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“Ted Cruz Has Got A Problem”: Why The Subtle Sexism Of The Founding Fathers Might Disqualify Ted Cruz For President

Sen. Ted Cruz (R-Tex.) was born in Canada to an American mother and a Cuban father. Can he constitutionally run for president?

Actually, the Constitution is a bit fuzzy on this question, and you can find a lot of people with a lot of different opinions about it. For example, Donald Trump, Cruz’s biggest rival in the GOP presidential primary, thinks the answer might be no.

It all depends on what you think the phrase “a natural born Citizen” means — which, the Constitution states, is what you have to be if you want to run for president. It’s an ambiguous term, and reasonable people disagree on how to interpret ambiguous language in the country’s founding document.

Many legal scholars say Cruz qualifies, and while it has become a political flash point, it still seems pretty unlikely it becomes an actual legal barrier to Cruz moving forward with the campaign.

Interestingly, though, some legal experts say that if you subscribe to Cruz’s own principles of constitutional interpretation, he might not be eligible. And for reasons that have a lot to do with gender norms of the 18th century.

Many legal scholars say Cruz supports an approach to constitutional law in which modern readers try to understand what the words in the Constitution would have meant to the people who wrote them and voted to ratify them more than two centuries ago. It’s a concept known as originalism, and it’s especially popular with conservatives.

“It’s not: take what part you like and get rid of the parts you don’t like,” Cruz said in 2013. “Every word of the Constitution matters.”

On this straightforward, intuitive, and deeply conservative reasoning, several prominent legal scholars have argued Cruz is arguably not a natural-born citizen. As the Founding Fathers and their contemporaries probably would have understood that phrase, the argument goes, Cruz is ineligible for the presidency — not because he was born in Canada, but because he was born in Canada to a Cuban father.

“He should disqualify himself,” said Thomas Lee, a legal scholar at Fordham University, adding that Cruz should “just be consistent.”

Lee explains that in medieval English law, the term “natural born” originally referred to subjects of the crown who were born in English territory.

Under King Edward III, who reigned from 1327 to 1377, England expanded this definition to include the children of ambassadors and soldiers who were serving the monarch overseas. In the centuries to come, Parliament modified the definition further to include the children of private English subjects who happened to be abroad.

In the late 18th century, though, that definition did not include English mothers who were traveling. If they conceived children with foreign men, it was assumed those children would not be loyal English subjects and were not considered “natural born.”

“We don’t understand how sexist society was back then,” Lee said. “They thought that you got your blood, your politics, your loyalty, your allegiance from your father. The mother was irrelevant.”

Many Americans object to the notion we must follow the original implications of the words in the Constitution with regard to gender. Many legal scholars argue that the meaning of the document changes with time, along with the mores and values that shape American society and determine how Americans of any given era will make sense of the Constitution’s text.

On this view, according to which the Constitution is an evolving, living document, it’s not as important how the Founding Fathers thought about children’s relationships with their fathers and mothers. Americans today are free to apply their own ideas about gender and family to the text of the Constitution.

Yet as Cruz sees it, a truly conservative reader of the Constitution does not reject the original meaning of the text simply because it offends the modern sensibility or because it’s politically convenient to do so. Following the Supreme Court’s ruling in favor of the right to marry for gay and lesbian couples last summer, Cruz accused the justices of “rewriting the Constitution.

In any case, at the time that document was ratified in 1788, Lee has argued that the phrase “natural born” would have carried a specific legal meaning. Natural-born citizens would have been those born in the United States, or born abroad to fathers who were U.S. citizens. On that interpretation, Cruz would not have qualified because his mother was a citizen and his father was not. If Cruz takes an originalist approach to constitutional law, then by this logic, he should come to the conclusion that he is not natural born.

A spokesman for Cruz declined to comment for this story.

Some constitutional originalists disagree with this view, including Michael Ramsey of the University of California, San Diego. He has argued that just as Parliament in London had the power to change the definition of “natural born” for purposes of English law, the newly established Congress here in Washington D.C. could change what the phrase meant for American citizens.

In 1790, members of the first Congress took their seats and passed a law stating that as long as their fathers had lived in the United States for at least some time, children born overseas to American mothers “shall be considered as natural born.” This was a law intended to spell out the new nation’s immigration policy. It is not clear whether Congress also wanted to give a new meaning to the words “natural born” in the Constitution regarding would-be presidential candidates.

Under this definition, Cruz would seem to qualify, since his father had lived in the United States for years before Cruz’s birth in Canada.

Lee and Ramsey have collaborated on legal projects in the past, but in this debate, they’ve parted ways.

Lee says it’s “absurd” for an originalist to argue that Congress would have the power to change the meaning of words in the Constitution. According to Ramsey, though, there’s no contradiction in assuming that lawmakers have this power. The authors of the Constitution allowed Congress to define “natural born Citizen” when they wrote that the legislature had the authority “to establish a uniform Rule of Naturalization,” he says.

