Flashback: My 2013 article on Birtherism 2.0 and Canadian-born Ted Cruz’s eligibility to serve as presidentPosted: January 5, 2016 Filed under: U.S. politics | Tags: 2016 presidential race, Alexandra Jaffe, American politics, Barack Obama, Barry Goldwater, Canada, Chester Alan Arthur, Congressional Research Service, Donald Trump, Dred Scott, George Romney, Harold Cook, Jack Maskell, James Garfield, John McCain, Mexico, Paul Begala, Peter Hamby, Philip Rucker, presidential election, South Texas School of Law, Steven E. Schier, Supreme Court, T. Gerald Treece, Tea Party, Texas on the Potomac, U.S. Constitution, U.S. politics, Wong Kim Ark Leave a comment
I woke up this morning in Beijing to a tweetstorm fomented by Donald Trump’s new birther conspiracy: raising questions about Ted Cruz’s eligibility to be president. Here is a story I posted on Texas on the Potomac in 2013, when it was growing increasingly likely that the Canadian native would seek the U.S. presidency. In case you’re interested, here is what I wrote:
It seems like an obscure court case from a dusty old law book, but if Canadian-born Texas Sen. Ted Cruz ever decides to run for president, you’re likely to hear a lot about the United States v. Wong Kim Ark.
In that 1898 case, the U.S. Supreme Court voted 6-2 to repudiate the exclusive language of the infamous Dred Scott case and create an expansive definition of the Constitution’s “natural-born citizen” clause.
That’s important because the Constitution requires that the U.S. president be a natural-born citizen –and Cruz was born in Calgary, Alberta, in 1970. Cruz, who is being urged to run for president in 2016 by some conservative activists, argues that he is a natural-born citizen because his mother was an American citizen. His father, now a naturalized American, was born in Cuba.
As the Cruz-for-president talk heats up on the right, some bloggers on the left have argued that the strict interpretation of the Founding Fathers’ words that Cruz claims to worship would disqualify a Canadian-born American from serving as president.
Five years after celebrity billionaire Donald Trump and a motley assortment of conservatives raised questions about a liberal Democratic candidate’s American birthplace, the shoe is on the other foot.
Call it Birtherism 2.0.
“It is ironic that a Tea Party favorite might be blocked from serving as president by one of the Tea Party’s favorite constitutional provisions,” said Democratic strategist Paul Begala.
The question of presidential qualifications has never directly reached the Supreme Court. But there is a wide range of jurisprudence on the issue — which overwhelmingly favors the notion that Cruz is eligible to serve as president.
Ironically, the same legal logic that confirms Cruz’s eligibility would have permitted Barack Obama to serve as president even if he had been born in Kenya, because his mother was a U.S. citizen.
The most comprehensive study of the issue was a 2009 report by the nonpartisan Congressional Research Service, which cited English Common Law principles and American legal scholarship dating back to 1833.
“The weight of scholarly and historical opinion appears to support the notion that ‘natural born citizen’ means one who is entitled under the Constitution or laws of the United States to U.S. citizenship ‘at birth’ or ‘by birth,’ including …those born abroad of one citizen parent who has met U.S. residency requirements,” wrote Jack Maskell, a CRS legislative attorney.
So why the controversy?
Because, as in so many cases, the Constitution’s authors were silent on the meaning of the phrase “natural-born citizen,” leaving it to generations of constitutional scholars to divine their thoughts.
T. Gerald Treece, a professor at South Texas College of Law, said that despite the Founders’ silence on the subject, their intentions are easy to understand.
“The Founding Fathers merely did not want any British or other foreign subjects to become naturalized and, therefore, eligible to become president,” said Treece.
He said legal precedents focus on an individual’s status “at time of birth.”
“Most authorities agree that, if at time of birth, you are born to U.S. citizens — where they reside — then you are a U.S. citizen at time of birth,” Treece added.
But because the Supreme Court has never directly addressed the issue, it has been a subject of argument for centuries.
in 1881, some Democrats contended that Republican Vice President Chester A. Arthur was born in Canada and ineligible to succeed assassinated President James A. Garfield. But Arthur insisted he was born in Vermont, had a birth certificate and was sworn in as president.
in 1964, some critics of Republican nominee Barry Goldwater said he was barred from the presidency because he was born in Arizona before the territory gained statehood. The challenges got nowhere.
Four years later, Michigan Gov. George Romney sought the presidency although he was born in Mexico, where his American parents were living in a Mormon colony. The Mexican constitution in effect at the time of Romney’s birth in 1907 restricted citizenship to the children of Mexican nationals. So there was no issue off dual citizenship to cloud Romney’s campaign.
In 2008, both presidential nominees faced lawsuits to disqualify them based on their place of birth.
GOP nominee John McCain, the son of a Naval officer, was born in the Panama Canal Zone, then a U.S. territory, in 1937, months before Congress approved a law guaranteeing birthright citizenship to children of military personnel serving abroad. To erase any doubt, the U.S. Senate approved a bipartisan resolution confirming McCain’s citizenship, and a legal challenge to his eligibility was rejected.
There was far more fuss over false claims that McCain’s Democratic rival, Barack Obama, was born in Africa. A series of lawsuits were tossed out of court.
None of the anti-Obama “birthers” has stepped forward to challenge Cruz.
“I doubt that birthers will go after Cruz because he is ideologically compatible with them,” said Carleton College political scientist Steven E. Schier.
After the “birther” circus of 2008, friends and foes of Cruz say they’re ready to focus on his political positions, not his birthplace.
“The ‘birther’ issue — whether it’s Barack Obama, John McCain or Ted Cruz — has always been nothing more than a pointless hyperpartisan distraction and remains one,” says Democratic consultant Harold Cook.
Here’s the 2009 CRS document:
41131059 MoC Memo What to Tell Your Constituents in Answer to Obama Eligibility