One of my favorite Christmas presents this year was the original cast recording of the Broadway musical Hamilton, a hip-hop musical about Alexander Hamilton, book and lyrics by Lin-Manuel Miranda, quite brilliant. I’ve had Hamilton on the mind a lot lately, and I got interested in this question: could Alexander Hamilton have been elected President? I mean, would he have been eligible to be elected? Was President Obama eligible? What about Ted Cruz?

I always thought Hamilton couldn’t be. Next Monday will be his birthday: January 11, 1755. (Or maybe not: Hamilton was never sure about the year). Specifically, he was born in Charlestown, St. Kitts and Nevis. British West Indies. His parents, James Hamilton and Rachel Faucette had been married, but were divorced at the time of Alexander’s birth; Rachel accused, in court documents, of being a whore. Hamilton was therefore illegitimate. (She was more successful than that suggests, though; she ran a shop, and owned five slaves). When his Mom died, Hamilton was apprenticed to a local merchant, who eventually paid for his college education.

So, was he a ‘natural born citizen?’ I’m not a legal scholar; here’s an interesting article by a guy who is one. The Constitution was ratified in 1788, went into force in 1789. Article II, Section One sets out the qualifications to be President:

No Person except a natural born Citizen or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

I’d always assumed that this excluded Hamilton, since he wasn’t born within the boundaries of what would become the United States. But he’d been a resident of New York City for years before the Declaration of Independence or the Constitution were ratified. He never actually ran for President, but if he had, he would certainly have been considered eligible.

Which brings us to Obama. Barack Obama was born in Hawaii, uncontestably born in the United States. Of course, there was once a certain amount of ridiculous birther nonsense regarding his birth. In fact, if he had been born in Kenya, to a Kenyan father and an American mother, he might not have been eligible to be President. That’s not actually relevant or important, of course, but it is interesting.

The most prominent birther back in the day was Donald Trump, and his preposterous pursuit of The Truth of Obama’s Birth Certificate is actually significant, because of what it tells us about Trump’s character. I mean, it’s not like there’s any shortage of Trumpian character deficiencies that probably ought to give voters pause, but his obsession with the President’s birth had that unlovely blend of odiousness, mendacity and cantankerous pigheadedness that’s just primo Trump. He’s stopped talking about it lately. Because he’s got a new target: the Presidential eligibility of Ted Cruz.

The facts: Ted Cruz was born in Calgary, Alberta Canada, on Dec. 22, 1970. His mother, Eleanor Elizabeth (Darragh) Wilson and his father, Rafael Bienvenido Cruz, were working as computer programmers for an oil drilling company. Rafael Cruz was born in Cuba, attended the University of Texas, and applied and received political asylum, then moved to Canada. He was a Canadian citizen at the time of Ted’s birth. Cruz’s parents divorced in 1997.

So, should Cruz count as a ‘natural born citizen?’ I don’t know, and neither does anyone else. Probably, pragmatically, he should. The Congressional Research Service, in 2011, looked into it, and concluded that anyone who was a citizen at birth (as Cruz was, because of his mother’s citizenship) was eligible to run for President. I don’t see why that wouldn’t apply to Obama too, though, had he actually been born in Kenya. (Which he wasn’t. Because he was born in Hawaii. Can’t say that often enough). And last month, the Harvard Law Review published an article which came to the same conclusion.

But there’s never been a Supreme Court review of this question. The ‘natural born citizen’ clause of the constitution remains murky. If someone were stupid enough to challenge Cruz’s candidacy, it might go all the way to SCOTUS, and be definitively adjudicated. That’s probably not going to happen, though.

Here’s Donald Trump, out of the kindness of his heart, just trying to be helpful:

.@SenTedCruz Ted–free legal advice on how to pre-empt the Dems on citizen issue. Go to court now & seek Declaratory Judgment–you will win!

