different sites that word for word said this to prove Cruz eligible “naturalized at birth IS natural born” and therefor eligible. There is no help for those that want to put a single individual over the Constitution.