Under this reading, the fact that his mother was from Delaware, and hence an American citizen by the Fourteenth Amendment, and that Cruz was therefore* an American citizen from birth, is immaterial. Under any other reading it probably isn't. So the question becomes, is this reading the correct one? (Spoiler alert: no, it is not.) This legal question has a funny and oft-overlooked relationship to the whole Obama birther debate, because even if Obama really was born in Kenya, so long as we don't dispute his mother's identity then he would be in the same position Cruz is in now. Birtherism, that is to say, relies not only on a flatly-wrong view of the facts, but also on a rather extreme view of the law. Nobody really brought this up back when birtherism was a thing.
And so, you see, this puts liberals in a funny situation. We all think it's hilarious that Trump is trolling Cruz this way. But it's a little awkward for us to, like, join in the fun. Because, y'know, we think this kind of thinking is repugnant. What's a poor liberal to do? Ah, the good ol' hypocrisy gambit, by which things that aren't fair game become fair game against people who think they should be fair game (e.g. homophobic Republicans who just happen to be gay). In this context it works by asserting that the narrow reading of "natural-born citizen" I described above would be correct under an originalist theory, that Cruz favors originalism, and that therefore, in Ted Cruz's own opinion, Ted Cruz is ineligible to be President. This also serves, for those among us who enjoy this sort of thing (e.g. Fordham Law professor Thomas Lee), as a convenient way to get in a few pot-shots against originalism. It's reminiscent, in that way, of Erwin Chemerinsky's argument from a few weeks ago that, under an originalist theory, women can't be President. I don't like that sort of thing. I didn't like it when Chemerinsky did it, and I don't like it now.
Because, you see, it turns out that the correct historical approach to this problem reaches the same damn result as every other kind of argument: yes, Ted Cruz can be President. I'm not gonna do exactly what I did last time, running through the modalities in turn, because the issue doesn't seem to have that kind of shape to me. Rather, I'm going to discuss two arguments, each of which weaves together several modalities. They reach the same conclusion, but one of them is pointedly anti-originalist and the other, y'know, isn't.
First, the anti-originalist argument. We start with the observation that the text says "natural born Citizen," and the sensible, ordinary way to read those words is that it means anyone who becomes a citizen on account of their birth, rather than someone who is naturalized later. We might even focus on that word "naturalized," and its suggestion of being "made natural;" the implication is that those who are citizens but were never naturalized were natural all along, i.e. were born natural. Makes sense, and it's a decent enough way to look at the problem. Hugo Black would probably stop right there. Under our nationality laws, Cruz was born a citizen, and he is therefore eligible to be President.
If he wanted to, though, he could go on a little further and be joined, like two small streams joining to form a great river, by his great rival Felix Frankfurter. Because, you see, actually enforcing these limits would be a pretty radical undertaking. Would federal courts issue injunctions against putting Cruz's name on the ballot? Would they enjoin his inauguration? We could well find ourselves in a situation of not really knowing who the President was, and--in a true worst-case scenario--the ultimate decision might end up being made by the military, which would have to decide whom to accept as their Commander-in-Chief. (My grandfather mentioned this as an argument against having judicial review of impeachments.)
But this isn't just a prudential point. As I mentioned last time around, with Chemerinsky, the Constitution's commitment to popular sovereignty and self-governance means that the American people's choice of a President is to be treated with the utmost respect. For a court to reject that choice, even though it comported with the plain and natural reading of the relevant constitutional text, because of some theory about how the men of 1789 understood the clause, would be deeply, deeply troubling. One could even go so far as to say that, in a very real sense, the American people are the ultimate judges of the Constitution, and that while this is not to say that their elected representatives can therefore pass any laws they want, it might well be to say that the People's judgment that a given candidate is eligible to be President is not just to be given respect but is to be followed, as if it were a court's judgment.
Put it all together and you've got a very strong argument for letting Ted Cruz be President. (If, y'know, he wins the election, which he shouldn't.) But there's something slightly uncomfortable about it. Because, you know, the prudential and structural points would really work just as well if we were talking about an actual naturalized citizen, say Arnold Schwarzenegger. But no one would actually argue that, if the American people voted for him, Schwarzenegger would actually as a matter of law become President, right? So we're really reliant on the textual point: it sure doesn't look, to the modern eye at least, like the Constitution actually did place this limit firmly upon the Presidency. If it did, we'd be stuck, and this would be just one more reason to repeal the damn natural-born citizen clause already.
And it's hardly crazy to say that the historical inquiry could tell us that, yeah, that's how we have to read the clause. Even present-meaning textualists like Hugo Black tend to concede that where the Constitution uses a legal term of art, its meaning can't be given by the contemporary understandings of ordinary people but rather by the technical meaning when the provision was adopted. And it's certainly not crazy to think that the term has a fixed meaning that Congress can't change; most constitutional provisions have meaning not subject to congressional redefinition. That's important for constitutionalism; otherwise the Constitution wouldn't actually limit Congress. So if it's a term of art that meant only those born on American soil, and whose meaning can't be changed by Congress, then Ted Cruz is out of luck--even though that result sounds weird to the modern reader of the Constitution, and despite all the prudential and structural reasons not to disqualify an elected President.
