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The rebirth of birtherism, schadenfreude edition

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birther certificate

Starting in 2008, and for several years afterwards, various RWNJs pursued legal actions claiming that Barack Obama wasn’t constitutionally eligible to be president, because he wasn’t a “natural born Citizen,” within the meaning of Article II, Section 1, Clause 5, which lays out the requirements for presidential eligibility. Obama, various people argued, was born in Kenya, and therefore didn’t meet this test.

These claims were obviously the products of political paranoia of the first order, but now they are having a curious ripple effect on the 2016 presidential race. The whole preposterous “birther” controversy is back, but now it’s reappearing in a new non-crazy, legally respectable form.

Despite what you may have read about the matter, it’s far from clear that Ted Cruz is actually constitutionally eligible to be president. To put it in legal terms, the argument that Cruz isn’t eligible is nowhere close to a frivolous claim, in the sense of the kind of argument that almost all lawyers, and more important, judges, would immediately dismiss as false (and which can get a lawyer who makes such an argument sanctioned, as Orly Taitz was by a federal court for pursuing her wacky crusade against Obama).

What counts as a frivolous legal argument can’t be given a useful ex ante formal definition. It’s very much a I know it when I see it concept, but that doesn’t mean it isn’t real, sociologically speaking. For example, the claim that a candidate isn’t a natural born citizen because he was born via cesarean section would be recognized by the relevant interpretive community as a frivolous legal claim, at a conceptual level.

The claim that Obama isn’t eligible to be president is frivolous not for conceptual reasons — he in fact wouldn’t have been eligible to be president if he had been born in Kenya, because the precise circumstances of his birth would have required him to be naturalized at some point in order to become a U.S. citizen, given the federal naturalization statute in force at the time — but because it’s factually frivolous. That is, the relevant interpretive community recognizes the factual claim that he was born in Kenya as being frivolous on its face.

The claim that Ted Cruz isn’t a natural born citizen within the meaning of Article II is quite different. Ted Cruz was born in Canada. In order for him to be eligible to be president, the phrase “natural born Citizen” in the Constitution must mean something other than “native-born.” Does it? This is far from clear.

The argument that natural born Citizen means someone who doesn’t have to be naturalized, as opposed to someone who was born in the U.S. (and possibly its territories) hinges on a eminently controvertible set of claims about constitutional meaning. The argument is essentially this:

The framers intended natural born Citizen to mean what British law defined as someone who didn’t need to be naturalized, as of 1787, and British law at the time made British subjects out of children born of British parents on foreign soil.

The problem with this argument is that there’s not much evidence for it. There isn’t a word in the debates of the constitutional convention, or the subsequent state ratification proceedings, regarding what the phrase “natural born Citizen” is supposed to mean. The claim that the Framers were adopting British naturalization law is problematic for several reasons. First, the common law of England on this matter did not consider people born of English parents on foreign soil to be English subjects from birth. As of 1787, this long-standing status quo had been altered by recently enacted acts of Parliament.

The claim that the framers intended the meaning of natural born Citizen to be determined by the fairly new status of foreign-born naturalized at birth English subjects, rather than by the older and much more longstanding common law definition, is basically supposition. The evidence for the claim — since again there is none in the constitutional debates — is that when Congress enacted the first naturalization statute in 1790, it essentially adopted the new English model, and that this act indicates that the framers intended to adopt the same meaning in Article II.

That is, historically speaking, a pretty thin argument. Congress, constitutionally speaking, doesn’t have the power to modify the meaning of the Article II requirements, and one could readily argue that the 1790 statute was adopted to create more generous terms of naturalization than reflected in the apparent plain meaning of the language of Article II. In regard to that plain meaning, even as late as the the latter part of the 19th century, the Supreme Court was treating the phrases “native-born” and “natural-born” as synonymous, and indeed even today it requires a quite technical legal argument to explain to laypeople why “native-born” and “natural-born” aren’t necessarily the same thing.

Anyway, the argument that natural born Citizen means someone who doesn’t need to be naturalized, per whatever rules Congress has put in force via its Article I powers to determine citizenship at birth, at the time the person in question is born, is just that: a controversial legal argument. It has never been addressed, let alone resolved, by the Supreme Court or even, as far as I’m aware, any lower federal court. The contrary claim is at a minimum far from a frivolous legal argument, and claims that the matter is “settled,” legally speaking, are wrong.

Now what I find particularly interesting about all this is why various legal interpreters who are in no way sympathetic to Ted Cruz’s candidacy have been so eager to claim that the question of his constitutional eligibility isn’t a matter of potentially serious dispute. My guess is that such arguments have a couple of inter-connected motivations:

(1) These interpreters consider the natural born Citizen clause an anachronistic embarrassment, as indeed it is. They understandably want to interpret the meaning of “natural-born” in the broadest way possible, consistent with any plausible historical argument.

(2) Liberal constitutional law scholars are especially eager to do so because, in the context of the Cruz candidacy, such an argument demonstrates their non-partisan loyalty to “objective” constitutional interpretation, rather than results-driven advocacy.

In case anyone cares, when it comes to matters of constitutional metaphysics I’m pretty much an atheist, so the question of what the clause “really” means is not one I consider meaningful. But if I had to predict what would happen in the context of a lawsuit challenging Cruz’s eligibility, I would expect that federal courts, including the SCOTUS, would end up invoking some variation of the political question doctrine, leaving it to Congress to decide what natural born Citizen means for the purposes of legally finalizing Cruz’s ascension to the POTUS, via its certification of the Electoral College’s vote.

Of course the practical politics of this brewing controversy are a completely different matter from the technical legalities. That Cruz has to make what is actually a quite convoluted legal argument to explain why he’s more eligible for the presidency than Wayne Gretzky, Neil Young, and Celine Dion is, under the social circumstances that gave birth to birtherism, a particularly delicious irony, which every right-minded person should savor while it lasts.

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