Archive for March, 2010

Thoughts on “Deem & Pass”

Posted in Poli-ticks on 20100317 by Avenging Sword

As Steve has previously noted, House Democrats are thinking of employing a tactic called “deem & pass” to, well, pass health care reform.  I first saw mention of “deem & pass” in this query by David Kopel; in recent days, it’s received further attention from legal luminaries like Michael McConnell & Jack Balkin.  So what exactly is “deem & pass”?  Byron Tau enlightens us:

Okay, so here’s how the “deem-and-pass” procedure would actually work. The House Rules committee is often called the “traffic cop” of the House – controlling what bills come to the floor and how much debate is allowed on each one. On each bill, they pass what is called a “rule” – a resolution determining what kind of debate is allowed on each bill. The whole House must first pass the rule, then the underlying legislation. In the case of “deem-and-pass,” the vote on the rule would also have the effect of passing the Senate bill. According to the CRS report linked above, the House has used this procedure at least six times between 1989 and 2005 with both parties in charge. [emphasis added]

(A somewhat longer discussion can be found at The Monkey Cage.)

Why bother with such a convoluted procedure?  Ezra Klein explains:

The virtue of [deem & pass], for Pelosi’s members, is that they don’t actually vote on the Senate bill. They only vote on the reconciliation package. But their vote on the reconciliation package functions as a vote on the Senate bill. The difference is semantic, but the bottom line is this: When the House votes on the reconciliation fixes, the Senate bill is passed, even if the Senate hasn’t voted on the reconciliation fixes, and even though the House never specifically voted on the Senate bill.

It’s a circuitous strategy born of necessity. Pelosi doesn’t have votes for the Senate bill without the reconciliation package. But the Senate parliamentarian said that the Senate bill must be signed into law before the reconciliation package can be signed into law. That removed Pelosi’s favored option of passing the reconciliation fixes before passing the Senate bill. So now the House will vote on reconciliation explicitly and the Senate bill implicitly, which is politically easier, even though the effect is not any different than if Congress were to pass the Senate bill first and pass the reconciliation fixes after. This is all about plausible deniability for House members who don’t want to vote for the Senate bill, although I doubt many voters will find the denials plausible. [emphasis added]

IOW, “deem & pass” (aka the “Slaughter solution”, as it’s been called on the right) is intended to give House Dems some political cover, by (supposedly) enabling them to avoid having to vote on adoption of the Senate bill itself.

So, does the Constitution allow Congress pass a bill w/o having the House vote on it?  Michael McConnell says no:

Enter the Slaughter solution. It may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

Jack Balkin, on the other hand, says yes, observing that “There are plenty of precedents for passing legislation by reference through a special rule.”  However, he also notes that doing “deem & pass” constitutionally would effectively deprive House Dems of the political cover it’s supposed to provide:

… The point of bicameralism and presentment is that all three actors (House, Senate and President) must agree to the legislation, warts and all, so that all three can be held politically accountable for it. They cannot point fingers at the other actors and deny responsibility for the policy choices made. The House cannot say, “oh we didn’t pass X; that was the Senate’s decision.” If the House doesn’t accept the same language as its own, even if that language is then immediately changed in an accompanying bill, there is no law.

Speaker Pelosi is trying to give House members a way of saying they did not vote for the Senate bill, but my point is that however much she and they may be trying to do this rhetorically, she and they can’t really do this politically and constitutionally. They have to take responsibility for what they are doing and the language of the bill has to say that they are taking responsibility. This is the point of Article I, section 7.

Deem and pass may make some members of the House feel better by providing a sort of fig leaf, but to be constitutional the process cannot rid them of political responsibility for passing the Senate bill. If it did, they would not have created a valid law. Nevertheless, if both the House and Senate pass a reconciliation bill, then both House and Senate also can take political responsibility for getting rid of undesirable features of the original Senate bill. They can then both take credit for fixing the flaws in the former bill. Politicians taking responsibility for acts of legislation is the way the constitutional process is supposed to work.

