04/02/2016

Mila Sohoni: The Administrative Constitution in Exile
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted The Administrative Constitution in Exile (William & Mary Law Review, Vol. 57, No. 3, 2016) on SSRN.  Here is the abstract:     

For decades, the aspiration of administrative law has been to develop legal structures that would constrain and legitimate the exercise of agency power. The fruition of that hope was the complex internal blueprint that has made modern administrative governance both successful and legitimate — the framework for executive action that many have hailed as the “administrative constitution.”

Today, however, novel exercises of administrative power are crowding out old and familiar varieties, making the conventional forms of administrative action less and less relevant to the conduct of government. This Article examines how the administrative constitution has changed over time and how that transformation can be better understood by reference to constitutional theory. Administrative law today confronts a conceptual choice similar to that faced by constitutional law in the wake of the New Deal: whether to treat fundamental constitutional change as exile or as evolution. When faced with that choice, living constitutionalists did not simply declare by fiat that the Constitution was “living.” Instead, they justified that assessment by explaining how democratically legitimate constitutional change occurs as a result of an entire system of constitutional construction working in concert — a system that includes courts, political parties, citizens, and social movements.

The problem for administrative law is that it lacks such an account of legitimate administrative constitutional evolution. The legal, political, and social mechanisms that ensure that the living Constitution is simultaneously robust, adaptable, and democratically legitimate apply much more weakly to the dynamics responsible for administrative constitutional change. Administrative law thus faces a daunting challenge: to ensure that administrative constitutional change itself occurs in a constrained and legitimate fashion. If that challenge is not met, we run the risk that we will be governed not by a robust and living administrative constitution, but by an administrative constitution “in exile.”

04/01/2016

Don't Cry for Friedrichs
Michael Ramsey

This week the Supreme Court had its first major 4-4 deadlock in Friedrichs v. California Teachers Association (the compelled union dues case).  Most observers think that, had Justice Scalia still been on the Court, the outcome would have been 5-4 against the unions.  So conservatives mourn a lost opportunity.  

But originalists shouldn't.  The key question presented was: 

whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

I'm not aware of any substantial originalist argument against this requirement.  On its face, the First Amendment preserves an individual's freedom to speak (and, I agree, by extension, not to speak), but it does not say anything about compelling people to give financial support to other speakers.  Providing money is not speaking.  Especially when it is compelled, it has no communicative element.  Further, I doubt there's any founding-era support for the idea that compelled dues (or other compelled payments) are unconstitutional restrictions on speech.  The constitutionality of compelling payments to the government, which are then used for government speech, is not seriously doubted.  The distinction between compelling payments to private speakers and compelling payments to government speakers rests principally on nonoriginalist precedent.  Originalists should not be enthusiastic about extending that precedent.

More from Seth Barrett Tillman on the President's (Non)Duty to Nominate
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: The Appointments Clause Imposes No Duty on the President To Nominate Supreme Court Justices, Other Article III Judges, and/or Executive Branch Officers. The Appointments Clause Imposes No Duty on the Senate To Confirm Candidates (in part responding to this post by me).  The main issue between us is whether the President has a duty to nominate persons to fill vacancies (we agree that the Senate has no duty to confirm).  Professor Tillman points out that he has Chief Justice Marshall on his side:

 [Marshall wrote:] These are the clauses of the Constitution and laws of the United States which affect this part of the case. They seem to contemplate three distinct operations:

1. The nomination. This is the sole act of the President, and is completely voluntary.

2. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate.

3. The commission. To grant a commission to a person appointed might perhaps be deemed a duty enjoined by the Constitution. “He shall,” says that instrument, “commission all the officers of the United States.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155–56 (1803) (Marshall, C.J., for a unanimous Court). Chief Justice Marshall was unsure if the Commissions Clause was permissive or mandatory, but as to nomination and appointment, he was sure: the President’s conduct in regard to these events is characterized as “completely voluntary” and “voluntary,” respectively.

Now it seems to me that Marshall et al. could be right, or Ramsey et al. could be correct, but they cannot both be correct. Either a president’s proffering a candidate as a nominee is a “completely voluntary” act (per Marshall) or it is a “duty” (per Ramsey). Unless Ramsey can proffer some evidence contradicting Marshall, i.e., evidence other than his own and his contemporaries’ linguistic intuitions, I suggest the 1803 Court has liquidated all ambiguity in regard to the Appointment Clause’s use of “shall.” If he cannot put any evidence forward, then we should reject his position as “presumptively untenable.” Of course, the evidence he must put forward need not be as good as Marbury, but he needs to put forward some evidence. At the very least, he has a duty of production. Why? Because in an intellectual conflict seeking to resolve the original public meaning of a fairly disputed two-century old linguistic term, where one side has modern linguistic intuitions on its side and the other side has concrete evidence, evidence trumps. Or at least, it ought to.

I don't have a strong opinion on this one.  I grant that Professor Tillman has some good evidence from Marshall -- though I would note that (a) as he concedes, it's dicta; (b) more importantly, Marshall does not explain why he thinks the Constitution's text leads to his result; and (c) it's not completely clear to me whether Marshall is talking about the act of nominating in general, or the question of whom to nominate.  Also, I must object to Professor Tillman's characterization of my view (that the President having a duty to nominate) as based on nothing but intuition.  As I tried to argue in my prior post, I base my view mainly on the language and structure of Article II, which uses "may" or "shall have Power" to indicate a discretionary power of the President, and uses "shall" to indicate a non-discretionary power ("he shall take Care that the Laws be faithfully executed").  Apart from Marshall's unexplained view, I'm not sure why Professor Tillman thinks the "shall" in the appointments clause is voluntary but (I assume) he thinks that the "shall" in the take-care clause is not.

