Monday, September 19, 2016

Birtherism as Faux-Constitutionalism: A Tale of Two Cities

Guest Blogger

Laurence H. Tribe

This is a tale of two legal "cities," both populated by stories linking a person’s place of birth to that person’s eligibility to serve as President of the United States. In a wonderful poem by Richard Blanco, the Inaugural Poet for Barack Obama’s second installation as President, we are reminded that our country may not be where we happened to be born but where we would wish to die. Even so, narratives that connect one’s birthplace to one’s rights and responsibilities, including at the apex one’s eligibility to serve as a nation’s chief executive, are ubiquitous and invariably worth pondering.

This essay consists of two such narratives. Apart from their potentially misleading resemblance (in that both narratives engage the linkage between where one was born and what powers or privileges one might enjoy), those narratives in fact have almost nothing in common. Indeed, the first – which I’ll identify with a place called Birtherville – turns out to be an anti-constitutional mirror image of the second – which I’ll call Constiutionville.

The first narrative drapes itself deceptively in the cloak of the Constitution to conceal a profoundly unconstitutional and retro vision of America. The second, though genuinely grounded in the Constitution, exposes a fractured reality, where what the Constitution undoubtedly says and what our moral evolution as a nation tells us it ought to be understood to mean sometimes confront one another across a difficult-to-traverse divide.

My purpose here is not to build a bridge across that divide but, more modestly, to clear away the less widely shared even if somewhat surprising confusion between the two cities, each of which has figured prominently at various stops along the wild marathon that has defined the race for the White House due to reach its finish line on November 8, 2016.

City One: Birtherville

The first city on our tour sits on the mudflats of what came during the Obama presidency to be called Birtherism. It was rocked by an earthquake of sorts the day before Constitution Day, 2016. After much fanfare designed to win maximum media coverage (free, of course) for the opening of his fancy (all right, no need to be coy: vulgar) new hotel in the nation’s capital, Republican presidential nominee Donald Trump announced the anything but-breaking “news” that “President Obama was born in the United States, period.”

Ostensibly, Trump was calling to an end his damaging fairytale that Barack Hussein Obama was and remains a Manchurian Candidate, an imposter born abroad who hijacked the presidency in service of alien and subversive interests after sneaking into the country without papers and, indeed, illegally.

Trump spoke in a manner – and with a shocking brevity (the relevant passage took under 10 seconds for Trump to read aloud) – that was transparently calculated to signal to his hard-core base of haters and bigots that he was being insincere (perhaps “sarcastic,” as Trump has previously used that term to walk back some of his most outrageous remarks) and was anything but ready to concede the constitutional legitimacy, and even the United States citizenship, of our first African-American president. It was through so intentionally unconvincing a performance that Trump purported to put an end to the wave of “birther” conspiracy theories that he had launched and that had in turn launched his bizarre presidential candidacy. For those who joined his crusade because of the racist aspersions he heaped on President Obama’s legitimacy, Trump was dog-whistling that he may have changed his tune, but he hadn’t changed his mind.

Without anything remotely resembling a real confession of error, much less an actual apology to the person (or to the office) that he had so grossly defamed for years on end, Trump aggravated his slander of all African-Americans – and indeed of all who had voted to put Obama in the Oval Office – by repeating the baseless conspiracy theory that it was not Trump himself but in fact his opponent, Democratic presidential nominee Hillary Clinton, who had, in her effort to wrest the nomination from Barack Obama in 2008, planted the seeds of the ludicrous idea that Obama was born not in Hawaii but in Kenya, to a mother who had the sinister far-sightedness to conspire with hospital and government officials to have a fake birth certificate prepared for her newborn son in Hawaii so that he might one day run for president. Thus Trump claimed the credit for ending the birther mischief that he had in fact begun and had not indeed ended at all. It was a neat trick, for anyone dumb enough to fall for it.
As Trump put it during his hotel’s opening ceremony in front of a national television audience on September 16, “Hillary started it. I finished it.” He then added, ominously, “You know what I mean.”

