The best of news! Eight years after a frustrated White House released President Obama’s birth certificate in an ultimately fruitless attempt to show that no, you wackos, he was not born in Kenya, calm down, and five years after an exasperated President Obama dug up a something called a “long form” birth certificate in yet another vain attempt at that same goal, another birther movement is afoot! Except this time, the truthers du jour argue based not on an unholy concoction of patently false allegations, racist Internet memes, and email chains forwarded from their great-aunt’s AOL account, but instead on a series of nuanced constitutional law arguments. This is not nearly as exciting as the bad photoshopping proffered by Jerome Corsi and his ilk, but it will do. (Do not clink on that link unless you are prepared to subject yourself to between 6-8 pop-up ads offering you great deals on cash for gold and DIY bomb shelter installation.)
Here are the facts, which are not in dispute: Texas Senator Rafael Edward “Ted” (“DO NOT CALL ME FELITO DAMMIT”) Cruz was born in Alberta, Canada in 1970 to an American mother and a Cuban father. While his mother was a United States citizen at the time of Cruz’s birth, Dad did not become an American citizen until 2005.
Cruz is a U.S. citizen with a U.S. passport via his mother, and there are no birthplace restrictions on would-be senators, who must only be citizens for at least nine years at the time of their election. But the Constitution imposes a slightly different prerequisite on presidential candidates. Emphasis mine:
No Person except a natural born Citizen, or a Citizen of the United States at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
The question commentators are grappling with, particularly in light of Cruz’s rapid ascendancy in the GOP field, is whether he is a “natural born citizen” under Section I, Article 2. In an effort to get out in front of this, Cruz formally renounced his Canadian citizenship in May 2014, but (be prepared to be SHOCKED) this did not end the debate.
I have absolutely no idea what the answer is, and if pressed, my response would probably be something like “I don’t know, sure, that seems close enough?” But some people who are smarter than I am are much more confident in their takes! Wednesday in Salon, Harvard Law School’s own Professor Einer Elhauge argues that a close read of the Constitution’s text and an examination of the historical usage of its constituent terms together demonstrate that Cruz is, in fact, constitutionally ineligible to be president.
The argument that Ted Cruz is eligible to run for president initially looked strong, then probable but uncertain. But closer examination shows it is surprisingly weak.
The constitutional text provides that a president, unlike other elected officials, must be a “natural born citizen.” This language could not mean anyone born a citizen or else the text would have simply stated “born citizen.” The word “natural” is a limiting qualifier that indicates only some persons who are born citizens qualify. Moreover, when the Constitution was enacted, the word “natural” meant something not created by statute, as with natural rights or natural law, which instead were part of the common law.
As you might guess, a law professor’s argument based on close reading of the Constitution and several centuries-old rules of statutory interpretation does not lend itself well to distillation in a brief and accessible summary, but very basically, Professor Elhauge argues that the Constitution’s drafters intended that children borne to U.S. citizens living abroad would be “natural born citizens” ONLY IF their parents were abroad in service of their country (like John McCain, whose parents were serving on a U.S. military installation in Panama when he was born, but not like Ted Cruz, whose parents were working in the oil business).
So, is Professor Elhauge right? I don’t know, but probably! As it so happens, Professor Elhauge is one of my old professors from 1L year, and he is one of those erudite, impossibly adroit thinkers who speaks effortlessly in complete paragraphs and possesses the rare gift of making anything you say sound both casually brilliant and also like it fits perfectly within the fabric of the particular point that he is trying to make. A typical Socratic exchange in his Legislation and Regulation class would go like this:
ELHAUGE: [a five- to seven-minute monologue discussing of the finer points of a 150-year-old Supreme Court case that attempted to resolve a matter of constitutional law and failed to so (hence its inclusion in the curriculum) but that managed along the way to grapple with lots of difficult, important questions of law that will haunt your dreams when you prepare for a final exam in two months]
ELHAUGE: So, Mr. Willis, did the Court get it right here?
YOU: [blood drains from your face, because you were obviously not listening]
YOU: [takes a deep breath and emits a timid, barely audible series of words that may or may not constitute full sentences, let alone an even remotely coherent thought about the law]
ELHAUGE: [stroking his chin and nodding sagely the entire time]
YOU: [more or less arbitrarily decide to stop talking and begin silently praying for the best]
ELHAUGE: Interesting. I think Mr. Willis’ point could be stated as [something you absolutely did not say or intend or even fathom, but that is between 17 and 100 times more intelligent than the collection of refrigerator word magnets you just shared].
