The irony of Cruz's (in)eligibility to be president

Factcheck.org looked into whether Ted Cruz's birth in Canada makes him ineligible to be president according to the requirement that one must be a "natural born" citizen.  They concluded that the issue "isn't quite as settled as Cruz makes out."'

The Constitution does not define "natural born," and the Supreme Court has never been called on to rule on its precise meaning -- even though the question came up when George Romney (Mitt's father) ran and, more recently, in 2008 when John McCain was the GOP nominee.   In both those cases, the parents were living temporarily abroad, the Romneys as missionaries and the McCains as a U.S. military family.   In Cruz's case, his American mother had moved to Canada to live with her Canadian citizen husband, but retained her U.S. citizenship.

There are some constitutional scholars who have concluded that natural born literally means born in this country and, therefore, Cruz is not eligible.

Other law professors, two former U.S. solicitors general, and the Congressional Research Service have all said that Cruz qualifies.   This has practical implications, because a law suit has already been filed in Texas challenging his eligibility, and Rep. Alan Grayson (D-FL) has said that he will bring a suit if Cruz is nominated.

The political implications are currently being exploited by Donald Trump in his usual way:  "I'm just saying . . . I don't personally care, but people are raising the question."  None is raising it so loudly as Trump himself, of course.   Despite Trump's rhetorical manipulations, it is a serious question.  What if a major party's nominee were, after the fact, found to be ineligible?

But here's where it becomes an ironic paradox.   I quote the article from Factcheck.org:

"During the debate, Trump repeatedly referred to another legal scholar, Laurence Tribe, a constitutional law professor at Harvard who once had Cruz as a student.  In an opinion piece penned for the Boston Globe on Jan. 11, Tribe opined that while 'no real court is likely to keep Cruz off the ballot, much less remove him from the White House if he were to win,' the kind of 'originalist' judges that Cruz has said he would appoint to the Supreme Court are the very ones most likely to conclude he is ineligible."

Tribe then explains that an originalist claims to interpret the Constitution according to its narrowly historical meaning at the time of its adoption.   "To this kind of judge," Tribe writes, "Cruz ironically wouldn't be eligible."

Tribe contrasted that with the kind of judge he admires, a "living constitutionalist," who believes that the Constitution's meaning "evolves with the perceived needs of the time and longstanding practice. To that kind of judge, Cruz would be eligible to serve because it no longer makes sense to be bound by the narrow historical definition that would disqualify him."

What makes this so ironic is that, in the debate, Cruz dismissed Tribe as "a left-wing judicial activist, Harvard Law professor who was Al Gore’s lawyer in Bush versus Gore. He’s a major Hillary Clinton supporter.”   Again, quoting Factcheck.org:

"But Tribe didn’t say he thinks Cruz is ineligible, only that he thinks Cruz is 'a fair weather originalist' when it comes to interpreting the Constitution’s definition of 'natural born.'

This may yet have to be decided by the Supreme Court.   If it comes to that, Cruz might do well to hire Laurence Tribe to defend his case, since he has already argued that he favors the evolved interpretation of the Constitution that would find Cruz eligible.   "I'm just saying . . . "

Ralph