Recall also the bolded passage in the aforementioned Tau excerpt:  in order for “deem & pass” to be used, “The whole House must first pass the rule” enabling its usage.  And, per the House Rules Committee, passage of such a rule requires a majority vote of the House.  Why is this important?  Well, if “deem & pass” requires a majority vote of the whole House to adopt the necessary rule, there’s the possibility that such a vote might end up being recorded.  In fact, this has happened in the recent past:  The same CRS report cited by Balkin (see also here for newer version) lists several instances where use of “deem & pass” resulted a record of the yeas & nays.

For example, as CRS notes:

On August 2, 1989, the House adopted a rule (H.Res. 221) that automatically incorporated into the text of the bill made in order for consideration a provision that prohibited smoking on domestic airline flights of two hours or less duration.

According to Thomas, this rule was passed by a vote of 259-169.

Another CRS example:

On February 20, 2005, the House adopted H.Res. 75, which provided that a manager’s amendment dealing with immigration issues shall be considered as adopted in the House and in the Committee of the Whole and the bill (H.R. 418), as amended, shall be considered as the original bill for purposes of amendment.

Per the House Clerk, this rule passed by 228-198.

Yet another example:

On March 14, 2007, the House adopted H.Res. 239, which stated that committee amendments to a whistleblower protection bill (H.R. 985) recommended by the Oversight and Government Reform Committee shall be considered as adopted in the House and the Committee of the Whole.

This rule passed by 223-193.

Admittedly, the other examples given by CRS did not record yeas & nays, but that’s because they were passed either by voice vote or without objection.  Neither option would seem to be available to House Democrats on the Senate health care bill, given the size of their majority, and the text of Art. I, Sec. 5, cl. 3 of the Constitution:

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. [emphasis added]

Ergo, since Republicans comprise more than 20% of the House, they could demand that their Democratic colleagues put themselves on record when voting for “deem & pass”.  Hence, while “deem & pass” may allow House Dems to avoid directly voting upon the Senate bill, it won’t enable them to do so without voting for the rule that would enable such avoidance.  And Republican spinmeisters would probably have no trouble portraying a House Democrat’s vote for “deem & pass” as being, effectively, the same thing as a vote for the Senate bill.  Which would seem to defeat the whole purpose of using “deem & pass” in the first place.

So is “deem & pass” constitutional?  Probably.  However, as an NVA colonel once observed (albeit in a totally unrelated context):  “That may be true. It is also irrelevant.”

Alternate Fourteenth Amendments

Posted in Law on 20100305 by Avenging Sword

A while back, Steve posed the following question in comments:

Was there any attempt that you know of to write into law anything about secession? That would have been the obvious route to take after the Civil War.

Well, in the midst of researching a future post (that may make its way hereabouts someday), I came across an interesting historical footnote.  Apparently, during the period between Congressional proposal & state ratification of the Fourteenth Amendment, various Southern states – which rejected the Fourteenth – proposed an alternative, “Southern Compromise” amendment that did include a section banning secession.  Following is the (italicized) full text of one such proposal, with my commentary after each section.

Section 1.  The Union under the Constitution shall be perpetual.  No States shall pass any law or ordinance to secede or withdraw from the Union, and any such law or ordinance shall be null and void.[1]

This, of course, is the anti-secession provision.[2]

Section. 2. The public debt of the United States authorized by law shall ever be held sacred and inviolate.  But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the government or authority of the United States.[3]

The equivalent of Sec. 4 in our Fourteenth.  Note that the second sentence does not prohibit payment of federal or state compensation to ex-owners of emancipated slaves.

Section. 3. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States in which they reside, and the Citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States. No State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.[4]

The equivalent of Sec. 1 in our Fourteenth.  The “privileges and immunities” clause of this section is a verbatim copy of the Comity Clause in the original Constitution.  I’m not sure of the reasons behind this change.

