DANG THOSE PETARDS!:

People are entitled to their own opinions about what the definition ought to be. But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an "originalist," one who claims to be bound by the narrowly historical meaning of the Constitution's terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on US soil to be a "natural born" citizen. Even having two US parents wouldn't suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.

This narrow definition reflected 18th-century fears of a tyrannical takeover of our nation by someone loyal to a foreign power -- fears that no longer make sense. But the same could be said of fears that a tyrannical federal army might overrun our state militias. Yet that doesn't lead Cruz -- or, more importantly, the conservative jurists he admires -- to discard the Second Amendment's "right to bear arms" as a historical relic, or to limit that right to arms-bearing by members of today's "state militias," the national guard.

On the other hand, the kind of judge I admire and Cruz abhors is a "living constitutionalist," one who believes that the Constitution's meaning evolves with the perceived needs of the time and longstanding practice. To that kind of judge, Cruz would be eligible to serve because it no longer makes sense to be bound by the narrow historical definition that would disqualify him.

When Cruz was my constitutional law student at Harvard, he aced the course after making a big point of opposing my views in class -- arguing stridently for sticking with the "original meaning" against the idea of a more elastic "living Constitution" whenever such ideas came up. I enjoyed jousting with him, but Ted never convinced me -- nor did I convince him.

At least he was consistent in those days. Now, he seems to be a fair weather originalist, abandoning that method's narrow constraints when it suits his ambition.

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