Sunday, December 13, 2015

Is He, or Isn’t He: Only Cruz’s Constitution Interpreter Knows for Sure

Ted Cruz is not eligible to be elected president. Or, he is eligible to be elected president.

All the difference between eligibility and ineligibility can be discovered in the meaning of a single phrase in the Presidential Eligibility Clause, found in Article II of the Constitution. The Presidential Eligibility Clause conditions eligibility on age, duration of residence in the United States, and one’s status as a “natural born citizen.” Cruz is eligible, and would have my support, if he is a “natural born citizen.” Cruz is ineligible, and cannot have my support, if he is not a “natural born citizen.” So, for me, at least, the words of the Constitution, and the meaning of those words, are of considerable moment.

I have gathered the blog posts examining the question here. I have concluded that Ted Cruz – a man I value and appreciate for his principled stances in a Senate of spineless Republicans – is not eligible to serve because he is not a “natural born citizen.”

I’ve been told that my reasoning and resources are good, but that the result I reached is wrong.
I would have thought that resolving a question like the one regarding Cruz’s eligibility to be elected president would be done by analyzing two things: the qualifications required, and his satisfaction of those qualifications.

Having done the work, I remain surprised by the rejections made out of hand. More surprising to me are denunciations from those who appear to be (a) committed constitutional conservatives and (b) proponents of limited federal government. Cruz’s father, I think, cannot be faulted for supporting his son’s candidacy. Nor, I suppose, can those be faulted who support Cruz but whose writings, words, and lives have not been devoted to constitutional conservatism and limited government.

This post speaks to others.

In it, I invite those who value the study of the Constitution, those that conclude that our nation is adrift for reasons that include that we have severed our moorings to a Constitution of fixed meaning creating a federal government of expressed and limited powers, to give this question a fresh and honest evaluation. If, in all other circumstances, your natural inclination is to decry federal adventurism beyond the boundaries set out in the Constitution, I ask you to give patient consideration to this last argument. If you are not within one of these groups, I offer the evaluation of presidential eligibility as a tool for understanding how one may choose to pursue and find the meaning in that two hundred old document in these modern times.

Let me begin by stating a ground on which I will gladly withdraw my charge the Ted Cruz is not eligible to be elected president:

To be eligible, Cruz must be a “natural born citizen” of the United States, and I must be convinced of his status as such.

How can that conclusion be justified?

I think either of two possibilities exist in which that conclusion would be satisfied.

First, if it can be shown that the Presidential Eligibility Clause’s use of the phrase “Natural Born Citizen” included, as proposed and ratified, persons born outside the territorial United States to parents, only one of whom is, at the time of the birth, a citizen of the United States, that would resolve objections in Cruz’s favor.

Second, if it can be shown that Congress has power under the Constitution to endow status as “natural born citizens” on persons that would not otherwise be “natural born citizens,” and that Congress has, in fact, exercised that power to grant that status to Ted Cruz, or to a group of persons that includes Cruz, that too would resolve objections in Cruz’s favor.

Cruz could be a “natural born citizen” if the Congress of the United States, as created by the States in article 1 of the Constitution, was endowed with the power to define the meaning of the term “natural born citizen” as used in the Constitution, or to expand the meaning of the term “natural born citizen” beyond its accepted understanding at the time through the exercise of a power granted to it by the States through the Constitution.

As to the first proposition, Cruz could be a “natural born citizen” if the term “natural born citizen” means a person born to a citizen of the United States, even though born outside of the territorial boundaries of the United States, even if the child is born to parents of whom only one is a citizen, and even if the child is born in a nation that also claims the child as a citizen of their country.

To further clarify this first point, I do not mean we now decide that now, today, that this is what “natural born citizen” means. Rather, I require that it be shown that the term “natural born citizen” meant such individuals were natural born citizens at the time that the Constitution was proposed and ratified.

