Ted Cruz and the courts

Sandy Levinson

Jack has weighed in with an analysis on how easy it would be for the federal judiciary to declare, once and for all, whether Ted Cruz is a "natural-born citizen" under the Constitution.  At one level he is surely correct:  That is, liberals who generally are skeptical about rigorous theories of standing and/or the "political question" doctrine can easily figure out ways for the case to be properly presented to a court for decision.  And, dare one point out, it is certainly tempting for liberals like Laurence Tribe (and many others) to point to Cruz's sheer hypocrisy in defending a mindless form of originalism at the same time he looks to "practice" to defend his own eligibility.

That being said, it seems to me that any sensible discussion of the issue should recognize that should courts be so unwise as to enter this controversy, there is one and only one appropriate result:  To declare, preferably unanimously, that there is no problem whatsoever with Cruz's eligibility.  And, indeed, I would hope that the unanimous opinion would be far more unequivocal than Jack's posting, which seems altogether too generous in conceding that there is a genuine controversy.

I personally view the attack on Cruz's eligibility as the equivalent of arguing that Hillary Clinton is ineligible to take office because, after all, the Constitution uses language--and there can be no doubt whatsoever that the original public meaning was congruent--suggesting that only males could be President.  Alas, the 19th Amendment is no help because it mentions only a women's right to vote and says nothing at all about their capacity to participate in actual governance.  (Why the Amendment was drafted this way is, I think, an interesting question .  I suspect that its limited focus helps to explain why the 19th Amendment has been so completely non-"jurisgenerative.")

In any sense, it strikes me that it would be an unequivocal disaster, meriting rioting in the streets by Ted Cruz's millions of supporters, if the Supreme Court declared Cruz to be ineligible on the basis of a ridiculously narrow reading of a terminally vague provision of the Constitution.  Indeed, those who take the anti-Cruz argument seriously should read the text carefully and they explain why anyone alive today is eligible for the presidency given that none were alive at the time the Constitution was ratified.  Jack, Jordan Steiker, and I actually devoted an essay to this seemingly important textual question, though one way of reading it is as a satire of just those wooden and mindless approaches to constitutional interpretation that take seriously the potential ineligibility of Texas's Canadian-born junior senator.  As I told the Austin American-Statesman, there are (at least) a 100 reasons to be opposed to our egregious junior senator (educated, I'm always eager to point out, at Princeton and Harvard), but being Canadian-born is not one of them given that there is no argument whatsoever, period, that he was not  a citizen under American law as he emerged from the birth canal.  (Perhaps he was born in a Caeserian operation, which would raise questions about whether he was "natural-born" for Macbeth buffs.  Should Donald Trump be investigating this aspect of his birth?)

Perhaps it would do no harm if the federal judiciary--i.e., the Supreme Court--accepted Jack's analysis, but if and only if it came out with the only tenable result.  To treat Cruz's eligibility as a "purely legal question" that should be decided independently of the consequences is just the kind of "thinking like a lawyer" that justified Mr. Bumble's denunciation of law as "an ass."

[UPDATE:  I happily endorse my colleague Joey Fishkin's observation that the Natural Born Citizenship Clause is morally indefensible inasmuch as it embeds a notion of second-class citizenship in the text, as do, incidentally, the durational residency requirements for candidates for the House and Senate.  Robert Post and Randall Kennedy both identified the Clause as the most objectionable piece of constitutional text.  To prattle on about honoring its original meaning is like Taney's musings on who could be a member of the American political community in Dred Scott.  But at least he was trying, like Story in his equally objectionable opinion in Prigg v. Pennsylvania, was trying to save the Union, whereas the originalist opponents of Ted Cruz are simply living in a legalistic miasma devoid of common sense.

One of the discussants below suggests that anyone who offers any consequentialist cautions (as in "there will be rioting in the streets should judges disqualify Cruz") automatically oppose Brown.  The real question for such purists is whether they believe that the Court in 1955 should have ordered immediate integration (instead of "all deliberate speed") and in 1956 should have declared unconstitutional Virginia's anti-miscegenation law in Naim v. Naim instead of lying through their collective teeth in dismissing it for want of a substantial federal question.  Honorable people can disagree on the answers, but at least the disagreement is on how fast we should move to rectifying the most pervasive American injustice.  With the Cruz, issue, on the other hand, there is no reason whatsoever to believe that any important moral principle is being vindicated if he is ruled ineligible.]
Posted 7:12 PM by Sandy Levinson [link]