From Randy Barnett at Volokh Conspiracy: Tribe v. Balkin on whether Ted Cruz is a “natural born citizen”. It begins:
Yesterday, the Harvard Law School chapter of the Federalist Society held a wonderful debate between Harvard law professor Laurence Tribe and Yale law professor Jack Balkin on whether Ted Cruz is a “natural born citizen” and therefore eligible to be president under the Constitution. (Like Balkin and Cruz, Tribe was also my constitutional law professor.) Tribe says the issue is “not settled” but he also offers an argument against Cruz qualifying. For his part, Balkin makes what I think is the strongest originalist argument for why Cruz does qualify (which Michael Ramsey presents here).
The debate is noteworthy not only for its cordiality and high level of discourse, but also because of its discussion of originalism. Larry is clearly relishing the opportunity to skewer Cruz and others for being what he calls “fair-weather originalists.” At this point, I suspect he also does not mind undermining Cruz’s campaign. For his part, Jack offers a very sensitive account of originalism, including both his very thin “living originalism” and other thicker versions of original public meaning originalism. Importantly, Jack does not rest his argument on his thin version, but contends — I believe rightly — that any form of originalist can accept his (and Ramsey’s) analysis.
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Further along, he comments:
Moreover, the only reason this issue is at all debatable is because there is a colorable originalist argument that Cruz is not a natural born citizen. Absent such an argument, his eligibility would not be questioned on living constitutionalist grounds. This underscores, I think, the inherent power of originalism, and undercuts Tribe’s effort to capitalize on this debate to deprecate originalism. [I agree].
(YouTube video at the end of the post.)
Related: Einer Elhauge takes the anti-Cruz position at Salon, concluding:
The contrary position also has two difficulties. It defines a “natural-born citizen” to mean anyone who Congress has defined to be a citizen at birth; that is, anyone born a citizen. This effectively reads the word “natural” out of “natural born citizen.” It also means Congress can by statute change the constitutional limit on who can run for president, when the whole point of constitutional limits is typically that Congress cannot change them.
In short, both textualism and originalism cut strongly against Cruz being a natural-born citizen. Some argue that living theories of constitutional interpretation cut in favor of Cruz, but even living theories start with text and history, and it is not clear why the principle animating the clause would merit a different conclusion in current times. Presumably modern equal protection norms would bar a sexist rule that said children born abroad with one U.S. parent were natural born only if that parent were a man. But that is no argument against the interpretation that persons are natural born citizens only if born in a U.S. territory or to a parent serving the U.S. abroad.
The last sentence seems to be a complete non sequitur, apparently trying to create a tenable difference between Cruz and John McCain. But there is no historical or textual support for the proposition that one can be "natural born" if born overseas to parents in government service but not otherwise. It's true the children of foreign-serving diplomats were considered natural born, even under common law, but other forms of service did not qualify. And statutory extensions of natural born status to persons born to subjects/citizens abroad did not depend on whether the parents were in government service.
Posted at 6:25 AM