In all the discussions of Cruz’s eligibility with which I am familiar, no proponent of his eligibility has offered a basis in the language of the Constitution or the history of its crafting and ratification to support a view that the language selected by the drafters of the Constitution or the ratifying parties to it, or the intentions driving the choice of that language, extended “natural born citizen” status to anyone other than some class of persons literally, actually, and really born within the United States. On this point, for example, Michael Ramsey, at the Originalism Blog, wrote:
The “natural” in “natural born” citizen/subject stillmeant in the eighteenth century (as it had much earlier) a citizen/subject bythe law of nature (as opposed to a citizen/subject by statute).  For people in the English tradition thatwould have meant people who were citizens under common law.  That in turn meant only people born withinthe sovereign’s territory (and children of English ambassadors).  In this view, the statutory expansions gavesome children born abroad the same rights and duties as natural born subjects,but those children remained nonetheless only statutory subjects (since astatute could not alter the law of nature). Notably, only this version gives content to the word “natural” in“natural born.”
General agreement appears to exist for the proposition that persons born outside the United States, with the possible exception of those born to parents in active diplomatic service of the United States, can be citizens but could not be natural born citizens unless that status can be granted by Congress. In other words, under a straight-forward, textual reading and application of the Presidential Eligibility Clause, Cruz would be ineligible.

So, for Cruz to be eligible, Congress needs to have expanded the category of persons that meet the “natural born citizen” criterion. As to that second proposition, that Congress has done so, substantial objections exist to the claim that Congress has done so. Substantial objections also exist as to the proposition that Congress has the power to do so.

Congress first exercised its power under the Uniform Rule for Naturalization Clause in 1790. At that time, Congress enacted the Naturalization Act of 1790.
And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, That no person heretofore proscribed by any state, shall be admitted a citizen as aforesaid, except by an act of the legislature of the state in which the person was proscribed. (Emphasis added.)
As the excerpt shows, in that first Naturalization Act, Congress actually asserted a power to define certain persons born outside the territorial jurisdiction of the United States to be “natural born citizens.” That Congress did so certainly suggests that Congress was aware of the possibility that it possessed a power to define who would be “natural born citizens,” or at least to expand the definition of that class beyond those who were, in fact, “natural born citizens” under common law.

The 1790 Act certainly holds hope out to those who support Cruz’s candidacy, that Congress has power to make Cruz eligible as “natural born citizen.”

One disturbing fact, however, changes any considerations raised by the “natural born citizen” language in the 1790 Naturalization Act. 

In 1795, just five years later, Congress repealed that Act and substituted another naturalization law in its place, the Naturalization Act of 1795. In crafting the replacement Naturalization Act, Congress omitted the language granting “natural born citizen” status to persons born outside the territorial boundaries of the United States. In its place, the new Act simply defined such persons as “citizens of the United States.”

The act of repealing a constitutional provision or a statute with language expressly accomplishing some purpose, and replacing that constitutional provision or statute with another omitting the exact language, bears significance in resolving the meaning of the legal provision.

Remember, in our system, courts do not make the law. Rather, they interpret the law in applying it in real instances of conflict between parties (either between governments and individuals in criminal cases, or between individuals (including corporate persons) in civil cases. Courts, accomplishing their tasks, sometimes must probe for the meaning of statutory language. When they do so, they follow established rules governing how statutory language is read.  (Judges and attorneys call these rules “canons of construction.”)

Humans do not own the corner on language. Many species communicate. The plaintive sounding song of the humpback whale carries at great distances. Rabbits tamp the ground to warn of danger. Bees engage in elaborate "dances" to communicate the location of food to the hive.

To date, however, there have been discovered absolutely no schools for semiotics, the study of symbols, gestures, language, set up by whales, rabbits, bees, or any other non-human creatures. Perhaps this fact surprises you. Perhaps the idea makes you chortle. Still, it is worth noting this apparent difference between humans and other creatures, that we not only have language, but that we study the languages of humans and of other creatures, a characteristic so far not identified among other creatures.

Searching for meaning in words is an aspect of a lawyer's lot in life. While not everything done by a lawyer involves the meaning of words and the search for such meaning on behalf of clients, it is enough of the life of an attorney that we all know that it was the lawyer in Bill Clinton that actually imagined that it would make sense to argue, "it all depends on what the meaning of 'is' is."

