The Historical Argument for Ted Cruz's Eligibility

Rafael Edward Cruz, a.k.a. Ted Cruz, the current leading actual-politician in the 2016 Republican presidential primary, was born in Canada. It is contended by some that this makes him ineligible to be President. Well, okay, the issue has been thrust into the spotlight by troll extraordinaire Donald Trump, who's managed not to actually make the argument himself, rather alluding to its existence as a potential complication should the Republicans nominate Cruz. (His subsequent argument that Cruz should seek a declaratory judgment settling the issue once and for all is (a) a truly masterful piece of trolling, and (b) the most attention the law of remedies has had since the Kim Davis saga, teehee.) Anyway the thrust of the argument is that the Constitution limits the Presidency to "natural born Citizen[s]." What does this mean? Who knows. But perhaps it means only people who were born on American soil. And Cruz wasn't.

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.