Cornell Law School professor William A. Jacobson, who also founded the highly respected Legal Insurrection blog, has addressed the question of Ted Cruz’s eligibility for the presidency, along with several other candidates.
In his analysis, first published in 2013 and highlighted again today, he concludes that Cruz, Marco Rubio, and Bobby Jindal were all eligible–but that questions may be “legitimate,” since there was so little judicial precedent on the issue.
There is a false construct all around that this is a purely legal question subject to some absolutely right or wrong conclusion. We should all just admit that we don’t really know for sure what “natural born Citizen” means or meant between the points of inclusion and exclusion.
So what to do in a constitutionally and politically important area in which there is no clear legal answer?
The key to understanding why I reach that conclusion that Rubio, Jindal and Cruz are “natural born Citizens” requires understanding the problem.
There are strong arguments in favor of Rubio, Jindal and Cruz each being a “natural born Citizen” as that term most reasonably can be understood through its plain text because they became citizens by birth. Their “natural born Citizen[ship]” also is consistent with the concepts, respectively, of citizenship by birth place (Rubio, Jindal) and parentage (Cruz), from which the term “natural born Citizen” is believed to derive historically.
The arguments that the term “natural born Citizen” excludes Rubio and Jindal (because their parents were not citizens) or Cruz (because he was born abroad to a citizen mother only) at most raise doubts. Those doubts, however, never rise anywhere near the level of making the case that Rubio, Jindal and Cruz are excluded. Most of the counter-arguments are historical conjecture, at best, and rely on speculation not connected to the text of the Constitution or any demonstrable actual intent or understanding of the Framers.
In the circumstance of candidates who appear to qualify based on the text of the Constitution and the traditions upon which “natural born Citizen[ship]” is believed to derive, and as to whom there are at worst some doubts raised, I believe the proper constitutional outcome is to leave the issue to the political process. To exclude apparently eligible candidates based on speculation as to what the term “natural born Citizen” might have meant is no better, and I would argue much worse.
He adds later that the “Birther” term “has been picked up by many Republicans and conservatives to shut down even good faith questions as to the eligibility of Rubio, Jindal and Cruz. You don’t need to do that.”
Read the full article here.