Equal Opportunity Crazies: Obama Birthers and Ted Cruz Curbers

Steve Russell
September 12, 2013

Texas senator Ted Cruz thinks he is one of the principal contenders for the Republican nomination to be the next President. He represents the Tea Party wing of the GOP, a source of much craziness and pretty much all of the current Washington gridlock.

If the GOP is not able to break free of its lunatic fringe, the cost will be high, but I am alarmed to hear some people suggest that Cruz will be stopped not at the ballot box, but in the courts. That suggestion is as silly as anything the Tea Party has ever brought into American politics, but they did indeed bring the source of it and it’s tempting to watch Cruz hoisted on his own petard. Tempting, but wrong.

The US Constitution says, in Art. II, § 5:

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President…..”

I will proceed without labels for the opinions about how to decide what a text means. The labels overlap and conflict and sorting them out is not necessary to my point, which is that in popular political discourse, the primary rule of the road is hypocrisy.

The US Supreme Court has the final say on what the US Constitution means. A fundamental rule of the road is stare decisis, meaning that prior decisions must virtually always be followed in deciding a new case. The 112 justices who have served did not all agree on the same theory of interpretation. Yet, their decisions must be followed.

Each state court of last resort has the final say on what its state Constitution means. Some states have different courts of last resort for civil and criminal cases.

Each tribal court has the final say on what the tribal Constitution means. This means that a tribal court judge has just as much need for a theory of interpretation as a federal or state court judge and more pressure to get it right because there are both fewer judges and less margin for error when surrounded by people hostile to tribal sovereignty.

A minority of American voters, sometimes as many as a fourth, believes that Barack Hussein Obama is not qualified to be President under Art. II, § 5. That minority is divided between those who believe Mr. Obama was born of an American mother in Kenya and those who believe he was born in Hawaii but do not believe Hawaiian birth makes a “natural born Citizen.”

The primary popular argument over interpreting the Constitution is whether the document is dead or alive. Justice Antonin Scalia is particularly fond of calling the text “dead,” by which he means fixed in meaning before he or anyone alive today was born.

Most legal scholars are in the “living Constitution” camp, perhaps recognizing that it ought not to take over 200 years to parse the meaning of 4,543 words that sit still, as dead things do. Whether the “dead” Constitution was killed by the people who wrote it or the people who ratified it or by the contemporaneous debates among them, it’s hard to say what the dead document would have made about telephone tapping or stopping automobiles or, in the phase quoted above, in vitro fertilization.

We could key in on “natural born,” and cite a text with which many of the Founders would have been familiar:

Macbeth: “I bear a charmed life, which must not yield To one of woman born.

Macduff: “Despair thy charm, And let the angel whom thou still hast served Tell thee, Macduff was from his mother's womb 
Untimely ripp'd.”

Or we could fall back on racist ideology, which was an undeniably strong if not particularly smart intellectual current among the Founders. In 1898, such an argument was made in the Supreme Court against the citizenship by birth set out in the 14th Amendment, an argument that sounds a lot like what some Supreme Court justices were saying about the Cherokee citizenship of Dusten Brown, the father in Adoptive Couple v. Baby Girl:

“Because the said Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person, and now is, and for some time last past has been, a laborer by occupation," Wong Kim Ark could not be a US citizen by birth. The racist view did not prevail.

It is worth mentioning for the “plain language” crowd that there is no serious question that a foreigner who gives birth while posted to the US as a diplomat does not confer US citizenship by birth. This rests on the legal fiction that foreign embassies and consulates are foreign soil within the host country and the legal fact that a diplomat is not subject to the jurisdiction of the host country. . Whoa, didn’t she go to the hospital to give birth? Usually, but we pretend the child was born in the Embassy.

This rule only applies to diplomatic posts. Not, say, military posts. This leads to a great irony in the 2008 presidential election that was missed by most people.

Sen. John McCain was born in 1936 of an American mother in the Canal Zone of Panama, a piece of real estate leased by the United States. His father was stationed in Panama by the US Navy.

At the time of the founding, US land was either states or territories, the latter being, we might say, “states in waiting.” In 1898, the US, which had been born in an anti-imperialist revolution, took up imperialism as policy by stealing a ready-made empire from Spain: Cuba, Puerto Rico, Guam, and the Philippine Islands.

Keeping Cuba was out of the question politically, since the pretext for war on Spain had been Cuban freedom. These new territories were something different than “states in waiting,” and the question arose whether children born in those territories were “natural born citizens?”

In the Insular Cases, the US Supreme Court decided that children born in the newly acquired empire were not US citizens.

In 1937, Congress passed a law declaring all babies born to US citizen mothers in the Canal Zone after 1904 to be US citizens. One fairly well recognized principle of statutory construction is that laws have some effect. That is, if Congress passed the 1937 law, then Congress believed that prior to 1937, no child born in the Canal Zone was a “natural born citizen.” Unless that could be decided retroactively, a fairly absurd idea, John McCain was not a “natural born citizen.”

If you didn’t hear about this, it’s because Mr. Obama did not bring it up. He did not consider it worth bringing up, and he was correct.

Remember, the only issue is “natural born,” not “citizen.”

Anyone who thinks Barack Obama was born in Kenya of an American mother has no claim he was not born a citizen.

John McCain was born in Panama of an American mother, and he was a citizen.

Ted Cruz was born in Canada of an American mother, and Ted Cruz is a citizen if he meets the other requirements of the law.

As to any birth to a non-diplomat US citizen in a foreign country, the US citizen parent must have lived in the US at least 10 years before the birth and five of those years must have been after the US citizen parent turned 14.

Whether any of them is “natural born” is a matter for constitutional interpretation. Some say that “natural born” means nothing more than “did not undergo naturalization to become a citizen,” but isn’t that a little anachronistic when there was no naturalization process at the time the Constitution was written?

The Queen Mother of the birthers, Orly Taitz, believes Mr. Cruz is in exactly the same situation as Mr. Obama and neither is qualified to be President.  While I give her credit for equal opportunity crazy, the cases are not the same.  Everybody agrees Cruz was born in Canada of an American mother.  Everybody does not agree Obama was born in Hawaii or does not agree Hawaii is part of the US.  Still, even if he was born in Kenya, as Ms. Taitz maintains, that fact alone does not get her where she wants to go.

Anyone who thinks the Supreme Court of the United States is going to overturn a finding of the voters that a candidate is a “natural born citizen” based on a constitutional provision that can be read so many ways is stark, raving, bat guano crazy.

Whether you take your hypocrisy straight or diluted with a bit of snark, the only safe method of Cruz control is at the ballot box, not in the courts.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.