Look, I like the idea of a Ted Cruz presidency about as much as I like the idea of mackerel-n-arsenic ice cream. Any candidate endorsed by Glenn Beck
and advised by John Bolton
might as well have the biohazard symbol embossed on his forehead -- right between two tiny little horns.
But that doesn't mean I buy into this analysis
by a Harvard law prof named Einer Elhauge, who argues that Cruz is not eligible to run because he does not meet the "natural-born citizen" requirement.
I'm no law professor. I visit law libraries only when fighting landlords. But a lawyer did once inform me of this general principle: If the law does not offer a specific definition for a term or word, then a simple dictionary definition will usually suffice.
As nearly everyone who has followed the Cruz controversy understands, the big problemo is that the Constitution uses the term "natural born citizen" without defining just what that phrase means. Professor Elhauge says:
Moreover, when the Constitution was enacted, the word “natural” meant something not created by statute, as with natural rights or natural law, which instead were part of the common law.
At common law, “natural born” meant someone born within the sovereign territory with one narrow exception.
One would think that the good professor would be thoughtful enough to offer a citation. I'd feel more inclined to accept his argument if he named a big, authoritative book which would prove what common law was in 1787. If he can't point to a big, authoritative book, then let's at least have a link to a web site. I'm not picky.
No such luck: The prof is simply asking us to take his word for it. Sorry. Not good enough.
So let us see what happens when we follow the course of relying on normal dictionary definitions. The most important dictionary to appear at the end of the 18th century was the one produced by Samuel Johnson -- and although it showed up about a decade after the Constitution was signed, I feel confident that James Madison would have recognized the authority of Johnson's masterpiece. Johnson offered ten definitions of the word "natural." I list them here, omitting most of the examples (as well as the long S, which I hate
1. Produced or effected by nature; not artificial.
2. Illegitimate; not legal. [This definition is obsolete. I think it refers to a birth out of wedlock.]
3. Bestowed by nature; not acquired.
4. Not forced; not far-fetched; dictated by nature.
5. Following the stated course of things.
6. Consonant to natural notions.
7. Discoverable by reason; not revealed.
8. Tender; affectionate by nature.
9. Unaffected; according to truth and reality.
10. Opposed to violent; as a natural death.
I see nothing here that would preclude one from using the term "natural born citizen" to describe a child born of an American woman in a foreign country. If we apply definition 3 -- "not acquired" -- to the question of citizenship, then we can say that a natural born citizen is anyone who was born a citizen. Cruz qualifies: He never acquired
Frankly, I don't see any validation for the professor's contention that "natural" means "something not created by statute." If that
is how the word was defined at the time, someone forgot to inform Dr. Johnson.