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.

It's Staggering How Wrong McClesky Is

I have been given the unfortunate task, for my constitutional law class, of coming up with a defense of McClesky v. Kemp, the case in which the Supreme Court rejected, 5-4, challenges to death penalty laws on the grounds that they were applied in racially unequal ways. Yeah. Anyway, the article that I'm reading about the case and its history suggests that part of Justice Powell's motivation in being that fifth vote was that the statistics showed discriminatory application of the death penalty mostly related to the race of the victim in a murder, not that of the defendant. The idea, I suppose, is that a black defendant is not being discriminated against on account of his race if he is sentenced to death because he killed a white guy, whereas someone else, white or black, who killed a black guy is just imprisoned for a mighty long time. But there's a deep historical perversion here. If you read the Fourteenth Amendment the way people would have before the Slaughter-House Cases eviscerated the Privileges or Immunities Clause, most of the job of guaranteeing against the invasion of substantive rights by law on discriminatory grounds had already been done. The peculiar function of the Equal Protection Clause, however, was to prevent Southern states from applying facially neutral laws in discriminatory ways. Specifically, to prevent them from having a de facto policy of acquitting, or not even indicting, white men who killed blacks, while throwing the book at blacks who killed whites. Or, to put it another way, to prevent the exact thing the NAACP's statistics showed in McClesky. The exact same thing. Okay, we don't generally let the killers of black people just plain walk of out court these days, but we let them live, as we (or at least those states that still ever execute anyone) don't those who kill whites. So yeah, sure, maybe the defendants aren't being denied the equal protection of the laws. But the victims are. Unfortunately, they can't exactly bring suit: they've been murdered, is kind of the whole point. Someone needs to be able to object, and it has to be people sentenced to die for killing whites. Honestly I think a white man so sentenced would have a valid claim, too, but certainly a black one. One way or another, though, I know that for death penalty laws to survive because their unequal application is precisely the kind envisioned by the Equal Protection Clause as most problematic is deeply perverse, and I can only hope that the next President Clinton is able to appoint that fifth Justice to get rid of the whole system.

Four Levels of Originalism

In my constitutional law class we have been discussing at various points the concept of "originalism," and as it quite frequent with that word the discussion can get very easily confused. There are, after all, lots of different concepts that go by the name, or invoke the concept of "original" in some way. This post will propose a classification of types of originalism, with some discussion of how legitimate each is. The inspiration for my classification scheme comes from something from my undergrad con-law class with Steve Calabresi, where he presented five modes of interpretation on a scale from most to least binding: text, structure, originalist stuff, precedent, and policy. (I'm actually not sure which order the originalist stuff and precedent were in, but it will shortly become irrelevant.) The idea is that, in trying to answer any constitutional question, you start by looking at the text. If that solves your problem, great, but at this late hour at least it probably doesn't. To resolve ambiguity, you might then ask which solution would be most consistent with the overall structure of the Constitution. If that is of no help, you consider what the Court has said on the matter, or ones like it, before. At some point in the process you examine the history from around the enactment of the relevant constitutional provisions; that's the originalist part. And if none of those sources of actual authority are of any help, if it is truly a 50/50 proposition which side ought prevail in the trial based on the actual law of the Constitution, you are free to choose whichever side ought prevail on policy grounds. If and only if, of course.

So here's my theory: originalist inquiries aren't another level of that scale. Rather, each of the other four levels can be informed by originalist/historical inquiry, and as the level of authority declines with each step from text to structure to precedent to policy, so the level of legitimacy of originalism declines. Let's examine each variety in turn.

Can We Please Stop Saying the Brown Case Was Atextual?

My constitutional law casebook says that Chief Justice Earl Warren's opinion in Brown v. Board of Education ""relied on neither the text nor the "inconclusive" original intent of the Fourteenth Amendment." The latter is certainly true. The former is, I think, pretty clearly false. They suggest that emphasis was placed on sociological inquiries, such as whether segregation as such created a feeling of inferiority among black schoolchildren. Well, yes. Because the thing about the Equal Protection Clause is that, perhaps more than with any other provision of the Constitution, you need to know what's actually going on in order to know how to apply it. Consider the following passage from Brown:

"We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reasons of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

That strikes me as pretty direct textual analysis. Segregated schools are inherently unequal; therefore, their creation by law constitutes a denial of the equal protection of the laws, which as the Fourteenth Amendment states in so many words no state may do to any person within its jurisdiction. Case closed, relying only on very literally the exact words of the Amendment in question. The only sticking-point is the factual one, i.e. the claim that separate educational facilities are inherently unequal. Now, you could argue some sort of formalistic test, sort of like the one the Plessy Court used, and say, "look, the law says to both whites and blacks that they cannot attend schools with students from the other race." Or you could do what the Brown Court does, and actually notice the thing where the whole frickin' point of segregation is to keep the black race in a state of inferiority, and that school segregation is arguably the linch-pin of that system. But that choice is not about textualism! In either case you are merely trying to determine whether what's going on in these cases is a denial of the equal protection of the laws, and honestly, once you notice the social facts of Jim Crow, it's just about the world's most straight-forward application of that language.

