Conservatives conserve. It’s right there in the name. They might not conserve our natural resources or grazing commons, but they will conscientiously conserve our traditions, for better or worse, standing athwart the flow of moral progress and commanding us all to go back. Back to the beginning, usually, or back to some idyllic (mythical) time.
In constitutional law, the conservative mindset manifests itself as originalism, that is, the belief that the meaning of the Constitution was perfectly fixed at the time of enactment. When faced with some quandary over constitutional language, originalists will go back to the most contemporary sources they can find to explain what a given word or phrase meant to the men who penned given lines into the U.S. Constitution.
For example, consider the following passage from A View of the Constitution of the United States of America (1829) by distinguished jurist William Rawle:
According to Rawle, it is one’s place of birth that determines the quality of natural born citizenship, and that place must be “within the United States, its territories or districts.” Former presidential candidate Barry Goldwater was born in the Territory of Arizona, and former presidential candidate John McCain was born in the Panama Canal Zone, an unorganized territory of the United States. They are both natural born citizens under Rawle’s usage, having been born in U.S. territories. Senator Ted Cruz, by contrast, was born in Calgary. He therefore cannot be considered “natural born” in the sense this phrase was understood by Rawle.
If we go further back to that great authoritative expositor of the common law, William Blackstone, we see a similarly circumscribed conception of what makes one natural born to some given nation:
Commentaries on the Laws of England: In Four Books, pg. 366
Commentaries on the Laws of England: In Four Books, pg. 372
Blackstone allows for a minor expansion upon the strict common law idea that “natural-born” requires one be born within the dominions of the nation, noting that “all children born out of the king’s ligeance whose father or grandfathers by the father’s side were natural born subjects are now deemed to be natural born subjects themselves to all intents and purposes.” This exemption for the citizenship of the father may also be found in United States Naturalization Acts of 1790 and 1795; however, the expansion of the “natural born” concept to include paternal citizenship would be of no help to Senator Cruz, since his father was born in Cuba.
If conservatives want to justify Cruz’s candidacy while remaining in line with conservative principles, they cannot look to progressive innovations in constitutional law from this century or last, they must go back to the common law and the precise way legal terms of art were used in the 1780’s. From the formation of common law, down through Blackstone, and up until at least the 1820’s, the phrase “natural born” did not include someone born to a foreign father on foreign soil.
American conservatives might love what Ted Cruz stands for, but they ought not compromise their constitutional principles for the sake of mere pragmatic politics. If conservatism is to stay true to itself, Cruz must go.
