Sunday, January 17, 2016

Originalism and the Ted Cruz Question

Joseph Fishkin

The attacks on Senator Ted Cruz’ qualifications to be President have left me a little depressed.  The reasons are several.  First there’s the creeping sense that what it takes today to catapult a constitutional argument onto the front burner of our national public discourse is basically to have that argument come out of the mouth of Donald Trump.  Whatever this says about our constitutional politics, it can’t be good. Second, there’s the nagging fact that Senator Cruz, like President Obama, is not white.  There are undoubtedly a variety of reasons why Cruz’ “natural born”-or-not status is now getting more searching scrutiny than, say, George Romney’s (which did get some scrutiny) or John McCain’s.  But among those various reasons, it’s hard for me to believe Cruz’s race plays no role.  Third, the debate about Cruz’ qualifications underscores the dispiriting prospect that birtherism or something resembling it may be a permanent feature of our politics going forward rather than a bizarre historical footnote to the Obama years.  Permanent birtherism, like neverending 9/11 trutherism, Sandy Hook trutherism, and so on, seems to suggest some very deep well of paranoia in American politics.  To be clear: I am not suggesting that people questioning Ted Cruz’ eligibility are either paranoid, racist, or supporters of Donald Trump—you, dear reader, may well be questioning his eligibility while sitting nowhere near that particular Venn diagram.  My worries here are about why the meme of his possible ineligibility might be spreading so rapidly and widely.  Anyway put all of this aside.  What actually bothers me most about our current debate about Ted Cruz’ “natural born” status is what it says about how so many of us apparently choose to think about the Constitution—specifically, the way many of us seem to practice originalism, which is so often so much worse and less defensible in practice than in theory.

To step back a moment, here’s how I think one ought to resolve the question of Ted Cruz’ eligibility to be President.  First, let’s view the Constitution at an appropriately high level of abstraction to capture the conceptual heart of what this (totally morally indefensible) “natural born” distinction is about.  At this level of abstraction, the Constitution suggests a simple dichotomy.  Some U.S. citizens are “natural born.”  Others are not—they are “naturaliz[ed]” later.  Those are the only two categories (once those present at the founding have left the stage).  All citizens, in other words, are “natural” one way or the other: some by being born, others through a later process appropriately called “naturalization.”  As history has unfolded, Congress has made various rules not only about naturalization itself (an enumerated power under Art. I § 8 cl. 4) but also rules about who is a citizen at birth (an unenumerated power, very closely linked with that enumerated one, which it has exercised since 1790, when a statute provided that some children of U.S. citizens born abroad were to be deemed natural citizens at birth).  Fast forward to 1970, when Ted Cruz is born.  Assuming his mother was a U.S. citizen, and satisfied the relevant residency requirements under then-prevailing statutory law to make Ted Cruz a U.S. citizen at all, at birth, he then would also be a “natural born” citizen.  The phrase just means, a citizen at birth.

But wait!  What about British common law, eighteenth-century British statutory law, the relationship of these two sources of law, Blackstone’s commentaries on either, the relation of “subject” to “citizen,” and what James Madison might have thought about any of it?  Surely we need to debate a flotilla of obscure questions like this in order to decode the meaning of the “natural born” clause?

No.  In my view, we don’t need all that stuff.  My view is compatible with a range of conceptions of what we are up to when we interpret the Constitution—not only a “common law” approach to interpretation but also an approach that prioritizes constitutional text, and even, as Jack suggests in his post, some kinds of originalism.  (Originalism anywhere in the Balkin/Kagan ballpark, basically.)  But then there’s another, sadly more familiar, kind of originalism—one that says what we absolutely must do is think about whether the original understanding (original public meaning, etc.) of the phrase “natural born citizen” would have encompassed the case of Ted Cruz.  If that’s your approach, then you’re definitely off to the races with obscure eighteenth-century British statutes and their interaction with (or role in) the common law tradition as incorporated into American constitutionalism in 1789.  But here’s the rub: if you go that way, you’re going to end up stuck in an interpretive rut anyway, and you’ll need modern jurisprudence to bail you out.  Why?  Because of sex.

