Balkinization  

Saturday, January 09, 2016

Ted Cruz is Not An Originalist

Gerard N. Magliocca

At least with respect to the Natural-Born Citizen Clause. Although he 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.

Comments:

Doesn't that same argument apply to Obama? Why does a Hawaiian birth certificate matter at all?
 

Common. You really think any serious political candidate is going to adhere strictly to abstract theories of constitutional interpretation? You think voters in Iowa care about what the Convention participants had in mind when they drafted the Presidential qualifications clause? No. Ted Cruz is acting as a politician, which has nothing to do with whether he is an originalist or not.
 

Seeing Cruz pass him in Iowa, Trump has been playing the birther innuendo and McCain of all people went along.

Cruz is offering a deft political response, not a legal one. By naming a series of previous GOP presidential candidates who were born outside the United States to American parents, but not including Barack Obama in that group, Cruz is cutting the legs out from the GOP intramural birther attacks, while leaving GOP birther beliefs concerning Obama ro remain undisturbed.

Clever.
 

Doesn't that same argument apply to Obama? Why does a Hawaiian birth certificate matter at all?

"The Admission Act, formally An Act to Provide for the Admission of the State of Hawaii into the Union (Pub.L. 86–3 , 73 Stat. 4 , enacted March 18, 1959) is a statute enacted by the United States Congress and signed into law by President Dwight D. Eisenhower which dissolved the Territory of Hawaii and established the State of Hawaii as the 50th state to be admitted into the Union.[1] Statehood became effective on August 21, 1959.[2]" from Wikipedia

"Barack Hussein Obama II (US Listeni/bəˈrɑːk huːˈseɪn ɵˈbɑːmə/; born August 4, 1961) is the 44th and current President of the United States, as well as the first African American to hold the office. Born in Honolulu, Hawaii" from Wikipedia

Obama was born in a state AFTER it became a state. Thus he was born in the USA. That's why the same argument doesn't apply to Obama any more than it would apply to Nixon, Ford, Carter, Reagan, Bush, Clinton, Bush.
 

Doesn't that same argument apply to Obama? Why does a Hawaiian birth certificate matter at all?

I believe the point of this question is not that Obama being born in Hawaii is somehow like John McCain being born in the Canal Zone or Barry Goldwater in the Arizona Territory, but rather that even if he had been born in Kenya (or Mars, for that matter), he'd be a U.S. citizen because his mother was a U.S. citizen, just as Ted Cruz is (despite having been born in Canada).
 

Exactly. Thanks.
 

Our own MRO (Macro 'Rhoidless One) continues his CRUZ-conTROLLING at this Blog. I'm listening to "Canadian Sunset" as CRUZ heads towards the edge of his unscientific world.

Regarding Mitt's dad, weren't the latter's parents in Mexico as fugitives from American law?

But the really bigger question is whether Gerard is an originalist.
 

So DJ seems to think that CRUZ believes that if Obama had been born in Kenya that the latter would have been a naturally born citizen. Much of the Republican Party did not think so back when.
 

Not quite so.

First, originalists repeatedly accept that "settled law" (term he used in his recent statement; here's video -- http://hotair.com/archives/2016/01/06/ted-cruz-the-law-is-clear-that-im-a-natural-born-citizen/) can override original understanding or whatever they use these days as a test. This would, um, trump.

Second, in the past, he did cite original practice:

"With regard to legal citizens," Cruz said, "I am a United States citizen because my mother was a United States citizen, born in Wilmington, Delaware. And," Cruz said, "it has been the law since the beginning of the country that the children of American citizens born here or abroad are American citizens by birth."

http://www.politifact.com/texas/statements/2015/sep/04/ted-cruz/ted-cruz-says-its-always-been-law-babies-born-us-c/

Anyway, going by this test, yes, the birth in Hawaii of Obama might not matter. But, it very well might matter as a reasonable application of the law. Simply having a citizen parent was not by 'settled law' deemed enough.

Consider Montana v. Kennedy (1961):

Petitioner, whose mother is a native-born United States citizen and whose father is a citizen of Italy (their marriage having been in the United States), was born in Italy in 1906 while his parents were temporarily residing there, and entered the United States with his mother later the same year. He has continuously resided in the United States since that time and has never been naturalized.