Section. 4. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when any State shall, on account of race or color, or previous condition of servitude, deny the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, and other officers elective by the people, to any of the male inhabitants of such State, being twenty-one years of age, and Citizens of the United States, then the entire race or color class of persons so excluded from the elective franchise shall not be counted in the basis of representation.[5]

The equivalent of Sec. 2 in our Fourteenth.  Unlike that provision, the effect of this one is limited to disfranchisements “on account of race or color, or previous condition of servitude” seems to have been intended to permit literacy tests & the like (and hence same sort of state-level end-run that actually occurred historically around the Fifteenth Amendment).[6] Note also the absence of the Fourteenth Amendment’s exception for abridgments based on “participation in rebellion, or other crime.”  This is unsurprising, given the origins of this proposal.

Note that the Southern Compromise completely omitted Sections 3 & 5 of our Fourteenth.  Given the vehement opposition these provisions aroused in the postwar south, [7] I suppose this was predictable.

As to why this “Southern Compromise” was rejected…I’m not sure, but my SWAG is ‘cuz the actual Fourteenth Amendment was pretty popular in the North.  (The Republicans made the amendment their platform, and swept the 1866 Congressional elections.)  The absence of punitive provisions probably didn’t help matters; even if the North didn’t want to hang every rebel, they did want treason made odious to some extent.  Ditto the prospect of getting taxed to pay compensation for former rebels’ emancipated slaves.  The addition of a provision declaring what most northerners believed to be already in the Constitution anyway (i.e., the illegality of secession) was probably viewed as chump change by comparison.

Speaking of punitive provisions…the diametric opposite of the Southern Compromise’s deletion of Sec. 3 could be found in the House’s final draft of the Fourteenth:

SEC. 3.  Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.[8]

At least as I read this provision, it would have disfranchised (at the very least) anyone who voluntarily served in the Confederate military, all former Confederate officials, anyone who lent money to the Confederate government or to rebel states, and anyone who supplied goods or services to the Confederacy.  Compare with the actual Sec. 3, which merely barred from office some Confederate leaders.  I’m not sure why the Senate Republicans killed the House’s disfranchisement provision (one of these days I’ll read up on the Fourteenth Amendment’s history & find out for sure), but I thought it interesting to note.


[1] See WALTER L. FLEMING, 1 DOCUMENTARY HISTORY OF RECONSTRUCTION 239 (1906) (hereinafter FLEMING).

[2] A variant on this provision, which was proposed by President Johnson, read as follows:

No State under the Constitution has a right of its own will to renounce its place in, or to withdraw from the Union.  Nor has the Federal Government any right to eject a State from the Union, or to deprive it of its equal suffrage in the Senate, or of representation in the House of Representatives.  The Union under the Constitution shall be perpetual.

See 1 FLEMING, supra note 1, at 239-240.

[3] Id. at 240.

[4] Id.

[5] Id.

[6] Note that this particular “southern substitute” for the Fourteenth was accompanied by a proposed amendment to the state constitution, which purportedly granted voting right to freedmen “who can read, and write, or who may be the owner of two hundred and fifty dollars worth of taxable property.”  Of course it also included a “grandfather clause,” exempting from such requirements anyone “who has heretofore exercised the right of suffrage under the Constitution of this State….”  See 1 FLEMING, supra note 1, at 239.

[7] Regarding opposition to Sec. 3, see FLEMING, supra note 1, at 236-237 (reprinting Arkansas & Florida resolutions rejecting the Fourteenth Amendment); also Joseph B. James, Southern Reaction to the Proposal of the Fourteenth Amendment, 22 J. SOUTHERN HIST. 477, 484-485 (1956) (noting Texas legislature’s criticism of Sec. 3); also id. at 490 (noting similar criticism by Georgia governor).  Regarding opposition to Sec. 5, see Steven A. Engel, The McCulloch Theory of the Fourteenth Amendment: City of Boerne v. Flores and the Original Understanding of Section 5, 109 Yale L.J. 115, 144-145 (1999) (noting southern concerns regarding the potential breadth of Congressional power under Sec. 5).

