Welcome the Democratic Birthers

Libertarians scholars say Canada-born Cruz is constitutionally eligible; liberal ones say he is not.


Every time my late dad pondered the pathetic choices for prime minister of India or another high office, he'd clutch his head and rail that if India couldn't generate decent leaders from its own soil, it ought to advertise in the foreign press and

Ted Cruz Clown Car
DonkeyHotey / Foter / CC BY

get less barf-inducing candidates from abroad. That actually wouldn't be a bad option for America right now,given the emetic choices for president on both sides. But the little hitch of course is something called the U.S. constitution that stipulates that only a "natural born citizen" can be president.

This stipulation has given birth to "birther" politics whose chief modern-day peddler is Donald Trump. He first embraced the birther canard to appeal to the paranoid minded among the GOP rank-and-file when he questioned Barack Obama's eligibility for office on the loopy theory that he was really born in Kenya and had falsified his birth documents to get a Hawaii stamp! Now, Trump is going after fellow GOPer Ted Cruz because he was born in Canada.

In the last debate he nobly declared that although he personally didn't care where Cruz was born because his—Donald Trump's—poll numbers were high enough that he could win the Republican nomination "fair and square," he worried about a Democratic lawsuit if Cruz were the nominee. "I am not bringing a suit, but the Democrats are going to be filing a lawsuit," Trump warned. "And if you become the nominee, who the hell knows if you can even serve in office?" he barked.

Regardless of what one thinks Trump's word is worth, he might actually be onto something. Indeed, Cruz' eligibility has produced an interesting legal divide between libertarian theorists who believe that he is eligible and some prominent liberal theorists who believe that he is not, all of which will have interesting political implications.

Article II, section 1 of the Constitution says, "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." (Emphasis added.)

Libertarian law professor and Volokh Conspiracy blogger Jonathan Adler maintains that Cruz may have been born in Canada but because his mother was American he was automatically an American citizen—or a "natural born citizen"—from birth because he did not have to undergo "naturalization proceedings." And therefore he meets the constitutional criterion for eligibility just like George Romney, Mitt Romney's father who ran for president in 1968 despite having been born in Mexico to American parents, did.

The reason why naturalized foreigners are disqualified from the presidency is to thwart the danger of a hostile takeover by an enemy power through a Manchurian candidate. There is no such danger with children of American parents regardless of where they are born. Indeed, to maintain otherwise would lead to the absurd possibility that children born to American diplomats posted abroad would be disqualified to run for president.

Georgetown University's Randy Barnett, another libertarian theorist, offers another reason to believe that Cruz is qualified. He notes that the term "natural born citizens" was adapted by the framers [of the Constitution] from the well-known British concept of the "natural born subject" of the sovereign monarch. The offspring of the king were natural born subjects of the King regardless of where they were born, whether on English territory or not. But in the United States, he notes:

We the People are the sovereign…just as the offspring of the sovereign monarch are "natural born subjects" of the realm regardless of where they are born, so too are offspring of the sovereign individual citizen "natural born citizens" of the United States, though they may be born outside its borders. Who is the sovereign, not territory, is what matters. In the United States, it is We the People, each and every one.

There are plenty of liberal theorists who agree with this analysis. For example, former Obama acting Solicitor General Neal Katyal co-authored a piece in the Harvard Law Review with George Bush's Solicitor General Paul Clement. It noted:

While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a "natural born Citizen" means a citizen from birth with no need to go through naturalization proceedings. The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law. Both confirm that the original meaning of the phrase "natural born Citizen" includes persons born abroad who are citizens from birth based on the citizenship of a parent.

But among those liberals who dissent from Katyal about what the "relevant materials" really indicate is Cruz's former Harvard professor Laurence Tribe, whom Trump pointedly invoked during the debate. Tribe, who was actually against birthism (when Sen. John McCain was running) before he was for it (now that Ted Cruz is running), has staked the interesting ground that under a "living constitution" philosophy that Tribe favors, Cruz would be qualified. But under the "originalist" constitutionalist interpretation that Cruz favors he'd be disqualified. That's because, as per Tribe, the legal principles that prevailed in the 1780s and 1790s required someone to be born on US soil to be a 'natural born' citizen. "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," Tribe insists.

This sounds suitably scholarly except that Tribe is on record contradicting himself in a memo he co-authored with conservative Ted Olson assessing similar claims against John McCain. In it, he concluded: "Senator McCain is a 'natural born Citizen' by virtue of his birth to U.S. citizens who were serving their country on a military base in the Panama Canal Zone….The circumstances of Senator McCain's birth satisfy the original meaning and intent of the Natural Born Citizen Clause." Observe that Tribe notes that McCain is a natural born citizen in the "original meaning" not because he was born in the Panama Canal, U.S. territory at that time, but to American citizens, exactly what he is denying now.

Be that as it may, Widener University's legal historian Mary Brigid McManamon is pretty certain that Tribe has "evolved" in the right direction and takes Katyal/Clement to task. She argues that the English common law that they invoke on the side of their reading of the citizenship clause actually said the opposite. "The common law was unequivocal: Natural-born subjects had to be born in English territory." What's more, she claims, "when one reviews all the relevant American writings of the early period, including congressional debates, well-respected treatises and Supreme Court precedent, it becomes clear that the common-law definition was accepted in the United States…"

Now, I am happy to believe that by raising all these constitutional issues about Cruz' eligibility, these scholars are doing what scholars do—which is, split technical hairs in order to indulge their theoretical curiosity, not to undermine Cruz because they despise him. (Although Atlantic contributing editor Garrett Epps, no conservative himself, has his doubts. "I can't resist thinking that the chance to twit the ever-pompous Cruz has led these scholars into sloppy thinking," he muses.)

But regardless of their motives, there is little doubt that Democratic apparatchiks will have a field day with this tantalizing fodder, as Trump predicts. Washington Examiner's Sean Higgins reports that Democratic Rep. Alan Grayson of Florida is already preparing his court papers. "I'm waiting for the moment that he gets the nomination and then I will file that beautiful lawsuit saying that he's unqualified for the job because he is ineligible."

In other words, welcome to the birth of birther politics among Democrats.