Saturday, June 19

Cruz Control and the Constitution — Part 1


As a scholar of the US Constitution, Donald J. Trump is a wonderful bartender. But that is quite all right. Given what seems to be the mood of voters this presidential election year, the Nation seems more disposed to want to vent to its bartender, as a secular priest presiding over a bibulous secular confessional, than to deal calmly, seriously, and rationally with actual policy issues of war, peace, and poverty. Those hundreds of thousands of people depicted in Leni Riefenstahl's Triumph of the Will were probably not gathered for a seminar on the relationship between the poetry of Schiller and German idealism, either. Similarly, as a Nation, we seem to want to feel more than to think. So Trump is probably much more simpatico with today’s neo-Weimarian Zeitgeist than I: don’t listen, just vent; don’t think, just feel; don’t speak calmly, just rant. Well, in fulfillment of my role of Skeptic-In-Residence, I make bold to adopt the late William F. Buckley’s practice of standing athwart the path of (what passes for) progress and shouting “Stop!” For Cruz’s reaction to questions about his eligibility to be President, and to the seditious possibility that President Obama will probably have the overweening audacity to fulfill his Article II obligation to nominate a replacement for Justice Scalia, taken together, reveal the parlous and ramshackle intellectual state of contemporary conservatism, of which Trump and Cruz are but two symptoms, not the root cause.

Question 1 of 2:  Is Ted Cruz eligible to be President of the United States?

 Article II, section 1, of the Constitution says, quite simply

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 ...


(The ellipsis at the end denotes that I have omitted the age requirements for anyone to be President: at least 35 years of age – a much more advanced age in the late 18th century than today. The part in the middle about those who were citizens at the time of the Constitution’s ratification – as things turned out, 1788 – being eligible was meant to “prime the pump” by granting eligibility to an initial batch of potential Presidents by simply declaring their eligibility. Absent this middle part, most potential Presidents would have had to be either Native Americans, who were not citizens at the time, or slaves, who would not be declared citizens until 1868.)

Back in the Middle Pleistocene epoch, when I was teaching theology, Church history, and “Catholic stuff” at various parishes in the Seattle Archdiocese, I told my students that, if they were ever teaching a catechism class and someone asked a question that stumped them, my recommended response was to furrow one’s brow, cast one’s eyes downward, drape an index finger pensively over one’s upper lip, and intone deeply “Well … it all depends”. When I suggested “It all depends” as a universal answer to theological questions, I was joking, of course. But when the question is what constitutes a “natural born Citizen,” “It all depends” is a quite serious answer. For the meaning of “natural born Citizen,” “it all depends” on the particular methodology one adopts to interpret the Constitution. This is where the straps of Sen. Cruz’s exegetical athletic supporter begin to get twisted, tight, and – strictly on its own terms – quite uncomfortable.

Once you have expunged that unfortunate image from your mind, consider:   Sen. Cruz clerked for the late Justice Antonin Scalia, the arch-originalist of the Supreme Court, who never tired of asserting that the Constitution is – his description – “Dead, dead, dead”. What Justice Scalia meant is that what a given constitutional text means is what it meant to those who wrote the text and those who read it at the time it was written, i.e., at the Philadelphia Convention in 1787 and the State ratifying conventions of 1787-1788. The Constitution, Justice Scalia argued, could accommodate changes in its application, but those changes had to be arrived at by democratic process, including the Article V process of amendment, not (what he considered) novel interpretations of the constitutional text by the courts. Sen. Cruz agrees.

My Approved Portraits

So the key question is whether an “originalist” exegesis of Article II, section 1, will permit Ted Cruz to be President. Please be careful to note the question I am asking and the question I am not. I am not asking whether Ted Cruz would make a good President. My answer to that is not only “No”, but “Hell no”. Same answer as for Donald Trump. Same answer as for Mitt Romney. Same answer as for Sarah Palin vis a vis the Vice-Presidency. Those are all strictly political questions. Rather, the question I am asking is (equally strictly) a constitutional question: whether, personal competence for the Presidency being as it may, it is possible to justify a Cruz Presidency on an originalist interpretation of Article II, sec. 1 of the Constitution. At this point, again, the most honest answer is "It all depends" -- in this case, on whose analyses of the issue you read.  It is also at this point that even constitutional originalists depart from strict "hard-shell" originalism ... not to imply that the following authors are "hard-shell" originalists. For example, articles in The Volokh Conspiracy (reprinted in The Washington Post) and the Harvard Law Review advance very sophisticated and historically grounded arguments that Sen. Cruz is eligible to be President. The problem is that the extent to which such interpretations of Article II, section 1, are indeed "original-ist" is highly debatable.  Every such interpretation I have seen departs from the plain text of the Constitution in favor of interpreting that text through the intervening "filter" or "scrim" of subsequent emendations via statutory law. Typical is the post to Balkinization, the constitutional-law blog administered by Prof. Jack Balkin of Yale Law School, by a reader who does believe that Sen. Cruz is eligible (emphasis added):

           Although [Sen. Cruz] was born in Canada, his position is that he is a natural-born citizen as
           defined by Article II of the Constitution because his mother was a citizen when he was born.  
           How do we know that this meets the constitutional test?  His answer is longstanding practice,
           as he explained the other day:

           "I would note that it has occurred many times in history. John McCain was born in
            Panama but he was a natural born citizen because his parents were US citizens.
            George Romney, Mitt’s dad, was born in Mexico when his parents were Mormon
            missionaries, but he was a natural born citizen because his parents were citizens.
            And actually Barry Goldwater was born in Arizona before Arizona was a state, and
            yet he was a natural born citizen because of his parents’ citizenship."

