What is Ted Cruz eligibility to be President? Let democracy sort it out.

Don’t get me wrong: I just love the schadenfreude of Republicans, having now purchased eight years of good will and continued power on the basis of a wink-wink/nudge-nudge Birther flirtation, finding themselves with a potentially – even just arguably – illegitimate candidate for President. Or more specifically: that Republicans have a choice of leadership between a lock of hair with an Il Duce complex or an illegitimate alien. Love it, love it, love it.

But as a citizen, I’m actually a bit caught off-guard that this question even exists? What is and what is not a legitimate candidate for President? Our nation’s relationship with Europe before and after the Revolution was a lot closer than it is now. I would have thought this question would certainly come up quite a bit.

Senator Ted Cruz’s eligibility to become President of the United States seems very-much in question, hinging on a very arcane set of conventions and historical interpretation of what a “natural born” citizen is.

Obama, McCain and The Ted Cruz Eligibility Problem:

In order for a person to become the President of the United States, that person must meet only three criteria: they must be over 35 years old, have lived in the United States for 14 years and be a “natural born” citizen of the United States. I think the Senator would forgive me if I say we’re not worried about his age. And he’s been in American political life for longer than 14 years, so we’re ok there. But this “natural born citizen” business? That’s different.

Ted Cruz is born to an American mother and a Canadian father, in Canada. To the casual observer, this would seem to be a pretty cut-and-dried case. But I’ll bet if you compared notes with your neighbor, you’d find that you came to different conclusions.

History isn’t much of a guide and the Constitution never makes clear what a “natural born citizen” is. Perhaps this is because at the time, there wasn’t a question: American law was founded by the British before the Revolution and after the Revolution, American lawyers would have followed British Common Law. The Constitution only concerned itself with building a government and the rest was left to the citizenry.

The Common Law process for citizenship would have been to base the solution on the patrilineage of the child. In other words, where Dad’s from is where Baby’s from. That puts Ted Cruz up to his flag pin in maple syrup.

This is actually a very different case from the two previous (and in President Obama’s case, perpetual) cases of citizenship and the Presidency. Conspiracy theories notwithstanding, the paper trail of President Obama’s life is one of an American born on American soil in Hawaii. In John McCain’s case, an American father and mother gave birth to a son on an American base, therefore American-occupied soil. Senator Cruz is very clearly born in Canada. Only the question of his parentage remains.

To any modern ear attached to any modern-thinking brain, this sounds pathetically, backwardly sexist. Like, wenches-and-knights sexist. Leprosy-and-mutton-legs backward. But it’s also the law, and you can’t just ignore it because you don’t like it. And so the issue remains.

Right now, there are Constitutional and legal scholars pouring over the records for some kind of precedent. Anything that would prove that, in the United States, the law was widely interpreted one way or the other. But they probably needn’t bother: it’s hard to imagine a scenario in which Americans would have broken with sexist tradition unless it was very, very recent.

The Good News: it’s not a Constitutional question.

As complicated as the question might be, it strikes me that this doesn’t necessarily have to be a question we leave to the scholars. For a start, since the basic problem is that the Constitution does not proscribe a solution in this case, this isn’t really a Constitutional question at all.

It is a question of whether we choose to live in a society that embraces a backward legal interpretation at the expense of modernity and gender justice. It’s also a question of whether we choose to live in a society that ignores legal precedent when it is inconvenient to our mores. It’s a hell of a question, as a matter of fact. And it probably shouldn’t be answered by anyone else but us.