Most constitutional scholars think that Senator Ted Cruz is eligible to be president because he is an American
citizen when born in Canada on Dec. 22, 1970. All thanks to a 1952
congressional statute that conferred natural-born birthright citizenship
on various foreign-born children of American citizens. (Cruz’s mother
was and is an American citizen, but his father was not in 1970.)
But there are others out there, for example, Mary Brigid McManamon, a professor at Widener University’s Delaware Law School,who disagree with this general consensus. Alas, Cruz cannot point to a
definitive U.S. Supreme Court case that squarely settles the
constitutional issue, and it is unclear how a definitive court case
might materialize.
The problem is not, as some commentators have claimed, a legal doctrine known as “standing” , a rule that requires that a person who comes to court must have a
proper legal interest at stake in the litigation. Rather, the biggest
barrier is a principle of judicial restraint known as “the political
question doctrine.”
A key idea underlying this doctrine is that the Constitution itself,
in its text or spirit, sometimes takes a certain sort of constitutional
question away from ordinary courts and makes some other decision-maker
the real judge a special court for a special question. In a
presidential impeachment, for example, the Senate, and only the Senate,
is the real court. Senators are the judges and jurors ''the deciders of
fact and law'' under the Constitution itself.
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