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05/08/2013

Further Thoughts on Originalism and Natural Born Citizens
Michael Ramsey

At NRO, Ed Whelan: Ted Cruz, Originalism and the "Natural Born Citizen" Requirement (responding to the New Republic article by Noam Scheiber, noted here).  Here's his core conclusion:

Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)

Meanwhile, at Opinio Juris, Peter Spiro says: There Are Lots of Reasons to Oppose Ted Cruz for President.  His Birthplace Isn't One of Them.  He argues:

Some argue that “natural born” means born within the territory of the United States – ie, a citizen under the Fourteenth Amendment. But John McCain’s candidacy put that line to rest, since Canal Zone-born McCain had citizenship only by statute ...  Nobody seriously asserted his ineligibility. George Romney’s 1968 run supplies a less well-developed precedent, Romney having been born in Mexico to US-citizen parents.

I'll have more to say on the originalist argument shortly, but for now I just want to point out how weak Professor Spiro's argument from practice is.  First, there was some discussion of McCain's eligibility and it was fairly inconclusive.  Larry Solum wrote, for example, that

the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law - a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

But more importantly, under most theories of custom, a practice is not established by a few isolated incidents, which is all we have here (just two serious candidates in the last 50 years, apparently -- and neither of those was actually elected).  The Supreme Court routinely finds unconstitutional things that have been done much more often than twice in a half-century.

That's not to say that longstanding practices can't establish a binding custom (see here for my thoughts on that point).  But, despite Professor Spiro's attempt to declare the matter settled and originalism irrelevant here, I think this is an area where originalism will come to the forefront.  (If you don't think so, just consider how much originalist arguments have dominated the recess appointments debate -- an area where there is much more consistent practice than in presidential eligibility).