COMMENTARY: Cruz's birthplace presents a court conundrum

The rivalry between Donald Trump and Ted Cruz has certainly heated up. Just a month ago, Mr. Trump raised the question of Sen. Cruz’s Canadian birth and warned that someone, probably a Democrat, might sue over the senator’s eligibility for the presidency. Now Mr. Trump is threatening to bring that suit himself.

The Constitution imposes three requirements for the office of president. To be eligible, a person must be 35 years old, 14 years a resident of the United States, and a “natural born citizen.” At the time the document was written, all three requirements were self-evident.

Mary Brigid McManamon

Today, however, because we no longer use the phrase “natural born” in everyday conversation, various commentators have suggested novel definitions for it. Despite recent amnesia as to the term’s meaning, it is easily found if one looks for it.

The concept of natural born citizenship came to us from the common law. In fact, the framers enshrined numerous common law doctrines in the Constitution. Other examples include trial by jury, the writ of habeas corpus, and ex post facto laws.

The Supreme Court has told us on numerous occasions that when the meaning of a constitutionalized common law term is in issue, we should look to the common law itself for the definition. The Court reasons that that is the source the framers would have used.

When we turn to the common law for the definition of natural born, the answer is quite clear. To be natural born, one has to be born in the territory of the sovereign. There are minor exceptions. For example, diplomats retain allegiance to the country they serve. Thus, children born abroad to the American ambassador would nonetheless be natural born American citizens.

Likewise, children born here to, say, the French ambassador would not be natural born American citizens.

Sen. Cruz was born in Canada to an American mother who was not a diplomat. Under the rules of the common law, he is not a natural born citizen. He is, therefore, ineligible for the presidency.

It will be interesting if Mr. Trump does in fact bring a suit challenging Sen. Cruz’s candidacy. Mr. Trump has standing to sue. That is, he suffers a particularized injury because of Sen. Cruz’s inclusion in the Republican primaries and caucuses.

But I cannot predict if the federal courts will follow the original meaning of “natural born” or adopt a newfangled one. Either way, such a case would be headed to the Supreme Court. Unfortunately, unless the vacancy left by Justice Scalia’s death is filled, we could end up with a 4-4 tie, and thus, no answer at all.

EDITOR’S NOTE: The mother of Sen. Cruz, Eleanor Darragh, was born in Wilmington. Professor Mary Brigid McManamon teaches at Widener University Delaware Law School.