Cruz’s eligibility for the presidency and the Naturalization Act of 1790

The Naturalization Act provides:

And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

Michael Ramsey argues that this language “strongly supports” the view that Cruz is a natural born citizen. Congress’ approach is “consistent with the eighteenth-century English parliament’s view that it could define natural born subject as it pleased (and indeed could tinker with the definition for policy reasons).” Or, as he puts it, a “natural born citizen” means “entitled to citizenship by whatever statute was in effect at the time of the person’s birth.”

But this is circular. Under Ramsey’s definition, the Naturalization Act provides that “the children of citizens of the United States [born on foreign soil] … shall be considered as entitled to citizenship by whatever statute was in effect at the time of the person’s birth”—namely, the Naturalization Act itself! The definition swallows its own tail.

The Naturalization Act uses a legal fiction as so many statutes do. Consider the Dictionary Act, which provides that the word “person” includes a corporation unless the context indicates otherwise. The Dictionary Act presupposes that the ordinary meaning of person is someone with a physical body and a beating heart. If the ordinary meaning of the word person encompassed corporation, then the Dictionary Act definition would not be necessary. People would read “person” to mean “corporation” without having to be told to. The Dictionary Act in this way is consistent with, and at some future point could be taken as evidence for, the proposition that the ordinary meaning of person excludes corporations. (By the way, over time courts came to refer to a non-corporate person as a “natural person,” again reinforcing the idea that we put natural before a term to refer to the regular or normal, as opposed to technical, usage.)

Similarly, the Naturalization Act assumes that “natural born citizen” does not include foreign-born children of Americans. That’s why it’s necessary to redefine this term to include foreign-born children. Enacted shortly after the Constitution was ratified, the law assumes that ordinary readers of the Constitution would have interpreted “natural born citizen” to mean only those born on American soil.