Ted Cruz, William Marbury and American Democracy

            John Marshall, Chief Justice of the Supreme Court in 1802, had a problem.

           William Marbury wanted the newly installed Jefferson administration to deliver a document enabling him to start a job to which former President John Adams had appointed him.

            Under the Judiciary Act of 1789, Congress gave the Court the power to issue orders to government officials requiring them to perform official actions required by law.  In Marshall’s view, Marbury was entitled to the document.

            Marshall believed that Jefferson was unlikely to comply with any such order. Were Jefferson to ignore Marshall’s order, Marshall worried, the Court would suffer a humiliation that could set a precedent emasculating the Court as an institution. 

            What to do?

            Marshall ruled that the Judiciary Act of 1789 was an unconstitutional attempt to expand the Court’s original jurisdiction, and accordingly the Court could not give it any force or effect. Without jurisdiction, the Court could not give Marbury the order he requested. 

            Though Marbury didn’t get his order, Marshall was able to use the case to establish the precedent of “judicial review,” which gives the Supreme Court the power to “say what the law is.”  The decision was an important legal innovation because the Constitution doesn’t explicitly give the Supreme Court the power to invalidate the actions of Congress or the President.

            Ever since, Americans have looked to the Supreme Court to tell them what the Constitution means.  And that, in a democracy, can be a real problem.

            Under our Constitution, Supreme Court Justices hold lifetime appointments.  They never have to face the voters or take any electoral responsibility for their decisions.

            Which brings us to Ted Cruz.  Cruz has been surging in the Iowa polls, and frontrunner Donald Trump has taken to insinuating that Cruz, who was born in Canada to an American citizen, is not a “natural born citizen” of the United States and is therefore Constitutionally ineligible to be elected President.

            The Supreme Court has never has defined the phrase “natural born citizen,” and so its meaning is still an open question.  As Trump points out, even if the Court were eventually to rule that a person like Cruz is a “natural born citizen,” it could take a long time for the case to work its way up to the Supreme Court.  A Republican ticket with Cruz on it could face an unpleasant surprise just before the November election.

            The Constitutional lawyers are having a field day.  I’ve seen well reasoned arguments holding that Cruz is eligible to be president and equally well reasoned arguments holding that he isn’t.  If the question depends on what the Framers of the Constitution or the people who ratified it meant by that phrase, the truth is that we’ll never know for sure. 

            That’s why it doesn’t make sense to let the Supreme Court give us the answer.  There are only nine Supreme Court justices, and it’s possible that five will have one answer to the question while four would have another.  If that were to happen, five politically unaccountable judges could prevent a candidate acceptable to a large swath of the public from becoming President.  That's simply not democratic.

            The better way to answer the question is to leave it up to the American people.  Whether Cruz could become president was a major issue at the last Republican debate, and there’s little doubt that if he is nominated for President or Vice President almost every voter will know about his nativity by the general election   If enough voters decide that Cruz is “natural born” enough to be President or Vice President and vote for him, that should decide the matter.

            Of course there would be arguments about legitimacy if we left the matter up to the democratic process.  Constitutional provisions , after all, are rules, and playing by them is part of what makes a democratic outcome legitimate.  Yet, here, the rules are not so clear, and legitimacy issues also arise when five unelected and unaccountable Supreme Court justices substitute their judgment for what may be the will of a political majority.

            Not all constitutional decisions can be left up to the people.  Supreme Court action is the best way to resolve controversies that pit state actions against federal actions. And the civil rights and civil liberties of political minorities can only be protected by institutions like the Supreme Court that are not accountable to political majorities.

            After his ruling in Marbury’s case, Marshall, who presided over the court for three decades, never again invoked judicial review.  Instead, he properly made a point of relying on democratic practices to resolve constitutional disputes.  And that’s exactly what we should do here.