To choose words and phrases in communicating may reflect no thought whatever, if one's utterances consist entirely of a well-developed stream of consciousness in speaking or writing. Among communicative activities directly polar opposite to stream of consciousness, I suppose the best examples are offered by the crafting of legal language in statutes, constitutions, and contracts.

Lawyers, as much as theologians, are as likely to be found arguing over fine points of language, as though the difference in life and death can be decided by knowing how many angels can dance on the head of a pin.

Let me offer some examples of the use of language, and changes to language, in such documents.
Eighteen Year Olds and the Right to Vote
The Twenty Sixth Amendment to the Constitution prohibits federal and state governments from denying individuals the right to vote if they are age 18 or older:
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Prior to ratification of the Twenty Sixth Amendment, States could set a higher minimum age for voting, as could the federal government. The addition of the amendment changed that circumstance by limiting the powers of the federal government and the States in respect to the narrow category of voting restrictions based on age. 

Now, suppose you were 18 years old, and you attempted to register to vote, but your local election official told you that your State limits voting to persons age 21 or older. You would immediately object. If necessary, you would bring a lawsuit challenging the state law as a violation of the federal constitution. After all, the Twenty Sixth Amendment prohibits States from discriminating against you, respecting the right to vote, based on your age, so long as you are at least 18 years of age.

And guess what? You would win your suit.
Slavery and Involuntary Servitude
Here's another example.

Suppose you worked as an Assistant District Attorney in Utah. You were contacted by a detective in a local police force in Utah. He received credible information indicating that a rancher located in the county has a small group of Native Americans held captive and forced to perform unpaid labor. You file for a warrant based on the affidavit of the police informants and the police execute it on the ranch.

Circumstances are exactly as information indicated. The police arrest the rancher and you charge him with kidnapping and several other related charges. The US Attorney, shortly afterward, files federal charges as well.

The rancher claims he is immune from prosecution under the 1852 "Act in Relation to Service." That Act, passed by Congress, allows chattel slavery of blacks and Native Americans in Utah.

The rancher's attorney indicates his intention to use this defense at trial. You file a motion to exclude that defense and any evidence related to it. You point out to the Court that Congress repealed the 1852 Act in 1862 when it outlawed slavery in federal territories, and that the States nullified the 1852 Act when they ratified the Thirteen Amendment prohibiting slavery and involuntary servitude. The Court accepts your motion and prohibits the defense from asserting the Act as a defense.

You see how this is going?
Obama's Third Term as President
Consider one more example.

Barack Obama believes he can be elected to a third term in office. In fact, he decides to run for that third term. He files papers to be placed on the Democratic Primary ballot. The State Board of Elections announces that the Board has met, considered the filing, and denied the application to place Obama on the ballot. The Board states that, in its judgment, pursuant to the Twenty Second Amendment, Obama is ineligible to be placed on the ballot, despite having met all other requirements under state law. 

Obama files suit in State court. He files proof and pleadings demonstrating that he has met every eligibility requirement set out in State law. He demands an injunction barring the printing of the Democratic Primary ballots unless and until his name is added to the ballot. The Board of Elections files a short defense. In it they cite and rely on the Twenty Second Amendment:
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once.  
But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
The State court dismisses Obama's suit. His emergency appeal is denied by the appeals court. The State Supreme Court denies review. The US Supreme Court denies his petition for review.

Each and every court that considers the case agrees that the Twenty Second Amendment, which limits anyone from being elected more than twice to the presidency, supersedes Article II's omission of any limit on the terms of a President.

Language Matters. The Omission of Language Matters.

We could do this kind of illustrating all day.

One day a thing is lawful. The next day, by a change in the law, it is not. One day a State or the federal government has a power -- such as the power to impose prohibition -- the next day it does not. One day a man is eligible to be elected thrice or more to the presidency, as was FDR, the next day, as Obama, he is not. All the difference in the world is a change in language. 

So, while it can be tedious, and trying, understanding language can be pretty important. In fact, that is probably why "reading" heads the list of the Three R's.

So what?