Holding: Not a natural born citizen. The law was changed in 1952, but still:

For citizens married abroad to an alien, the prior “physical presence in the United States requirement” is changed to ten years, five of which after the age of fourteen.

https://americansabroad.org/files/3013/3478/0295/18-04-2012_1318_971.pdf

[General discussion including other examples of having a citizen parent not being enough for natural born American citizenship]

This wouldn't have worked for Ann Dunham, Obama's mother. She was only 18 when she gave birth to him. Thus, if Obama was born in Kenya, by law, he would not have been a citizen at birth (citizen mother, married abroad to alien father), thus not a natural born citizen. Cruz's mother was older. Thus, being born in the U.S. (Hawaii) mattered for Obama (citizen by 14th Amendment) but not Cruz.
 

"while leaving GOP birther beliefs concerning Obama ro remain undisturbed."

To the extent that such people have little or no understanding of logic, I guess.
 

"First, originalists repeatedly accept that "settled law"...can override original understanding or whatever they use these days as a test."

Joe, I think that just points to the general fickle incoherence of originalist fundamentalism. There are times when, if it suits, them, all the historical practice in the world must bow to the original understanding of the text (as divined by today's jurists, of course!). See Noel Canning. And then there are times where they pull this 'settled law' exception.
 

I'm not a defender of originalism myself but in this case Ted Cruz did also reference original understanding. But, even there, his statement is a questionable interpretation of the evidence. For instance:

The Naturalization Act of 1790 stated that "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States."

And, that was changed somewhat in 1795. https://en.wikipedia.org/wiki/Natural-born-citizen_clause#Naturalization_Acts_of_1790_and_1795

Selective quotations of original materials is also something seen by many originalists. Prof. Levinson noted this in recent remarks about his new book which provides a modern gloss on each essay in The Federalist.

 

Section 1 of Article Two of the United States Constitution sets forth the eligibility requirements for serving as president of the United States, under clause 5:

"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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."

Where is the authority of Congress to define "a natural born Citizen" under clause 5? Is it power over immigration?

 

Over at the Originalism Blog Mike (I'm not Rappaport) Ramsey posts on his article on the original meaning of 'a natural born Citizen." I haven't downloaded it, but he seems to that this can be addressed statutorily. Perhaps he addresses my concern on Congress' authority. I'll check it out later. But there seems to be a distinction between immigration authority and authority to define the provision in clause 5. Unlike the Reconstructions As, clause 5 does not seem to have a congressional enforcement section.
 

By the Bybee [expletives deleted], regarding Cruz's situation, I wonder if his birth was Caesarian, which is reflected in his personality.
 

An interesting article on "Who Decides If Ted Cruz is Eligible to Be President?"

http://electionlawblog.org/?p=78791

Another thread had an extended discussion on voting and "natural born citizenship" in this oontext also seems to me to be comparable -- there are a few constitutional limits but Congress (its naturalization power would be a major source though over the years such things like immigration were also deemed as an overall power of federal sovereignty; the catchall necessary and proper provision also might factor in too since it does not only apply to congressional powers) has some discretion.

One modern day question would be if the original rule as to fathers would be now deemed unconstitutional sex discrimination. The Supreme Court has upheld certain sex specific rules here in divided votes in recent years.
 

"but rather that even if he had been born in Kenya (or Mars, for that matter), he'd be a U.S. citizen because his mother was a U.S. citizen"

Per law at the time, your American parent had to have spent a minimum number of years in America before the birth, which Obama's mom didn't satisfy, having spent most of her life outside the country. This is why he had to have been born in the US.

Natural born citizenship for those born outside the US is governed by statute, in the US is constitutional.

The one who had the real natural born citizen problem was McCain; He clearly didn't qualify under the law at the time of his birth, and though Congress purported to change that law retroactively, this is exactly the sort of subject where retroactive application is constitutionally dubious.
 

The question pertained to the "argument" made by Cruz though as I noted the argument itself is flawed. As to McCain, "the law" at best is debatable.

McCain is not: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1157621

Yes, he is: http://www.gibsondunn.com/publications/Documents/Ho-NaturalBornPresidents.pdf

Two competing views are cited there, both imho are "clearly" at least reasonable.

As to Congress purporting to change "that law retroactively," not sure what that means. It might mean the 1937 law that covered children born back to 1904, but it was passed after McCain was born. At birth, he was not a citizenship under the old rules (so is the argument), so he would not be "naturally born." The retroactivity concern is therefore avoided. Others argue that law doesn't matter for the current question. A Senate resolution was also passed in the midst of the McCain controversy, but that isn't "Congress."
 

Amazing how you're not sure what I meant, but then state it clearly.

To be a natural born citizen is to have been a citizen at birth. When a subsequent act renders you a citizen, you are a "naturalized " citizen. It is not within the power of Congress to make somebody who wasn't born a citizen into a "natural born" citizen. They have no power to change the past.

And Senate resolutions cannot waive clauses of the Constitution.
 

