The Ted Cruz Debate: An Example Of Why Interpretation Matters

The current debate over whether presidential candidate Ted Cruz is constitutionally eligible to hold the office to which he aspires demonstrates why arguments about how the federal constitution should be interpreted are so important. They are not mere semantic debates.

Article II § 1 cl. 5,  of the United States Constitution sets forth three requirements for holding the office of President: He or she must be 35 years old, must have lived in the U.S. for 14 years, and must be “a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution.” The last requirement is at the core of the Ted Cruz debate and this post.

Cruz was born in Canada to a mother who was a U.S. citizen. There is no question that, under the statutory law that existed when Cruz was born (and today), he was automatically a “citizen” immediately upon his birth. That is, he did not have to go through a naturalization process to become a citizen. But was he a “natural born” citizen within the meaning of Article II, section 1. cl. 5? What does “natural born citizen” mean?  How is being a “natural born citizen” differ from a plain old “citizen?” Must one have actually been born in the United States to be a natural born citizen, or is it sufficient that as least one parent was a citizen, regardless of where a person was born?

The answer to these questions very much depends upon how one believes the constitution should be interpreted, an issue that is difficult to resolve because the constitution did not come with directions on how it should be interpreted.  (And even if such an instruction book existed, what good would it be without an instruction book on how to interpret the instruction book?  And if you think the people who drafted the constitution or any of its amendments left clear instructions on how their words should be interpreted, well, sorry.)

Here is a short list of possible ways to approach the interpretation methodology question:

  1. What did the men who drafted the clause at the constitutional convention in Philadelphia in the summer of 1787 intend it to mean? (This is known as “Framers’ Intent” originalism.)
  2. What did the people who attended the state conventions that ratified the constitution understand the phrase to mean? (Let’s call this “Ratifiers’ Intent” originalism.)
  3. How did the general lay public understand the phrase at the time of its adoption? (This is known as “original public meaning” originalism, which is the approach Justice Scalia supports.)
  4. How should the phrase be interpreted today, in light of two centuries of legal  evolution and the demands of contemporary society?

The first three ways are all forms of originalism. They view the constitution as a “dead” document whose meaning was fixed in time (e.g, 1787 or whenever a particular amendment whose meaning is at issue was adopted.) They require judges to be professional historians who must divine the intended meaning or original understanding of a constitutional word or phrase 200+ years ago based on reference to various historical documents. The fourth reflects a view known loosely as “living constitutionalism.” It views the constitution as a living document whose meaning evolves over time as each generation works to maintains its relevance to contemporary society.

Originalists generally scoff at the notion of a constitution whose meaning changes over time.  They argue that living constitutionalism gives judges, particularly the justices of the Supreme Court, license to inject their own personal views into the constitution. According to originalists, something cannot truly be considered “law” if its meaning changes over time.

By contrast, living constitutionalists scoff at originalists, arguing (persuasively, in my view) that judges have no particular expertise as historians, that it is difficult, if not impossible, to ascertain the single, true historical meaning of a 200+ year old text, and that in practice many judges (e.g., Scalia) use originalism to mask their true reasons for interpreting the constitution in a certain way, which often just happens to comport with their personal ideologies. In short, living constitutionalists often view originalists as intellectually dishonest, i.e., as frauds.

Many books and articles have been devoted to the debate over how the constitution should be interpreted; this short post is intended only to whet readers’ appetites. I have had, and continue to have, many great debates with friends and colleagues about how the constitution should be interpreted. I doubt the debate will ever be resolved. But make no doubt; it is a serious debate.  The answer to how the constitution should be interpreted may play a role in determining whether Ted Cruz is our next president.

[For more on the Ted Cruz/natural born citizen debate, click here and here.]

UPDATE (1/19/2016): I came across this interesting article that discusses the pros and cons of originalism vs. living constitutionalism.

 


2 Comments on “The Ted Cruz Debate: An Example Of Why Interpretation Matters”

  1. mnemonomania says:

    It’s surprising that you would describe so unpersuasively the interpretive method that you find persuasive (“How should the phrase be interpreted today, in light of two centuries of legal evolution and the demands of contemporary society?”).

    Surely all four ways you list, and not just the fourth, aim at interpreting the phrase as it “should be interpreted today.” And to give judges discretion to interpret in no clearer light than their notions of “two centuries of legal evolution and the demands of contemporary society” constrains them in no definite way.

    Can’t “living constitutionalism” be described as compactly as each of the three kinds of originalism? Or is its essence its vagueness?

    You write a wonderful, thought-provoking blog.

    • Dan Klau says:

      Dear mnemonomania: You make a good point that all four interpretative approaches are about how the people who support each approach believe the constitution should be interpreted “today.” Originalists believe that how it should be interpreted today is in accord with its original meaning more than 200 years ago.

      I do not mean to suggest that living constitutionalism constrains judges any more or less than other approaches. I do mean to suggest, however, that originalism does not actually constrain judges the way it purports to constrain them. The D.C. v. Heller case, concerning the Second Amendment, is a good example. The judges in the majority and dissenting opinions all purport to rely on “history” to justify their interpretation of the amendment. History is quite malleable. I am skeptical of any originalist who claims that history truly constrains his or her interpretations. In general, I think living constitutionalism (a loaded term if ever there was one) is more intellectually honest.

      Thanks for your comment!


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