Professor Christopher W. Schmidt and Professor Matthew T. Bodie · April 2016
84 Geo. Wash. L. Rev. Arguendo 36
This Essay argues that recent debates over the eligibility of Barack Obama and Ted Cruz to serve as President offer unique insights into the phenomenon of constitutional contestation outside the courts. Rather than anything approaching serious constitutional engagement, the public debate over presidential eligibility has been characterized by dramatic shifts in public opinion, crass opportunism, and excessive deference to elite views. Cruz is a fervent advocate of the American people standing up against courts and elites when it comes to defining basic constitutional values, but he abandons his commitment to popular constitutionalism when it comes to questions of presidential eligibility. Instead, he favors a reading of the “natural born Citizen” clause that was crafted by constitutional lawyers under which he is eligible for the Presidency. Contestation over the meaning of the “natural born Citizen” requirement shows the power of popular constitutionalism to reframe the terms of a debate, but it also shows the fluid, ephemeral, and opportunistic qualities of popular constitutional claims.
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