Mike (I'm not Rappaport) Ramsey's article is a good read. But he seems NOT to be of the new originalism school. In a couple of places he cites an article by Larry Solum, who is a new originalist, that Ramsey suggest has a contrary view to his. I haven't read Solum's article as yet. Ramsey may be of the old originalism school led by Mike (I'm not Ramsey) Rappaport who has been quite critical of the new originalism and especially its interpretation/construction 2-step (and especially critical of new originalist Randy Barnett). Ramsey does not resort to construction. But his interpretation is quite convoluted with English and other history going back a hundred or two or more years before the 1787 Constitution, suggesting perhaps greater knowledge on the part of the Framers, especially the non-lawyer Framers, of such history at that time. Ramsey does recognize that his interpretation is not crystal clear. Where I think he goes off is in congressional power under the Naturalization Clause to define/address "natural born Citizen." [In earlier comments I had mistakenly referred to immigration.] And Ramsey seems to recognize that the connection is weak.

Maybe Larry Solum at the Legal Theory Blog will post on Ramsey's article, with an editorial comment.

In any event, America isn't ready for Canadian crude.
 

Amazing how you're not sure what I meant, but then state it clearly.

Not being sure doesn't mean I have no idea. I wanted to be sure in part since didn't really see the "retroactive" problem & with respect, at times you are wrong about details. So, wanted to be sure for that reason too. Not amazing.

To be a natural born citizen is to have been a citizen at birth. When a subsequent act renders you a citizen, you are a "naturalized " citizen. It is not within the power of Congress to make somebody who wasn't born a citizen into a "natural born" citizen. They have no power to change the past.

Right. As I said, the law very well might not have helped McCain if that is all that mattered. It made certain people citizens, including those born in the past, but it might not have made them "natural born." No retroactivity issue.

And Senate resolutions cannot waive clauses of the Constitution.

Sure. The resolution wasn't "Congress," so apparently you didn't mean that, and it "waiving" anything is question begging. As noted, the question of his natural born citizenship is a disputed point. People on both sides of the ideological line think it obvious, some don't, and I linked an example of both opinions. The "anti" side per a NYT article on the dispute was deemed "plausible." But, you, as is your wont, favored the crystal clear when things are a tad more opaque approach.

Nothing amazing involved.
 

I'm not impressed with "disputed points". Something can be as clear as you could want, somebody comes along, finds the Constitution is in their way, and "disputes" it. All this requires is a limited capacity for being embarrassed.

So, yes, tautologically, whether McCain is a natural born citizen is disputed. Big hairy deal.
 

Brett, it was not like they suddenly "disputed" it when McCain came along. And, it wasn't in Lawrence Tribe's way It wasn't in Ted Clement's way long after McCain was a candidate. Just to name two people. The example of the person explaining how McCain is not a natural born President is a a Democrat that probably didn't vote for the guy. And, it is not that it is merely disputed as in someone out there disagrees with you. If anything, the "McCain is not a natural born citizenship" argument was before he ran was the minority viewpoint.

But, yes, it's clear to you, I get it.

 

I do recall back when John MCain was running and the "natural born" issue was raised learning of and reading an article on the subject by a lady law professor (I used to call my wife "Sweetheart" because sometimes I forgot her name) well before John McCain was a presidential candidate that was a sweethear of an article.

Meantime, I've downloaded Larry Solum's 2008 article (10 pages) as well as his 2010 "update (12 pages)," both referred to in Mike (I'm not Rappaport) Ramsey's article. I plan to read the "updateP later this morning.

What seems to be Brett's "big hairy deal" [obviously not his pate] is that in the 2008 general election Obama got a free ride as McCain was not qualified as "a natural born Citizen." However "Palintology" cannot be ignored, speaking of "big hairy deals."
 

Obama got a free ride because McCain didn't particularly want to be President. Like Dole before him, the Presidential nomination was his retirement gift. Pity he couldn't be satisfied with a gold watch.
 

The article might be Jill A. Pryor, "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty," at least, she was cited multiple times when the matter was discussed. She's a federal judge now.
 

Joe, I think you have identified the article I referred to, which was published in 1988, at a time when the polls were not great for John McCain.

Over at the Legal Theory Blog, there is a post on Mike (I'm not Rappaport) Ramsey's article, with Larry Solum's "Highly Recommended" and an editorial comment. But Solum does not cite to his own 2008 article and 2010 "update," probably to avoid internecine originalism brouhaha.
 

