Archive for the Poli-ticks Category

Historical Tax & Income Data: Some Charts

Posted in Econ, Poli-ticks on 20100830 by Avenging Sword

With several of my co-bloggers raising the issue of how income & federal tax liabilities are distributed among different income levels, I figured I’d reacquaint myself with Microsoft Excel, and gin up some semi-relevant charts.  Fortunately, the Congressional Budget Office already did the heavy-lifting back in December ’08; responding to a query from Sen. Baucus, they drafted a letter[1] providing historical data for various income categories, with particular attention to higher-income ones.  Chart 1 plots the total federal tax liability for each of several income categories, as a % of household income.  Charts 2 & 3 plot the proportion of federal taxes paid by said categories; while Charts 4 & 5 plot the proportion of income earned by each category.

[The last link above is to an Excel spreadsheet containing the raw data I used for these charts.  Just in case anyone wants to check my sums (probably a good idea), or gin up some other charts using different income categories (YMMV).]

Chart 1:  Effective Federal Tax Rates[2]

Chart 2:  Share of Federal Tax Liabilities[3]

Chart 3:  Share of Federal Tax Liabilities (Again)

Chart 4:  Share of Income[4]

Chart 5:  Share of Income (Again)


It occurred to me that, when drafting the above, I neglected the top 10%.  Chart 6 plots relevant historical stats for that particular category.

Chart 6:  The Top 10%[5]

[1] The CBO publication in question is Historical Effective Tax Rates, 1979 to 2005: Supplement with Additional Data on Sources of Income and High-Income Households (December 2008), available at (hereinafter Historical Tax Rates).

[2] Data for this chart comes from Table 1 of Historical Tax Rates, under the heading “Total Effective Federal Tax Rate”.  For “Percentiles 81-99”, I calculated – as weighted averages – pre-tax and after-tax incomes for each year, using data from Table 3 regarding numbers of households and average household income for each of “Percentiles 81-90”, “Percentiles 91-95”, & “Percentiles 96-99”.  I did the same for “Top 1%”, using data for “Percentiles 99.0 – 99.5”, “Percentiles 99.5 – 99.9”, “Percentiles 99.9 – 99.99”, & “Top 0.01 Percentile”.

[3] Data for Charts 2 & 3 comes from Table 2 of Historical Tax Rates, under the heading, “Share of Total Federal Tax Liabilities”.  Each datapoint for “Percentiles 81-99” sums “Percentiles 81-90”, “Percentiles 91-95”, & “Percentiles 96-99” for that year.  Each datapoint for “Top 1%” sums data for “Percentiles 99.0 – 99.5”, “Percentiles 99.5 – 99.9”, “Percentiles 99.9 – 99.99”, & “Top 0.01 Percentile”.

[4] Data for Charts 2 & 3 comes from Table 3 of Historical Tax Rates, under the heading, ” Share of Income (Percent)”, and the subheading, “Pretax Income”.  Each datapoint for “Percentiles 81-99” sums “Percentiles 81-90”, “Percentiles 91-95”, & “Percentiles 96-99” for that year.  Each datapoint for “Top 1%” sums data for “Percentiles 99.0 – 99.5”, “Percentiles 99.5 – 99.9”, “Percentiles 99.9 – 99.99”, & “Top 0.01 Percentile”.

[5] As with “Top 1%” in Chart 1, I calculated the “Total Effective Federal Tax Rate” for each year by calculating – as weighted averages – pre-tax and after-tax incomes for each year, using data from Table 3 of Historical Tax Rates regarding numbers of households and average household income for each of Percentiles 91-95″, “Percentiles 96-99”, “Percentiles 99.0 – 99.5”, “Percentiles 99.5 – 99.9”, “Percentiles 99.9 – 99.99”, & “Top 0.01 Percentile”.  I summed the relevant percentages for these categories from Tables 2 & 3 to calculate “Share of Pretax Income” and “Share of Federal Tax Liabilities”, respectively.