So it behooves us not to limit ourselves to that anti-originalist argument. Fortunately there's another argument that reaches the same result. It doesn't really have to be separate, except that keeping them separate helps make my point. And it's not mostly made up of historical argument. It's mostly a structural argument, but the key point is a little piece of pretty compelling evidence that the Framers agreed with it.
Specifically, it's a structural argument that this particular term is subject to congressional redefinition. Because, you see, it's really weird to say that the Constitution of 1789 contained a fixed definition of citizenship. Citizenship was not constitutionalized, at all, until the Fourteenth Amendment in 1868:
[T]he Founders' Constitution was widely read in the antebellum era as making national citizenship derivative of state citizenship, except in cases involving the naturalization of immigrants and the regulation of federal territories. (Akhil Amar, America's Constitution: A Biography, p. 381)Who was and was not a citizen was determined, back when the Constitution was written, not by the Constitution, and not, mostly, even by Congress. It was determined by the states! Citizenship was a matter of state law, first and foremost. Congress's only textual power here is to establish a "uniform Rule of Naturalization." So it would really boggle the mind if the federal Constitution actually contained an immutable definition of "natural born" citizenship. Maybe most states relied on the English common law definition of citizenship, which extended to those born within a certain territory (the reading which the anti-Cruz theory relies upon); maybe they didn't. Certainly the federal Constitution didn't require them to, and there would have been nothing wrong with a state's adopting by statute a different definition. It's tough to see how the natural-born citizen clause wouldn't have incorporated those changes. And if state statutes can change who is or isn't eligible to be President, then surely acts of Congress can as well.
And here's where the interesting little bit of historical evidence comes into play. The Naturalization Act of 1790 did a bunch of things, most notably setting the rules for naturalization of immigrants. But it also granted citizenship to the children of American citizens born abroad,* and it specifically declared that these children were to be "considered as natural born citizens." It is in fact the only statute to use the term, and it seems to me to settle the argument. Unless this law, passed by the First Congress, the Congress made up largely of men who had participated in crafting the Constitution, the Congress whose views about the Constitution are commonly considered authoritative, was itself unconstitutional, Congress has the power to make people natural-born citizens. That means the strict reading of the Natural Born Citizen Clause which would leave Cruz ineligible is wrong. End of discussion.
(Technically the provision stating explicitly that people in Cruz's position are natural-born citizens is no longer current law; later immigration acts dropped the phrase. I think, however, that "it means anyone who's a citizen from birth under all relevant laws, but only if those laws explicitly use the phrase" is a very convincing reading of the clause. Hell, neither the Fourteenth Amendment nor the statutory provisions incorporating it by granting citizenship to those born on American soil use the magic words, either. I might grant that Congress could grant citizenship at birth under certain circumstances but withhold natural-born status, or I might not, but it's never done so so it doesn't really matter.)
So, okay. Cruz is eligible; no one who isn't trolling has ever really disputed that. What does it matter, then? It matters because it's just wrong to say that an originalist/historical theory would reach the opposite conclusion. And when liberals go around saying that it would, they give legal argument a bad name. Of course, conservative originalists like Scalia make supposedly-historical arguments that are as shoddy as the anti-Cruz argument all the time, but when liberals go around saying that a commitment to enforcing the Constitution as it was originally understood would lead to absurd results like these, they actually reinforce Scalia's argument. Plenty of people find the idea of enforcing the Constitution as it was originally understood appealing, and I'd like to be able to argue to those people that someone like Scalia is in fact doing historical argument wrong.
Finally, liberals making these sorts of arguments cast aspersions against the Constitution itself. The suggestion is that "the Constitution as it was originally understood" is a stupid, outdated document that requires "living" interpretation to be workable. Actually, in my view, our Constitution is a remarkably good one, though it has a few provisions I'd like to get rid of (the natural-born citizenship requirement being one of them, actually) and has been substantially distorted by various clunky court doctrines which then get mistaken for the actual thing. This isn't to say that I'm not somewhat sympathetic to more radical critiques of the basic structure of the thing.
But there's always this faint suggestion, when liberals say the kinds of things they're saying about Cruz's citizenship these days, that, because it is antiquated and unworkable, we oughtn't really consider ourselves bound by it. And that's basically just an attack on the idea of constitutionalism, which, y'know, is of utmost importance to the liberal project. If we shouldn't be bound by the ideas of 1789 when they compel us to reach a result we find absurd or unpleasant, why should Kim Davis be bound by the ideas of 1868 when they compel her to reach a result she finds absurd and unpleasant?** (And make no mistake, that's who's compelling her, though she would probably disagree with me there.) Scalia likes to (pretend to) assert that any constitutional decision not grounded in historical argument is illegitimate and shouldn't really command our obedience. Liberal anti-originalists often seem to suggest that constitutional decisions that are grounded in historical argument are illegitimate and shouldn't command our obedience. That's a dangerous game to play, and we shouldn't do it.
*Actually the way the law's written it also matters that his father spent time residing in the U.S. But no matter. (This comes from the 1790 law, and as far as I can tell the requirement has never been altered since.)
**Of course, even if we rejected the idea of constitutional limits on government, we would still have federal civil rights laws. But do we liberals really want to put the job of defining and enforcing civil rights solely in Congress's hands? Didn't think so.
No comments:
Post a Comment