From earlier this month, William A. Jacobson (Legal Insurrection) has this impressive post — actually a long scholarly essay — on the eligibility clause: natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz. Short version: he thinks there is not a clear case for ineligibility of any of the three. (Quite an impressive set of comments too, although the vitriol runs pretty high).
My thoughts are here (regarding Cruz).
As to Jindal and Rubio, I think there is no substantial textualist/originalist argument against their eligibility, as they were both both in the United States (although to non-citizen parents). Whatever else it did, English law considered a “natural born subject” to be anyone (other than the child of a foreign ambassador or invader) born within English territory, without regard to the citizenship of the parents. Absent evidence to the contrary, it seems appropriate to read the constitutional language in light of its English predecessor.
True, the Constitution did not always follow the English law background (and in some cases aggressively departed from it); and true also the framers saw a substantial difference between “subject” and “citizen”. But as Professor Jacobson says, there isn’t any material evidence that the founding era had a different view of what it meant to be “natural born” than the background English use.
The problem I have with Professor Jacobson’s analysis (with which on the whole I agree) is that he seems to equate “natural born citizen” with “born citizen” (omitting the “natural”). As discussed in my post on Senator Cruz, I think it requires a bit of work to get to that conclusion.
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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