Cruz in for a legal bruising

If money is the mother’s milk of politics, hypocrisy is what journalism runs on. That makes the speculation that Ted Cruz might not be eligible to serve as president under the the narrow “originialist” view of the Constitution that he holds so dear an irresistible storyline .

The Republican presidential hopeful was born in Canada, but claims to be a natural born citizen because his mother was a US citizen (Cruz’s father was a Cuban citizen). The Constitution stipulates that only natural born citizens may serve in the country’s highest office.

Many legal scholars view Cruz as natural born citizen and therefore eligible to serve, but these interpretations come from more liberal thinkers who view the Constitution as a “living” document that should be interpreted by current standards and mores. Cruz hews to more conservative “originalist” legal thinking, which maintains that the Constitution “means what ordinary people would have understood it to mean at the time it was ratified, which is 1788,” Fordham University law professor Thomas Lee wrote earlier this week in the Los Angeles Times.

Lee is hardly the only legal scholar now weighing in. Mary Brigid McManamon, a constitutional law professor at Widener University’s Delaware Law School wrote yesterday in the Washington Post that Cruz is not eligible to serve as president. The most interesting legal opinion, however, comes from Harvard’s Laurence Tribe, who taught a constitutional law class Cruz aced as a law student there. In an op-ed in Monday’s Boston Globe, Tribe writes that under the view of “originalist” judges of the stripe the Texas senator would appoint, “Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a ‘natural born’ citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.”

With Cruz rising in GOP polls, Republican rival Donald Trump has dialed up his attacks on the citizenship issue. On Monday, Trump cited Tribe’s claims. Cruz responded yesterday while campaigning in New Hampshire, telling reporters the issue is a settled matter. He went on to suggest that liberals like Tribe may be trying to undercut his candidacy so that Hillary Clinton can face Trump in the November election.

“It is more than a little strange to see Donald relying on as authoritative a liberal, left-wing judicial activist Harvard Law professor who is a huge Hillary supporter,” today’s Globe quotes Cruz as saying yesterday. “It starts to make you think. ‘Gosh, why are some of Hillary’s strongest supporters backing Donald Trump?’”

Cruz spoke with reporters following a rally in support of the Second Amendment.

Though Cruz takes a decidedly modern-interpretation approach to the Constitution when it comes to citizenship matters, it doesn’t lead him or the judges he admires “to discard the Second Amendment’s ‘right to bear arms’ as a historical relic, or to limit that right to arms-bearing by members of today’s ‘state militias,’ the National Guard,” writes Tribe.

Tribe says he enjoyed “jousting” with Cruz as his professor. “At least he was consistent in those days,” he writes. “Now, he seems to be a fair weather originalist, abandoning that method’s narrow constraints when it suits his ambition.”




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