The Two Faces of Lawrence Tribe – He is Right and Wrong About Ted Cruz

Conservative Review ^ | January 19th, 2016 | Hans von Spakovsky

[beandog]

I guess you didn’t read the article cause what I read says 25%, not 50%. All 25% of them are on FR.

[Bruce Campbells Chin]

I'm aware of that view -- I just disagree with it.

Leaving aside the whole ge Vattel/Blackstone issue, I disagree with the author's assumption that the Constitution's failure to define "natural born citizen" necessarily means that "they all knew what it meant", and that we should therefore resort to extra-Constitutional tea leaves to figure out what they meant.

There are two alternative explanations for the failure to define that term that do not require us to read tea leaves regarding the intent of the Framers.

The first alternative explanation is that they simply could not agree, and so left the phrase deliberately undefined for others to hash out. That is one way knotty political/legislative disagreements are sometimes "resolved". In other words, they punted it to subsequent generations by default.

The second alternative explanation is that they consciously chose to leave that definition to someone else. Namely, to Congress. That is my view, and I think it has the most support.

The best evidence of this is the Naturalization Act of 1790, which was passed by the very first Congress and signed by Washington. When faced with similar questions regarding the intent of the Framers/ratifiers, the Court has often looked at actions taken by early Congresses as reflecting the understanding of the time.

That Act not only defined how a non-citizen could become a citizen, but also expressly provided for what could lead a person to be considered a "natural born citizen". There is no hint - anyway - that anyone considered Congress to be exceeding its authority in making that determination.

Now, if the definition of "natural born citizen" was so incredibly obvious and accepted (which is a premise of the article that you site) that it didn't even needed to be included in the Constitution, then why would the first Congress need to pass a law at all? The exact same reasoning -- that it isn't necessary -- would apply.

So for me, the question of defining "natural born citizen" is something that was deliberately left to Congress. Which means that all the stuff about de Vattel, or Blackstone, or whatever, is completely irrelevant.

[Bruce Campbells Chin]

What's really relevant are not the precise definitions contained in the Naturalization Acts of 1790 or 1795. It is the mere fact that Congress felt free to legislate at all on the subject of what constitutes a "natural born citizen". Either the definition is hard-wired into the Constitution, and cannot be changed by Congress, or it is not.

[Pontiac]

The second alternative explanation is that they consciously chose to leave that definition to someone else. Namely, to Congress. That is my view, and I think it has the most support.

I have to disagree with you there. After ratification the matter would not be left to congress but to Article 5 and the amendment process.

If the term required definition then the framers would have defined the term in the constitution. Otherwise we are left open to the whims of history and the term can be redefined every time the opinions of legislators change.

Not a good plan for a stable republic.

[CpnHook]

Bellei is neither Direct on point nor a precedent.

It is factually on point in the sense that Bellei (like Cruz) was born abroad to a citizen mother and alien father, and was a citizen at birth via the same statute.

It is legally on point insofar as the case presented the question of the nature of Bellei's citizenship, concluding that he did not meet the "Constitutional definition" of citizenship and that he was naturalized (by statute) but "out" of the United States. The case is further significant in that all of the dissenting justices agreed Bellei was naturalized (though the dissenters would conclude he was naturalized "in" the U.S. and thus his citizenship was Constitutionally protected).

Under principles of stare decisis what is normally binding on lower courts is not just the decision in the case, but also the core reasoning underpinning the decision (the ratio decidendi). The reasoning that Bellei was a naturalized citizen is central to the decision.

Any case on the merits of Cruz's candidacy would need either to ignore the case (and the recent "scholarly" articles have largely done a fine job of that) or disavow its reasoning and characterization of Bellei's citizenship as "naturalized." Given the courts have signaled they really, really don't want to be in the business of deciding Presidential elections, this is likely an academic exercise. But I don't think passing the case off as inapt is sound.

[TBP]

Laurence Tripe is a partisan hack who neither knows nor likes the Constitution.

