The fact Justices Thomas and Gorsuch disagree is great development — not only for originalism but for constitutional law generally.
With the increasing prominence of Senator Ted Cruz and the possibility that he might run for President, there has been a renewed interest in whether Cruz, who was born to an American mother and a non-American father in Canada, is a natural born citizen. At the time of his birth, a federal statute made a baby born in his situation an American citizen at birth. The question is whether that makes Cruz a “natural born citizen” under the U.S. Constitution.
Some commentators have sought to make points against both Cruz and originalism. One argues that Cruz would be a natural born citizen under all theories of constitutional interpretation, except his own – originalism.
Over at the Originalism Blog, Mike Ramsey has a long post discussing the issue. While anyone interested in the issue should read the entire post, the summary is that Cruz is a natural born citizen under an originalist interpretation of the Constitution. According to Ramsey, the meaning of the phrase is a person who is a U.S. citizen at birth under the laws at the time of his birth. Thus, Cruz is a natural born citizen.
The most surprising part of the post is Ramsey’s claim that being a natural born citizen and a naturalized citizen are not mutually exclusive. He writes:
The discussion is sometimes framed as a dichotomy between natural born (meaning a citizen at birth) and naturalized (meaning one who became a citizen later). That may be modern usage, but it’s not the eighteenth century meaning. Blackstone used “naturalized” to mean “made a citizen by statute,” whether at birth or otherwise. For example, he referred to the statute making subjects of some children born abroad as an act “for naturalizing the children of English parents born abroad.” That use carried over into the U.S. in the 1790 Act, which is called an act of naturalization (passed under Congress’ power to provide a uniform rule of naturalization), and continued at least at far forward as the Fourteenth Amendment – which says there are two ways to be a citizen: born in the U.S. or naturalized. So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen. . . . Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute). And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high offices.
This is a significant post. Moreover, it is another example of the progress that is being made on originalism now that people are interested in the subject.