January 22, 2016

ORIGINALIST VS EVOLUTIONIST:

Is Ted Cruz Eligible to Run for President? Here Are the Theories (Margaret Hartmann, 1/22/16, NY Magazine)

Like many issues surrounding Ted Cruz, the eligibility controversy appears to be partially fueled by the fact that pretty much everyone hates him. One scholar Donald Trump frequently cites when making his Cruz birtherism argument is Harvard's Laurence Tribe, who was once the senator's professor. He's the scholar Trump mentioned in the last debate, prompting Cruz to dismiss him as "a left-wing judicial activist" and "major Hillary Clinton supporter."

In a recent Boston Globe op-ed, Tribe said he actually believes Cruz is eligible to be president -- but that's because unlike Cruz, he's not an "originalist," or "one who claims to be bound by the narrowly historical meaning of the Constitution's terms at the time of their adoption." Tribe argues that the sort of judge Cruz admires -- one who refuses "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" -- should stick with the sexist 1790 definition of a "natural born citizen" and find Cruz ineligible for the presidency.

It appears Tribe's aim wasn't to derail Cruz's campaign, but to needle him for his opposition to "living constitutionalists," like his old professor. Apparently, the dispute between Cruz and Tribe dates back several decades:

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.

Other scholars aren't arguing against Cruz simply because they find him irritating and his position ironic. Earlier this month, Mary Brigid McManamon, a constitutional law professor at Widener University's Delaware Law School, said Cruz is ineligible, writing in the Washington Post:

The concept of "natural born" comes from common law, and it is that law the Supreme Court has said we must turn to for the concept's definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are "such as are born within the dominions of the crown of England," while aliens are "such as are born out of it." The key to this division is the assumption of allegiance to one's country of birth.

McManamon, an originalist, takes issue with Katyal and Clement's Havard Law Review op-ed, saying the laws they cite are new statutes passed by Parliament rather than longstanding English common law. "While it is understandable for a layperson to make such a mistake, it is unforgivable for two lawyers of such experience to equate the common law with statutory law," she writes. "The common law was unequivocal: Natural-born subjects had to be born in English territory. The then-new statutes were a revolutionary departure from that law."

Writing in Salon this week, Harvard Law professor Einer Elhauge agreed with McManamon that what the framers had in mind was the English common law meaning of "natural born": someone born within a U.S. territory. He also argues that even if there are other methods by which one can become a citizen at birth, the word "natural" is "a limiting qualifier that indicates only some persons who are born citizens qualify" for the presidency.

Furthermore, Elhauge says that if we're willing to accept that a naturalized citizen (say, Arnold Schwarzenegger) is ineligible for the presidency, the idea that an American born abroad can't be president either is reasonable:

The concern at the time was obviously that foreign-born persons might not be as loyal to the U.S. One might think that concerns about disloyalty are odd for persons who have lived in the U.S. as citizens for a long time, but that oddity was also true at the founding. Moreover, no one claims the clause means that naturalized citizens (who may have lived in the U.S. since they were small children) are eligible to run for president, even though they had to do far more to prove their loyalty to the U.S. than someone born abroad who happened to have one U.S. citizen parent.

The line between those born in the U.S. versus abroad to U.S. parents certainly seems debatable. But it is no less sensible than the alternative line between those born abroad to U.S. parents versus those have been naturalized citizens for decades. This is one of those issues where general principles (even living ones) do not dictate any particular dividing line, and we need some technical fixed rule.  Unfortunately for Ted Cruz, that technical rule does not permit his candidacy.

Posted by at January 22, 2016 12:04 PM

  

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