Monday, January 18, 2016
In last night's debate, Donald Trump cited Harvard Law Professor Laurence Tribe for the proposition that serious doubt hangs over Ted Cruz's eligibility to be President. (Josh Blackman quotes the transcript here).
This is wrong for two reasons.
First, that's not what Professor Tribe said. In his Boston Globe op-ed (his most recent statement I know of), he said that originalists should find Cruz ineligible -- and since Cruz says he is an originalist, that makes for an amusing irony. But Tribe went on to say that he thinks Cruz is eligible under the Constitution's modern meaning and moreover that "no real court is likely to keep Cruz off the ballot, much less remove him from the White House if he were to win."
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.
That is not true. Under both late eighteenth-century English law, as explained in Blackstone, and U.S. law as enacted by the First Congress in 1790, some people born abroad had "natural born" status as a result of the nationality of their parents. There is simply no dispute about this point.
One can still argue that Cruz is ineligible (though I think the argument is mistaken, as I've explained at length). But one cannot argue that Cruz is ineligible because the law of the 1780s and 1790s required birth within the country to be natural born.
In my view, Professor Tribe should clarify both points. Otherwise, he allows this debate to take a very misleading turn.