As Trevor Noah pointed out on The Daily Show last night, everything about this tweet is fabulous. First of all, addressing it to ‘Ted’: colleague to colleague, you see. I love the faux helpfulness. And Trump’s offering ‘free legal advice’ (to a Harvard Law school graduate, a guy who has argued seven cases before the Supreme Court). And then the advice: seek a Declaratory Judgment! In other words, take this fringe issue, and place it front and center in your campaign. “Hi, I’m Ted Cruz, and I’m running for President. An office for which I may not be constitutionally eligible. Vote for me!”

Trump’s just trolling, of course, and a week from now, the ‘Cruz eligibility issue’ will have disappeared. Here’s how it’s actually going to be resolved; Ted Cruz is running for President, and if he can persuade enough people to vote for him, he’s going to be President. He’ll be inaugurated, and he’ll move his family into 1600 Pennsylvania. Is he ‘constitutionally eligible?’ Not important: an esoteric legal question. Trump’s exploiting it, kind of slimily, because that’s what he does. It will work if it persuades some people not to vote for Cruz. I don’t really see that happening. There are plenty of other reasons not to vote for Ted Cruz. Or, for that matter, Donald Trump.

Here’s where this gets fun. All the legal analyses I mentioned above are by scholars using what is today the mainstream approach to the Constitution. It’s a ‘living document.’ Our understanding of it is colored by our time, our culture, our national needs. We need to govern today, now. Our reading is inevitably subjective, culturally determined. An approach which Ted Cruz philosophically opposes.

The pragmatic, ‘what does it matter?’ approach I just took directly contradicts the approach Ted Cruz (and certainly his followers) otherwise take to the Constitution. I mean, for some conservatives, things just are constitutional, or they’re not. It’s like there’s a single, definitive, engraved-in-stone Only Right Way to read the Constitution. Or the Bible. Or any other presumably authoritative text.

Is Obamacare constitutional? I’d say, of course it is. It passed both chambers of Congress, was signed into law by the President, and crucial provisions of it have gone through judicial review. Of course it’s constitutional.

But to some conservatives, none of that matters. Article I Section 8 enumerates specific things Congress can do. Regulating health care is not on that list. Therefore, regulating health care is not something Congress is allowed to do. It doesn’t matter that the Framers lived in a time when doctors were as likely to kill people as to heal them. It doesn’t matter that the General Welfare clause of the Constitution could arguably preempt Article I Section 8, which could be seen as just some suggestions. It doesn’t matter that we can probably stretch the Commerce clause to cover it. Nothing counts if it’s not specifically and clearly on the list. According to the Platonic Ideal Form for Ultimate Constitutional Readings, as revealed by God to James Madison, Obamacare can never be legitimate.

Go to TedCruz.org, his campaign website. Link to The Issues. Number one on his list is Defending The Constitution. And it takes about two seconds to find this gem:

We need to restore the Constitution as our standard. We need to protect the people by rolling back the federal government to the functions the Constitution sets out. We need to give power back to the states and the people so that we remain a land where liberty can flourish.

Of all the candidates running for President this cycle, the most fervent constitutionalist is undoubtedly Ted Cruz. Certainly, the one above all who, at least rhetorically, defends this notion of Constitutional Inerrancy, of our Founding Document as Monolithic, Literal and Definitive, is Ted Cruz. And the phrase ‘natural born citizen’ certainly suggests ‘born in the United States’ more than it suggests ‘born of an American mother and Canadian father, in Canada.’ What does the phrase ‘natural born’ suggest to you? The place where he was born, right?

Pragmatically speaking, this isn’t an important issue. Ted Cruz is running, people are going to vote for him, or not, and if enough people do, he’ll be the next President. But according to the logic of his reading of the Constitution, according to the Doctrine of Constitutional Literalism, it’s hard to see where he’s got a case. Contemplating both the delicious irony and the small whiff of hypocrisy at the heart of Cruz’s candidacy should get us through January, at least.

 

Ahem.