Let’s make an honest man of Ted Cruz. Here’s how we resolve his “birther” dilemma with integrity

It appears that those who live by the sword of constitutional originalism may be destined to perish by its two edged blade—or maybe not.   Is Ted Cruz a “natural born citizen” under the U.S. Constitution and hence entitled to run for the president? Editorialists, pundits, constitutional law professors, and yes Donald Trump, have all weighed in on this question. The emerging consensus appears to be –well– that depends on your preferred theory of constitutional interpretation. If you support the idea of a living or an evolving constitution, or even if your support the pluralist methods favored by most modern judges, Cruz clearly meets the constitutional requirements for becoming president. Originalism, by contrast, the theory Cruz himself favors, offers the strongest arguments against his eligibility.

To date efforts to defend Cruz in originalist terms have not been especially effective. In a short article in the Harvard Law Review, Neil Katyal and Paul Clement, each a former solicitor general of the United States, argue in broadly originalist terms that Cruz is eligible. Neither Katyal nor Clement have strong originalist credentials, but they are two of the most effective Supreme Court litigators and their arguments are therefore less academic and more attuned to the type of originalist arguments likely to be persuasive in court.

These two “super” lawyers point to a series of statutes enacted by the British Parliament before the American Revolution as a key to unlock the meaning of this contested provision of the Constitution. It is true that Parliament extended the rights of natural born subjects to children born abroad to parents who were English subjects.   The problem for Cruz is that these laws only extended these rights to children whose father was a natural born subject. Given that Cruz claims American citizenship by virtue of his mother, not his father; he would not have been a natural born citizen under that definition.

A cleverer originalist argument has recently been floated that focuses on Parliament’s authority to change the English common law definition of natural born citizen, something it did several times in two centuries before the American Revolution. If one assumes that the Founding generation believed that Constitution gave Congress similar power under its authority to establish uniform rules of naturalization, Cruz is in good shape, even under an originalist model. If this were true and the term “natural born citizen” was something Congress could re-define as it wishes Cruz might still be able to have his originalist cake and eat it at the Republican national convention.

One of the problems this theory must overcome is the obvious differences between the scope of the British Parliament’s authority in the 18th century and the far more limited nature of the powers vested in Congress. Britain’s Parliament was omnipotent, Congress was limited by the text of the Constitution. Although ingenious, this type of originalist argument requires a good deal more historical evidence to prove that this understanding was wide spread in the Founding era. It would mean that Framers of the Constitution used a technical legal term borrowed from English law, but gave Congress the power to change its meaning. ...