BIRMINGHAM, AL (WBRC) - A constitutional law scholar says whether Senator Ted Cruz is eligible for the Office of President is a question for the voters, not the courts to decide.
"It's a fair constitutional question," said Professor Thomas Lee of Fordham Law School.
Article II of the U.S. Constitution says, "No Person except a natural born Citizen...shall be eligible to the Office of President."
Senator Cruz was born in Canada to an American mother and a Cuban father. There is no question he is a citizen, but five Cullman County voters filed a lawsuit in early February alleging he does not qualify as a "natural born Citizen."
Lee says it the answer depends on how the Constitution is interpreted. One theory is called originalism and it is regarded as the most conservative view.
"If you're a constitutional originalist, you believe that a provision like that should mean what they meant when they were enacted in 1788," explained Lee.
In 1788, Lee says a person could be a natural born citizen only if he or she was born inside the country or was born to an American father. The citizenship status of the mother was not considered.
"I think he has claimed to be and asserted to be an originalist," said Lee of Cruz's views.
"If he is an originalist, he probably is not a natural born citizen and he should disqualify himself. I seriously doubt that would happen, but he should acknowledge that it is a problem for him," Lee said.
There are two other views of the constitution: textualist and living constitutionalism. Both views, Lee says allow a conclusion that Cruz qualifies as a natural born citizen.
A lawsuit filed in New York challenging Cruz's eligibility was dismissed last week based on technicalities.
Lee says this question of Cruz's eligibility should not be settled by the courts.
"I think it's a question for voters. It's a special occasion because it's an opportunity for voters to implement their idea of what the constitution means when they go to the ballot box," he said. "I personally, I think it's an anachronistic archaic rule. I think we should amend it. It was a function of the particular time and in many respects it's not a good rule but it's there and it's not been amended and we have to be honest about how to interpret it."