Friday, 18 July 2014

“Native born citizen”…


This piece is not intended as a partisan attempt to discredit a candidate’s bona fides. It is a critique of an article, taking issue with its framing.

The article in question is Jeffrey Toobin’s piece from the June 30th issue of the New Yorker, “The Absolutist” (pages 34-45).

According to Toobin, Ted Cruz has an “unusual intimacy with the constitutional text” (37), thanks to his after-school sessions at the Free Enterprise Institute, and also his role as a “Constitutional Corroborator”, who are connected with the FEI. Over the course of his education and intellectual evolution, Toobin writes, Cruz has focused very much on the specific text of the US Constitution, wholeheartedly adopting the position of a “textualist” or “originalist”…

“During the past several decades, the ideological battles over the Constitution have often come down to the originalists, closely aligned with the textualists, against those who believe that the Constitution also protects some nontextual, or unenumerated, rights.” (37)

Toobin describes a memorization trick of Cruz’s, which is aimed at helping people to remember the specific rights set forth in the Constitution. This trick “was an early stage in a textualist’s education. To textualists, the meaning of the Constitution is limited to the precise terms of the document, and nothing more.” In other words, Ted Cruz believes very much in what the Constitution specifically dictates and expresses as the laws for the governing of the United States of America.

Why do I bring this up? Not one page later, Toobin writes something that, to me, seems absolutely incorrect. Not only that, but by Cruz’s own ideology would suggest he does not accept what Toobin claims (as explained by Toobin, and also Cruz himself during many instances on camera). Specifically: Cruz’s eligibility to run for President.

Rafael Edward Cruz was born in Calgary, Alberta in 1979. That’s in Canada. As Toobin writes, parenthetically,

“Ted’s birth in Canada, with dual American and Canadian citizenship, has raised the question of whether he is a ‘native born’ citizen and thus eligible, under the Constitution, to be President.” (38-9)

He was born in Canada. This should be self-evident, especially considering the furore that erupted over President Obama’s place of birth (Hawaii – absolutely one of the 50 states of the USA) and whether or not his presidency was legitimate. That the attacks were coming from the Tea Partiers and Birthers – who could be argued to be Ted Cruz’s base and constituency – is another issue entirely.

Let us turn to the Constitution…

Article II, Section 1, Clause 5 states quite clearly that “No person except a natural born Citizen, or a Citizen of the United States, at the time of Adoption of this Constitution, shall be eligible to the office of the President”. Cruz was not born in the USA, nor on an American military base, nor in an American embassy. Ergo, he is not a native born American as per the Constitution. And yet, “The answer is not completely clear,” Toobin writes, “but it seems likely that the Constitution does not bar a Cruz Presidency.” (39)


A quick reading of the literature and debates surrounding this clause of the Constitution suggests that it is the Fourteenth Amendment that brings Cruz’s eligibility into question. This despite the fact that the debates surrounding Article II, Section 1, Clause 5 showed that the Founders quite specifically rejected a version that allowed for anyone just “born a citizen”, which was proposed by Alexander Hamilton. John Jay lead the opposition to this more lenient draft, especially when he considered the unique position of power, not to mention actual powers that the Office of the President gave its occupant. The Constitution is quite clear that a “native born” citizen is someone born to American parents in the United States. Not just to American parents.

Again, this is nitpicking, but it’s important to take into consideration Cruz’s own reading of and approach to the Constitution, and his textualist ideology. But it is amusing, to me, that a self-professed standard bearer for the Founders’ (apparent) intent is, really, a poster-child for what some of them feared: he is foreign born, one of his parents was a foreigner, and he possibly had dual-citizenship (though he dubiously claims to have been unaware of his Canadian citizenship).

Despite my own personal belief that “native born” seems rather restrictive in today’s globalised world, and especially given the (relative) free flow of peoples into and out of the United States, one cannot deny that a member of the nativist wing (some might say racist and xenophobic) of the Republican Party (see, again, the madness of the Birthers and their facilitators) would immediately deem someone born outside of the USA as ineligible for the Presidency. Doubly so if that person was himself a textualist who believed that the Constitution does not allow for generous interpretation. By his own ideology, therefore, he is not eligible to run for president. If he believes he is, it shows a staggering narcissism.

Here’s a clip from the Rachel Maddow Show, in which a Ted Cruz supporter gets… confused about “native born”…

“Canada’s not really foreign soil…” Yes. Yes it really is.

“Allegedly born in a foreign country: that’s a problem. But admittedly born in a foreign country: that isn’t a problem…”

The hypocrisy here is sadly entirely predictable. When one side contains factions that single-mindedly attack the legitimacy of a president on provably false grounds (with minimal reproach from the establishment), and yet willfully ignores an actual case of illegitimacy when it comes to “their turn”… It has become par for the course.

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