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 larry@tribelaw.com and on Twitter at @tribelaw.