In Re the Lincoln Memorial Singers

Posted in Law, Poli-ticks on 20100817 by Avenging Sword

1.  I can’t be sure w/o talking to the Park Police, but I think the regulation violated by those singing students was 36 C.F.R. § 7.96(g)(2), which states that “Demonstrations and special events may be held only pursuant to a permit issued in accordance with the provisions of this section….”  Per 36 C.F.R. § 7.96(g)(1),

(i) The term “demonstrations” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. This term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers.

(ii) The term “special events” includes sports events, pageants, celebrations, historical reenactments, regattas, entertainments, exhibitions, parades, fairs, festivals and similar events (including such events presented by the National Park Service), which are not demonstrations under paragraph (g)(1)(i) of this section, and which are engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. This term also does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers. [emphasis added]

Meanwhile, 36 C.F.R. § 7.96(g)(3)(ii) prohibits issuance of permits for demonstrations or special events at the Lincoln Memorial:

(ii) Other park areas. No permits may be issued authorizing demonstrations or special events in the following other park areas:


(B) The Lincoln Memorial, which means that portion of the park area which is on the same level or above the base of the large marble columns surrounding the structure, and the single series of marble stairs immediately adjacent to and below that level, except for the official annual commemorative Lincoln birthday ceremony.

The regulation also provides this helpful map, in case the above is unclear:

Since ISTM any of the bolded excerpts of § 7.96(g)(1) would cover the students’ performance of the National Anthem, said performance could rightly be deemed a “demonstration” or “special event” for the purposes of the regulation.  As noted in Oberwetter v. Hillard (discussed below), the combination of the permit requirement in § 7.96(g)(2) and the permit prohibition of § 7.96(g)(3)(ii)(B) effectively prohibits all “demonstrations” & “special events” at the Lincoln Memorial (besides the official commemoration of Lincoln’s birthday).  Based on that Fox News video to which Gary Fouse linked, it appears the students’ singing occurred on the Memorial’s front steps – i.e., within the area marked “Restricted” in the above map, and described as the “Lincoln Memorial” in the regulations.  Thus, it appears the police were right to consider the students’ activity a “demonstration” which was in violation of the above regulation.

2.  As for the First Amendment, ISTM the relevant precedent is Oberwetter v. Hillard, No. C 09-0588-JDB (D.D.C. Jan. 25, 2010), which concluded:

A prohibition on expressive activities in a nonpublic forum does not violate the First Amendment if it is viewpoint neutral and is “reasonable in light of the use to which the forum is dedicated.” Grace, 461 U.S. at 178; see also Perry, 460 U.S. at 46. Here, the ban on demonstrations at the Jefferson Memorial satisfies these requirements.

Admittedly, the facts in that case are somewhat different – the incident there occurred at the Jefferson Memorial, not the Lincoln Memorial, and involved expressive dance, not singing.  However, the regulations at issue in that case were the same; and after reading portions of the opinion, it appears much of its reasoning regarding non-public fora:

[T]he physical characteristics of the Memorial’s interior indicate that it is a nonpublic forum. It is physically distinguishable from the surrounding parkland: an individual must affirmatively decide to visit the interior of the Jefferson Memorial. The visitor must step off of a path, ascend forty steps, and traverse a portico — passing a sign requesting “Quiet Respect” — before entering the Memorial’s interior. Unlike the sidewalks at issue in Grace and Henderson, the pedestrian is inevitably aware that in moving from the parkland to the interior of the Memorial he or she “ha[s] entered some special type of enclave.” Grace 461 U.S. at 180.  A pedestrian simply does not “happen” upon the interior of the Memorial.

Furthermore, the Jefferson Memorial has the specialized purpose of publicizing one of the nation’s founders — supporters and critics alike may visit the Memorial to contemplate Jefferson’s place in history. This purpose marks the Memorial as unique, and hence unlike quintessential examples of public fora — streets, parks, and sidewalks, all “necessary conduit[s] in the daily affairs of a locality’s citizens, but also . . . place[s] where people may enjoy the open air or the company of friends and neighbors in a relaxed environment.”  Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981). Indeed, the National Park Service has closed the interior of the Jefferson Memorial to a wide range of expressive conduct, thereby indicating that it is “public property which [is] not by tradition or designation a forum for public communication.” Perry, 460 U.S. at 46; see also Marlin v. Dist. of Columbia Bd. of Election & Ethics, 236 F.3d 716, 719 (D.C. Cir. 2001) (interior of polling place a nonpublic forum because of “longstanding limitations on polling place speech”).  (Slip op. at 15-16) (footnote omitted)

