BOSTON The argument about Ted Cruz’s birth and eligibility to be president has become a major fight on the campaign trail between Donald Trump, Cruz and a prominent constitutional scholar from Harvard.
Trump has been raising questions about whether the Texas senator’s Canadian birth means he is ineligible to serve as president. The issue came up most recently Thursday night during the Republican presidential debate in Charleston, South Carolina.
“You have a big lawsuit over your head while you’re running and if you become the nominee, who the hell knows if you can even serve in office,” Trump said. “So you should go out and get a declaratory judgment and let the courts decide.”
Cruz responded sharply: “Listen, I’ve spent my entire life defending the Constitution before the U.S. Supreme Court and I’m not going to be taking legal advice from Donald Trump.”
It’s hardly surprising that Cruz is being targeted by Trump. The firebrand Texas conservative is competing for the same kind of voter as Trump, and he could win in Iowa and is gaining ground in New Hampshire. So Trump is eager to talk about the fact that Cruz was born to an American mother in Canada, and that according to the Constitution only a “natural-born citizen” can be president.
“Ted Cruz has a problem because the question is, is he a natural-born citizen?” Trump told supporters at a rally in Windham, New Hampshire, earlier this week. “The question was asked to me on the ‘Meet the Press,’ and I said, ‘I don’t know. I mean, nobody knows.’”
Four years ago, it was Trump who pushed discredited theories that President Obama was not a natural-born citizen. But what’s interesting about this round of “birther” allegations is that there is more than a shred of legitimacy to them.
“Laurence Tribe of Harvard, who’s a constitutional expert, one of the best in the country, said this is not a settled matter,” Trump told his supporters in Windham.
Questions about his birth and eligibility to be president have become a major irritant for Cruz, who was also in New Hampshire this week. He wanted to focus on Second Amendment rights, terrorism and his effort to unite conservatives, but he couldn’t escape the question about his Canadian birth.
“Well, listen, I like Donald,” Cruz told reporters in Hudson, New Hampshire. “The legal question is quite straightforward, which is the citizens of U.S. citizens born abroad are natural-born citizens — are citizens by birth. That’s true if you’re serving in the military. That’s why John McCain is a natural-born citizen even though he was born in Panama.”
Cruz says this is all settled law, but Harvard’s Laurence Tribe disagrees.
“It clearly is not settled law,” Tribe said in recent an interview.
Tribe brings an interesting perspective to this story. He obviously knows a lot about the law, but he also knows a lot about Cruz — because back in the mid-1980s, Tribe taught constitutional law to Cruz.
“He was very colorful,” Tribe recalled. “He took me on all the time, always had his hand up, he always wanted to disagree. And he got an A, and there weren’t that many As in a class of 150 or so.”
The source of their disagreement was their differing views of the Constitution. Tribe is a liberal who regards the Constitution as a living document that should be interpreted according to changing times. “If I were a justice on the Supreme Court applying my approach, I would actually vote for Ted Cruz’s citizenship,” Tribe said. “[But] Ted Cruz has always made fun of that way of looking at the Constitution.”
That’s because Tribe says Cruz is a constitutional “originalist,” who believes the document should be followed to the letter. Tribe says jurists who share such a view might well conclude that Cruz is not eligible to be president — because he was not born in America.
According to Tribe, this shows that Cruz is trying to have it both ways.
“It was [Cruz’s] view that the Constitution was frozen in time. Well now he’s become a fair-weather originalist. [The Constitution] means what it always meant unless it hurts his ambitions.”
“It was [Cruz’s] view that the Constitution was frozen in time,” Tribe said. “Well now he’s become a fair-weather originalist. [The Constitution] means what it always meant unless it hurts his ambitions — and that, I think, is the most important point in all this. It shows that he’s a constitutional hypocrite, that he’s self-serving, that he’s cynical, that he’s really unreliable. And it’s dangerous!”
For his part, Cruz is not fighting back and attacking Trump, lest he alienate his supporters. But he has fired back at Tribe.
“It’s more than a little strange to see Donald relying on a liberal, left-wing, judicial activist Harvard law professor, who is a huge Hillary supporter,” Cruz told reporters this week in Hudson. Cruz suggested that Tribe is part of an effort by Hillary Clinton to promote Trump because Democrats regard him as the easiest Republican to beat next November.
Tribe disputes that. He says he’s not working for Clinton and has no pony in the race between Cruz and Trump. “It’s a really a sign of desperation and foolishness to say that I’m expressing something other than my own view,” Tribe said.
For his part, Trump is happy to keep this issue alive. As he campaigned in New Hampshire this week, he said he was actually helping his rival by urging him to seek legal clarity on whether he’s eligible to be president.
“You can’t have a nominee who’s going to be subject to being thrown out as a nominee. You just can’t do it,” Trump told his supporters in Windham. “I’m sure that Ted is thrilled that I’m helping him — but I am!”
It’s the kind of help that Cruz could probably do without.