At that point the man who, without the birther movement, would never have made the transition from reality TV celebrity to presidential candidate and eventually presidential nominee, abruptly left the stage. And he did so without answering any of the myriad questions his latest performance manifestly raised, instead crassly inviting an at-long-last-unreceptive gaggle of TV camera crews to follow him around as he touted the supposed virtues of his latest real estate venture. In extending that evidently unwelcome invitation, Trump made clear that the camera crews were to leave all inquiring reporters behind. The whole spectacle left no doubt that a Trump presidency would likewise be inextricably entangled with the duplicitous promotion of the Trump Organization and of the (possibly hollow) financial empire surrounding it, all neatly (and pointlessly) ensconced in a perfectly transparent “blind trust” about as effective as the non-existent but “great” wall Trump has repeatedly promised to build across our border with Mexico.

Needless to say, that blatant display of contempt for the American people and for the office Trump still seeks to occupy could not absolve him of the harm done to the entire nation – including the particularly sharp insult directed at every African-American – by his years of voicing faux-disbelief in the birthplace-determined citizenship of the President and in the legitimacy of his two terms in the White House, embellished by patently false claims that Trump actually possessed compelling evidence that the birth certificate he had goaded President Obama into producing and displaying was phony and that teams of Trump “investigators” were busily gathering further evidence in Hawaii and perhaps in Kenya showing that Barack Obama was born in Africa rather than in America.

Throughout, Trump has remained the “show me your papers” candidate whose grasp for the American presidency has eerily resembled the swagger of an aspirant to the highest office not of the post-Civil War democratic republic that our nation has become and now struggles to remain but of South Africa in the days of Apartheid.

Beyond this, it must be said that, although the invocation of ostensible doubt about Barack Obama’s status as a “natural born Citizen” – to quote the Constitution’s indisputable requirement for presidential eligibility – is cast in the Constitution’s language and wrapped in the Constitution’s flag, nobody with the slightest understanding of the Constitution or of American history could with a straight face deny that the ugly face behind that opaque mask is the now constitutionally discredited face of racism and exclusion. It is the face of Dred Scott v. Sanford, the infamous Supreme Court decision holding that neither slaves nor their descendants could claim any rights as citizens of the country they helped to build or of any of its States – a holding reversed in the very first sentence of the 14th Amendment. It is the face of the infamous snippets of the 1787 Constitution’s text that, without ever daring to name the institution of chattel slavery, nonetheless embedded that unspeakably evil institution in our Constitution’s foundation – through the clause ensuring the Slave States that, while they could lawfully treat their slaves as property to be imported and traded rather than as full persons entitled to vote, those States could nonetheless add 3/5 of the number of their slaves to the number of representatives to which they would otherwise be entitled in the U.S. House of Representatives; through the clause ensuring those States that, until 1808, Congress would be powerless to abolish the “Migration or Importation” – a term one uses for machinery or wheat but not for people – of “such Persons as any of the States now existing shall think proper to admit”; and through the equally infamous Fugitive Slave Clause – which managed, without ever uttering the dreaded word “slavery,” to put the Federal Government on the side of the “owners” of escaped slaves. And it is also the face of the many governmental practices that, to this day, exclude or denigrate human beings on the basis of their race, parentage, gender, gender identity, sexual orientation, or religion.

It is especially galling to realize how unlikely Trump is to pay much if any political price with the most rabidly racist of his supporters for having executed this phony pivot, one he might as well have performed with his (tiny) fingers crossed behind his back and with a knowing wink aimed squarely at the leaders of the alt-right, who have long considered Donald their guy and have long since come to admire his brazen willingness to pile lie atop obvious lie, to the point where “fact-checking” his wild statements and exposing their utter disconnection from reality has become a pointless exercise.

At the same time, anyone whose capacity for hope has not been entirely trumped by cynicism is entitled to doubt that Trump’s awkward non-pivot ”pivot” on this emblematic issue, one that dovetails perfectly with Trump’s nativism and Xenophobia in the realm of immigration policy, will succeed in its manifest aim of attracting the support of any significant number of non-college-educated white voters who are not already in Trump’s corner. 
But what this will add up to and where all this birther-fueled craziness is heading is beyond my ken. In what Maureen Dowd has cleverly called “The Year of Voting Dangerously,” and in what I’d call “The Year of Forecasting Prematurely,” I would hesitate to offer any prognostications about what lies ahead as we approach the fateful date of November 8, 2016. As I write this post on Constitution Day, just 51 days from a day that will, as Hillary Clinton rightly said, profoundly shape our next 50 years, I have no idea who our next President will be. Whether November 8 will prove to be another “day that lives in infamy” or will instead be a day to celebrate having dodged a lethal and possibly nuclear bullet remains unknowable. Whether we face the worst of times or, if not the best of times, at least times that leave open many bright futures is something we can only guess – and something that will depend on our own efforts.