Now, Plessy is staggeringly atextual, basically saying that of course the Fourteenth Amendment doesn't prohibit segregation, everyone liked segregation just before it was passed and who can suppose they meant to actually change anything? (That's also ahistorical, as anyone who knows anything about the 1860s in this country should know.) This is one of the weird things about originalists, that they claim to be all about the text but when push comes to shove they're always keen to incorporate into the so-called text all the little ways that the country failed to live up to the text right after it was written. But as someone who just happens to share my last name said fifty-three years ago (on the first page of the article no less!), it's obvious that the phrase "no state shall...deny to any person within its jurisdiction the equal protection of the laws" forbids what the Southern states were doing to black people circa 1954, very much including school segregation. Warren spends most of his time establishing that there is real equality here because the Court had previously used the formalist standard to deny that this was so, and Warren needed to give good reason for not following their lead, and because he knew that "if equality then violation" was the most iron-clad inference from the plain text of the Fourteenth Amendment possible.

Bad Originalist Logic

Here's a kind of argument originalists tend to make about the Fourteenth Amendment that I just hate: "X was a long-standing tradition of the northern states prior to 1868, therefore the Fourteenth Amendment was clearly not originally intended/understood to prohibit X." Hello? The Fourteenth Amendment was a big, radical change to our Constitution. Arguably, as Thurgood Marshall said on the two-hundredth anniversary of the Declaration of Independence, "while the Union survived the civil war, the Constitution did not." The Fourteenth Amendment transformed our Constitution in the entirety. It is not to be presumed that a great many deeply traditional state practices were not outlawed by that Amendment, the first piece of the Constitution in history to substantively limit a state's general powers. It changed things! Its entire point was to change things!

Originalism and Relativism

You wouldn't really think that Justice Antonin Scalia is someone who buys deep into relativism, would you? I think he has a pretty clear notion that some ideas or cultures are just better or more correct than others. But it just occurred to me that a big part of his argument for originalism, or his version of it anyway, depends on an assumption of relativism, or even an assumption of an assumption of relativism. (Note: I'm defining relativism to mean the denial that truth can have meaning independent of people's beliefs.) In discussing "faint-hearted" originalism, the notion that the doctrine may sometimes suggest results too severe to contemplate, Scalia uses the example of the Eighth Amendment, saying that there might be some punishments that even judges who view themselves as originalists would find unconstitutional even if it could be definitively shown that in 1791 they were not considered cruel or unusual, such as public flogging or branding. Here's his quote on how to justify that faint-heartedness:

One way of doing so, of course, would be to say that it was originally intended that the cruel and unusual punishment clause would have an evolving content—that “cruel and unusual” originally meant “cruel and unusual for the age in question” and not “cruel and unusual in 1791.”

Notice here that he thinks the only options are "viewed as cruel and unusual when this clause was enacted" and "viewed as cruel and unusual when this clause is being applied." For anyone except a relativist, it would seem that there would be a third option: "actually cruel and unusual"! There is a damn good reason why he avoids this option: because it gives a lot of validity to the "evolutionary" or "living" reading of the Constitution.

Originalism and the Supremacy Clause

We've been talking about originalism a lot in my Philosophy of Law class this past week, and today we ended class with a discussion of "abstract" vs. "concrete" originalism. They're fairly familiar schools: the abstract originalists looks for what principles were originally intended/understood to be written in the Constitution, and then applies those principles as best we currently can, while the concrete originalist looks for what would've  been the originally intended/understood result in any specific case, and then reaches that same result. Arguably abstract originalism, the idea that one should judge the semantic meaning of words in the Constitution through an Originalist Dictionary and then use some other interpretive philosophy to understand the meaning of the vague, abstract clauses, is almost just trivially true. In any event it does not force us to anything resembling a Scalia jurisprudence, so we should care quite a lot whether abstract, trivial originalism or concrete, forceful originalism is more appropriate. One question might be, does the Constitution tell us anything about that debate?

