Over at The New Republic, Noam Scheiber uses a remarkably interesting topic as a vehicle to mock constitutional conservatives and Ted Cruz.
The issue is this: Ted Cruz was born an American citizen in Canada. Because one of this nation's founding documents stats that "[n]o 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," there is some question as to whether Ted Cruz can in fact be president of the United States. Unfortunately, Scheiber's analysis of this intriguing issue is built on a series of faulty assumptions that ultimately lead him to the wrong conclusion. It also causes him to skip over a more interesting question: How is it possible that we have never resolved the issue of who is and is not a natural born citizen under the Constitution of the United States?
Scheiber's basic argument goes something like this: Ted Cruz is a constitutional conservative. Because constitutional conservatives reject the idea that the Constitution does not have a fixed meaning, this group is apt to read "natural born citizen" narrowly to include only individuals born to an American parent on American soil. Under this reading, Ted Cruz cannot be president. Oh, how stupid and dogmatic conservative legal thought is!
Unfortunately, Scheiber oversimplifies and downright misunderstands the various schools of constitutional interpretation. To begin with, Scheiber essentially treats all conservative legal thinkers as originalists, ignoring the fact that there are competing modes of originalist thinking that often lead to very different interpretations of the same text (original public meaning vs. original intent, etc.). But the larger flaw is the assumption that believers in the living constitution reject originalism. That is incorrect. Instead, believers in the living Constitution posit that what the founders thought when they wrote the Constitution ought not always dictate what the document means today.
When it comes to interpreting a phrase like "natural born citizen," I assure you that even the least scrupulous adherent to original intent will not pay the slightest attention to any of the "editorials in major media outlets" and "cable chat-show debates" that Scheiber is satisfied have some bearing on the meaning of the term as defined by the U.S. Constitution.
None of this is to say that Scheiber is wrong to point out the flaws in the way that Ted Cruz talks about the Constitution when he is in public. After all, given Ted Cruz's background as an experienced Supreme Court litigator and former Supreme Court clerk, no one knows better than he that "following the Constitution" is hardly a simple thing. But that observation does not lend itself to Scheiber's preferred narrative: that Ted Cruz's belief in originalism precludes his presidential run.
But beyond Cruz: How is it possible that this issue has never been looked at by our federal courts — whose province, after all, is emphatically to say what the law is? It is not like the issue has never come up before. Franklin D. Roosevelt, Jr. was born to American born parents in Canada, and George Romney was born to American parents in Mexico. John McCain was born at Coco Solo Naval Air Station, a United States military installation in the Panama Canal Zone. How were these people able to run for president if we didn't know if they could be president under the Constitution?
The reason the Supreme Court — or any court — has never weighed in on this is because no plaintiff with standing has ever brought suit successfully in federal court. Basically, to be able to sue in federal court, a plaintiff has to be able to show that they suffered a concrete injury (or will soon suffer a concrete injury if the court does not intervene) and courts have repeatedly held that a citizen does not have standing to sue to get a candidate off the ballot for not being a natural born citizen. So, in Hollander v. McCain, a citizen brought suit in the United States District Court for the District of New Hampshire in hopes that the court would declare John McCain constitutionally ineligible to be president. The court refused to take the case, stating essentially that the only individuals who could sue John McCain were his opponents, because they were the only people who might suffer a concrete injury from McCain's candidacy. (This is why tons of lawsuits claiming Obama is from Kenya have been tossed.)
Which brings us back to Ted Cruz. To find out for sure if he is eligible to run for president, one of Cruz's opponents would have to bring the lawsuit. Why does this never happen? It would seem that candidates have decided that trying to get an opponent tossed out of the race would de-legitimize their own candidacy. If that is the case, perhaps Scheiber was right all along: The editorials and the pundits do matter — just not for the reasons he thought they did.