City Two: Constitutionville

Whatever the ultimate fate of Trump’s candidacy and of the ugly myth of Obama’s illegitimacy that enabled that candidacy to rise from the ashes and embers of the KKK and of the Nazi and neo-Nazi movements that have tragically influenced our national trajectory through history, it remains absolutely crucial not to confuse Birtherville, or the intolerant and exclusionary Trumpian birtherism that is its life blood, with its doppelgänger, Constitutionville, the City on a Hill that demands that our Constitution be taken seriously and not used as a convenient cover for often venal and detestable impulses – and that its internal tensions and contradictions be confronted openly and honestly, rather than papered over with pretenses of perfectionism.

I can attest from personal experience roaming the internet and particularly the Twitterverse that many seemingly bright and otherwise reasonably well informed people mistakenly equate concern with who counts as a “natural born Citizen” eligible under Article II to serve as President of the United States with a strand of the nativism and bigotry they understand to be the dark side of birtherism. I am often asked, after I tweet something about the anti-constitutional as well as factually baseless character of Trump’s attacks on President Obama’s legal status as an American citizen (not to mention a “natural born Citizen”) whether I don’t regret having raised the issue of presidential eligibility with respect to U.S. Senator Ted Cruz during the primary season – at a time when, to my surprise, Trump publicly invoked my views during one of the many circus-like debates to support his opportunistic questioning of Cruz’s “natural born Citizen” status.

The answer is that I have no regrets at all on that score. Cruz was, as everyone knows, Trump’s last-standing opponent for the Republican nomination. And Trump did indeed make complimentary noises about my constitutional expertise in trumpeting my expression of concern about whether Cruz was constitutionally ineligible to become President, especially under Cruz’s own approach to constitutional interpretation. Neither then nor now did I find my invocation by Trump a source of pride, nor have I ever harbored the delusion that Trump gave a hoot about the Constitution or about its application to the Texas Senator. But this seems an opportune moment to make explicit what I trust at least some of those who have followed the trajectories of these two related debates about presidential eligibility already understand full well: there isn’t the slightest contradiction between criticizing Trump for being a cynical and dishonest purveyor of birther theories, and of the other ugly theories that accompany their frothy wake, and taking seriously the issue of whether Cruz, having by his own admission been born in Canada, is ineligible to be President of the United States.

From time to time in our history – as with respect to Arizona Senator Barry Goldwater’s run for the presidency despite his birth in Arizona before it was a State of the United States, or with respect to Michigan Governor George Romney’s run for the presidency despite his birth in Mexico, or with respect to Arizona Senator John McCain’s run for the presidency despite his birth in the U.S. Panama Canal Zone – the issue of what is required in order to qualify as a “natural born Citizen” has come to the fore. But, in each of those instances, as in the instance of Texas Senator Ted Cruz’s run for the presidency despite his birth in Canada, the questions raised have been purely legal questions about what the constitutional phrase “natural born Citizen” should be taken to mean. Raising those legal questions, far from being incompatible with the Constitution, is an indispensable part of taking the Constitution seriously.

That process, in which I have been proud to engage – both in writing a memorandum for Senator McCain together with Ted Olson supporting McCain’s eligibility in 2008 and in raising doubts about Senator Cruz’s eligibility in 2015/16 – is the very antithesis of the process launched (and rekindled whenever it appeared to be losing steam) to cast a shadow over Barack Obama’s eligibility to become President of the United States, both when he initially launched his bid in 2007/08 and when he sought reelection in 2011/12. The latter process centered not on genuine legal issues about the Constitution’s meaning as applied to an agreed-upon set of facts but on the entirely fabricated factual “question” of where Obama was born.

