A Constitutional argument as to why Ted Cruz is a naturalized U.S. citizen

lawrence sellin

Article 1 Section 8 of the Constitution states that Congress shall have the power to establish a uniform rule of naturalization. Section 1 of the Fourteenth Amendment to the Constitution states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

First of all, Ted Cruz was born in Canada and not subject to the jurisdiction of the United States.

Furthermore, the manner in which Ted Cruz acquired US citizenship bears comparison to the Supreme Court case, Rogers v. Belle (1971). Aldo Mario Bellei was born in Italy of an Italian father and a U.S. citizen mother.

According to Rogers v. Belle (1971), inserting “Cruz” within the text of the majority opinion:
“He [Cruz] was not born in the United States. He [Cruz] was not naturalized in the United States. And he [Cruz] has not been subject to the jurisdiction of the United States. All this being so, it seems indisputable that the first sentence of the Fourteenth Amendment has no application to plaintiff Bellei [Cruz]. He [Cruz] simply is not a “Fourteenth Amendment first sentence” citizen.

Even in the dissenting opinion of Rogers v. Belle (1971), Justices Brennan and Douglas acknowledge:
“Concededly, petitioner [Cruz] was a citizen at birth (emphasis added), not by constitutional right, but only through operation of a federal statute.”

According to United States v. Wong Kim Ark (1898):
“But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”

Again, Rogers v. Belle (1971), referring to United States v. Wong Kim Ark (1898):
“Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.”

Further clarifying (emphasis added) the distinction of citizen by birth and naturalization, even at birth by Act of Congress, Rogers v. Bellei (1971) states:
“However, the clearest expression of the idea that Bellei and others [Cruz] similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v. Wong Kim Ark, 169 U. S. 649 (1898):

‘The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.’

‘The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization, when used in its constitutional sense, is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. This inclusive definition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus, in Minor v. Happersett, 21 Wall. 162, 88 U. S. 167 (1875), the Court said:’

‘Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born, or they may be created by naturalization.’

‘And in Elk v. Wilkins, 112 U. S. 94 (1884), the Court took the position that the Fourteenth Amendment contemplates two sources of citizenship, and two sources only: birth and naturalization. . . . Persons not . . . subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.'”

There is a distinction between obtaining citizenship by birth, that is, being born in the US; and becoming a citizen at birth through an Act of Congress, that is, naturalization. Based on the Constitution, the Fourteenth Amendment and numerous Supreme Court decisions, Ted Cruz is arguably a naturalized US citizen and ineligible for the Presidency.

Lawrence Sellin, Ph.D. is a retired colonel with 29 years of service in the U.S. Army Reserve and a veteran of Afghanistan and Iraq. Colonel Sellin is the author of “Restoring the Republic: Arguments for a Second American Revolution.” He receives email at lawrence.sellin@gmail.com