Donald Trump has recently questioned whether his GOP rival, Senator Ted Cruz is eligible, under the Constitution, to serve as President of the United States. Cruz was born in Canada. His mother was a U.S. citizen, but his father was a Cuban national. Had both of Cruz’s parents been U.S. citizens, his eligibility would be clear. However, given his foreign birth with only one U.S. citizen parent, Cruz’s eligibility is a matter of some controversy.
Article II of the Constitution declares that the president must be a natural-born citizen at least thirty-five years of age. Generally the phrase “natural born” is understood to mean anyone born on U.S. soil or, on foreign soil to parents who are U.S. citizens. Individuals who are not citizens or are “naturalized” citizens, i.e., were granted citizenship after their birth, are not eligible to serve as president or vice president. This simple requirement occasionally leads to questions and controversies. Some Republicans challenged President Barack Obama’s eligibility for office, noting that his father was a British subject rather than a U.S. citizen. Obama was, however, born on American soil, rendering his father’s citizenship irrelevant. . Some Democrats, on the other hand, challenged the eligibility of 2008 Republican presidential nominee, John McCain, pointing out that he had been born in Panama. McCain’s parents were, however, both U.S. citizens. Indeed, McCain’s father, a naval officer, commanded a submarine berthed at the U.S. naval base in Panama commanded by McCain’s grandfather. In 2008, the U.S. Senate adopted a non-binding resolution recognizing McCain’s eligibility to serve as president.
Currently, the eligibility of two Republicans mentioned as presidential possibilities, Florida senator, Marco Rubio (an active contestant for the 2016 nomination) and Louisiana governor, Bobby Jindal (who recently withdrew from the 2016 race) is sometimes questioned. Both were born in the United States, but to parents who were not U.S. citizens. Both are, nevertheless, clearly eligible to serve as president by virtue of having been born on U.S. soil.
As for Cruz, the question is not so easily answered. British precedent, as reported by Coke and then by Blackstone focuses on the father. That is, a child born outside England of a British father, say the British ambassador to another country, was considered “natural born.” Children born abroad of British mothers and foreign fathers were not considered natural born British subjects
The framers of the Constitution relied heavily on Blackstone and so were aware of British precedent, Accordingly, the language of Article II may have assumed that only the foreign born children of citizen fathers would be considered natural born. This conception of the framers’ assumptions is supported by the fact that in enacting the 1790 Naturalization Act, the First Congress, where many framers served, declared that natural born citizens included the foreign-born offspring of citizen mothers and non-citizen fathers so long as the father had at some point been resident in the U.S. Had it been generally understood that the offspring of citizen mothers and non-citizen fathers were natural born, this language would not have been necessary. The 1790 Act has long been superceded by other legislation so the residency language is probably no longer relevant.
So, is Senator Cruz eligible to serve as president? Under the original meaning of Article II, possibly not. It seems rather unlikely, though, that any contemporary court or the Congress would be willing to declare that Cruz was ineligible to serve as president because his mother, rather than his father was a U.S. citizen. Today, this gender-based distinction would almost certainly be seen as a violation of the 14th Amendment’s Equal Protection clause. Legal challenges to Cruz’s eligibility thus seem unlikely to prevail.