“Under U.S. law, the fact that Cruz was born to a U.S. citizen mother makes him a citizen from birth. In other words, he is a ‘natural born citizen’ (as opposed to a naturalized citizen) and is constitutionally eligible.” To the evidence elicited by Clement and Katyal, I wish only to add that this conclusion is also theoretically justified by a proper conception of popular sovereignty.
The term “natural born citizen” had no existence or independent original meaning prior to the moment it was included in the Constitution. It was adapted by the framers from the well-known British concept of the “natural born subject” of the sovereign monarch. England had numerous and changing legal rules governing exactly who was and who was not a “natural born subject,” which can be used to muddy the waters. But one consistently applied rule is particularly germane: The offspring of the King were natural born subjects of the King regardless of where they were born, whether on English territory or not.
In the United States, We the People are the sovereign. In my forthcoming book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People,” I explain how the Declaration of Independence implies an individualist conception of We the People and that it is “to secure” the individual rights of the people that governments are established. This individualist conception of popular sovereignty was articulated by Chief Justice John Jay and Justice James Wilson in the Supreme Court’s first great constitutional case of Chishom v. Georgia in 1793.