[8] See CONG. GLOBE. 39th Cong., 1st Sess., at 2545 (1866).

Incorporation & Gun Rights

Posted in Law on 20100302 by Avenging Sword

As DSL (I think) has noted, today the Supreme Court heard oral arguments in the “Chicago Gun Case,” McDonald v. Chicago.  At issue in this case is whether the Fourteenth Amendment requires that the constitutional right recently recognized in Heller v. DC apply to the states as well as the federal government.  For commentary, see Volokh Conspiracy and SCOTUSBlog.  (See also this series of posts @ VC; also this list of briefs in the case.)  As for my random thoughts on the matter:

1.  Background:  There are two separate arguments made for incorporation.  First, there’s the argument that the original meaning of the Privileges & Immunities Clause applied the Bill of Rights to the states.  One can indeed make a decent originalist case for P&I incorporation, and that’s exactly what Alan Gura, the lead attorney in this case, did.  OTOH, the question isn’t entirely closed; one can still argue against P&I incorporation on originalist grounds.  Part of the reason this dispute persists is historical:  when the Fourteenth Amendment was adopted, the main focus wasn’t on Sec. 1 (where both the Due Process and Privileges & Immunities clauses reside), but rather on the other sections.  Hence, you don’t have the sort of long, extended discussions of Section 1’s probable meaning(s) that you had with the ratification debates surrounding the original Constitution.  Since I tend not ignore constitutional issues that get lots of attention, I’m not really competent to judge who’s right on this question.

2.  Second, one can argue, as the NRA did, that an individual right to keep & bear arms is among those rights encompassed by the term “liberty” in the Due Process Clause, and that said right should therefore receive judicial protection against state action under the doctrine of “substantive due process.”  Interestingly, though most originalists believe that this doctrine has no foundation in the Fourteenth Amendment’s original meaning, I did recently come across an article suggesting that such pessimism may be premature.

3.  I’ve only skimmed the 77-page transcript of the oral argument, but based on what I saw, and commentary I’ve read elsewhere, it looks like the Privileges & Immunities argument is a non-starter for the court.  It seems even justices (e.g., Scalia) favorably disposed to originalist arguments are more concerned about stare decisis, given that the Slaughterhouse Cases’ evisceration of the P&I clause over a century ago.  Though I’m somewhat sympathetic to originalism, there’s also something to be said for respecting stare decisis, even for cases that were wrongly decided.

4.  That said, it seems both the conservatives & liberals were supportive of Due Process incorporation, with the probable fault line being what standard of review should be utilized.  (Good thing the NRA decided to focus on this argument….)  This isn’t entirely surprising to me; unlike the “Standard Model” (i.e., individual rights reading) of the Second Amendment, the notion of Due Process incorporation is a thoroughly mainstream one.  If the Second Amendment does indeed protect an individual right to keep & bear arms, the Court would look pretty silly if it didn’t incorporate it against the states.  Particularly since it’s long since done so in the case of rights nowhere explicitly mentioned in the constitutional text (e.g., abortion).

5.  OTOH, I’d be cautious about drawing too many conclusions from the oral argument.  I remember listening to the arguments from the Heller case, and seeing predictions of a unanimous or near-unanimous verdict.  This is one reason I’m reluctant to expend much time parsing the transcripts; I’d rather just wait for the opinion(s) themselves to come out.  I’m particularly curious how the liberal justices will react:  will they recap Breyer’s Heller dissent?  Or will they accept incorporation, and instead urge a relaxed standard of review (which would leave many/most state-level gun laws intact)?  And if the latter, how would they reconcile such a stance with their endorsement of Breyer’s Heller dissent?

