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Martin Dyckman: Is Ted Cruz eligible to be president? The question needs to be resolved

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Had a modern Rip Van Winkle, who happened to be a Republican, fallen asleep 20 years ago, he might think that he had awakened now in hell.

His choice in the 1996 party primaries for president would have been among a 10-person field including Bob Dole, the senator and eventual nominee; Sen. Richard Lugar of Indiana, Gov. Pete Wilson of California, and former Gov. Lamar Alexander of Tennessee, all of them firmly mainstream.

There were rivals to the right, but after one of those — Pat Buchanan — came in second in the Iowa caucuses and first in New Hampshire, the party quickly closed ranks around Dole.

He would have made a decent president.

Waking today, Mr. Van Winkle would behold the nightmarish sight of Donald Trump, a pompous ass, racist demagogue and remorseless liar, duking it out with a senator, Ted Cruz, who is so disliked and distrusted within his own party that no GOP governor or colleague will endorse him.

Neither would make anything other than a terrible president, but the party’s voters, pitchforks in hand, don’t seem to care about that and lack much affection for the one or two rivals who deserve respect.

Before this gets to a point of no return, America needs a conclusive answer to the biggest question of the campaign: Is Cruz, born in Canada, even eligible to be president of the United States?

Most people with an opinion on the matter say yes, but it’s not open and shut. There are doubts and dissents among such experts as Lawrence Tribe, the Harvard law professor who taught both Cruz and Barack Obama.

The undisputed facts are these:

— The Constitution says that “no person except a natural born citizen” is eligible.

— Cruz was born in Canada to an American-born mother and a Cuban father who was naturalized in the U.S. some years later.

— A law in effect then and now says that a child born to an American citizen abroad is naturalized at birth without the long wait and bureaucratic obstacles that other immigrants endure.

One focus of dispute is on whether that law changed what the Constitution means by “natural born citizen.”

British common law, which controlled in the new United States until explicitly repealed or amended, considered certain children born abroad to be British subjects. The first Congress wrote a similar law, though it eventually lapsed.

The fundamental question, though, is whether Congress has ever had the power to expand upon the Constitution.

In email correspondence with the Guardian, a British newspaper, Tribe remarked on an irony: the “the kind of judge Cruz says he admires and would appoint to the Supreme Court” would be a so-called originalist — like some members of the present court — who believes in literally and narrowly applying the Constitution’s earliest meaning.

“Even having two US parents wouldn’t suffice for a genuine originalist,” Tribe said. “And having just an American mother, as Cruz did, would clearly have been insufficient at a time that made patrilineal descent decisive.”

Tribe noted an irony: “The kind of judge that I admire and Cruz abhors — a ‘living constitutionalist’ who believes that the constitution’s meaning evolves with the needs of the time” — would surely rule him eligible.

Two other Harvard professors have written in the Harvard Law Review that Cruz is eligible. A University of Delaware law professor wrote in The Washington Post that “Congress simply does not have the power to convert someone born outside the United States into a natural-born citizen.”

But, of course, no one’s opinion really matters other than that of a majority of justices of the U.S. Supreme Court.

In Marbury v. Madison, the great 1803 case in which the court first asserted the power to declare acts of Congress unconstitutional, it held that Congress lacked authority to expand the court’s constitutional power in one respect.

On the other hand, the court could refuse to rule and pass the buck to Congress as a political question. It’s Congress that counts the electoral votes and formally certifies a president’s election. But there is nothing in the Constitution that addresses whether it can second-guess his or her qualifications.

For the court to duck the issue, or to postpone it until after the election, could create a grave political crisis in the event of a Cruz victory. More immediately, it would complicate, enormously, the decisions that voters will have to make. No one wants to waste a vote on a candidate who might be barred, so it was shrewd of Trump to raise the question.

It has been raised before under different circumstances. Arizona was a territory, not a state, when Barry Goldwater was born there, but it was clearly under U.S. jurisdiction. So was the Panama Canal Zone when John McCain was born there to U.S. parents.

George Romney, in 1968, was most comparable to Cruz; he was born in Mexico of U.S. citizen parents. Nobody seriously challenged him; he wasn’t disliked as Cruz is, and he faded early as a rival to Richard Nixon.

Cruz isn’t fading. But no court could be expected to touch the issue without a lawsuit from one of his rivals or a state’s decision to bar him from its ballot on grounds of ineligibility.

There’s still time — but not much — for the Florida Legislature to do that.

***

Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives near Asheville, North Carolina.

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