Contributor, The Volokh Conspiracy

Yesterday, the Harvard Law School chapter of the Federalist Society held a wonderful debate between Harvard law professor Laurence Tribe and Yale law professor Jack Balkin on whether Ted Cruz is a “natural born citizen” and therefore eligible to be president under the Constitution. (Like Balkin and Cruz, Tribe was also my constitutional law professor.)  Tribe says the issue is “not settled” but he also offers an argument against Cruz qualifying. For his part, Balkin makes what I think is the strongest originalist argument for why Cruz does qualify (which Michael Ramsey presents here).

The debate is noteworthy not only for its cordiality and high level of discourse, but also because of its discussion of originalism. Larry is clearly relishing the opportunity to skewer Cruz and others for being what he calls “fair-weather originalists.” At this point, I suspect he also does not mind undermining Cruz’s campaign. For his part, Jack offers a very sensitive account of originalism, including both his very thin “living originalism” and other thicker versions of original public meaning originalism. Importantly, Jack does not rest his argument on his thin version, but contends — I believe rightly — that any form of originalist can accept his (and Ramsey’s) analysis.

Although I have been persuaded by the Ramsey analysis — which rests, in part, on the relationship between the Natural Born Citizenship Clause and the power of Congress under the Naturalization Clause — as well as by my own analysis of the parallels between between a “natural born subject” in a monarchy and a “natural born citizen” in a republic, I agree with Larry that this issue is “not settled.” This is so, first, because the issue has not been squarely presented in exactly this context so has not been settled as a legal question by practice, and secondly that it has not been authoritatively ruled upon by the Supreme Court. I would note, however, that at least some of the originalist arguments for why Ted is not a natural born citizen would also have undermined the eligibility of previous presidential candidates who were accepted as eligible, so practice does undermine these originalist theories. (Even if the issue were “settled” however, this would not, to my mind, preclude it from becoming “unsettled” by additional argument by either side. So whether or not the issue is “settled” is secondary to what is the most accurate reading of the Constitution.)

[Moreover, the only reason this issue is at all debatable is because there is a colorable originalist argument that Cruz is not a natural born citizen. Absent such an argument, his eligibility would not be questioned on living constitutionalist grounds. This underscores, I think, the inherent power of originalism, and undercuts Tribe’s effort to capitalize on this debate to deprecate originalism.]

But while I realize that Larry cannot resist taking delight in tweaking originalists, living constitutionalists are in a very weak position to challenge Cruz’s status as a natural born citizen. After all, in their opinion, the meaning of the Constitution evolves to adopt to the changing times, and so has the definition of citizen at birth, as well as the rejection of any disparate treatment of fathers’ and mothers’ power to impart citizenship on their children, regardless of where they are born.

So this alleged “hypocrisy” finger pointing against originalism can only take us so far. And if the teasing is taken too far, the hypocrisy charge can be made in the other direction. Besides, as with the Second Amendment, when nonoriginalists make originalist arguments, they do not always do it very well, and are often insensitive to how originalism is or should be practiced.

As things now stand, you have a very strong originalist argument for why Ted Cruz is a natural born citizen (and why originalist claims to the contrary are wrong), and a strong living constitutionalist argument for the same conclusion. When originalism and living constitutionalism reach the same conclusion, you can be reasonably sure that the courts will as well.

Through the miracle of YouTube, you too can enjoy this debate. There are 16 sequential YouTube videos of the debate, and this is the first (which commences a short time after Tribe began speaking).

[UPDATE: The maker of this video said he edited out some comments by Tribe that might have come off as snarky or personal towards Cruz. I see nothing wrong with focusing on the substance, but thought I should mention this, as he was gracious enough to inform me. At some point a full version will likely be posted.]