Those eighteenth-century British statutes contemplated citizenship as passing from fathers to children—only.  In Cruz’s case, his dad was not an American in 1970, so the question is whether he can be a “natural born citizen” because of his mother.  The eighteenth-century public meaning is surely that no, he can’t.  As far as I know (admittedly, not far!) matrilineal passing of citizenship was not a thing in eighteenth-century Anglo-American law.  So then should the rule be that even today, you’re a “natural born” citizen if you’re born in Canada with an American dad, but not if all you’ve got is an American mom?  In other words, “Sorry Ted, but in 1789, citizenship came through fathers, not mothers, so you’re out of luck.”

Obviously that is not going to be the rule.  It’s too blatantly discriminatory and sexist.  So, one would assume, the Fourteenth Amendment’s Equal Protection Clause will come to the rescue and correct eighteenth-century originalist understandings of this point—surely the Fourteenth Amendment’s sex discrimination jurisprudence would not allow differential treatment of fathers and mothers for purposes of determining the citizenship of their children.  This move is, of course, not originalist at all.  But it’s one we have to hold our noses and make, to save our narrow originalist approach from the laughing-stock irrelevance to which it would fairly be consigned if we really tried to argue that it’s only American dads abroad, today, who can have “natural born” citizen children, and American moms can’t.  Phew!  Dodged a bullet there.

Except… there is actually modern constitutional law on almost precisely this point, and according to a 5-4 majority led by Justice Kennedy in a controversial case, our law can and does, consistent with the U.S. Constitution, treat fathers and mothers very differently for purposes of conferring U.S. citizenship on their children born abroad.  According to Nguyen v. INS, it does not violate the Fourteenth Amendment for Congress to legislate—as it has, shamefully, legislated—different and stricter rules for the children of American fathers born abroad than for those of American mothers born abroad, regarding who is a citizen and what you have to do to become a citizen later on.  This twentieth-century distinction cuts in the opposite direction from the eighteenth-century one.  Essentially, where the parents are unmarried, the law holds that children of American fathers need to formally establish paternity or get an acknowledgment of paternity or a promise of support, whereas children of American mothers do not need any of these things.  Justice Kennedy held that real differences in how men and women are situated in relation to childbirth justifies this large difference in treatment.  He denies that the law relies on stereotypes about men and women as parents (e.g. just for example, the stereotype that men are going around sowing their wild oats and producing many children they don’t really have relationships with, whereas women never do this).

Ok.  So would Nguyen, flipped around the other way, justify allowing eighteenth-century common law understandings of patrilineal descent to continue to determine the meaning of the “natural born citizen” clause in the twenty-first century despite their obviously sex-discriminatory character?  Almost certainly not.  But answering that question requires a deeply modern encounter with the anti-stereotyping jurisprudence of modern constitutional sex discrimination law—the entire edifice of which is one that the narrow kind of originalists who would be stuck pursuing this inquiry in the first place tend either to reject, or to hold their noses and grudgingly accept as a matter of stare decisis, that old crutch, and that’s it.

My point is this.  We have choices about how we go about interpreting the Constitution.  We can look for meaning at levels of abstraction that yield principles applicable to the modern world—and then we can apply them to the modern world, in ways that take into account relevant inputs, such as modern federal statutes, that may color their specific operative meaning in a given context.  That’s the approach I tried to follow above.  It’s an approach (or really a family of different approaches) that neither ignores, nor fetishizes, constitutional text.  We let 1789 have its say but not the last word.

Or alternatively, we can try the approach of all too many originalists: to try our hardest to give 1789 the last word.  We can look to a common law tradition that we pretend ends at 1789 (except when we can’t help ourselves, cf. the dates on Justice Scalia’s sources of original meaning in Heller).  We can treat the original understanding as exceedingly specific and detailed, even though the higher the level of specificity and detail we seek, the more indeterminate the answer often becomes.  Then once we’ve got our narrow-originalist answer, hermetically sealed off from contamination from modern understandings, we pull it out of cold storage and apply it to whatever our modern controversy may be.  Except sometimes, for all that, the whole thing runs aground, as in the story I have just told, on some major modern cross-cutting constitutional provision that didn’t exist in 1789 anyway.  And then what exactly have we achieved, other than a sort of apparently-pleasing aesthetic feeling that we’ve put lots of weight on the old and little on the new?  We haven’t (in practice) gotten much in the way of determinate answers, constraints on judges, or the other supposed virtues of this type of approach.

Perhaps someone can explain to me—since I don’t see it—why this narrow originalist approach is nonetheless the way to go.  Maybe Ted Cruz?

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