Secretary of State Alex Padilla should not list Texas Sen. Ted Cruz as a Republican candidate in the presidential primary because Sen. Cruz is not eligible to be President and to place him on the ballot would violate the United States Constitution.

The Constitution lists three qualifications for President: you must 35 or older, been a resident of the United States for 14 years, and be a “natural born citizen.”  Ted Cruz was born in Canada; he is not a “natural born citizen.”

“Natural born citizen” is found in Article II of the Constitution and the language is very precise: “No person except a natural born citizen … shall be eligible to the office of President.”  This language has not been subject to litigation or Congressional action (with one exception described below) because until Sen. Cruz no foreign-born person has tried to run for President.

But we know what the constitutional intent is, and for that we must employ the wise advice of Justice Scalia: look to the Founding Fathers.  In the first draft of the Constitution in 1787 the word “citizen” alone was used to define eligibility to be President, but one of the Founders, John Jay, later the first Chief Justice of the United States, was not satisfied.

He wrote to Gen. George Washington, the chairman of the Constitutional Convention.  Would it not, he asked, be wise “to provide a strong check into the administration of our national government, and to declare expressly that the commander in chief of the American army shall not be given to, nor devolve on, any but a natural born citizen.”    In the final draft, the words “natural born citizen” were added to the Constitution. The Founding Fathers had good reason to be suspicious of foreigners, England, France and Spain all had their eyes on North America.

Questions of citizenship were again considered in the Civil War, when the issue of whether freed slaves were citizens was raised.  Congress answered that in the passage of the 14th Amendment that established birthright citizenship: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”  One of the authors of the 14th Amendment, Rep. John Bingham of Ohio, wrote: “Who are natural born citizens but those born within the Republic?  Those born within the Republic, whether black or white, are citizens by birth, natural born citizens.”

So Bingham defined “natural born citizens” as those born “within the Republic”.  This carried forward a British Common Law rule that all persons born within the Dominions of the King were his Subjects.

Congress is also allowed in Article I of the Constitution to “enact a uniform rule of Naturalization,” that is, to determine who can be a citizen.  Congress has passed a statute that if one of your parents was born in the United States, you are an American citizen.  This is how Sen. Cruz obtained his citizenship, his mother was born in Delaware, although his father was born in Cuba and was not naturalized at the time of his birth.  But while a “citizen” via a statute, Sen. Cruz is not a “natural born citizen” within the meaning of the Constitution.

This issue has arisen at least four times in recent history.  Sen. Barry Goldwater was born in Arizona before it was a state, but was a “natural born citizen” as Arizona was a U.S. Territory.  Michigan Gov. George Romney, a Republican candidate in 1968, was born in Mexico of American parents.  His legal team argued that since both his parents were American and never renounced their citizenship, he was eligible, but his candidacy collapsed before the first primary and this claim was never litigated.

“Birther” challenges to President Obama claimed he was ineligible in part due to his Kenyan born father.  But the President produced a Hawaii birth certificate, as well as a 1961 birth notice in a Honolulu newspaper, to establish conclusively that he is a “natural born citizen” within the meaning of the 14th Amendment.

The most interesting case was that of Sen. John McCain, the 2008 GOP nominee.  He was born in 1936 in the Panama Canal Zone, to American citizen parents while his father was on military duty there.  Although children born to service members abroad have long been recognized as citizens, this was a case of first impression.  Most scholars found no problem with Sen. McCain because the Canal Zone was then a possession of the United States.

But the matter was not fully settled until the Senate passed a resolution in 2008 stating: “John Sidney McCain is a ’natural born citizen’ under Article II, Section 1 of the Constitution of the United States.”  Congress, of course, has the power to define “natural born citizen” and the Senate determined from the facts of his birth that Sen. McCain met the criteria.

There are four reasons why Sen. Ted Cruz does not meet the criteria and should not be listed on the California ballot.

First, his father was a foreigner, born in Cuba, while Sen. Cruz, born in Canada, was also a foreigner.  Thus he fits exactly the fear of foreigners that led to inclusion of “natural born citizen” within the Constitution in the first place.   He is the first presidential candidate in American history to fit that category.  Had both parents been American citizens, Cruz would have a much stronger case, (similar to Gov. Romney’s).  However, only one was American born.

Second, every other President and presidential candidate was born either within the United States or one of its possessions.  Thus, the examples of Goldwater and McCain do not help Cruz.  At no time ever was Calgary, Alberta, Canada, where he was born in 1970, a United States possession.

Third, Sen. Cruz, unlike Sen. McCain, does not have a resolution passed by Congress declaring him a “natural born citizen.”  Certainly Congress has the power under the “naturalization” clause to determine citizenship, and to define “natural born citizen,” but it has not done so in the case of Sen. Cruz.

And fourth, and this is the most important point, Sen. Cruz is a “natural born citizen” – of Canada.  Under Canadian law, any person born in Canada is automatically a citizen of Canada.  Sen. Cruz tried to pretend this was not so, but in 2013 the Dallas Morning News researched the matter and found out it was so.  Sen. Cruz then released his own birth certificate which clearly establishes that he was born in Canada.  He then renounced his Canadian citizenship, which he is allowed to do.

The problem is that we are not talking about his dual citizenship, many people have dual citizenship; we are talking about his “natural born citizenship.”  You can only be “natural born” in one place.  It is absurd for Sen. Cruz to assert, as he has in the first primary states, that he is a natural born American when the facts show conclusively that he is a natural born Canadian.

Thus his citizenship of Canada due to his birth there prevents him from being a “natural born citizen” of the United States.  Had Sen. McCain been a citizen of Panama as well as the United States, he probably could not have been a natural born American citizen, but no one ever said he was a citizen of Panama.  Sen. Cruz is the only presidential candidate in American history to hold two citizenships.

California law requires the Secretary of State to place “generally recognized candidates” on the June primary ballot.  Unlike many states, candidates do not file for the ballot here; it is all up to the Secretary of State.  Secretary Padilla should decline to place Sen. Cruz on the California ballot on the grounds that the lacks eligibility.  That would force Cruz to sue to get on the ballot, requiring him, and a court, to confront the obvious: he cannot be President of the United States.