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Einer Elhauge: Why Ted Cruz Is Not a Natural Born Citizen Eligible to Be President and Why the Issue Is Not a Political Question
Michael Ramsey

Einer Elhauge (Harvard Law School) has posted Why Ted Cruz Is Not a Natural Born Citizen Eligible to Be President and Why the Issue Is Not a Political Question on SSRN.  Here is the abstract:     

This amicus brief explains why Ted Cruz fails to satisfy the "natural born citizen" requirement that the U.S. Constitution makes necessary to be eligible to Be President. It also explains why the issue is not a political question.

Consistent with his earlier commentary, Professor Elhauge argues that the phrase "natural born citizen" in the presidential eligibility clause adopts the meaning given to "natural born subject" in traditional English common law, and the common law meaning included (with inapplicable exceptions) only people born within English territory.

As I have argued (quite a bit, but in greatest detail here), this view is hard to reconcile with the fact that English statutory law, since the late seventeenth century, had extended the status of "natural born subject" to various categories of people born outside English territory.  This statutory extension was well known to the Constitution's framers because it is described expressly in Blackstone.  So it seems to me hard to say that the framers intended only the common law meaning when they knew the common meaning had been modified by statute for over 100 years before the Convention.

But leaving aside my disagreement on the merits, I'm pleased that Professor Elhauge accepts originalism as the decisive approach to constitutional interpretation (at least in this case).  He brief asserts that "Ted Cruz Is Not  a Natural Born Citizen" and gives five reasons in support.  All five relate to the original meaning of the Constitution's text.  He then makes various counterarguments to positions taken in Senator Cruz's brief, almost all premised on the original meaning of the clause.   He does not consider living constitutionalism or other forms of constitutional adjudication (such as judicial restraint).  Thus his implicit premise is that the judge in the case should follow the Constitution's original meaning.  (To be clear, his brief does not merely argue what the original meaning was; it argues (or rather assumes) that the original meaning should be decisive).

Also I entirely agree that it's not a political question.

(Thanks to Seth Barrett Tillman and Thomas Lee for pointers).