Fordham University law professor Thomas H. Lee told Breitbart News on Monday that Sen. Ted Cruz (R-TX) is “probably” eligible to run for president–but not because his mother was a U.S. citizen.
According to an originalist interpretation of the Constitution, Lee argues, and existing British common law at the time of the Constitution, Cruz would need to have inherited U.S. citizenship from his father to qualify as “natural born” after being born abroad.
Lee published an op-ed in the Los Angeles Times on Sunday arguing that Cruz would be eligible under liberal theories of interpretation of the Constitution, but not under the originalist theory to which he [Cruz] himself subscribes.
That conclusion is at odds with what most originalists have argued, citing the definition of “natural born citizen” used by the First Congress. Lee says the more important source is the distinction in British common law between jus soli (the law of soil) and jus sanguinis (the law of blood). Citizenship was determined by the former–except in the case of men abroad on official business, such as advisers, soldiers, or ambassadors. They were thought to hand down their citizenship to their offspring. Women did not fill such roles, and so did not trasmit their citizenship.
“Originalism doesn’t always give clear-cut answers,” Lee told Breitbart News. “This is an instance of a pretty clear answer.”
Lee, who is listed by the conservative Federalist Society as one of its “experts,” told Breitbart News that he himself is not an originalist, though he is not a liberal. He considers himself a “centrist,” and comes at the issue from scholarly, not political, interest.
He cited his past research on the Alien Tort Statute, which was adopted in 1789, and which allows foreigners to sue Americans in U.S. courts for torts committed abroad. Lee has argued against attempts by contemporary plaintiffs’ lawyers to argue that the Alien Tort Statute applied to what we now call human rights violations.
He told Breitbart News that he has been studying the question of “natural born” citizenship since last May, and was working on a 40,000-word law review article on the subject when it suddenly became a hot political topic.
Lee observed that the only way for the issue to be settled by a court would be for “another candidate to bring a suit for a preliminary injunction against a state Republican Party.”
Donald Trump, he mused, would be unlikely to do so, since he would lose control of the issue to the courts.
Democrats might try to use the eligibility issue against Cruz later, he acknowledged, but they would be “hypocritical” to use originalist arguments they otherwise reject.
Lee told Breitbart News that if he himself were a judge, he would find Cruz eligible, on balance.