6.  If 2A incorporation does win Supreme Court endorsement, then the key question becomes implementation.  How exactly do judges go about deciding whether gun registration is constitutional?  Or concealed-carry laws?  Or laws requiring trigger locks?  My thought:  for starters, they probably ought to read this article by Eugene Volokh.  Admittedly, Volokh is pro-gun-rights, but his article is less a brief for striking down all gun laws, and more of an extended meditation on what sorts of questions judges should consider when deciding the constitutionality of a given gun-control law.  He’s more concerned with defining the problem, than with arriving at specific answers.  Another noteworthy article is this one by Robert Churchill, which discusses Founding-era restrictions on gun possession (rare) and use (frequent).  Interesting how this nation “conceived in liberty” was hardly a libertarian paradise at birth….

Birthers & the Original Meaning of “Natural Born Citizen”

Posted in Law, Poli-ticks on 20100301 by Avenging Sword

I.  Birther Types

It has recently come to my attention that the “birther” movement is actually slightly more sophisticated than I initially thought.  In addition to the Type I Birthers, who deny the fact[1] that Obama was born on United States soil, there are Type II Birthers who accept this fact.  The Type II’s argue instead that the Natural Born Citizen Clause, as originally understood, was a rule of jus sanguinis,[2] barring from the Presidency anyone who (like Obama) was born of an alien father.[3] Though I suppose these Type II’s are more interesting, since they at least raise an intriguing legal argument[4] instead of trying to deny largely-irrefutable facts, I still don’t find their position convincing.  Rather, it seems pretty clear to me that the original meaning[5] of “natural born citizen” encompassed persons born of at least one alien parent upon US soil.

II.  “Natural Born Citizen” and English Common Law

In seeking to ascertain the original meaning of “natural born citizen”, it is helpful to recall that the Constitution was written & discussed in a legal context shaped for generations by English common law.  As Lawrence Solum notes,

[I]t seems clear that [natural born citizen] was derived from the related phrase “natural born subject,” which had a technical meaning in English law and constitutional theory.[6]

Therefore, when attempting to ascertain the original meaning of the Natural-Born Citizen Clause, it is advisable to focus on the common-law[7] legal meaning[8] of “natural-born subject” during the Founding era.[9] In particular, we must inquire whether “natural-born subject” encompassed those born of one or more alien parents upon English soil.  It seems pretty clear to me that it did.

The leading English precedent[10] regarding the question of birthright citizenship for aliens’ children was the 1608 decision in Calvin’s Case,[11] in which Sir Edward Coke provided an extensive discussion of the English law of citizenship.  Regarding the children of aliens, Calvin noted:

Sherley a Frenchman, being in amity with the King, came into England, and joined with divers subjects of this realm in treason against the King and Queen, and the indictment concluded contra ligeant’ sue debitum; for he owed to the King local obedience, that is, so long as he was within the King’s protection; which local obedience being but momentary and uncertain, is yet strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject….[12]

A 1698 English statute likewise referred to “every person or persons” born of at least one alien parent “within the Kings [sic] Dominions” as “the Kings naturall [sic] borne Subject or Subjects.”[13]

And finally, William Blackstone’s magisterial Commentaries on the Laws of England echoed this understanding of “natural born subject”:

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.[14]

Given the above sources, and particularly the Commentaries’ wide American readership[15] during the Founding era, it seems reasonable to conclude that, in the Founding era, the meaning of “natural born subject” (and hence “natural born citizen”) encompassed persons born of an alien parent upon US soil.

III.  Birthers & the (Ir)relevance of Vattel

Type II birthers, of course, reject the above analysis.  In support of their position, they instead cite[16] the following passage from Vattel’s Law of Nations:

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. … The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. … I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.[17]