Obama got a free ride because McCain didn't particularly want to be President. Like Dole before him, the Presidential nomination was his retirement gift. Pity he couldn't be satisfied with a gold watch.
# posted by Blogger Brett : 9:52 AM


I think the much larger problem is that the Bush/Cheney disaster meant that the American public didn't want any Republican to be president.
 

Over at the Originalism Blog Mike (I'm not Rappaport) Ramsey posts - and provided a link to - Thomas Lee's LATimes Op-Ed "Is Ted Cruz a 'natural born Citizen"? Not if you're an originallist." Ramsey disagrees as he is an originalist. Lee suggests that a textualist or a living constitutionalist might indeed consider that Cruz is a "natural born Citizen."

I wonder if in the timeframe of 1787-8 enactment/ratification of the Constitution the ordinary intelligent person had knowledge of the historical background provided in Ramsey's article going back a couple of hundred years to understand the then public meaning of "natural born Citizen" that Ramsey relies upon. Keep in mind that education was not a big bag back then, There were no law schools and few colleges close to what we know today and not all of the Framers/Ratifiers were lawyers or college educated.
 

Joe wrote:
"The question pertained to the "argument" made by Cruz though as I noted the argument itself is flawed. As to McCain, "the law" at best is debatable.

McCain is not: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1157621

Yes, he is: http://www.gibsondunn.com/publications/Documents/Ho-NaturalBornPresidents.pdf

Two competing views are cited there, both imho are "clearly" at least reasonable."

Just read these two. The first seems extremely persuasive to me, and responds point by point to the second. Do you know if Tribe or anyone else responded specifically to the arguments raised?
 

I just finished reading Larry Solum's "update" article, which approaches the issue from the viewpoint of "New Originalism." Much of the history in this "update" is also reflected in Ramsey's subsequent article. Ramsey seems not to address all of the areas put on the table by Solum. To me, the key differences relate to the "New Originalism" of Solum to an earlier version of originalism on the part of Ramsey. On page 3 of Solum's "update" there is an interesting quote of Mike Dorf, who is not an originalist. In Part IV of Solum's "update," he discusses possible different approaches of "New Originalist" Randy Barnett, Keith Whittington and Jack Balkin, closing with:

"Different approaches to constitutional construction might give different answers to the question whether McCain is eligible for the presidency.?
 

Here's part of a symposium where Prof. Chin's view is directly addressed:

http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1085&context=mlr_fi

A different approach to respond to him from the same place:

http://repository.law.umich.edu/mlr_fi/vol107/iss1/20/

See also:

https://lawreviewdrake.files.wordpress.com/2015/06/irvol58-2_han.pdf

The book "Odd Clauses" also discusses both sides of the debate.

A quick search did not find a reply directly from the two authors of supportive of McCain, but perhaps that will provide some food for thought.
 

The "full symposium" is discussed here:

http://www.freerepublic.com/focus/f-bloggers/2144220/posts

I'd add the two examples originally provided were just examples and not evenly matched -- one was a long form essay, the other much more brief. But, people have discussed this issue from various angles at various lengths. Those were just the easiest to obtain.
 

Thanks, Joe I'll take a look.
 

http://www.bostonglobe.com/opinion/2016/01/11/through-ted-cruz-constitutional-looking-glass/zvKE6qpF31q2RsvPO9nGoK/story.html?event=event25


"Constitutional Cruz control" By Laurence H. Tribe.


Covers the natural born matter among other things in op-ed form.
 

Some originalists are contortionists, as was Justice Scalia with Heller, perhaps leading them - DRUM ROLL - to Jack Balkin's Living Originalism.
 

To add to Joe's welcome list, check this out at the Originalism Blog:

Claims that Senator Cruz is not “Natural Born” Need to be Taken Seriously
Rob Natelson

This post challenges the position of Mike (I'm not Rappaport) Ramsey including with respect to the role of Congress in defining "natural born Citizen." Perhaps originalism will next evolve into ideological originalism, which may actually better describe most originalists today.
 

There is a lawsuit now ... guy sounds Shag-like, but is not Shag:

http://talkingpointsmemo.com/livewire/cruz-lawsuit-birth-challenge
 

Shag-like because he's a lawyer and 85 years of age. But I'm not licensed in TX and I don't think this challenge fits Jack Balkin's description of how Cruz's eligibility could be challenged in federal courts. Frankly, I'd like to see the rancor continue, as it may determine whether Trump or Cruz is the crudest. Cruz got into the "dirty-dozens" fray with a reference to Trump being disqualified as his mother was born in Scotland. Maybe that's where Trump learned about taking the "low road." But Cruz will pay for his "yo momma" challenge. (Recall Dizzy Gillespie's "Swing Low, Sweet Cadillac," and its reference to "yo poppa too.")
 

