By Steve Byas

What Is a "Natural Born Citizen? In addressing this question, I should stress that I believe the Constitution of the United States should be interpreted as the framers of the Constitution intended.

Article II of the Constitution reads, "No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen years a resident within the United States."

In his Commentaries on the Constitution, Justice Joseph Story offered his explanation as to the purpose of the natural born citizen clause as to "cut off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpose a barrier against those corrupt interferences of foreign governments in executive elections."

I have seen no other theory as to the purpose of this provision of the Constitution than that above. In Essay #64 of the Federalist Papers, John Jay discussed the qualification that stipulated presidents must be at least 35 years of age -- giving Americans time to form a judgment of the person. Interestingly, no commentary can be found on the other two qualifications for the presidential office -- natural born citizen and fourteen years of residency. However, Jay did advocate that the "Commander-in-chief" of the American army be a "natural born citizen," and in the letter to George Washington he made allusion to the fear of foreigners not having their first loyalty to the country.

Since no other explanation exists as to the reason for inclusion of these two qualifications, especially that of natural born citizenship, I suppose we must conclude: the framers included this qualification to exclude foreigners who might have divided loyalties.

So what is a natural born citizen? Considering that we have a class of citizens who obtain this citizenship who were not citizens at birth -- naturalized citizens -- the logical inference is that a person who obtained citizenship other than through the naturalization process is a natural born citizen. My conclusion is that a natural born citizen is a person who is a citizen at the time of birth.

That leads to the question as to how can a person be a citizen at the time of birth? Only two possibilities can be offered -- by blood (jus sanguinnis) and/or by place of birth (jus soli). Probably because of the phrase "natural" is close to "native" in many minds, a large number of Americans have concluded that place of birth is the determinant.

But, an examination of American history makes it clear that the framers were most concerned about loyalty to the United States above all other nations. What was the understanding of the framers and the generation that conceived and adopted the Constitution?

While the framers may have seceded from the British Empire, their political concepts were heavily influenced by British practice and custom. The laws in force at the time of the adoption of the Constitution in that British Empire were that children born outside of the Empire to subjects of the Crown were subjects themselves and explicitly used the term "natural born" to define such children. This was recognized by the U.S. Supreme Court in the case, United States v. Wong Kim Ark in 1898, which said that children born abroad to subjects of the British Empire were "natural-born subjects . . . to all intents, constructions, and purposes whatsoever."

Three years after the drafting of the Constitution, the very first Congress of the United States enacted a statute that recognized that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized these children as "natural born citizens." The Naturalization Act of 1790 provided that "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 person whose fathers have never been resident in the United States . . ."

We can infer from this that if the father has never resided within the United States, then that father is most likely not a citizen of the U.S. Furthermore, one can logically presume that only one parent must be a citizen and that one citizen can be the mother. Secondly, we can also conclude that the framers were, as stated before, concerned about loyalty to this country, since they made special note of the father's residency.

Some have argued that Congress cannot amend the Constitution by statute. This involves an assumption that the term "natural born" means a person who is born of a citizen father (and maybe a mother, too) and one who is born within the borders of the United States. What we have here is what is called circular reasoning. They are arguing that natural born means this because that is what it means.

This will not do.

The First Congress included many of the men who had been delegates at the Constitutional Convention. In fact, eight of the 11 members of the committee that proposed the natural born eligibility requirement to the Convention served in the First Congress. We have absolutely no record that any person present at both had any objection whatsoever at the definition in the 1790 law.

It is beyond belief that the First Congress adopted the definition of natural born citizen they did, if James Madison and others who were prominent delegates at the Constitutional Convention had offered any objection. But there is zero evidence that Madison or any other member of the Constitutional Convention and the First Congress stood up and said, "This is not what we meant by the natural born citizen clause."

So what did they mean?

Perhaps the case of Senator Ted Cruz, a leading presidential candidate, is instructive. It should be noted that I held to the position that I hold -- a natural born citizen is a person who is a citizen at birth, by descent from at least one citizen parent -- long before I had ever heard of Ted Cruz. Cruz's father, Rafael Cruz, was a Cuban immigrant who was a legal resident of the United States who met and married an American woman who was an American citizen. Cruz and his wife moved to Canada to involve themselves in the oil business, where Ted Cruz was born. Shortly after this, the family returned to the United States, and the senior Cruz eventually became a naturalized citizen of the United States. Ted Cruz was not naturalized, however, because it was understood that he was a natural born citizen, having been born to an American mother and a father who had been a resident of the United States -- a legal resident of the United States.

But the Cruz example does provide a good reason the wise framers also included a fourteen year residency requirement for presidential qualification. Had Cruz's parents not returned to America when Cruz was quite young, but had instead made their permanent home in Canada, Cruz would have been a natural born citizen of the United States, but still ineligible to serve as president of the United States. He would not be able to meet the fourteen year qualification, which I believe was included for persons born abroad, but who do not return to the United States.

This residency requirement addresses the concern of those who are concerned about foreign-born not having a loyalty to the United States.

Some have also argued that the mother's citizenship is insufficient, but the father's citizenship is the determining factor in establishment of natural born citizenship. To this, I must wonder just how that could be proven in the 18th century, without modern paternity tests?

The citizenship status of slaves prior to the 14th Amendment also provides food for thought. Before that, a child's status as a slave was determined by the mother, not the father. In other words, a slave child could have a white father, but if the mother was a black slave, the child was considered a slave -- at birth. If a child had a black father and a white mother, the child was not considered a slave. The reason is obvious. The father may have been assumed, but in most cases, the white father would not want to claim the child as his own. But the child of a white mother was a natural born citizen of the United States. Black slaves were not considered citizens of the United States -- natural born or naturalized -- until the adoption of the 14th Amendment in 1868.

But the white father was a citizen of the United States and his child by a black slave woman was certainly born on U.S. soil. That child, however, was not regarded as a U.S. citizen.

In conclusion, it is my firm belief that the framers of the Constitution would consider Ted Cruz a natural born citizen of the United States.