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.

On the Civil Rights Cases

The big holding of the Civil Rights Cases of 1883 was that the great human-rights sentence of the Fourteenth Amendment applied only to state action; that, therefore, the fifth section of that Amendment only empowered Congress to enforce those prohibitions on state action; and that, therefore, the Civil Rights Act of 1875 was unconstitutional:

It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation, but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of State laws and the action of State officers executive or judicial when these are subversive of the fundamental rights specified in the amendment.

There are plenty of ways of arguing against this conclusion. My grandfather had a creative one, namely that the word 'citizen' in the first sentence of the Amendment is not just an empty title, but is rather rich with meaning. Part of being a citizen, he argues, is that you will be treated in the public forum on a more-or-less equal basis with your fellow-citizens. By this logic, the "state action" doctrine is simply inappropriate in these cases. I like that argument, and think it broadly correct. But one can reach the same conclusion on a rather more narrow basis, I think.*

Don't Fear the Privileges or Immunities Clause

In 1868, Congress passed and the American people, well, sort of ratified the Fourteenth Amendment to the United States Constitution. Its first section transformed the fabric of our government more or less from top to bottom. Its first clause overturned the Dred Scott decision, granting citizenship to all persons "born or naturalized" in the US. The third and fourth clauses guaranteed due process of law and equal protection of the laws to all person within each state's jurisdiction. But the second clause was pretty clearly supposed to be at least as important as these other clauses:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

This, rather plainly, was a vehicle for enforcing protections of nationally-defined individual rights against the state governments. Except the Court didn't see things that way, holding in the 1873 Slaughterhouse Cases that only those rights regarding federal matters (access to ports and waterways, running for federal office, protection on the high seas, etc.) were "privileges or immunities of citizens of the United States," while ordinary civil rights were not. They seemed to justify this holding on the grounds that it was just implausible that Congress meant to shift protection of all civil rights from the states to the federal government. That's clearly absurd.

But I've heard another, somewhat less absurd argument for why one ought to be skeptical of using the Privileges or Immunities Clause as the vehicle for "incorporation" of general civil rights against state governments, instead of the Due Process Clause: the former protects only citizens, while the latter protects all persons. This sounds plausible: it should trouble us if the right to freedom of speech, or free exercise of religion, or any of the privacy rights the Court has found over the past century, were only to be enjoyed by citizens, and not by lawfully resident aliens. But this objection also seems to me to be one that does not actually stand up, because of the Equal Protection Clause.