Ted Cruz has a huge birther problem -- and it is much bigger than Donald Trump

It's not just Trump and Lawrence Tribe. The legal meaning of "natural-born citizen" has never become "settled" law

Published January 15, 2016 9:47PM (EST)

 Ted Cruz and Donald Trump (Reuters/Tami Chappell/Chris Keane/Photo montage by Salon)
Ted Cruz and Donald Trump (Reuters/Tami Chappell/Chris Keane/Photo montage by Salon)

Lawrence Tribe has said the issue of Senator Ted Cruz's eligibility for the presidency, with respect to being born not in the United States, but in Canada, is not "settled."

His recent comment is being taken among pols and partisans as a political attack, as if Harvard University's preeminent legal scholar were trying to derail Cruz's presidential bid. Maybe because Tribe played a senior advisory role in Senator Joe Biden's 1987 defeat of Ronald Reagan's Supreme Court nominee, the arch-conservative jurist Robert Bork. I don't know.

But Tribe's comment is at least legally precise. "Precise" from a liberal view. "Charitable," perhaps, from a conservative one. The Supreme Court has never decided a case on the eligibility of a candidate. No one has challenged the meaning of "natural-born citizen," a phrase in the Constitution that can be read to privilege one's place of birth over one's citizenship.

The issue, then, is not "settled."

Federal law says that any human being born to an American parent here or abroad shall enjoy the rights, privileges, and blessings of American citizenship despite the circumstances of one's birth. That means, according to congressional statute, that the senator from Texas would appear to meet the nominal the criteria for the presidency. His mom was American.

This was the same statutory ground on which stood Senator Barack Obama in 2008 and Senator John McCain in 2000. Actually, Obama's birth was a twofer: He was born on American soil, in Hawaii, to an American mother. McCain, on the other hand, was born on a U.S. military base in Panama to an American mom and dad. (Though one could argue that a U.S. military base is legally American soil; in that sense, McCain's birth was also a twofer.)

Mary Brigid McManamon, a constitutional law professor at Widener University, takes a narrower view, and, therefore, more conservative view. She wrote in The Washington Post Tuesday that Trump is right -- Cruz is not eligible for the presidency. The issue isn't whether he's a U.S. citizen, she wrote. By federal law, he is. The issue is where he was born, she wrote, a detail pivotal to James Madison's and the framers' intent in "natural-born citizen."

"I am not a so-called birther," McManamon wrote. "I am a legal historian. President Obama is without question eligible for the office he serves. The distinction between the president and Cruz is simple: The president was born within the United States, and the senator was born outside of it. That is a distinction with a difference." Conclusion? Cruz is disqualified.

There's law, then there's politics. Trump is exploiting the ambiguity of "unsettled law" to attack Cruz where he is most vulnerable: among nativist voters hugely swayed by appeals to their fears and suspicions. Many, it should be recalled, still harbor doubts about Obama.

Like Reagan, Trump is adept at simplifying complexities to the point of distortion. He now says there are "questions" about Cruz's eligibility, which is sufficient to fomenting doubt. Legally, his assertions are nebulous. Politically, they are brilliant.

Trump leads by two points in Iowa, according to RealClear Politics. Iowa's evangelical caucus-goers comprise the state's largest conservative voting bloc, and it tends to look askance at Trump's clearly fabricated commitments to a Judeo-Christian God.

On the other hand, Ted Cruz is the son of a Bible-believing evangelical preacher. He's the only candidate to have launched his bid on the campus of an evangelical university. He's their man. Indeed, of the three early states in the GOP's nomination, Trump faces a higher threshold in Iowa, thanks to evangelical voters, than he does in New Hampshire and South Carolina.

So Trump is meeting one kind of suspicion -- the dearth of his religious sincerity -- with another kind suspicion -- a suspicion that maybe, just maybe, Cruz isn't a "natural-born citizen."

Can Cruz overcome this? Maybe. According to the latest survey by Public Policy Polling, most Iowa Republicans don't yet know Cruz was born in Canada. But among those who do, says PPP pollster Tom Jensen, "Trump is crushing Cruz 40/14."

Count on Trump to educate them.

Cruz rode the wave of anti-Obama hysteria to the US Senate in 2010, a fear fueled by the conspiracy theory that Obama was not a "natural-born citizen." No matter how many times reasonable people argued to the contrary, no matter how much reasonable people used evidence to ease fears -- nothing worked. Trump showed reality isn't the point. It's fear.

We will know in a few days whether Cruz can weather Trump's "birther" attacks. One thing we already know: Once he finds something that works, Trump won't stop.

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By John Stoehr

John Stoehr is a lecturer in political science at Yale and the 2016 Koeppel Journalism Fellow at Wesleyan.

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