…governmental interests:

[T]he purpose of the Memorial is to publicize Thomas Jefferson’s legacy, so that critics and supporters alike may contemplate his place in history. The Park Service prohibits all demonstrations in the interior of the Jefferson Memorial, in order to maintain an “an atmosphere of calm, tranquility, and reverence,” 41 Fed. Reg. at 12880, and thereby fulfill this purpose. The D.C. Circuit has recognized these interests as legitimate goals of speech regulation at our national memorials. Prohibiting demonstrations is a reasonable means of ensuring a tranquil and contemplative mood at the Jefferson Memorial. The Court can imagine that permitting the public to engage in expressive dancing — and various other forms of demonstration — could interfere with such an environment. That such conduct may result in a crowd or onlookers is but one example of how the conduct could undermine “an atmosphere of calm, tranquility, and reverence,” a result that need not be tolerated before it is prevented.

The Court recognizes that the regulation’s definition of “demonstration” may encompass conduct potentially not contemplated by the Park Service — for example, a history professor giving a lecture in the Memorial. But whether the regulation produces some silly results does not determine the outcome here. The mere fact “[t]hat narrower regulations might be as effective or more so . . . does not invalidate the means the [Park Service] has chosen. Regulation of a non-public forum, unlike that of a public forum, need not be ‘narrowly drawn to achieve its end.'” Accordingly, the Court cannot, and will not, substitute its own vision of the best regulation to achieve the Park Service’s interest, given that section 7.96 is reasonable as drafted. (Slip Op. at 17-19) (citations omitted).

…and content neutrality:

The regulation is viewpoint neutral because its prohibition of “demonstrations” does not favor certain ideas over others. See Boos v. Barry, 485 U.S. 312, 319 (1988). The Park Service has not, in precluding the array of expressive activities that have an “the effect, intent or propensity to draw a crowd or onlookers,” 36 C.F.R. § 7.96(g)(1)(i), denied “access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject,” Cornelius, 473 U.S. at 806. Indeed, the regulations do not limit the message of speech at all; rather they exclude all demonstrative activities that reasonably could interfere with the “atmosphere of calm, tranquility, and reverence” at the Memorial. (Slip Op. at 19) (footnote omitted).

…would seem to be equally applicable to the singing students’ scenario, provided the students’ action was indeed a “demonstration” or “special event” (as I argue above).  I believe this case is currently on appeal; it’ll be interesting to see what the D.C. Circuit makes of it.

3.  Personally, I’m glad the aforementioned regulations are in place.  I’ve visited the Lincoln Memorial several times, and I rather enjoy the “atmosphere of calm, tranquility, and reverence” said regulations seek to preserve.  Sort of a secular version of church services (or at least the silent portions thereof).  As I noted earlier, had I been at the Memorial when these students decided to start singing, it’s even money whether I would’ve found their actions amusing – or immensely annoying.

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.”

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, (discussing authenticity of Obama’s birth certificate); also Births, Marriages, Deaths, HONOLULU ADVERTISER, Aug. 13, 1961, at B-6, available at (“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 (“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,

[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

[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

[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

[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,

[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, (“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,

[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

[22] See, generally, Stephen E. Sachs, John McCain’s Citizenship: A Tentative Defense (Aug. 19, 2008), available at

[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).

On Prosecuting Torturers (And The Like)

Posted in Links, Poli-ticks on 20100227 by Avenging Sword

Given the recent headlines regarding the OPR Report on Yoo & Bybee, I figured I’d run the risk of repetition and whip some of my previous comments into an actual post regarding whether we should prosecute those who tortured.[1] If you’ve no desire for exposure to repetition, I’ll save you the trouble by presenting my conclusion up front:  I don’t think prosecutions are a good idea.

It’s not that I don’t think the potential targets of such prosecutions are guilty; though I’ve not looked into the question in detail, my SWAG is that yes, interrogators & the like did indeed [insert favored torture euphemism] detainees, prisoners, etc.  Nor would I be surprised if explicit or implicit approval of such behavior extended up the chains of command.  Well, torture is illegal, isn’t it?  If we truly believe in the rule of law, why shouldn’t we prosecute the torturers & their accomplices?