Admittedly, this excerpt does endorse a jus sanguinis rule of citizenship.  However, what’s most significant about said excerpt isn’t its content, but rather the fact that it was excerpted from the 1797 edition of Vattel’s famous work.  In all the preceding English-language editions, the term “indigenes” was used in lieu of “natural-born citizens”.[18] Although birthers attempt to explain away these previous editions by arguing that “indigenes” & “natural-born citizens” purportedly meant the same thing,[19] such arguments are irrelevant from the standpoint of original meaning.  The Constitution was written in English, not French; as such, in order to demonstrate that the original public meaning of “natural-born citizen” incorporated a rule of jus sanguinis, one must show a Founding-era association between the English-language phrases “natural born citizen” or “natural born subject” and jus sanguinis.  However, no such association can be shown, given that the English editions of The Law of Nations extant during the Founding era did not even mention “natural born citizen” – let alone equate that term with jus sanguinis.  Nor do Type II birthers cite any Founding-era dictionaries equating “indigenes” with “natural born citizen” (or “natural born subject”).  It is therefore seems unlikely that the aforementioned Vattel excerpt accurately reflects the original meaning of “natural born citizen”.

QED, Barack Obama is eligible for the Presidency under the original meaning of the Natural Born Citizen clause.

IV.  Postscript:  McCain & the NBC

As has been previously noted,[20] John McCain also faced challenges to his eligibility under the Natural Born Citizen Clause.  In particular, Gabriel Chin has argued that, owing to McCain’s birth in the Canal Zone & the peculiarities of the citizenship laws then-applicable thereto, McCain was not a citizen at birth, and therefore could not be deemed a “natural born citizen.”[21] However, not only is the Chin’s statutory interpretation disputable;[22] but, along the lines of the aforementioned analysis, it could also be argued that the Founding-era common-law meaning of “natural born subject” (and hence the original meaning of “natural born citizen”) encompassed children born of military personnel stationed abroad.[23] The relevant case is Craw v. Ramsey, which noted that:

If the King of England enter with his Army hostilly the territories of another prince, and any be born within the places possessed by the Kings Army, and consequently within his protection, such person is a subject born to the King of England, if from parents subjects, and not hostile.[24]

On the other hand, notwithstanding the above statement, it appears the status of such children as natural-born subjects was sufficiently unclear that Parliament found it necessary to naturalize them via statute a few decades later.[25] As such, it remains unclear whether, in the Founding-era, the common law definition of “natural born subject” included children born of military personnel stationed abroad.[26]


[1] The birthplace & parentage of Barack Obama are clearly demonstrated by both his birth certificate from the State of Hawaii, as well as contemporaneous birth announcements in two Honolulu newspapers.  See Born in the U.S.A., FACTCHECK.ORG, Aug. 21, 2008, http://www.factcheck.org/elections-2008/born_in_the_usa.html (discussing authenticity of Obama’s birth certificate); also Births, Marriages, Deaths, HONOLULU ADVERTISER, Aug. 13, 1961, at B-6, available at http://whatreallyhappened.com/IMAGES/obama-1961-birth-announcement-from-honolulu-advertiser0000.gif (“Mr. and Mrs. Barack H. Obama, 6085 Kalanianaole Hwy., son, Aug. 4.”); also Marriage Applications Births–Deaths, HONOLULU STAR-BULLETIN, Aug. 14, 1961, at 24, available at http://www.thepostemail.com/wp-content/uploads/2009/12/HSB%20Birth%20Announcement%20081461.rar (“Mr. and Mrs. Barack H. Obama, 6085 Kalanianole Highway, son, August 4.”).

[2] I.e., “The rule that a child’s citizenship is determined by the parents’ citizenship.”  See BLACK’S LAW DICTIONARY 941 (9th Ed. 2009).

[3] See, e.g., John Charlton, Irrefutable Authority Has Spoken, THE POST & EMAIL, Oct. 18, 2009, http://www.thepostemail.com/2009/10/18/4-supreme-court-cases-define-natural-born-citizen/.

[4] Albeit one that has thus far been rejected by the courts.  See Ankeny v. Governor of Ind., 916 N.E.2d 678 (Ind. Ct. App. 2009), available at http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf.