YOU: [nods meekly, slumps shoulders in equal parts relief and defeat]
ELHAUGE: Very good! Thank you, Mr. Willis.
YOU: [goes back to Gchat]
I have not even the faintest idea if Cruz is constitutionally eligible to run for president, and frankly, I hope the powers that be decide that he is eligible so that he can run and lose on the merits of his multitude of terrible ideas, his decades of transparently manipulative political maneuverings, and the fact that he, you know, appears to be a full-on sociopath. But setting that aside for now and ponder this: Professor Elhague’s first year of teaching at Harvard Law was 1994-1995, which was Ted Cruz’s third and final year. Pretty much everyone in Ted Cruz’s history thinks he is a dick, and this was apparently no less true at Harvard, where stories about Cruz generally go like this:
As they were entering their second year in law school, Melissa Hart agreed to give Cruz a ride from New York, where Cruz was at the end of the summer, back to Cambridge. She didn’t know him well, but he sought her out after she had been given a prestigious award for first-year students.
“We hadn’t left Manhattan before he asked my IQ,” Hart said. “When I told him I didn’t know, he asked, ‘Well, what’s your SAT score? That’s closely coordinated with your IQ.’ ”
“It went from, ‘Nice guy,’ ” she said, “to ‘uh-oh.’ ”
As a law student at Harvard, he refused to study with anyone who hadn’t been an undergrad at Harvard, Princeton, or Yale. Says Damon Watson, one of Cruz’s law-school roommates: “He said he didn’t want anybody from ’minor Ivies’ like Penn or Brown.”
What a charmer! Just anecdotally, I have heard professors confirm that Cruz the law student was bombastic, unpleasant, and needlessly confrontational to the point of absurdity, and not an even remotely pleasant person to have in class. Which is why Professor Elhague, still a member of the HLS faculty, taking oblique shots at Senator Cruz 20 years later is so hilarious. Check out the very end of Elhague’s piece (all emphasis mine):
In short, both textualism and originalism cut strongly against Cruz being a natural-born citizen. Some argue that living theories of constitutional interpretation cut in favor of Cruz, but even living theories start with text and history, and it is not clear why the principle animating the clause would merit a different conclusion in current times. Presumably modern equal protection norms would bar a sexist rule that said children born abroad with one U.S. parent were natural born only if that parent were a man. But that is no argument against the interpretation that persons are natural born citizens only if born in a U.S. territory or to a parent serving the U.S. abroad.
Liberals, by contrast, tend to adhere more closely to the concept of the “living Constitution” — they contend that that document lays down important-yet-broad principles that should be read pragmatically and flexibly over time. This is the concept underlying the idea that the Constitution’s grandiose-yet-vague guarantees of “equal protection” and “due process” prohibit race discrimination and guarantee a right to privacy. And as you might guess, Tea Party darling Senator Cruz has cast himself in a way that does not allow him to even consider advancing a living Constitution argument about anything. In other words, Professor Elhauge (I imagine gleefully) puts Senator Cruz in an academic headlock, essentially positing he is only MAYBE eligible to be president, and even then ONLY IF he is willing to renounce his core beliefs and embrace the ideological foundation of all the ideas that he hates and considers constituent elements of the downfall of American society.
UPDATE, 1/22/16: Turns out Professor Larry Tribe, who taught constitutional law to Cruz at HLS, made some very similar comments to The Guardian and in a Boston Globe op-ed last week. Still don’t think this at least a LITTLE personal for the Harvard Law Faculty? Here’s how Tribe put it (all emphasis mine):
In his emails to the Guardian, Tribe discussed Cruz’s own approach to constitutional issues, noting that under “the kind of judge Cruz says he admires and would appoint to the supreme court – an ‘originalist’ who claims to be bound by the historical meaning of the constitution’s terms at the time of their adoption – Cruz wouldn’t be eligible because the legal principles that prevailed in the 1780s and 90s required that someone be born on US soil to be a ‘natural born’ citizen.”
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.