I want to walk through this article - slowly - my dual credit classes this week and next because it perfectly illustrates what I want you to write about this semester: The conflict over constitutional interpretation.
I posted previously about the issue of whether Senator Cruz's birth in Canada means he cannot be president because he is not a "natural born citizen" as required in the Constitution. According to this author, the answer depends on how one interprets the Constitution. And ironically, the way the senator interprets it is the one that says he is not.
- Click here for the article.
I posted previously about the issue of whether Senator Cruz's birth in Canada means he cannot be president because he is not a "natural born citizen" as required in the Constitution. According to this author, the answer depends on how one interprets the Constitution. And ironically, the way the senator interprets it is the one that says he is not.
- Click here for the article.
There are three leading theories of how to interpret the Constitution today. One is textualism: the Constitution means what its words say. The historical context of the words is important when a modern plain meaning is not self-evident. A second theory, adopted by many liberals, relies on a “living Constitution”: the Constitution means what is most consistent with fundamental constitutional values as applied to present circumstances. The third theory, championed by many leading conservatives, is originalism: The Constitution means what ordinary people would have understood it to mean at the time it was ratified, which is 1788.
Under either a textualist or a “living Constitution” theory, Cruz is a “natural born Citizen,” eligible to be president; under an originalist view, however, he isn't. It's the conservative theory that would exclude the conservative Cruz from presidential eligibility.
To an originalist, a “natural born Citizen” is a person who is a citizen of the United States under “natural” principles of law in 1788. Two such principles were then in play in the U.S. Jus soli — the law of soil — was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born. Jus soli was viewed as a part of the common law of England, which was adopted by the American states. Jus sanguinis — the law of blood — held that a child's citizenship flowed from the parents' allegiance, regardless of place of birth. This principle was prevalent in continental Europe, and in England it was the basis for an exception to jus soli for children born there to foreign ambassadors.
The principle of jus sanguinis in 1788 applied to patrilineal descent only: A person born in a foreign country was viewed as a “natural born Citizen” of his or her father's country. However odious it seems today, a child born of a woman whose citizenship was different from her husband's — much rarer then than today — could not be a “natural born Citizen” of the mother's country. That idea wasn't even considered until 1844 in Victorian England.
The upshot is that to an originalist, someone like Cruz — born in a foreign country (and therefore not a natural born citizen of the United States by jus soli) and to a Cuban citizen father (and therefore not a natural born citizen of the United States by jus sanguinis ) — is not eligible to be president.
Update: Harvard scholar: Ted Cruz's citizenship, eligibility for president ‘unsettled’
A noted legal scholar sees merit in the above argument.