Perhaps, a bit more than that, but yes, should be easily tossed out on standing grounds. Think there are probably various ways to inflame rancor.

I'm frankly wary about double-guessing citizenship like this, since it is likely to inflame others Balkin et. al. rather not be inflamed such as those who want to deny citizenship rights of children born here to "illegals" etc. This very well a sort of thought experiment but as with many originalist etc. thought experiments, that isn't the same thing as it being a very hard thing to decide.
 

The expression "straining at gnats" that I recall from my youth popped into my mind with the "natural born Citizen" brouhaha. I did some Googling to recall its meaning. We've got a battle of originalists and non-originalists going on, with no clear consensus from either group. But ideology seems to be the dynamic. I understand a step has been taken via a constitutional convention, And some legal scholars are suggesting that this presidential qualification is obsolete. (Ilya Somin.) I recall not that long ago Republicans (mostly conservatives) making an effort to qualify the foreign born Arnold Schwarzenegger before the revelation that he fathered a housekeeper's child. That's how desperate Republicans were during the Clinton years. I personally think the "natural born Citizen" should be changed. Frankly, with the current nationalism/xenophobia craze, I'm not so sure that the nation is ready for an amendment to this qualification. So we are stuck with the Constitution we got

My recollection is that the pre-Reconstruction As Constitution did not define citizenship with clarity, though the work Citizen was employed in many instances. The first sentence of Section 1 of the 14th A does define "citizen," at both the federal and state levels. Query: Did this definition amend the meaning of "natural born Citizen"? There was a thread either at this Blog or perhaps Concurring Opinions on how existing provisions of the Constitution may be amended by a subsequent A, that did not lead to a consensus. Heller (5-4) addressed the 2nd A (ratified 1791) by the impact of the 14th A. The 2nd A did not seem to amend any of the Militia provisions of the 1787 Constitution ratified in 1789. But the 14th A, according to Heller (5-4), did have an impact on the then meaning of the 2nd A. Can similar reasoning be applied regarding the first sentence of Section 1 of the 14th A? That first sentence stressed birth in America (with a limited exception) in contrast to naturalization. I'm not aware that the Framers (or Ratifiers) of the 14th A addressed the impact of the first sentence on the "natural born Citizen" presidential qualification which by that time had become fully effective (per a Gerard post at Concurring Opinions).

So let the rancor continue.
 

A post/thread at PrawfsBlawg referenced Afroyim v. Rusk:

http://caselaw.findlaw.com/us-supreme-court/387/253.html

The sparring opinions (5-4) dealt with citizenship including in pre-14A United States. Overall, to me, the meaning of "natural born" is simply not clear from the text alone, so we are left with formulating a sound interpretation today.

Debating what Blackstone Era statutes are too "radical" to count, per woman professor who argues Cruz is not natural born is to be asinine. The debates here have to take another comparison seemed akin to those debating Star Wars minutiae. Stripping people the right to run and vote here should be applied narrowly & the common understanding that Cruz is a natural born citizenship because his mother was a citizen at his birth per the laws of the day is fine there.

Per the Puerto Rico case talked about on this blog, I also think it might be reasonable to determine that the self-governing act in the 1950s presumptuously gave them the sovereignty for dual sovereignty to attach (a sort of clear statement rule) without having to decide mega questions on the power of Congress to take it back. I'm not a big fan of dual sovereignty as applied to double jeopardy myself but if the rule is in place, there's a decent argument is should apply there.
 

Gerard posted on 1/12/16 at Concurring Opinions "More on the Natural-Born Citizen Clause. Here's a recent comment of interest:

**
Michael Herz January 16, 2016 at 10:57 am
With regard to the framers being “quite hypocritical in imposing a limitation on future generations that they refused to apply to themselves,” there’s an illuminating discussion of this aspect of the clause, and of other “sunrise amendments,” in an article in the most recent NYU Law Review called Make Me Democratic, But Not Yet. http://www.nyulawreview.org/issues/volume-90-number-6/make-me-democratic-not-yet

**
The article is quite lengthy but it has a Table of Contents. Check our Part III. C. "Democracy-Restricting Sunrise? The Natural Born Citizen Clause," pages 2022-2027. While this does not aim at the original meaning of the clause, it is an interesting read of the Convention history. Reading between the lines, that clause was aimed at immigrants, including those participating in the Convention who had also participated in the Revolution.

A direct link is available via the comment at Concurring Opinions.
 

In his John Bingham birthday post, GM says in a comment that he will respond to John Bingham's comments on natural born citizenship. Ah.

What is next? Will the 3A come back in vogue?
 

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