LA Times: ‘Originalism’ Means Ted Cruz Ineligible

A law professor has argued in the pages of the Los Angeles Times that an “originalist” reading of the Constitution means that Sen. Ted Cruz (R-TX) is not a “natural-born citizen” and therefore is ineligible for the presidency.

Thomas H. Lee, the Leitner Family Professor of International Law at Fordham University, argues that while the more liberal schools of interpretation would allow Cruz to run, the conservative school of interpretation cannot.

Lee writes: “Under either a textualist or a ‘living Constitution’ theory, Cruz is a ‘natural born Citizen,’ eligible to be president; under an originalist view, however, he isn’t. It’s the conservative theory that would exclude the conservative Cruz from presidential eligibility.”

Lee defines originalism as interpreting the Constitution according to “what ordinary people would have understood it to mean at the time it was ratified, which is 1788.”

That is a somewhat different definition of “originalism” than other scholars use. While it is preferable to interpret the “ordinary” meaning of a phrase, legal terms do not always have an “ordinary” meaning, historically or today. The question is how a specific term was understood at the time by those who had written it, and by those entrusted with its interpretation.

As Breitbart News’ Ken Klukowski has BBN, most “originalists” would allow Cruz to run; hardly any would not.

Klukowski cites a 1790 statute passed by the First Congress as the best evidence of how the term “natural-born citizen” was meant to be interpreted by the Framers of the Constitution.

Lee acknowledges that law, but says that it “was not intended to address presidential eligibility.” He calls Klukowski’s approach “textualist,” as opposed to “originalist,” and says an originalist would interpret the term “natural” as referring to “‘natural’ principles of law.”

Here, Lee says, there were two: “Jus soli–the law of soil–was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born….Jus sanguinis–the law of blood–held that a child’s citizenship flowed from the parents’ allegiance, regardless of place of birth.”

Jus soli, he says, was typical in English common law, from which much of U.S. law is derived–and the exceptions for jus sanguinis “applied to patrilineal descent only.” That would mean Ted Cruz would not have inherited his U.S. citizenship from his mother.

“However odious it seems today,” Lee writes, “a child born of a woman whose citizenship was different from her husband’s–much rarer then than today–could not be a ‘natural born Citizen’ of the mother’s country.”

That is not how we interpret citizenship today, but it may be how eligibility for the presidency was meant to be determined, he implies.

Lee, who is cited as an “expert” by the conservative Federalist Society, concludes: “It’s a neat irony: The most conservative constitutional interpreters must find Cruz ineligible to be president; liberals must grin and bear him.”

It would appear that Lee’s opinion is a minority view, not only among constitutional scholars in general, but also within “originalist” theories of interpretation.

Still, it is a sign of why Donald Trump thinks he still has a case.