Note: I expanded my post below into a full article.
By Dan Phillips
There has been a lot of chatter that President Elect Donald Trump may be considering Sen. Ted Cruz (R-TX) for the Supreme Court to fill the vacancy left by the death of Antonin Scalia. I was a big supporter of Trump in the primary and was critical of Cruz and many of his supporters, and I thought his stunt of not endorsing Trump at the Republican Convention was politically foolish.
So it might come as a surprise to many that I think Trump nominating Cruz for the Supreme Court would be a smart move. Cruz could generally be counted on to rule correctly, and it would be a magnanimous gesture on the part of Trump that would potentially placate many Cruz supporters. Cruz is also relatively young by typical Supreme Court nominee standards and would hold the seat for many years, and his presence on the Supreme Court would remove him as a potential political critic/opponent. Remember what Michael Corleone, a man who knows a little something about running an organization, said about keeping your friends close and your enemies closer.
That said, I will only support a Cruz nomination under one condition. He must recant his position that he is eligible to be President. He isn’t. Conservatives, especially conservative jurists, are supposed to use “original intent” as their framework for interpreting the Constitution. According to the most likely understanding of natural born citizen (NBC) in 1787-1789 when the Constitution was being written and ratified, Cruz isn’t a NBC, and it’s not really even a close call.
While there is some controversy about the circumstances of Cruz’s Canadian birth, there is no need to go into that because the question is still settled even if we grant the most favorable interpretation. According to the favorable interpretation, Cruz was a US citizen at birth according to the law at the time because his mother was a US citizen, but the law at the time of Cruz’s birth is not the determinative issue if you profess to believe in original intent. What should be determinative is what the original intent/understanding of the Framers and the state Ratification Conventions was in 1787–1789. In order for this standard to be changed it would require a constitutional amendment, not changes in subsequent naturalization legislation. You can’t change the meaning of the Constitution by legislative fiat.
Per Blackstone’s Commentaries at the time, which would have been the go to guide for the Framers, a child born abroad had to have a citizen father in order to be conferred automatic citizenship at birth. This standard was continued in the Naturalization Act of 1790, one of the first acts of the First Congress, although the language is a bit imprecise. This was also a standard that was continued in later naturalization acts. Therefore, Ted Cruz is not a NBC according to the original understanding because his father was not a US citizen at the time.
It doesn’t matter if you think this standard is archaic, sexist, misguided or whatever. It is what it is. You either believe in original intent or you don’t. You can’t be for original intent only when it’s convenient to your position.
This matters not because I think Cruz would act subversively to benefit Canada if he ever became President. It matters because original intent matters. I was very disappointed with my fellow conservatives during the primary because so few of them seemed to take the original intent argument seriously or even understand it. Instead, they would cite some recent judicial decision or the law when Cruz was born and consider the matter settled. Ummm… that’s what liberals who believe in a “living and breathing” Constitution do. Do these same conservatives believe that the abortion issue is settled because Roe v. Wade said so? When I would bring up the issue of original intent, I was usually met with either hostility or confused head scratching. Examining the issue from the standpoint of the Framers, which should be their default instinct, didn’t even seem to occur to many of them.
My hunch is that Cruz knows he is not eligible by his own professed standards and just wanted to be President despite that. That may be why he was essentially dismissive of the question and brushed it off by citing recent precedent like some liberal instead of formulating a serious case. For me to take Cruz seriously as a believer in original intent and someone worthy of conservative support for the Supreme Court, he needs to explain why he believes he is eligible by that standard or recant his position. I don’t honestly expect Cruz to recant, but he needs to be confronted on the issue. Otherwise, I really do think he would be a clever pick and a reliable ally on the Court.