Was it Marx who said that history repeats itself, the first time as farce, the second time as even zanier farce? In the late stages of the 2008 presidential primaries, rogue Hillary Clinton fans, desperate to avert defeat, started spreading weird rumours about the circumstances of the birth of rival Democrat Barack Obama. It is one of history’s great forgotten jokes that what has come to be known as “birtherism” began within the Democratic party. The official, acknowledged facts of Obama’s early life were awkward enough, but Clintonites doubled down, attempting to cast doubts on his parentage and his birthplace.
Those doubts have trundled along in defiance of all counterattack and scorn, and a significant fraction of the American public can no longer be convinced by anything that contradicts them. It is not clear, however, whether there is any point to birtherism. Under even the loopiest theories, it is pretty clear that Obama proceeded, somewhere on planet Earth, from the body of Stanley Ann Dunham, American citizen. This almost certainly makes him a “natural-born” American eligible for the presidency.
Act Two of the farce is beginning now, for the brightest early hope of the Republican party in 2016 may be junior senator and former Texas solicitor-general Ted Cruz. Cruz’s following is growing fast. The former star litigator has a plan for avoiding Mitt Romney’s mistakes, his intellectual calibre is impressive, and the Hispanic name and background don’t hurt. But however far his cause gets, he comes to the race pre-birthered. Cruz was born in Calgary on Dec. 22, 1970; his father, a Cuban exile, and his mother, an American from Delaware, were oil-patch folk.
Cruz’s family, which returned to the U.S. four years later, was a little more stable than Obama’s. But his acknowledged legal status at birth is virtually a perfect match to the one conspiracy theorists have been trying to attach to the current President. Daily Kos, the popular left-Democrat web organ, has already dubbed the senator “Calgary Cruz.” We never expected to see a presidential hopeful with a nickname taken from a Scott Young hockey book or a pro-wrestling undercard, but there you have it.
Can Calgary Cruz be president? The term “natural-born” in Article Two of the U.S. Constitution is not defined in the document, is not specified in the surviving record of the constitutional debates and has never been argued before the Supreme Court. We know exactly why the founders wanted to surround the chief magistracy with tight eligibility criteria: the early republic was beset by foreign adventurers and schemers, and Americans feared subversion by some wealthy interloper of princely rank. (They were particularly nervous about Frederick, duke of York, second son of George III. But they might not have liked Arnold Schwarzenegger much either.) Article Two clearly excludes citizens who have had to be naturalized to become Americans. That was the point.
When it comes to Americans born abroad, arguments about eligibility can be constructed for both sides. But the case against Cruz and people in his position is flimsy. There is a strong natural logic to the idea that Cruz would be a “natural-born citizen,” since he never had to do anything but cross the border to inherit his mother’s U.S. citizenship rights. When Congress originally set out its own eligibility criteria, both houses were careful not to exclude non-native citizens. It seems improbable that founders pressed into expensive, dangerous overseas service could have meant to exclude their own children born abroad; Federalist Papers author John Jay, the first person known to have proposed the “natural-born” limitation on the presidency, had children in both France and Spain. And while the Constitution does not define “natural-born,” the Naturalization Act of 1790 specified that the term includes Americans born outside the U.S., “provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
These are only the highlights of a mass of evidence, and there is nothing on the other side but speculation about what esoteric, counterintuitive significance “natural-born” might have meant at the time of the founding. But it will be hard for the issue to be firmly settled by the Supreme Court until a Calgary Cruz or a Johannesburg Joe Blow actually wins a U.S. election. If Panama-born John McCain could have closed the deal, he might have spared us all this spectacle.
On the web: For more Colby Cosh, visit his blog at macleans.ca/colbycosh