[5] Admittedly, there are those who contend that “natural born citizen” had no original meaning.  See, e.g., Jill A. Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 YALE L.J. 881, 887-888 (1988) (“[A]t the time of the framing of the Constitution, there was no common understanding of what ‘natural born citizen’ meant.”)  This overstates the case, however, by confusing vagueness with ambiguity.  An ambiguous term, such as “cool”, has more than one meaning.  A vague term, like “tall”, does have a generally-accepted core of meaning; but it also admits of borderline cases where its applicability is uncertain.  See Solum, supra note 7, at 69-73.  In English & colonial law, term “natural born subject” may have been vague with regard to borderline cases like the children born abroad of English subjects.  See Pryor, supra, at 883 n.8.  However, notwithstanding such ambiguity, it was generally understood that persons born upon English soil were natural-born subjects (except for children of ambassadors or invading enemy aliens).  See infra part II.  It therefore seems more accurate to characterize “natural born citizen” as vague, not ambiguous:  Though it has a core, original meaning, its applicability in borderline cases (e.g., children of citizens born abroad) is unclear.  That said, such an understanding is not incompatible with Pryor’s approach of defining “natural-born citizen” via statute; rather, constitutional “construction” via action by the political branches is a plausible approach to addressing ambiguity.  See Keith Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL’Y 599 (2004).

Note that even under Pryor’s approach of defining “natural born citizen” with reference to citizenship law at the time of birth, Obama would be deemed a “natural born citizen”, both under Supreme Court precedent & then-current statutory law.  See United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) (“The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens….”); also Act of June 27, 1952, Ch. 477, 66 Stat. 163, 235, Title III, § 301(a) (“The following shall be nationals and citizens of the United States at birth: (1) a person born in the United States, and subject to the jurisdiction thereof….”).

[6] Lawrence B. Solum, Originalism and the Natural Born Citizen Clause 6 (Illinois Public Law and Legal Theory Research Paper, No. 08-17, 2008), available at http://ssrn.com/abstract=1263885.

[7] One must distinguish between the adoption of English common law in the United States (both before & after independence), and reference to common law definitions.  At the state level, adoption of the common law did vary; at the federal level, the existence of a federal common law of crimes was, in particular, notoriously disputed.  See Pryor, supra note 2, at 887 (“[T]he extent to which the colonies adopted British nationality law varied widely.”); also James Madison, Report on the Virginia Resolutions, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 546, 561-567 (J. Elliot ed. 1836) (critiquing the notion of a federal common law of crimes).  This is, however, independent of the referencing English common law definitions when seeking to determine the meaning of legal terminology; one can disagree about the extent to which the common law was in force at the federal and/or state levels in the Early Republic, while still conceding the relevance of English common law definitions to the Constitution of a country whose legal system derived from England’s.  As noted in United States v. Wong Kim Ark, 169 U.S. 649 (1898),

“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes.” “There is, however, one clear exception to the statement that there is no national common law. The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

Id. at 655 (quoting Smith v. Alabama, 124 U.S. 465, 478 (1888)).

[8] Id. (“The [Natural Born Citizen] clause nonetheless could have had a conventional semantic meaning determined by the linguistic practice of those learned in the law in the late eighteenth century – so long as the division of linguistic labor made the ‘technical meaning’ accessible to ordinary citizens.”).

[9] I.e., the years preceding & immediately following the drafting & ratification of the Constitution.  See Lawrence B. Solum, Semantic Originalism 2 (Illinois Public Law and Legal Theory Research Paper, No. 07-24, 2008), available at http://ssrn.com/abstract=1120244.

[10] Regarding the significance of Calvin’s Case, see Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case (1608), 9 YALE J.L. & HUMAN. 73, 139-140 (1997); also Bernadette Meyler, The Gestation of Birthright Citizenship, 1868-1898 States’ Rights, The Law of Nations, and Mutual Consent“, 15 GEO. IMMIGR. L.J. 519, 528-530 (2001).

[11] Calvin’s Case, 7 CO. REP. 1a, 77 ENG. REP. 377 (K.B. 1608).