[Bruce Campbells Chin]

If the term required definition then the framers would have defined the term in the constitution. Not if it was delegated to Congress.

Otherwise we are left open to the whims of history and the term can be redefined every time the opinions of legislators change.

But every piece of legislation changes the country in some manner. That's why the whole "Living Constitution" theory is so bogus. The Constitution did not freeze us in time, and force us to live under 18th century laws. It gave us the freedom to enact change through the legislative process. Therefore, those who look to reinterpretation of the Constitution to force change they deem desireable are engaging in improper judicial activism.

And in terms of the "whims of history", it's far worse if we leave a completely undefined term open to the whims of whatever 9 people happen to be sitting on the Court at a particular time. Then, change comes about not through the people's elected representatives, but through 9 unelected judges.

I would add that I do think there is one Constitutional restriction on Congress' right to define "natural born citizen" -- it cannot be a retroactive change, which means that a rogue Congress could not pass a law to make a particular person eligible for election who otherwise would not be. That would remove a lot of the incentive for constant Congressional fiddling with the definition. The truth is that there are arguments by various judges, lawyers, legal scholars, etc.. over more than 200 years, who simply do not agree on what was meant by "natural born citizen." There is no consensus on exactly what that means, and there never was. Even in 18th century Great Britain, Parliament passed laws defining it differently (compare Act of 1708 with Act of 1740), and various legal writers in Britain also did not agree completely on which definition was appropriate.

I think any Court decision trying to hard-wire a "natural born citizen" definition into the constitution is going to be creating a definition rather than just "recognizing" the correct one. There simply is not enough agreement among the contemporaneous sources.

[dangus]

Cruz: Born in Canada.
Trump: Born and lived his entire life amidst and promoting liberalism.

Sorry, but I’ll take the “Canadian.”

[TornadoAlley3]

Voters could be swayed with the born in the USA / not born in the USA. It could hurt Cruz.

[amihow]

Cruz: Born in Canada.
Trump: Born and lived his entire life amidst and promoting liberalism

Sorry, but I’ll take the “Canadian.”

---

Screw the rule of law? Hmmmmm.

[Pontiac]

I think any Court decision trying to hard-wire a "natural born citizen" definition into the constitution is going to be creating a definition rather than just "recognizing" the correct one. There simply is not enough agreement among the contemporaneous sources.

Well I think it would be better to have a definition certain than to have this argument every election cycle until the end of the republic.

I personally would like Cruz as president over any of the other candidates but I simply don't see him as eligible.

Did you read the blog all the way through including the comments? The fellow makes the most compelling argument I have yet read.

[Pontiac]

Cruz: Born in Canada.
Trump: Born and lived his entire life amidst and promoting liberalism

Sorry, but I'll take the "Canadian."

Where he is born doesn't matter but that his father was not a citizen does.

[nathanbedford]

My position is that Bellei is not directly on point and it is not controlling, most authorities agree with that point of view. However, the dicta is clearly in favor of describing children born abroad gaining citizenship by descent through parents who are American as being "naturalized" as opposed to being natural born citizens.

Against this we have the words of the 1790 statute and the presumption by Congress that it can create citizens by descent without going through a process of naturalization. We also have the practice that we saw with Goldwater, Romney, McCain and even Obama. The last suggests that the court would not accept the case and avoid it as a political question.

Which brings us to the remarks of Lawrence Tribe who in my opinion has been passively aggressive in encouraging public officials to decline to put Cruz on the ballot. A position wholly contrary to his position when Barak Obama was a questionable natural born citizen. If tribe succeeds in this somewhere, he might well have solved the problem of standing and even forced Ted Cruz to bring the action which would go a even further toward solving the problem of standing. This would not be a declaratory judgment situation but an actual case and controversy of immediate and real consequence.

