« Thomas Lee on Textualism and Originalism
Michael Ramsey
| Main | Akhil Amar (and others) on Ted Cruz
Michael Ramsey »

01/13/2016

Mary Brigid McManamon on Ted Cruz
Michael Ramsey

In the Washington Post, Mary Brigid McManamon (Widener Law School): Ted Cruz is not eligible to be president.  Her core argument is that English common law recognized only birth within the country for "natural born" status:

In this election cycle, numerous pundits have declared that Cruz is eligible to be president. They rely on a supposed consensus among legal experts. This notion appears to emanate largely from a recent comment in the Harvard Law Review Forum by former solicitors general Neal Katyal and Paul Clement. In trying to put the question of who is a natural-born citizen to rest, however, the authors misunderstand, misapply and ignore the relevant law.

First, although Katyal and Clement correctly declare that the Supreme Court has recognized that common law is useful to explain constitutional terms, they ignore that law. Instead, they rely on three radical 18th-century British statutes. While it is understandable for a layperson to make such a mistake, it is unforgivable for two lawyers of such experience to equate the common law with statutory law. The common law was unequivocal: Natural-born subjects had to be born in English territory. The then-new statutes were a revolutionary departure from that law.

Professor McManamon is right about the traditional English common law.  If we were having this discussion in, say, 1400, Senator Cruz would not be considered "natural born."  I don't understand, however, why she thinks that's decisive or why reliance on the statutes is inappropriate.  Viewed from the framers' perspective, the statutes were not "new" or "radical": statutes defining persons born abroad to English-subject parents as "natural born" had been on the books since at least 1677, and Blackstone writing in 1765 described them as an ordinary part of English law.  The 1677 statute may have been "radical" in 1677 (although it had some precedents as well), but it's very odd to think of it as "radical" in 1787-88.  To the contrary, the parliamentary practice was, like the ancient common law, part of the framers' English law background.

Professor McManamon says it is an "unforgivable" "mistake" to equate the common law and the statutory law.  But I don't think anyone -- least of all Clement and Katyal -- is confused about the source of law.  (Nor do I think this sort of sneering is useful).  When the framers considered the legal meaning of "natural born," presumably they considered all of its legal meanings, not just the (superseded) common law meaning.  McManamon would have us believe that the framers thought only common law was relevant, even though there was a statutory meaning of "natural born" that had been in place for over 100 years.  Or, another way of putting it: she would have us believe that the framers wanted to limit eligibility to people born in the United States, and the way they did that was to use a legal phrase that had not had that meaning at any point in their lifetimes.  While I would not go so far as to call that an unforgivable mistake (I'm pretty forgiving), I do think it is a substantial error.

(Note: Professor McManamon's op-ed is based on this law review article she published last year, which gives a more detailed version of the argument.  Again, I don't doubt that she's right about the common law, but I don't understand the conclusion she draws from it).