Politix Update: Ted Cruz Is On Thin Ice Constitutionally, But Will He Go Under?

One of the glorious things about the U.S. Constitution is its elasticity.  It has survived well over two centuries with a mere 27 amendments, many of the most recent ones technical in nature (use AA batteries, not AAAs), but two of its core provisions are being tested in these fractious times: The clause about "a well-regulated militia" and another stating that the president must be "a natural born citizen."

Both are hugely relevant, and not just for legal eagles.  An elastic interpretation of the "well-regulated militia" clause in the Second Amendment of the Constitution has been the legal rationale for the growth of a gun culture that has resulted in an epidemic of mass killings, while an elastic interpretation of the "natural born citizen" clause in Article Two of the Constitution underpins the presidential hopes of Canadian-born Ted Cruz. 

You do not have to be a constitutional scholar to understand the inclusion of the "well-regulated militia" clause by the Founding Fathers in the context of the times, specifically 1789, or what legal scholars call "original intent": Our young republic was still recovering from the aftershocks of the Revolutionary War, had no standing army and relied on citizens to grab their trusty flintlocks from over their fireplaces and muster in the town square if there was a threat to civil order, whether from Indians, rum runners or the British.

People have been interpreting the Constitution to their own political and ideological ends in the intervening 227 years.  But there also was no question whatsoever that the Founders could not have anticipated and would be horrified that the day would come when there would be 300 million guns carried concealed in shoulder holsters and belts, stowed in car trunks, arrayed on pickup truck rifle racks, and displayed in cabinets and over fireplaces, in a long mature republic that allows  -- and a sick subculture that encourages -- the purchase, possession and carrying of unlimited numbers of those weapons whose sole purpose is to kill and maim.  

The "natural born citizen" clause would seem to be similarly unambiguous in an historical context.

The Founders' "original intent" was to protect the young republic from foreign influence a mere six years after finally throwing off the yoke of British imperialism.  They seized on the term "natural born," which was derived from the common law notion of being born on the "soil" of the national domain and was an important measure of political loyalty. 

To the lasting chagrin of people who do not believe unfettered access to firearms of all kinds is a right, the Founders did not elaborate on what a "well-regulated militia" meant. 

The Founders also did not elaborate on what "natural born citizen" meant, but they didn't have to.  The president (and vice president) have to be born in these United States, period.  Meanwhile, fears about the French Revolution prompted Congress to build on the "natural born" concept by strengthening naturalization laws in the 1790s, while the Alien and Sedition Acts of 1798 granted the president authority to deport any alien who criticized the president or the government.

The Supreme Court has never ruled directly on the "natural born" clause and the eligibility lawsuits from the 2008 and 2012 elections were dismissed in lower courts because of the challengers' difficulty in clearing a very high bar by showing that they had standing to raise legal objections.

Cruz was born in 1970 in Calgary, Alberta in Canada to a mother who was an American citizen by virtue of her birth in the state of Delaware, and his claim to natural-born status is based on that.  His Cuban-born father had come to the U.S. on a student visa and kept his Cuban citizenship until he became a Canadian citizen, while he renounced his Canadian citizenship only in 2005 when he became a naturalized American. 

(John McCain's standing in 2008 rested on his being born on a military base outside the U.S. and that both his parents were U.S. citizens, while in 2004 there was an unsuccessful effort to eliminate the "natural born" requirement so that Austrian native Arnold Schwarzenegger could run for president.)

Cruz is certainly hoping -- and as a suck-up to evangelicals presumably is praying, as well -- that the bar also won't be cleared this time around because some really smart people who are constitutional scholars state he is not eligible to become president and the first of what is bound to be a flurry of lawsuits challenging his eligibility already has been filed.

The birthers who targeted Barack Obama in 2008, who later included Donald Trump, did not bother with legal niceties.  It was a personal matter to them.  Obama was called a liar, and the question was whether he was really born in Kenya rather than Hawaii.

Cruz offered an explanation for his eligibility during the January 14 Republican debate.

"Now since September, the Constitution hasn't changed, but the poll numbers have," Cruz said.

"Here's the problem," Trump counter punched. "We're running, we're running. He does great. I win. I choose him as my vice-presidential candidate and the Democrats sue, because we can't take him along for the ride. I don't like that. OK?"

The arguments being made by people like Mary Brigid McManamon, a constitutional law professor at Widener University Delaware Law School, and the estimable Laurence Tribe, a constitutional law professor at Harvard Law who is a former professor of Cruz's, are that his birth on Canadian and not American soil makes him a naturalized citizen, rather than a natural born citizen. 

"Let me be clear: I am not a so-called birther. I am a legal historian," McManamon writes in the Washington Post.  "President Obama is without question eligible for the office he serves. The distinction between the president and Cruz is simple: The president was born within the United States, and the senator was born outside of it. That is a distinction with a difference." 

She notes that numerous pundits have declared that Cruz is eligible to be president, but the basis for that consensus --  that the Supreme Court has recognized that common law is useful to explain constitutional terms-- is faulty because they confuse common law with statutory law. 

McManamon concludes that:

"When discussing the meaning of a constitutional term, it is important to go beyond secondary sources and look to the law itself. And on this issue, the law is clear: The framers of the Constitution required the president of the United States to be born in the United States."

Tribe argues that under Cruz's own logic, he's ineligible to be president.

"Senator Cruz contends his eligibility is 'settled' by naturalization laws Congress enacted long ago," writes Tribe in the Boston Globe. "But those laws didn’t address, much less resolve, the matter of presidential eligibility, and no Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a 'natural born citizen' is completely unsettled. . . . Needless to say, Cruz would never take Donald Trump's advice to ask a court whether the Cruz definition is correct, because that would in effect confess doubt where Cruz claims there is certainty."

The first Cruz lawsuit -- rambling in its reach and a bit nutty as birthers tend to be -- was filed by Houston attorney Newton Boris Schwartz Sr.  

The suit asks a federal judge to define the "status, qualifications and eligibility or ineligibility of defendant for election to the office of the President and vice President of the United States," a question that is "now ripe for decision," and invokes the  arguments used by birthers against President Obama, which even a long-form Hawaiian birth certificate did not silence.

"Cruz should welcome this suit," Schwartz says. "He should have filed it himself."

The suit has been assigned to a U.S. District Court judge in the Southern District of Texas, but Schwartz said he expects it to eventually reach the U.S. Supreme Court.  If so, that is bad news considering that the high court has become a de facto arm of the Republican Party.

POLITIX UPDATE IS WRITTEN BY SHAUN MULLEN, A VETERAN JOURNALIST AND BLOGGER FOR WHOM THE 2016 PRESIDENTIAL CAMPAIGN IS HIS 12th SINCE 1968.  CLICK HERE FOR AN INDEX OF PREVIOUS COLUMNS.  © 2015-2016 SHAUN D. MULLEN.

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