There is in fact nothing questionable or uncertain about the location of President Obama’s birth. He was born in Hawaii in August 1961, well after it had become a State of the Union in 1959. That phony question is of interest only because of how it entered the nation’s consciousness, who brought it to the fore, what it represents about its principal proponent, what it suggests about those welcoming his candidacy, and what impact its frequent repetition has had on the nation. In sharp contrast, there are genuine questions about what Article II of the U.S. Constitution means when it famously (or infamously) says that “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 further Article II requirements that one must be at least 35 to serve as President and that one must have resided in this country for at least 14 years are often trotted out to illustrate that at least some constitutional provisions have a precise and unambiguous meaning that is fixed from the moment of their enactment and that cannot “morph” with changing conditions and beliefs. But the “natural born Citizen” requirement is not, or at least not obviously, of that time-frozen character. Most of those, including me, who have made a study of that requirement and its origins have concluded that it is at least arguably ambiguous and might indeed, depending on one’s theory of constitutional interpretation, change over time.

The meaning of the “natural born Citizen” requirement may well turn out to be more than purely academic or theoretical. Suppose Hillary Clinton defeats Donald Trump on November 8, 2016 – a distinct possibility if not a strong probability – and suppose that one of her challengers when she seeks re-nomination in 2020, as she seems likely to do, is Senator Ted Cruz, a man who will have reached an age well past 35 and will have resided in the U.S. for well over 14 years but who was indisputably born in Canada. Although Cruz became a U.S. citizen at the time of his birth by virtue of congressional immigration and naturalization legislation that was in force at the time he was born to a U.S. citizen mother in Canada, many have argued and will continue to argue that this fact does not suffice to make him a “natural born Citizen” within the meaning of Article II. Those charged with deciding whether to place the name Ted Cruz on various primary or general election ballots must resolve the meaning of the “natural born Citizen” requirement in light of their oath, under Article VI of the Constitution, to be “bound . . . to support this Constitution.” Depending on how they perform that task, someone injured by their action or inaction will no doubt take them to state or federal court, challenging their interpretation as legally wrong, just as occurred during the current cycle, albeit without definitive judicial resolution at the level of the Supreme Court.

Even if that scenario does not unfold in 2020, one like it will almost certainly unfold at some point in the not-too-distant future. We are, after all, a nation of immigrants and will remain that kind of nation even if the Xenophobes succeed in electing one of their own in 2016. The inspiring motto at the base of Lady Liberty’s statue in the New York harbor may acquire an ironic gloss for a time, but it will not be forever erased. Tens of millions of Americans who were born beyond our shores will continue to contribute to the life of the nation, and many of them will hopefully aspire to lead it as president.

Finally, entirely independent of when such a scenario takes center stage, the issue is of intrinsic interest because of the light it sheds on competing understandings of America and on competing modes of constitutional interpretation, especially as applied to a provision that appears to have outlived the purposes that gave it birth and that is in tension with emerging aspirations of inclusiveness and equality that have increasingly come to define our constitutional tradition.

In a recently published Harvard Civil Rights-Civil Liberties Law Review article available at this post, I explore the meaning of the “natural born Citizen” clause of the Constitution’s Article II as a case study in the construction of such an outdated provision. I address how best to cope with the uncertainty generated by the absence of any authoritative Supreme Court interpretation of the provision. I discuss what we can learn about a presidential candidate who personally espouses a mode of constitutional interpretation that would, if applied non-hypocritically, render that candidate ineligible to serve as president. I address how the Supreme Court should approach the clause if a justiciable controversy about its meaning were to reach the Justices in connection with the presidential election of 2020 or later. I discuss the growing popular consensus that the insulting ceiling the clause places on the public aspirations of a huge swath of our citizens – a ceiling that affects not only those who themselves aspire to the presidency but on all who are told from the moment of their birth that they cannot grow up to serve their fellow citizens in that unique capacity and thus that they are, in a symbolically important sense, second-class citizens – is not only counterproductive but inconsistent with equal justice under law. And I address the practical question of how such a consensus might best be translated into binding reality while respecting the rule of law as a lodestar of our system of government.

Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School. You can reach him by email  at and on Twitter at @tribelaw.

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