Opinion: It might be time to resolve meaning of ‘natural born’

PHOTOGRAPHER: File Photo

Sen. Ted Cruz, a Republican from Texas and a 2016 presidential candidate, makes a campaign stop in Spirit Lake, Iowa, on Jan. 6, 2016. Cruz was born in 1970 in Calgary, Alberta, to a U.S. mother and a Cuban father.

After he left Wall Street to enter politics eight years ago, Rep. Jim Himes, D-Conn., began fielding the occasional question of when he intended to run for president.

“It has come up in jest any number of times,” said Himes, who always has his answer ready. “There could be constitutional questions.”

Himes, you see, was born in Peru in 1966 while his father worked for the Ford Foundation. That makes him one of at least 17 current members of Congress who, because of their birth outside the United States, could run afoul of the Constitution’s “natural born citizen” presidential requirement should they try to relocate down Pennsylvania Avenue.

OUTSIDE THE U.S.

Members of Congress not born in the United States:

CANADA

Sen. Ted Cruz, R-Texas

Rep. Sean Patrick Maloney, D-N.Y.

CUBA

Rep. Ileana Ros-Lehtinen, R-Fla.*

Rep. Albio Sires, D-N.J.*

FRANCE

Rep. Mark Meadows, R-N.C.

GERMANY

Rep. David Rouzer, R-N.C.

GUATEMALA

Rep. Norma J. Torres, D-Calif.*

INDIA

Sen. Michael Bennet, D-Colo.

ITALY

Rep. Don Beyer Jr., D-Va.

JAPAN

Rep. Diana DeGette, D-Colo.

Sen. Mazie Hirono, D-Hawaii*

MEXICO

Rep. Raul Ruiz, D-Calif.*

PANAMA

Sen. John McCain, R-Ariz.

PAKISTAN

Rep. Chris Van Hollen, D-Md.

PERU

Rep. Jim Himes, D-Conn.

THAILAND

Rep. Tammy Duckworth, D-Ill.

TAIWAN

Rep. Ted Lieu, D-Calif.*

* Denotes citizenship by naturalization

For generations, confusion and uncertainty have surrounded this murky presidential qualification. It is a question that dogged President Barack Obama, and even his challenger in 2008, Sen. John McCain.

With “birtherism” now seemingly a regular feature of U.S. politics, demand is mounting for a definitive answer to the modern meaning of “natural born,” a term crafted in an era when ocean crossings took months and people rarely ventured more than a few miles beyond where they were born.

“We need to resolve this issue,” said Rep. Chris Van Hollen, D-Md., who was born in Pakistan in 1959, when his father was a U.S. diplomat. “Obviously there are still some outstanding legal questions.”

Sen. Ted Cruz of Texas, a Republican presidential candidate, is the latest White House contender to have his natural-born credentials challenged. Born in 1970 in Calgary, Alberta, to a U.S. mother and a Cuban father, Cruz has seen his legitimacy disputed both by an opponent, Donald Trump, and in a new lawsuit filed in Texas — possibly the first of several.

Cruz says his legal standing is not in doubt, but it isn’t so simple.

The overarching problem is that the Supreme Court has never been forced to interpret the clunky clause, leaving persuasive legal interpretations that range from arguing that the entire debate is nonsensical to asserting that only those born to certified U.S. parents on verifiable U.S. soil can aspire to the White House.

Laurence H. Tribe, a Harvard law professor and constitutional scholar, believes the “natural born” provision has outlived its original intent considering that the redcoats no longer are coming.

“The worry that George III might come over and exert undue Germanic or British influence is no longer a threat,” Tribe said, referring to a motivating fear of the founding fathers. “There is no defense now for retaining the clause in the Constitution. It really needs to be removed.”

Before Cruz, McCain — who was born in the Panama Canal Zone — had to navigate the issue. Some have raised questions about Sen. Marco Rubio, R-Fla., the presidential candidate who was born in the United States to two Cuban immigrants who were not yet citizens. And Obama still endures questions about his citizenship despite his confirmed origins in Hawaii.

But a resolution is no easy task.

A constitutional amendment could be the most certain route. Simply excising the phrase “natural born” in a bit of constitutional copy-editing would mean that a person elected president would have to be a citizen of at least 35 years of age who has been a resident of the United States for at least 14 years — an approach that could open the presidency to naturalized citizens.

But changing the Constitution is purposefully complicated and requires overwhelming backing from Congress and state legislatures. Even well-intentioned tampering can open the door to much more explosive proposals. It is easy to imagine people would have many alternative ideas for defining the qualifications to be president once that ball got rolling.

The struggle over the “natural born” provision has greater meaning as well. Interpreted at its narrowest, it would eliminate from the presidential pool tens of thousands of bona-fide Americans who are no less citizens than their neighbors. They would be shut out purely by accident of birth abroad — quite possibly because their parents were away serving the nation’s interests.

“That in itself is rather undemocratic,” Tribe said.

So while Cruz or the next White House contender whose “natural born” credentials are questioned might not appreciate the attention, the plight could serve a purpose by finally delivering a legal answer that is long overdue.