BY IAN MILLHISER – – – –
Somehow, Ted Cruz birtherism is actually a thing right now.
For our readers who’ve been fortunate enough to avoid hearing about this debate so far, it began when presidential candidate and professional troll Donald Trump claimed that the subject of Cruz’s eligibility for president “could be tied up in court for two years.” Cruz was born in Canada to a U.S. citizen mother, and himself became a U.S. citizen at birth. Yet Trump seemed to believe that Cruz’s birth outside the United States would disqualify him for the presidency because of a constitutional provision permitting only “natural born Citizens” (and those who were citizens at the time the Constitution was adopted) to serve in the nation’s highest office.
Enter The Professors
Trump’s effort to undermine Cruz received a boost on Monday when Harvard University Professor Laurence Tribe engaged in a little high-level trolling of his own. In an op-ed published in the Boston Globe, Tribe argues that “the constitutional definition of a ‘natural born citizen’ is completely unsettled,” and then he claims that, under the method of constitutional interpretation Cruz preferred when he was Tribe’s student, Cruz “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.’”
One day later, another law professor, Delaware Law School’s Mary Brigid McManamon, took an even stronger position in the Washington Post, claiming that “Ted Cruz is not eligible to be president.”
So now, here we are, seriously entertaining the idea that a presidential candidate should be disqualified because his mother happened to be a few miles too far north when Mr. Cruz decided to liberate himself from her womb.
The thrust of Tribe’s argument is that, under a method of constitutional interpretation known as “originalism” — that is, the idea that judges are “bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption” — someone only counted as a “natural born citizen” if they were born within the United States. But it’s far from certain that this is how the founding generation would have understood this constitutional restriction.
Professor McManamon’s op-ed lays out a strong case for this position. “The 18th-century English jurist William Blackstone,” she writes, citing a famous legal scholar whoseCommentaries on the Laws of England remain influential today, “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.’” She also quotes James Madison, who said that “it is an established maxim that birth is a criterion of allegiance. . . . [And] place is the most certain criterion; it is what applies in the United States.”
So that is good evidence that the founding generation would have understood the words “natural born citizen” to mean only people born within a nation’s borders, but there’s also strong evidence on the other side of the debate. Writing in the Harvard Law Review, former United States Solicitors General Neal Katyal and Paul Clement summarize much of this evidence. Contrary to McManamon’s interpretation of Blackstone, Katyal and Clement argue that British “laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used ‘natural born’ to encompass such children.” They also cite a law enacted by the First Congress, the Naturalization Act of 1790, which provided, in relevant part, that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.”
What If There’s No Answer?
In a classic defense of originalism, Justice Antonin Scalia holds it up as a method to mitigate “the main danger in judicial interpretation of the Constitution . . . that the judges will mistake their own predilections for the law.” Because a legal document’s historic meaning, Scalia posits, is fixed at the time of the document’s ratification, orginalism will prevent judges from substituting their own preferences for the text of the Constitution.
The debate between McManamon and Katyal & Clement, however, exposes the flaw in Scalia’s argument. As it turns out, there is more than one interpretation of the words “natural born citizen” that can reasonably be determined using originalist methods, and there does not appear to be any sure way to determine which of these interpretations is correct. Indeed, it is possible that they are both, in some sense, correct, because it is possible that the founding generation was itself unsure what they meant.
And this uncertainty could have nightmarish consequences if someone like Cruz, or anyone else who was born to a U.S. citizen parent outside of the United States’ borders, is ever elected president. When that does occur, it is all but certain that someone opposed to the new president will file a lawsuit challenging their legitimacy. Once this case reaches the Supreme Court, justices who approve of that president’s election will have all the ammunition they need in Katyal & Clement’s essay to make a convincing case that the new president is eligible. Meanwhile, justices who disapprove of the new president’s election will have all the evidence they need in McManamon’s scholarship to assert the opposite position. And both sides can claim that they are simply applying a neutral method of deciding cases and that they most certainly were not simply voting their preferences and them coming up with a justification for it later — even if their votes do fall along party lines.
Indeed, we’ve seen something like this happen before in District of Columbia v. Heller — the Supreme Court’s 2008 decision holding, for the first time in American history, that the Second Amendment protects an individual right to posses firearms. In Heller, Justice Scalia wrote in an opinion for the Court’s more conservative bloc that there is “no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Meanwhile, Justice John Paul Stevens wrote a dissenting opinion on behalf of the Court’s more liberal bloc arguing that the amendment was enacted solely to “protect the right of the people of each of the several States to maintain a well-regulated militia.” Both Scalia and Stevens’s opinions are simply riddled with citations to historic documents and originalist analysis.
The point here is not that Scalia or Stevens was correct and that the other was incorrect. Rather, the point is that is probably not a coincidence that the five most conservative justices looked at the Second Amendment’s text and history and determined that the Constitution requires the outcome most preferred by modern day conservatives, while the four more liberal justices looked at the same sources and determined that the Constitution requires a result preferred by liberals.
None of this means that originalist methods are useless for judges seeking to interpret our founding document. Far from it, there will be many cases where the meaning of the Constitution is clear and when historic documents demonstrate that clarity. But there are also many cases where the meaning of the Constitution is ambiguous and an originalist inquiry only serves to heighten that ambiguity.
Those ambiguous provisions loom like time bombs over the nation’s law, waiting to detonate on a day when the meaning of that provision becomes a politically charged issue. When that happens, both sides of the debate will be able to offer seemingly neutral historic arguments for why their preferred result is commanded by the Constitution.
And there is no more politically charged question than who should be the next President of the United States.