The rule of law is important, but it is not an end in itself.  It is a means to several ends, among them being the maintenance of social peace.  Strictly speaking, the “upholding the rule of law” would have required prosecuting every Confederate veteran for treason; this was not done, for the sake of social peace.  Strictly speaking, “upholding the rule of law” would require rounding up & deporting every single illegal alien; arguably, we’d be better off not doing that, again, for the sake of social peace.[2] As Gregory Rodriguez noted (albeit in a different context):

It is true that the failure to punish lawbreakers challenges the rule of law and our collective sense of fair play. When we abrogate that rule, we threaten to undermine the social contract. And yet the very idea of pardons and amnesties presupposes that law has its limits and that, on occasion, it is trumped by other values – social cohesion, for one, and a larger view of justice, for another. If the hunger for judgment and punishment is driven – and I believe it is – by a sense of resentment toward lawbreakers, then acts of political forgiveness represent the lifting of that resentment.

As a means to keep the peace, in 1795 President Washington pardoned the leaders of a rebellion against the whiskey tax, a controversial law that was later repealed. In order to “bind up our nation’s wounds” during and after the Civil War, Abraham Lincoln and Andrew Johnson issued more than 200,000 presidential pardons to Union deserters and Confederate soldiers. Indeed, Johnson’s 1868 Christmas amnesty proclamation granted unconditional pardons to all participants in the war.

In 1947, President Truman issued pardons to 1,500 World War II draft resisters. A few years later, he granted amnesty to 9,000 deserters from the Korean War. A generation later, in 1974, Ford offered a conditional amnesty to men who evaded the draft during the Vietnam War. In 1977, in one of his first acts as president, Jimmy Carter granted draft evaders a “full, complete and unconditional pardon.” His act was meant to put the divisions and antagonisms of the war behind us.

If there was a near-universal domestic consensus that the Bush et al committed/condoned criminal actions worthy of prosecution, then I’d be far less leery of impeachment.  As it is, I see no such consensus.  When I look at polls[3] regarding torture (and the prosecution thereof), what’s striking to me isn’t the (occasional, sometimes-slim) majorities in that oppose torture & favor prosecutions, but rather the substantial minorities that support torture and oppose prosecution.

Having read about Jacksonians a while back, this frankly doesn’t surprise me.  Nevertheless, given the existence of such division amongst Americans, I fear that prosecutions of Bush et al, particularly if conducted by the other party, would be viewed by a non-trivial portion of the public not as “upholding the rule of law”, but rather the pursuit of a partisan political vendetta.  From which the take-home message would not be “Don’t do illegal stuff”, or even “Don’t get caught”, but rather, “If you hold political office, never let go of power, lest your enemies hound you ’till you’re in chains”.  This would not be a healthy development for the Republic.

I would say more along these lines, but John Hawkins already said it a while back:

Trying to prosecute key Bush Administration officials on what are viewed as trumped up, politically based charges would create a firestorm of partisanship and outright hatred that would surpass anything in American history since the Civil War. Members of a political party in the United States, whether it be Republican or Democrat, are simply not going to stand by idly with their hands in their pockets while their political views are criminalized.

At best, this would lead to tit-for-tat prosecutions. By that, I mean if Democrats throw George W. Bush in jail for ten years, Republicans will do their best to find an excuse to throw Barack Obama in jail for ten years — and don’t think it can’t happen. The American political system tends to be cyclical and so today the Democrats may be on top — but in four to eight years, when Obama leaves office, it’s entirely possible the GOP could be in charge of both Houses of Congress — and looking for an opportunity to get payback for Bush. Again, that is the best case scenario. The worst case scenario could mean blood in the streets, riots, and a breakdown of the “orderly transfer of power” that has always been a hallmark of American democracy.