Originalism and the Dictionary Flip-Flop

Antonin Scalia believes the Constitution's language must be interpreted in keeping with the original public meaning of the text. That is to say, he believes that the Constitution is what was ratified, as understood by the ratifiers, and nothing else. Okay, fine: I can see his argument, actually. But looking at a couple of examples of his application of that theory reveals what's so wrong about the way he puts it into practice. In DC v. Heller, the recent case establishing for the first time ever an individual constitutional right to gun ownership, Scalia has to defend against what is, I admit, one of the relatively more frivolous challenges to originalism. We on the left like to say that, if the Constitution means today what it meant in 1789 or 1791 or whenever a given amendment was ratified, why shouldn't the 2nd Amendment only protect 1791-era weaponry? After all, the idea that this was a right to carry handguns or automatic weapons or whatever was not the original public meaning of the amendment, was it? Well, Scalia says, you're doing it wrong. The proper method is to look in 1790-era dictionaries under the word "arms," which give you a definition about implements used for violence and self-defense.

But then we have a problem. Because, you see, Scalia also thinks that the phrase "cruel and unusual punishment" only means those punishments that 1791 Americans thought were cruel and unusual. He does not direct us to a dictionary for the meaning of the words "cruel," "unusual," and "punishment," and then try to understand the meaning of the phrase through that lens. No, he just wants to run down a litany: was hanging okay? Yep. Were the stocks okay? Yep. Was flogging okay? Well, here he wavers, admitting that while the answer is yes, he himself, along with other "faint-hearted" originalists, would probably "compromise" and agree that public flogging is off limits. But see the problem: he's moving back and forth between the dictionary method and the application method, between looking at what the words meant at the time and looking at what consequences they had at the time. And it sure looks like he's picking and choosing his method, as well as when to get "faint-hearted," just based on his own personal policy preferences. He likes guns, so of course it's absurd to protect only 1791-era guns. But he also likes punishments, so he only wants to prohibit punishments that were considered cruel and unusual in 1791. Except for some punishments, which he doesn't like, so he'll wimp out of actually applying his doctrine there. His opinion changes, his method changes. I just don't see how to interpret this other than by saying, this theory is a load of bull, Nino Scalia is just voting for his own policy preferences. He is, in other words, legislating from the bench, the exact thing that he loves to chide liberals for doing.

Tradition and Originalism

I'm currently reading the opening passages of a dissent by Mr. Injustice Scalia from a case holding that nondenominational prayer at the beginning of a public high school's graduation ceremony was unconstitutional. Here are the passages that have got me thinking:

"In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court--with nary a mention that it is doing so--lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. ... Today's opinion shows more forcefully than volumes of argumentation why our Nation's protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people."

Notice something about this rhetoric? Not once does he mention the law. He does not even state that the Court is overturning legal precedents or traditions, merely that its current holding will destroy a cultural tradition. As best I can tell, the force of his legal argument, to the extent that he is making one in this passage, is that, well, we as a nation have always done X, therefore X must be constitutional. But there's a problem with that, isn't there? Isn't it possible that we were doing something for a very long time that was genuinely unconstitutional but which nobody noticed was unconstitutional? My professor in this course is Steve Calabresi, one of the founders of the Federalist Society, a former clerk of Scalia's, and a professed originalist. But he believes that originalism is not about insisting that any American tradition must be valid. Instead, Professor Calabresi argues, an originalist should admit that people can misinterpret their own rules. For instance, he says, his analysis of the historical record suggests that the Fourteenth Amendment's Equal Protection Clause was designed to prevent the creation of a caste system. That was the original intent. Now, very few of the legislators enacting that Amendment thought that the various differential treatments of women that were traditional in their society constituted a caste system. They were wrong about that. According to Professor Calabresi's philosophy of originalism, this means that the Equal Protection Clause does protect sex discrimination, even though its drafters most certainly thought it did not, because they misunderstood the fundamental principle they were enacting into law. (Incidentally, Justice Breyer's most recent book also argues for examining original intent at the level of underlying principles.) Applying this same idea to the case of invocations at public-school graduation, Scalia is perfectly within his rights to argue that the Court is overturning precedent, although I'm not sure there's any specific Supreme Court precedent for him to cite. But it's not enough to say that something is traditional to show that it is Constitutional. It's possible that the centuries of Americans holding invocations at their high school graduations were in fact violating the true, original meaning of the Establishment Clause all along, and they just didn't realize it.