The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Harvard law professor Laurence Tribe believes there is doubt whether Sen. Ted Cruz (R-Tex.) is constitutionally eligible to be elected president. As the Guardian reports, Professor Tribe believes it is unclear whether Cruz qualifies as a "natural born citizen," particularly if one focuses on the original public meaning of the relevant constitutional provisions.
From the Guardian story:
"Despite Sen[ator] Cruz's repeated statements that the legal/constitutional issues around whether he's a natural-born citizen are clear and settled," [Tribe] told the Guardian by email, "the truth is that they're murky and unsettled." . . .
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."
He added: "Even having two US parents wouldn't suffice for a genuine originalist. And having just an American mother, as Cruz did, would clearly have been insufficient at a time that made patrilineal descent decisive.
"On the other hand, to the kind of judge that I admire and Cruz abhors—a 'living constitutionalist' who believes that the constitution's meaning evolves with the needs of the time—Cruz would ironically be eligible because it no longer makes sense to be bound by so narrow and strict a definition."
Tribe said: "There is no single, settled answer. And our supreme court has never addressed the issue."
As the Guardian notes, Professor Tribe taught constitutional law to both Cruz and President Obama.
UPDATE: Back in 2008, when questions were raised about whether Senator John McCain qualified as a "natural born citizen," Professor Tribe argued McCain did, in fact qualify. he co-authored a memo on the subject with noted conservative lawyer Ted Olson. A copy of the memo is available here.