This puts Cruz in a box. If he does nothing now and the matter blows over during the primary process, he can expect some public official somewhere to take up Larry Tribe's recommendation and Cruz might then be forced to litigate to save votes in several states in the general election. If his position deteriorates because of this controversy, he has a dilemma because he must either find a way to get into court or continue to suffer damage. Timing is everything.

Cruz would also have to weigh the fact that four sold-out Justices are guaranteed votes for the Democrat position and so they must merely pick off one or more-likely Kennedy or the Chief Justice-to throw Cruz out of the race. It could be the Tribe has done this arithmetic as I am sure Ted Cruz has done this arithmetic.

Whether Tribe succeeds in forcing this litigation by solving the problem of standing, only a fool will believe that this is not a political question. There could be no more political question than controlling the nominating process for president of the United States and only a fool would believe that the Supreme Court, at least the four leftist Justices, will act without political motivation no matter how they dress their opinion to make it appear as though it were a matter of constitutional interpretation.

The politics of this question overwhelm everything. There is scarcely a commentator who cannot be indicted for being on both sides of the issue when one compares the reaction to Goldwater, Romney, McCain, Obama and, now, Cruz. Larry Tribe who has been on both sides of this question is a flagrant hypocrite, far worse than Ted Cruz whom he accuses of hypocrisy. On the other hand, the court simply cannot stand aside if Cruz is denied a place on the ballot in jurisdiction after jurisdiction. That is the box that Cruz is in if he deteriorates in the polls.

If Cruz's situation is deteriorating now in the primary season, he had better find a quick way to get an adjudication and hope that the court both accepts the case and rules expeditiously as it did in Gore v. Bush.

[Cboldt]

-- My position is that Bellei is not directly on point and it is not controlling, most authorities agree with that point of view. --

I suspect they hold that way because that Bellei is not an NBC case. But we don't need an NBC case to disqualify Cruz. A case that defines or describes a person born abroad to one citizen parent to be a naturalized citizen establishes that Cruz is a naturalized citizen. If we find him naturalized, game over.

-- the 1790 statute --

That creates a legal fiction. It is not a "definition," even though nearly everybody claims it is.

There are many laws in the form of "X shall be considered as Y". That is not "X = Y", it is "we will pretend that X = Y".

There is a US regulation that says to the effect of "A 22 year old shall be considered as a child." A 22 year old is NOT a child. But for this section of law, we will pretend the 22 year old is a child.

On the issue of standing, one of the candidates for office has sued the NH Sec. of State to remove the unqualified candidate Cruz from the ballot. Opponents in an election contest have standing. Cruz can either argue on the merits, or move for dismissal on whatever grounds he thinks appropriate.

-- This puts Cruz in a box. --

He put himself there. He ought to be ashamed, unless he has some greater good in mind, like exposing Obama as a usurper, or awakening the public to the meaning and value of NBC.

I think the issue burns out as his standing in the polls diminishes. Nobody cares if the 2% candidate is qualified - except maybe the opponents on the slate.

I'd give a slim to none chance of SCOTUS rescuing Cruz's bacon, and at the same time amend the constitution by act of the Court. It would either defer, or make the constitution clear for those who can't read it. There is darn little room for interpretation in there, unless, as it it know to do, SCOTUS hallucinates and finds "naturalized" and "NBC" are the same thing, right there next to homo marriage or something.

The commentators are, as always pathetic losers who wouldn't know the truth if it bit them, and are too stupid to figure a way to give a gullible public an honest education. I pout all of them in there. Levin is lying, Rush is playing dumb, the celebrity lawyers Katyal, Clement are misleading the public (lying, IMO, this is a willful act of deception). It sucks, it's morally wrong to mislead a gullible public.

Our institutions are fallen and failed. Utterly. I doubt the people will wake up.

Other than that, everything is going great!

[catnipman]

“I guess you didn’t read the article cause what I read says 25%”

No, you failed to read the articel and/or my post or you failed to understand either or both: i stated quite clearly that the 50% is the sum of those who believe Cruz is unqualified or are not sure. The article stated that only 46% believe Cruz is qualified.