The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Natural Born Citizen Clause is back in the news. Indeed, every four years, this obscure provision of the Constitution rears its head. Let's flash back to January 11, 2016. Harvard Law School Professor Laurence Tribe wrote an op-ed in the Boston Globe, titled, Under Ted Cruz's own logic, he's ineligible for the White House.
But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an "originalist," one who claims to be bound by the narrowly historical meaning of the Constitution's terms at the time of their adoption. To his kind of judge, Cruz ironically 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. Even having two US parents wouldn't suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.
Three days later during the presidential debate in Charleston, then-candidate Donald Trump cited Tribe's op-ed. Here is an excerpt from the transcript:
TRUMP: Lawrence Tribe and (inaudible) from Harvard—of Harvard, said that there is a serious question as to whether or not Ted can do this. OK? There are other attorneys that feel, and very, very fine constitutional attorneys, that feel that because he was not born on the land, he cannot run for office. ….
CRUZ: Well, listen, I've spent my entire life defending the Constitution before the U.S. Supreme Court. And I'll tell you, I'm not going to be taking legal advice from Donald Trump.
TRUMP: You don't have to. Take it from Lawrence Tribe.
Tribe would subsequently move beyond his attempt to hoist Cruz on his own petard, and insisted that the issue was "not settled." The following month, Tribe debated Jack Balkin on this question. My colleague Randy Barnett offered this recap:
Although I have been persuaded by the Ramsey analysis — which rests, in part, on the relationship between the Natural Born Citizenship Clause and the power of Congress under the Naturalization Clause — as well as by my own analysis of the parallels between between a "natural born subject" in a monarchy and a "natural born citizen" in a republic, I agree with Larry that this issue is "not settled." This is so, first, because the issue has not been squarely presented in exactly this context so has not been settled as a legal question by practice, and secondly that it has not been authoritatively ruled upon by the Supreme Court. I would note, however, that at least some of the originalist arguments for why Ted is not a natural born citizen would also have undermined the eligibility of previous presidential candidates who were accepted as eligible, so practice does undermine these originalist theories.
Later that year, Tribe wrote an article in the Harvard Civil Rights-Civil Liberties Law Review about this issue:
First, and most concretely, the debate over the "Natural Born Citizen" clause will likely be resuscitated along with Cruz's presidential ambitions, possibly as soon as the next presidential election cycle. But even if Cruz himself does not run for President again in 2020, his 2016 campaign is unlikely to be the last time we will need to grapple with the meaning of natural born citizenship, just as it was not the first.
He was right.
Fast forward to 2020. The Biden Campaign was vetting Senator Tammy Duckworth for the VP slot. However, counsel had some concerns that challenges would be raised against her eligibility. The New York Times reports:
Ms. Duckworth was regarded by Biden advisers as among the candidates likeliest to help him achieve a smashing electoral victory in November. But legal advisers to the campaign expressed urgent concern that Ms. Duckworth could face challenges to her nomination in court: She was born overseas, to an American father and a Thai mother. While Mr. Biden's team believed Ms. Duckworth was eligible for national office, campaign lawyers feared that it would take just one partisan judge in one swing state to throw the whole Democratic ticket off the ballot.
"One partisan judge." How quickly we forget. Laurence Tribe said the issue was "not settled."
In other news, Laurence Tribe commented on John Eastman's op-ed in the New York Times regarding Kamala Harris's eligibility for VP:
In an interview on Thursday, Laurence H. Tribe, a professor of constitutional law at Harvard Law School, compared Mr. Eastman's idea to the "flat earth theory" and called it "total B.S."
"I hadn't wanted to comment on this because it's such an idiotic theory," Mr. Tribe said, "There is nothing to it."
Mr. Tribe pointed out that the theory still quickly landed in the hands of a president who has used his pulpit to spread a number of conspiracies against his political enemies, particularly those who do not have white or European backgrounds.
During the 2016 presidential race, Mr. Trump continuously questioned the citizenship of Senator Ted Cruz of Texas, suggesting that his Canadian roots would be a problem should he win the presidency. Mr. Cruz, who was born in Canada to an American mother and a Cuban father, is a United States citizen. Mr. Eastman, for his part, wrote that year that Mr. Cruz was eligible.
The Times did not note that President Trump cited Tribe during the 2016 debate regarding Cruz's eligibility. How quickly we forget.