Well, I'm about spent on arguing this point, particularly as few seem to care. Yet, there is something quite troubling about the laissez faire approach being taken to the question of Ted Cruz's eligibility to be elected president.

You see, there was a time when Congress expressly provided by law that certain persons born abroad were, nonetheless, "natural born citizens." Congress used that precise formulation in its adoption of the Naturalization Act of 1790. That precise formulation was repealed and replaced by Congress when it adopted the Naturalization Act of 1795. To my knowledge, Congress has not subsequently granted "natural born citizen" status when extending "citizen" status to persons born abroad to certain citizens of the United States.

Cruz, an attorney that has practiced constitutional law and argued cases before the US Supreme Court, has remained surprisingly silent on the question. He hasn't really addressed the question, except in the brief assertion that, as his mother was a citizen at the time he was born, he is a natural born citizen and eligible to be elected.

Others that do address it, whether as surrogates for him or commentators, largely assume a power within the Congress to provide a definition of the constitutional term "natural born citizen," or they largely assume a power possessed by Congress to grant "natural born citizen" status to some group of persons (for Cruz's eligibility, that would have to be a group that included him).

Yet, they are never required, in the public dialogue to answer direct and pointed questions regarding the thesis that Congress can provide definitional meaning to the terms of the Constitution, or the thesis that Congress possesses a power to grant "natural born citizen" status to persons who, by reason and nature, would not otherwise be thought to meet the requisites for "natural born citizen" status.

So, as I come to the end of my treatments of this matter, there is this last set of questions, about Congress' ability to grant "natural born citizen" status to persons born outside the United States. 

Commentators such as Clement and Katyal, in a Spring 2015 blog post on the Harvard Law Review Forum, take the position that one is a "natural born citizen" -- even when born abroad -- so long as the person does not have to take any positive action to acquire citizenship. "While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings." (Clement and Katyal's reference to "the relevant materials," however, is not to the Constitution, or the Debates on the Constitution, or the Debates on the Ratification of the Constitution. Rather, they simply refer to subsequent enactments of naturalization provisions by Congress. Calling those "the relevant materials," short-circuits any need to explain the absence of such an approach in the Constitution, in the Notes on the Constitutional Convention, or in the Debates in the States on the Ratification of the Constitution.)

By Clement's and Katyal's reasoning, children born abroad in a variety of circumstances contemplated by Congress would be "citizens at birth" without having to apply for naturalization as citizens, and, as a consequence, they would also enjoy the status of "natural born citizens," including eligibility to be elected president.

Nonetheless, there are difficulties for those that make this argument.

Congress does have an express power at play in these cases. The Constitution grants to Congress the power to make a uniform rule for naturalization. One obvious problem, then, is whether the power of naturalization includes a power to grant status as "natural born citizens." I have contended that it does not include such a power. My thinking on this point reflects the fact that "naturalization" is the process of making one a citizen that is not a citizen.

Something important, however, is missing in their commentary. There is no citation to, discussion of, or application of, any evidence of any contemplation or discussion of such a grant of power by the States to the Congress when they ratified the Constitution, or by the drafters of the Constitution as they formulated it. 

It is, in fact, entirely a post-hoc rationalization that simply cobbles onto the stated power of naturalization an additional, unstated, power to give new meaning to the phrase "natural born citizen" in the Constitution, or to confirm in Congress a power asserted by Parliament when it granted "natural born subject" status to various individuals overtime. 

Particularly troubling in such commentary is the complete failure to question whether the outcome -- Congressional power to make Cruz, or McCain, or Mitt Romney's father, "natural born citizens" -- was a matter of express grant by the States via the Constitution to the Congress. That troubling omission says much because it completely ignores that our federal government is, as even school children are taught, a government of limited, express, donated powers. 

Ultimately, if such evidence were brought forward, I would gladly surrender the position and affirmatively support Ted Cruz in his pursuit of the Republican Party’s nomination and of election to the presidency. In absence of that evidence, in absence of a substantive discussion of the troubling issues that his candidacy raises under the Constitution, I cannot conscientiously proceed as though the issues don’t exist, or that all substantive questions have been resolved in his favor.