Ted Cruz Has a Very Real Birther Problem: The Law Is Not Settled But the History Is

Andrew Burstein, Nancy Isenberg | Salon | AlterNet | January 22, 2016

The uproar Donald Trump caused by stirring the pot over the eligibility of Canadian-born Ted Cruz to serve as president awakened constitutional scholars. With or without biases, a good many of them have suggested that the historical record is not on Cruz’s side. By the nature of the news cycle, one thing or another will remove this new “birther” controversy from public view; it really shouldn’t go away, however, because the issues are broader than what the commentators are addressing.

Most who have studied the question at hand focus on the “original intent” of the founding generation. The most obvious problem concerns the meaning of “natural born” as written into the Constitution, and whether Cruz’s birth in Calgary disqualifies him. But two equally salient issues have been ignored. The first is that Cruz’s claim to natural-born status is based on his mother, because his Cuban-born father did become a Canadian citizen, and was only naturalized as an American citizen in 2005. Rafael Cruz came to the United States on a student visa, and kept his Cuban citizenship until he became a Canadian citizen. It is a historical fact (and a fact of law) that mothers did not possess the same right fathers did to grant their children American citizenship when the child was born outside of the United States. This is important.

The second underlying point commentators have ignored is the deeply troubling legacy of American democracy in allowing discrimination against a sizeable number of its “natural born” citizens––obviously we’re talking here about African-Americans––while making exceptions for a few whose claim is tenuous at best.

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