 

By: Max Ehrenfreund, Wonkblog, The Washington Post, January 14, 2016

January 19, 2016 Posted by | Natural Born Citizens, Ted Cruz, U. S. Constitution | , , , , , , , , | 1 Comment

“Where Does Scalia Think Cruz Was Born?”: Hey Supreme Court, Please Settle This Ted Cruz Birther Thing

Here are four words I never thought I would write: Donald Trump is right. As Trump said this week, it would be “very precarious” if Ted Cruz were the GOP nominee given that Cruz was undisputedly born in Canada.

Where Trump was wrong was when he made his focus on how precarious that would be “for Republicans.” Trump, possibly for the first time ever, was being too restrained. It would be precarious for our entire nation if Cruz were elected and then the U.S. Supreme Court deemed him ineligible to serve as president.

Think about the impact it would have to our nation as we collectively waited for the Court’s decision. It would be a national crisis. Our allies would not know who is actually our president, and our enemies might use the crisis to their advantage.  Plus it would cause a dramatic drop in the stock market (investors hate uncertainty.)

Now, just so it’s crystal clear, I’m neither a Cruz birther nor am I advocating that Cruz may be ineligible to be president.  What I’m saying is that the Supreme Court has not addressed the specific of issue whether a person in Cruz’s position is eligible to be president in accordance with the requirements of the U.S. Constitution.

Specifically, Article II, Section 1 of the Constitution provides that a person cannot be president unless he or she is “a natural born Citizen.” Cruz was born in Calgary, Canada in 1970 and first moved to the United States when he was four years old. At the time of Cruz’s birth, his mother was a United States citizen but his Cuban-born father was not.

So is Cruz a “natural born citizen”?  There are countless articles debating this issue. While some legal scholars support Cruz’s eligibility, others like Fordham Law School constitutional law professor Thomas Lee informed me that the question of whether Cruz is a “natural born citizen” can be answered with two words: “It depends.”

Lee, who was an editor of the Harvard Law Review and clerked for Supreme Court Justice David Souter, explained that the issue could go either way.  Lee noted there are two views of constitutional interpretations that he believes would support Cruz—the textualist and evolutionist views.

But under the “originalist” view, Cruz could be deemed ineligible.  Constitutional orginalists interpret the Constitution by looking at the meaning of the document when it was originally written. Ironically, Cruz is a constitutional orginalist and that is part of his appeal to conservatives. As Lee noted, Cruz should actually disqualify himself from the presidency if he remained true to being an originalist.

Once again, however, while learned people have offered well-reasoned opinions, we still don’t have the definitive guidance of the Supreme Court on this issue.  But this is no academic exercise. There were already objections filed in New Hampshire to knock Cruz off the ballot for being ineligible.

And while the New Hampshire Ballot Commission recently ruled in Cruz’s favor, its decision didn’t resolve this issue at all.  In fact, it added to the uncertainty.  The commission’s decision noted that since the question of what constitutes a “natural born citizen” has not been “answered with certainty” by the courts, the commission has “no clear standard to apply.”  It added: “this Commission is not the appropriate forum for the determination of major Constitutional questions.”

Summing up the quandary well, Brad Cook, the Republican chair of the commission, told the media at the time of rendering the decision, “It would be really nice if somebody would get this issue of law decided who has authority to decide constitutional issues, so every four years we don’t have this come up again.”

And that’s where we are now.  Given Cruz’s ascendancy in the polls and the plausible chance he could be the GOP presidential nominee, this issue needs to be decided by the federal courts now. But this is trickier than it would seem. We the people just can’t simply ask the nine Supreme Court Justices to give us a quick answer.

Professor Lee noted that there are likely only a few parties who would have the legal standing to bring a lawsuit in federal court to challenge Cruz’s eligibility. “Individual voters would not have standing,” Lee noted because federal courts require a “concrete injury,” not a more “generalized grievance.”

Bottom line, Lee believes it will take one of Cruz’s fellow presidential candidates to bring a lawsuit. Lee doubted that Super PACs would have standing in federal court unless they could show a concrete injury.

If a GOP presidential candidate were to now file a lawsuit in the federal courts where Cruz is on the ballot, it could go a long way to resolving this issue.  Waiting is precarious for all of us. What if Cruz wins the GOP nomination and the Democratic nominee or a third party presidential candidate then files a lawsuit to deem Cruz ineligible? Imagine if Cruz is deemed ineligible only a few weeks before Election Day?  The Democratic nominee would likely win in a cakewalk.

However, the worst-case scenario for us all would be that such a lawsuit isn’t filed until Cruz won the election and before he was sworn in as president. Talk about a national crisis. Does the Vice President elect get sworn in while we wait for the court?

Lee did caution, however, that the Supreme Court could deem this issue a “political question” and decline to get involved. But President Cruz would still likely be dogged by this issue his entire term, leading to a possible crisis in confidence.

That’s why it’s in the best interest of all Americans – regardless of political party- to resolve this issue sooner rather than later. It will give us all peace of mind. Plus it deprives Trump of another non-policy issue to distract us with, which is truly great for America.

 

By: Dean Obeidallah, The Daily Beast, January 10, 2016

January 11, 2016 Posted by | Birthright Citizenship, Donald Trump, GOP Presidential Candidates, U. S. Constitution | , , , , , , , | 1 Comment

   

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