One of the reasons that has never been an issue previously is precisely because the loss of power for an American politician doesn’t mean that he’s threatened with the loss of his life or liberty. If we throw the rule of law out the window and leaving office may mean a prison sentence or worse, those “orderly transfers of power” we have in this country are going to begin to break down — and politicians will use any means necessary to remain in charge. It’s understandable if that sounds farfetched since events of that sort haven’t happened on a widespread scale here since the Civil War, but there are many nations across the world where a change of leadership is a terrifying and violent ordeal for the populace. There’s very little to be said for potentially joining their ranks.

Ultimately, I’m more inclined to echo Matthew Yglesias’s opinion that, if we’re concerned about preventing torture in the future, we should be less concerned about prosecuting past torture than shrinking those aforementioned “substantial minorities” into the consistently-low-single-digit range.  Granted, on the one hand, it’s possible that torture prosecutions would present a “teachable moment” & further this goal.  OTOH, however, it’s also possible that they could indeed be seen as another data point on a trendline of using the criminal justice system to harass political opponents.[4] Does the risk of the latter outweigh the potential benefit of the former?  I’m not sure, but my gut tells me no.[5]

Interesting aside:  Brad Wendel notes the relevance of the torture memos debate to the question of legal (in)determinacy.  More on that rather dry & abstract question from Lawrence Solum here.

[1] Or “used enhanced interrogation techniques”.

[2] I fully recognize that there were/are other factors militating against prosecution in both of the cases.

[3] See, e.g., here, here, and here.

[4] And on the gripping hand, as Tyler Cowen points out, it’s possible that we might throw a torture trial, and the torturers might actually win.

[5] I wish I had more supporting evidence than a SWAG, but absent a handy-dandy alternate universe upon which I could run controlled socio-political experiments, it seems guesswork is all I’ve got to go on.  Alas.

In re the Austin IRS Incident

Posted in Poli-ticks on 20100219 by Avenging Sword

1.  It seems this guy was a chronic tax avoider.  Color me unsympathetic.

2.  On the topic of tax avoidance, see this article:  Ten Tax Protestor Claims To Avoid.

3.  Those curious about the tax code provision may want to peruse this comment thread over at the TaxProf Blog.

4.  More relevant links from the TaxProf Blog.

5.  Title-of-the-day award goes to this post at the Tax Policy Blog:  Austin Suicide Pilot Allegedly Upset By Denial of Ind. Contractor Status to Non-Ind. Contractors.

6.  One reason we need to simplify our tax system.

7.  Reading the perp’s complaints regarding the recent wave of bailouts makes me wonder whether I’m the only guy left in the country who’s even vaguely sympathetic to Bernanke, Paulson, & Geithner.  Hmmm…maybe they should’ve taken the do-nothing approach back in Sept. ’08.  Tough on the rest of the country, but at least it would’ve shut up the latter-day liquidationists for a generation or so.

8.  I honestly don’t know if tea-party rhetoric was a contributing factor in this case.  Looking at his suicide note, it seems his issues w/ the IRS/government date back many years.  My SWAG is that he already had all the necessary impetus to do what he did; anything the tea partiers might’ve said would’ve been mere icing on the cake.  That said, as I previously noted WRT the prolife movement:  anyone using sufficiently extreme rhetoric should consider incidents like this a cost of doing business.

Left-Wing(nut) Birthers

Posted in Law, Poli-ticks on 20100209 by Avenging Sword

Via Volokh Conspiracy, I came across this interesting article.  It traces the Birther hoax’s actual origins not to right-wing conspiracy theorists, but rather to disgruntled Hillary Clinton supporters.  Admittedly, I’ve never followed the birthers closely, so I’m not sure if this is true or not.  If it is, however, it strikes me as more than a little ironic.  And amusing.

Though I consider the birthers’ prominence a lamentable example of the ignorance that frequently pervades our political system, it does have a couple of upsides.  First, I suppose the birthers do provide some measure of ongoing entertainment value.  Second, those seeking to debunk the birthers have produced a number of websites digitizing (inter alia) pre-Fourteenth Amendment discussions of birthright citizenship.  I found these occasionally useful when researching an article I’m writing about that topic:  Though good mostly for research leads (e.g., names & dates of court decisions to be hunted down elsewhere), they did also provide me with my first copy of Lynch v. Clarke (the leading antebellum case re. birthright citizenship for US-born children of aliens).