What’s Wrong with the World

The Harvard professor seems to me to be more plausible to start, but I still see what seem like pretty obvious gaps in his argument. So this post is probably not the definitive take on whether Ted Cruz is eligible to be president – I am guessing right now that there’s some grayness that makes it impossible to be definitive about it. So what I am going to do here [at least to start] is pointing out some flaws in the arguments already given, and maybe rate some of the arguments in terms of quality / plausibility / validity. That much I think I can deliver on, even if it’s impossible to be definitive.

The real question: pretty much everyone agrees that underlying source of the issue is the language in the Constitution that says only a person who is a natural born citizen can be president. Here is the actual language, Article II, Section 1:

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.

So, it really comes down to what it means to be a ‘natural born citizen’ and whether Cruz is that.

But before you tackle that definitional question, apparently we have to consider first how the definition is to be approached. The two sides of this debate are at odds whether this clause in the Constitution comes down to ‘what does common law say’ or whether it comes down to ‘what does statute say’. For, the at least one side of the debate apparently has been framing it as a debate instead about common law versus statutory law, claiming that the matter is to be settled under common law.

Which all gets into what we mean by ‘common law’ versus ‘statutory law’. Isn’t ‘statutory law’ just a redundancy? Well, yes it is. But let’s first take a small digression and talk about common law. My memory about the exact differences is a bit hazy, so let’s go look at sources.

Blackstone has this to say about it:

It is likewise ‘a rule prescribed.’ Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England.

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But with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offense: yet that right, and this offense, have no foundation in nature; but are merely created by the law, for the purposes of civil society.

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The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.

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But though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long established custom. Whence it is, that in our law, the goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runs not to the contrary. This it is that gives it its weight and authority: and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom.

This unwritten, or common, law is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification. 2. Particular customs; which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction.

I. As to general customs, or the common law, properly so called; this is that law, by which proceedings and determinations in the king’s ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offenses, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires.
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And thus much for the first ground and chief corner stone of the laws of England, which is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice: which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law.
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The Roman law, as practiced in the times of its liberty, paid also a great regard to custom; but not so much as our law: it only then adopting it, when the written law was deficient. Though the reasons alleged in the digest21 will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. ‘For since, says Julianus, the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind every body. For where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly?’
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Statutes are also either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, in perpetuum rei testimonium [as its lasting testimony], and for avoiding all doubts and difficulties, to declare what the common law is and ever has been. Thus the statute of treasons, 25 Edw. III. cap. 2, does not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offense, which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever.
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7. Where the common law and a statute, differ, the common law gives place to the statute, and an old statute gives place to a new one.

And then there is this:

To an American familiar with the terminology and process of our legal system, which is based on English common law, civil law systems can be unfamiliar and confusing. Even though England had many profound cultural ties to the rest of Europe in the Middle Ages, its legal tradition developed differently from that of the continent for a number of historical reasons, and one of the most fundamental ways in which they diverged was in the establishment of judicial decisions as the basis of common law and legislative decisions as the basis of civil law. Before looking at the history, let’s examine briefly what this means.

Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge.

Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense. Such codes distinguish between different categories of law: substantive law establishes which acts are subject to criminal or civil prosecution, procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty.

So, as Berkeley Law would have it, historically the US is a ‘common law country’ rather than a civil law country. However, if you look at the actual definition of a civil law country, one where they have a ‘comprehensive, continuously updated legal code that specifies all matters capable of being brought before a court’, you can see that it isn’t as clear as it used to be. Books holding just the federal statutes now in force, not counting the regulations that ‘have the force of law’ as the saying goes, or the annotations that cross-reference the effective dates and former versions and such, would take up a large and sturdy bookcase. All are perfectly codified, annotated, and updated at least annually. Furthermore, because of the 10th amendment leaving everything not ceded to the federals a state matter, at least for federal purposes there is a valid legal sense in which federal laws (taking the Constitution to be part of “law”) specify all matters capable of being brought before a federal court. However, at the same time, the courts (both state and federal) continue to operate and APPLY STANDARDS borrowed from British common law and developed in judicial precedent rather than by statute: judicial procedure and standards of interpretation are NOT specified in law, by and large. (Though there are inroads into this, too: mandatory sentencing laws encroach on judicial ‘law’). Consequently, what we actually have is closer to a ‘mixed’ situation than either a pure common law arrangement or a pure civil law arrangement. So the First Mistake we see is basing arguments on the notion ‘we are a common law nation’ without any acknowledgement of limits or qualifications on how true that is. And on the other side, arguments that assume ‘law’ means only what is written in statute passed by Congress and nothing else, as if custom, judicial precedent, and standards of interpretation are not also determinants of law.

Parts II and III will deal with 8 more mistakes in such articles - most of them much more juicy and interesting than this. But we can play with this for now.