[12] Calvin’s Case, 7 CO. REP. 1a, 6a, 77 ENG. REP. 377, 384 (K.B. 1608).

[13] See An Act to enable His Majesties naturall borne Subjects to inherite the Estate of their Ancestors either lineall or collaterall notwithsttnding their Father or Mother were Aliens, 11 Will. 3 c. 6 (1698), reprinted in 7 STATUTES OF THE REALM 590 (John Raithby, ed. 1820).

[14] WILLIAM BLACKSTONE, 1 COMMENTARIES 361-362 (William S. Hein & Co. 1992) (1765).

[15] For example, during the Virginia ratifying convention, James Madison described Blackstone’s Commentaries as “a book which is in very man’s hand….”  See 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 501 (J. Elliot ed. 1836) (statement of James Madison).

[16] See, e.g., Charlton, supra note 3.  Though this source additionally cites various Supreme Court cases for authority, the fact that such decisions post-date the ratification of the Constitution means that they provide little evidence of original meaning.  See Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional, 90 CAL. L. REV. 291, 380-382 (2002) (discussing the weakness of post-ratification precedents relative to evidence contemporaneous with the drafting & ratification of constitutional provisions).

[17] See 1 EMMERICH DE VATTEL, THE LAW OF NATIONS § 212, at 101 (London, 1797) (1758).

[18] See John Greschak, What is a Natural Born Citizen of the United States?, Dec. 2, 2008, http://www.greschak.com/essays/natborn/index.htm.

[19] See Mario Puzzo, Sep. 8, 2009, 9:15 PM Comment on The Natural Born Citizen Clause of Our U.S. Constitution Requires that Both of the Child’s Parents Be U.S. Citizens At the Time of Birth, A PLACE TO ASK QUESTIONS TO GET THE RIGHT ANSWERS, Sep. 8, 2009, http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html?showComment=1252469709665#c6930670571529813677 (“Someone during the 1797 English translation substituted the phrase ‘natural born Citizen’ for the words ‘natives’ and ‘indigenes.’ But the three words [sic] all meant the same thing, i.e., someone born in the county to citizen parents. Hence, the conclusion is that Vattel provided the definition of what a ‘natural born Citizen’ is….”).

[20] Avenging Sword, In Re Birthers, Sept. 9, 2009, http://aleksandreia.wordpress.com/2009/09/09/in-re-birthers/.

[21] Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship (Arizona Legal Studies Discussion Paper No. 08-14, 2008), available at http://ssrn.com/abstract=1157621.

[22] See, generally, Stephen E. Sachs, John McCain’s Citizenship: A Tentative Defense (Aug. 19, 2008), available at http://ssrn.com/abstract=1236882.

[23] This possibility was referred to obliquely by Stephen Sachs.  See id. at 8.

[24] Craw v. Ramsey, 124 Eng. Rep. 1072, 1075 (C.P. 1670).

[25] An Act to naturalize the Children of such Officers and Souldiers & others the natural borne Subjece of this Realme who have been borne abroad during the Warr the Parents of such Children haveing been in the Service of this Government, 9 Will. 3 c. 20 (1698), reprinted in 7 STATUTES OF THE REALM 380-381 (John Raithby, ed. 1820).

[26] A similar problem of vagueness afflicts the more general case of children born abroad to US citizens.  As noted by Sachs:

[T]he status of foreign-born children was unclear at common law. When Parliament considered the question in 1343, it determined that members of the royal family born abroad, who would otherwise be ineligible to inherit lands in England, should be considered as English subjects. “[A]s regards other children,” it was agreed “that they should also inherit wherever they are born in the service of the king.” Agreement was less forthcoming as to the children of ordinary subjects, but eight years later, Parliament enacted a statute generally granting inheritance rights to English children “born without the Ligeance of the King.” Scholars have since disputed whether this statute, and the several that followed it, were merely declaratory of the common law or instead augmented it.

Sachs, supra note 22, at 7 (footnotes omitted).