by Brendan Beery
It’s one thing to be a citizen pursuant to some statute passed by Congress. It’s quite another to be a citizen pursuant to the United States Constitution itself. While the latter is serious, badass citizenship, the former is a sort of reduced-calorie citizenship.
Here’s the sum total of what the US Constitution says about qualifications for citizenship in the United 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 the State wherein they reside.” That’s from the Fourteenth Amendment.
So there are only two groups guaranteed citizenship by the text of the Constitution itself: those who are naturalized, which means people who went through the legal process of earning citizenship by learning our language, passing a civics test, and so forth; and those who were both born in the United States and subject to its jurisdiction when they were born.
A strict constructionist (like Ted Cruz) would make much of the conjunctive and here: the drafters of the Fourteenth Amendment knew what or meant too. So a “birthright” citizen isn’t a citizen just by being in the US at the time of birth; he or she must have been born in the US and under US jurisdiction. (Under the “subject to the jurisdiction” language, a person born to foreign parents in a foreign embassy in DC, for example, is not a citizen: that person, while born in the US, would be under foreign jurisdiction.)
None of this helps Ted Cruz. Although Ted Cruz might be a US citizen under US statutes and common-law principles, his citizenship is certainly not required under the text of the Constitution. It is uncontested that Ted Cruz was not naturalized. He never passed a citizenship test (although given his positions that birthright citizenship is invalid and that state officials are free to ignore US Supreme Court orders when Cruz finds them morally objectionable, maybe he should have to).
So constitutionally (textually) speaking, Cruz’s citizenship is only required if he was born in a place that was US territory under US jurisdiction. But he wasn’t. He’s a Canadian. He was born in Alberta, which is neither US territory nor under US jurisdiction. (It is only Congress’ beneficence that renders this pasty Eskimo a US citizen.) Cruz, although an alien by birth, was born to a mother who, in turn, was born in Delaware, conferring her constitutional birthright citizenship upon her pudgy little bundle pursuant to statute. (A statute passed by Congress – to repeat, a mere statute – provides that an alien, foreign-born human is nonetheless a US citizen if one of his parents was a US citizen when he was born.)
When a person claims US citizenship because one parent was a US citizen when he was born (Cruz could claim only one America parent, as his father was a foreign alien when Ted was born), that’s called a claim to US citizenship “by acquisition.” In other words, Cruz is not a citizen in his own right; he acquired his mother’s citizenship because, when he was born, he was lucky enough that Congress allowed for such charity.
And now, this “skim-milk” American (as Ruth Bader Ginsberg might have it) has the temerity to say that babies born in the United States while subject to US jurisdiction should not be citizens. Imagine that: a citizen by acquisition looking down his nose at a citizen by Constitution. (Not that Ted Cruz could see anything under his pudding-like nose, which seems to have its own chin.)
Here’s Cruz’s position: a person born in the US to non-citizen parents should not be a US citizen while a foreign-born alien with only one US-citizen parent should be a citizen. In other words, a person with his own two feet planted firmly in the US when born is less deserving than a person with his two feet planted somewhere else if one of his ancestors still had one foot planted in the US. One might call distinctions like these arbitrary and capricious – except that they’re actually counter-intuitive.
Who is more likely to be a good American – someone born in the US to parents who want desperately to be in the US, someone who himself has been raised in the US and been Americanized from birth, or someone whose parents have wanted to be elsewhere and who may or may not have ever even been in the US?
Given what a national sore the child of Ted Cruz’s parents has become, the answer to that question seems more obvious. Ted Cruz wants to end birthright citizenship. It might be a better idea to end citizenship by acquisition.