Poor Ted Cruz Is Now Hoist By His Own Petard

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The continuing conversation about whether Ted Cruz is eligible to be president is a travesty. But I have to confess, it’s also sort of delightful.

First the travesty part: Ted Cruz was born a US citizen. No one doubts that. This is enough to be “natural born” and thus eligible for the presidency. No one doubted that either—until Donald Trump brought it up. Then it suddenly became a topic of endless discussion. That’s a travesty. One of these days Trump is going to casually mention that aliens really did build Stonehenge, and by the next day MSNBC, Fox, the New York Times, and conservative talk radio are all going to become obsessed with neolithic building techniques. Crikey.

But there’s also a delightful part to this. I could quote a number of people on the legal aspects of this issue, but here’s Jack Balkin on the “key theoretical questions” about being a natural born citizen:

Should be understood as a lay member of the public would understand it or whether is a legal term of art?…Fixed concept [or] common law concept subject to evolutionary development?…Depends only on English common law authorities [or] on statutory changes?…Has become liquidated in practice by congressional statutes?…Cannot be altered by Congress [or] read together with Congress’s powers under the Naturalization Clause?

My, my, what an originalist jumble! Should we rely on documents that are centuries old to try and divine Jemmy Madison’s probable interpretation of “natural born”? Or maybe go even further back and rely on English common law? Or perhaps the collective hivemind of Congress in 1790?

It’s a pretty problem. At least, it is if you take originalism seriously. I don’t, especially, since it’s pretty obviously just an intellectual charade designed to justify conservative constructions of the law. But Ted Cruz does, and now he needs to deal with the fallout. Bummer, dude.

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