The Ted Cruz Debate, Ctd.
Posted: February 7, 2016 Filed under: Uncategorized 2 CommentsRenowned constitutional law professors Laurence Tribe (Harvard) and Jack Balkin (Yale) held a cordial and informative debate at Harvard Law School last week on the question of whether Ted Cruz is “natural born citizen” and thus constitutionally eligible to hold the office of President of the United States. (See my previous post on the subject.) Bottom line: For fan’s of originalism, the legal question is not “settled” and there is a reasonable argument that he is not qualified. (As I am not an originalist, I don’t share that position. But since Ted Cruz likes to say that he believes in interpreting the constitution according to its original meaning, it is fair to ask whether he is qualified to be president if the constitution is interpreted the way he thinks it should be interpreted. Or, as Professor Tribe suggests, is Cruz just a “fair weather originalist?”)
Appealingly Brief! 
My sons’ birth certificates state “Consular Report of Birth Abroad of a Citizen of the United States of America”. I don’t think there is a doubt of their being ‘natural born citizens’ even though born abroad. If a child born abroad to one US Citizen parent who then lived in the US is in question, then surely it is a question whether the ruling when a child born in the US without US citizen parents who are “subject to the jurisdiction thereof” is indeed eligible for automatic citizenship.
Dear Deborah,
There is no doubt that your sons’ were automatically citizens at birth, having been born to parents who were both U.S. Citizens. There is doubt, however, as to whether they would qualify as “natural born citizens” as that phrase was understood in 1790. Under English common law at the time, the phrase referred to persons born on the sovereign’s soil. Thus, there is a colorable (i.e., non-frivolous) argument that the Framers of the U.S. Constitution, who were intimately familiar with English common law, intended the phrase to refer to persons born on U.S. soil, and there is a colorable argument that the public understood the phrase that way as well.
As I said in my post, I do not find the “originalist” argument persuasive, but that’s because I’m not an originalist (as that phrase is generally understood). A person who believes that the U.S. Constitution should be interpreted according to its original public meaning circa 1790 (or the date of any relevant amendment) must concede that there is a debatable issue whether Ted Cruz is qualified.