The man who taught Sen. Ted Cruz, R-Texas, constitutional law at Harvard has had some choice words for the aspiring presidential candidate recently. Laurence H. Tribe, a professor of constitutional law at Harvard University, has said, among other things, that Sen. Cruz’s own legal philosophy disqualifies him from spending four years in the White House.
Appearing on Anderson Cooper 360 Monday night, Dr. Tribe accused the Calgary-born senator of “constitutional hypocrisy,” calling him a “fair-weather originalist.” Tribe asserted that the “strict, originalist legal philosophy that Cruz advocates on issues like the Second Amendment and gay marriage, and which his his potential Supreme Court nominees would likely espouse, should disqualify him” from taking up residence in the White House. From CNN:
“‘Ironically, the kind of justices he says he wants are the ones that say he’s not eligible to run for president,’ Tribe argued. ‘This is important because the way this guy plays fast and loose with the Constitution, he’s a fair weather originalist…
The issue is — do the kinds of judges that he says he would insist on, the kind who would overrule Roe v. Wade, who don’t believe in gay rights or women’s rights, but who think the Constitution is frozen, if he really believes in their philosophy,’ Tribe said. ‘It’s an antiquated philosophy, but it turns out Ted Cruz drops that when it doesn’t serve his purpose.'”
But Tribe’s remarks didn’t stop there. On Tuesday morning, the Boston Globe published an op-ed in which Tribe further discussed Cruz’s ineligibility to shoulder the presidency, starting with Cruz’s assertion that his eligibility for the White House is a “non-issue.”
“Senator Cruz contends his eligibility is ‘settled’ by naturalization laws Congress enacted long ago. But those laws didn’t address, much less resolve, the matter of presidential eligibility, and no Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a ‘natural born citizen’ is completely unsettled, as the most careful scholarship on the question has concluded. Needless to say, Cruz would never take Donald Trump’s advice to ask a court whether the Cruz definition is correct, because that would in effect confess doubt where Cruz claims there is certainty.”
Tribe further points out that a constitutional originalist would not be concerned with how Congress has enacted laws since the writing of the United States Consitution, for an originalist would be “bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption.”
While Cruz asserts that matrileneal descent makes him a “natural born” citizen, a constitutional originalist would not be concerned with such things. The constituional originalist would conclude that Cruz is actually ineligible, because 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. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.”
Basically, the citizenship of Ted Cruz’s mother means nothing when it comes to the constitutional philosophy to which Ted Cruz subscribes.
According to Tribe, the kind of judge Cruz despises, the “living constitutionalist,” would be the one to rule that he is eligible to run. The definition of a “living” constitution is one whose meaning “evolves, changes over time, and adapts to new circumstances, without being formally amended.”
Ted Cruz believes strongly in a frozen Constitution, despite the fact that philosophy would rule him ineligible for the White House. Compound his philosophy with recent “birther” hysteria and it seems Cruz’s rise toward the top of the Republican polls may not be as smooth as some let on.
I suppose I should point out that while the kind of Constitutional logic Ted Cruz supports would not deem him eligible for the White House, it would have worked for Barack Obama.