            Now I happen to agree with Senator Cruz on this question, but absent from this statement is  
            anything about what the Framers may have thought about the question.  Maybe he just
            doesn't care.

The clause beginning "absent from his statement ... " is typical of all discussions I have encountered that purport to argue in favor of Sen. Cruz's presidential eligibility:  at a certain critical point, the text of the Constitution is forsaken in favor of recurrence to interpretive / hermeneutical glosses from ancillary sources.


There is a good reason for that.  The Founders' and Framers' interpretation of terms like "citizen" and "natural born" -- the former highly relevant to the 14th Amendment's "birthright citizenship" clause -- were definitively conditioned by the interpretation of such terms by 18th-century legal theorists, in the case of the US Constitution, chiefly Sir William Blackstone's Commentaries on the Laws of England, a text with which the Founders and Framers were about as intimately familiar with as the Bible and Shakespeare. Blackstone -- and consequently, the Framers -- defined "citizenship" and "natural born" in terms drawn from the thousand-plus-year-long tradition of English common law, which defined both quoted terms as they were understood in jus soli (literally "law of soil"), i.e., the nationality of the particular piece of real estate on which one was born, with line of descent (jus sanguinis -- "law of blood") as irrelevant. (For obvious reasons, exceptions were made for children sired by invading armies, and for children born to  foreign ambassadors in the host country, neither of which could be citizens, natural-born or otherwise.) For good and sufficient reasons, there were deviations from the pure Blackstone-ian tradition, a few of which the Balkinization commenter mentioned. But, except for the children of invaders and diplomats, none of those exceptions or deviations is mentioned by Blackstone. So the "really original original" understanding of  the Constitution's text -- the text as supported by Blackstone's Commentaries and prior to any subsequent legislative / statutory emendation, the text a really consistent constitutional originalist should use as her standard -- is that one is a "natural born" citizen if and only if one is born within the realm of the Sovereign, be that Sovereign the British Monarch or the People of the United States.

So what is the bottom line?  Again, it is important to understand what the bottom line is not and what the bottom line is:

o The bottom line is not that the defining terms of citizenship and natural birth should never change. Both are always subject to alteration, either by constitutional amendment via Article V or by a relatively simple change in statutory law.  Most of the time, these changes have been wise, or at least harmless. (Of course, Dred Scott v. Sandford in 1857, ruling black slaves as non-citizens in perpetuity, was anything but harmless, but the damage was explicitly undone 11 years later by the ratification of the 14th Amendment.) However, if one appeals to such changes, filtering one's understanding of the Constitution by means of such interlocking contexts, one can no longer claim to be in conversation with the original Constitution. Therefore, one can no longer claim the mantle of a constitutional originalist.

o I personally believe Ted Cruz is eligible to be President.  But then -- please note carefully -- I do not claim to be a constitutional originalist.  Quite the contrary, I claim only to be a textualist, i.e., someone who believes that the actual, as-written-and-originally-understood text of the Constitution is critically important, but not necessarily dispositive -- necessary but not sufficient.  (Call me an "Amar-ian" textualist, after Prof. Akhil Reed Amar of Yale Law, who describes his own position in this way. Or perhaps a "Dworkin-ian" textualist after the late Prof. Ronald Dworkin of NYU.) To cite a single example, that I am not an originalist is why I can agree with the Warren Court's use of the "equal protection" clause of the 14th Amendment in Brown v. The Board of Education -- even though the 39th Congress that wrote that Amendment manifestly would not have agreed with the Warren Court's use of that text. If I were a "Scalian" originalist, I would be bound to say that, given that the 39th Congress did not originally interpret the "equal protection" clause as mandating school desegregation, Brown was decided improperly in 1954. (In fairness, Justice Scalia was also a proponent of stare decesis, i.e., allowing previous Court rulings to stand, and so would not have advocated reconsidering Brown.  Incidentally ... exercise for reader:  how can I be so slam-dunk certain that the 39th Congress did not interpret the "equal protection" clause the way the Warren Court did? Hint:  the answer has to do with the way the Congress in those days managed public schools in the District of Columbia. This is a very instructive mini-project!) The Constitution always means what it says. But it may also mean more.

The "bottom bottom" line:  Ted Cruz cannot claim to be a constitutional originalist and at the same time claim eligibility to be President.  As Prof. Thomas Lee of Fordham Law School said at the conclusion of his  recent LA Times op-ed:  It's a neat irony: The most conservative constitutional interpreters must find Cruz ineligible to be president; liberals must grin and bear him. Cruz himself purports to embrace originalism as the correct view of the Constitution. To be faithful to his understanding of what the Constitution means, the senator may have to disqualify himself.

Question 2 of 2 for next week:  Is a sitting President always obligated to nominate candidates to fill Supreme Court vacancies?

James R. Cowles

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