January 20, 2016

Trump Is Right About Cruz’s Presidential Eligibility

During last week’s Republican presidential debate, Ted Cruz said it’s “really quite clear” he is eligible to run for president even though he was born in Canada, because his mother was a U.S. citizen. His rival Donald Trump insisted “there is a serious question” as to whether Cruz qualifies as “a natural born citizen,” one of the constitutional requirements for the presidency.

During last week’s Republican presidential debate, Ted Cruz said it’s “really quite clear” he is eligible to run for president even though he was born in Canada, because his mother was a U.S. citizen. His rival Donald Trump insisted “there is a serious question” as to whether Cruz qualifies as “a natural born citizen,” one of the constitutional requirements for the presidency.

Here is a sentence I never thought I’d type: Donald Trump is right. Cruz describes a consensus that does not exist.

The Texas senator is not alone in doing that. In a Harvard Law Review essay published last March, Neal Katyal and Paul Clement – solicitors general under Barack Obama and George W. Bush, respectively – say “there is no question that Senator Cruz has been a citizen from birth and is thus a ‘natural born Citizen’ within the meaning of the Constitution.” They call claims to the contrary “specious” and “spurious.”

No doubt Mary Brigid McManamon, a legal historian at Delaware Law School, would object to those adjectives. In a Washington Post op-ed piece published last week, she says it’s “clear and unambiguous,” based on British common law during the Founding era, that Cruz is not a “natural born citizen.”

As Catholic University law professor Sarah Helene Duggin and Maryland lawyer Mary Beth Collins show in a 2005 Boston University Law Review article, these dueling perspectives are the latest installment of a long-running scholarly debate about the meaning of “natural born citizen.” Contrary to Cruz, Katyal, Clement, and McManamon, Duggin and Collins view the phrase as “opaque” and dangerously “ambiguous” (as well as outdated, unfair, and antidemocratic), arguing that it should be excised by amendment.

Harvard law professor Laurence Tribe, whom Trump likes to cite, has taken both sides in this debate. In 2008, Tribe and former Solicitor General Ted Olson coauthored a memo that said John McCain, the GOP nominee that year, was eligible for the presidency even though he was born in the Panama Canal Zone.

Since the Constitution does not define “natural born citizen,” Tribe and Olson wrote, to illuminate the term’s meaning we must look to the context in which it is used, legislation enacted by the First Congress, and “the common law at the time of the Founding.” They said “these sources all confirm that the phrase ‘natural born’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance.”

Writing in The Boston Globe last week, by contrast, Tribe said “the constitutional definition of a ‘natural born citizen’ is completely unsettled.” He added that based on the originalist approach Cruz favors, he “ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ‘90s required that someone actually be born on U.S. soil to be a 'natural born’ citizen.” Fordham law professor Thomas Lee makes a similar argument in the Los Angeles Times.

Satisfying as it may be for Cruz’s opponents to see him hoist by his own interpretive petard, this way of framing the issue is misleading, because the debate about the meaning of “natural born citizen” is mainly about what the original understanding was, as opposed to whether the original understanding should prevail. Originalists such as Georgetown law professor Randy Barnett and University of San Diego law professor Michael Ramsey argue that their approach favors Cruz.

Another originalist, Independence Institute senior fellow Rob Natelson, who describes himself as an “admirer of Senator Cruz,” is not so sure. “Although Senator Cruz’s belief that he is natural born may ultimately be vindicated,” Natelson writes on The Originalism Blog, “the case against him is very respectable.”

Case Western law professor Jonathan Adler, who initially said “there is no question about Ted Cruz’s constitutional eligibility to be elected president,” later conceded he “may have been too quick to suggest that this issue is completely settled.” I was similarly chastened to realize it’s not safe to assume everything Donald Trump says is a lie.

COPYRIGHT 2016 CREATORS.COM

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!


The Patriot Post and Patriot Foundation Trust, in keeping with our Military Mission of Service to our uniformed service members and veterans, are proud to support and promote the National Medal of Honor Heritage Center, the Congressional Medal of Honor Society, both the Honoring the Sacrifice and Warrior Freedom Service Dogs aiding wounded veterans, the National Veterans Entrepreneurship Program, the Folds of Honor outreach, and Officer Christian Fellowship, the Air University Foundation, and Naval War College Foundation, and the Naval Aviation Museum Foundation. "Greater love has no one than this, to lay down one's life for his friends." (John 15:13)

★ PUBLIUS ★

“Our cause is noble; it is the cause of mankind!” —George Washington

Please join us in prayer for our nation — that righteous leaders would rise and prevail and we would be united as Americans. Pray also for the protection of our Military Patriots, Veterans, First Responders, and their families. Please lift up your Patriot team and our mission to support and defend our Republic's Founding Principle of Liberty, that the fires of freedom would be ignited in the hearts and minds of our countrymen.

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2024 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.