03/31/2016

Parsing the NBC Clause with Professor Elhauge
Andrew Hyman

Professor Einer Elhauge recently blogged here at the Originalism Blog about the Natural Born Citizen (NBC) Clause.  I previously offered an interpretation of the NBC Clause that basically interprets the word “natural” to mean “native” which in turn means either an “inhabitant” or an “offspring.”  I thank Professor Elhauge for pointing out problems he sees in my interpretation.

He links to a 1967 article by Isidor Blum titled Is Gov. George Romney Eligible to Be President? Part 1 and that article plainly says “’natural’ meant ‘native.’”  I agree with Blum about that.   As I already pointed out, James Iredell used the word “native” in this context as a noun rather than an adjective ("No man but a native, or who has resided fourteen years in America, can be chosen president”).  And, I think Iredell was correct.  So, even if it might be problematic to use the old definitions of the noun "natural" (as Professor Elhauge argues), it still would be okay to use the old definitions of the noun "native," which embrace both inhabitants as well as offspring.  This is not to say that an offspring born abroad automatically becomes a "natural born citizen," but I do think he automatically becomes "natural born,"  whereas the citizenship is up to Congress. 

At this time, I would only add that, generally speaking, no court should overturn eligibility decisions (or other governmental decisions) unless the court is free of doubt, and here we have quite a lot of doubt.

MIKE RAMSEY ADDS:  I also thank Professor Elhauge for his thoughtful post.  While I have various quibbles, I think our essential difference is that he discounts the British statutory practice and the 1790 U.S. statute, both of which appear to define certain people born outside the territory as "natural born" based on their parentage.  

Professor Elhauge says that these statutes did not actually purport to make such people "natural born" -- they only gave them the rights of people who were in fact natural born.  I do not see it that way.  First, Blackstone, describing the British statutes, said that persons covered by the statutes "are now natural-born subjects themselves, to all intents and purposes, without any exception" (vol. 1, p. 361) (emphasis added).  Second, while it's true that the 1790 statute says that persons born outside the U.S. to U.S. citizen parents shall be "considered as" natural born citizens, this language does not suggest anything other than that they are natural born citizens.  As was pointed out by a commentator on this blog, the same statute says that adult aliens who go through the statutory naturalization process shall be "considered as" citizens -- which obviously means not just that they have the rights of citizens, but that they are citizens.  Thus I think it clear that the statutes claimed the ability to declare people born abroad to citizen/subject parents to be "natural born."

Professor Elhauge's other core contention is that "natural born citizen" must mean something more than simply "born citizen" to avoid making "natural" superfluous. I confess that this was my initial instinct, when I began work on my paper on the subject (this instinct is still reflected in some of the paper's opening discussion).  But I'm now convinced that, instead, "natural born" (or as it was often written, "natural-born") was a single concept meaning "a state existing at birth" -- as established by either common law or statute.  Indeed, we still use the phrase in this unified way today in other contexts: a "natural born leader" is a person who is a leader from birth; a "natural born killer" is someone born to be a killer.  "Natural" does not add anything to "born" in either case.

Earl Maltz: Originalism, Democratic Theory and the Reapportionment Cases

Earl M. Maltz (Rutgers Law School) has posted Inconvenient Truth: Originalism, Democratic Theory and the Reapportionment Cases (Mississippi Law Journal, forthcoming) on SSRN.  Here is the abstract:   

Critics of originalist theory often argue that in practice, a constitutional jurisprudence based on original meaning would generate unacceptable results. Most often, those who make such claims focus on the decision in Brown v. Board of Education, in which the Court held that state governments could not constitutionally maintain public schools that were segregated by race. In addition, nonoriginalists often cite cases dealing with issues such as gay rights and sex discrimination as examples of socially desirable decisions that could not be justified in originalist terms.

By contrast, Reynolds v. Sims -- the case in which the Court held that representation in state legislatures must be apportioned according to the principle of one person, one vote -- is rarely even mentioned in the debate over the viability of originalism. The idea that representation should be based on population is fundamental to any plausible conception of democratic government. However, although originalists often characterize themselves as champions of democracy, the decision in Reynolds cannot be squared with originalist theory. This article will demonstrate that the reapportionment decisions are inconsistent with the original meaning of the Constitution and discuss the significance of this conclusion for the ongoing debate over constitutional theory more generally.

An interesting and important article.  I agree that the result in Reynolds  appears inconsistent with the original meaning, and that this points up a serious flaw in the original constitution.  I think that "originalists [who] characterize themselves as champions of democracy" are probably not fully considering the issues.

03/30/2016

Robin Bradley Kar & Jason Mazzone: Why President Obama Has the Constitutional Power to Appoint - and Not Just Nominate - a Replacement for Justice Scalia (UPDATED)
Michael Ramsey

Robin Bradley Kar (University of Illinois College of Law) & Jason Mazzone (University of Illinois College of Law) have posted Why President Obama Has the Constitutional Power to Appoint - and Not Just Nominate - a Replacement for Justice Scalia on SSRN.  Here is the abstract:     

After Justice Antonin Scalia’s recent death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators - led by Senate Majority Leader Mitch McConnel[l] - immediately announced that they will not consider or vote on any replacement nominees from the current President. In doing so, they have taken a position that may be constitutionally problematic in ways that have not yet been fully appreciated. Now that President Obama has nominated Judge Merrick Garland to the Supreme Court, this problem requires greater attention.

The crux of the problem is that an outright refusal on the part of the Senate to consider any nominee from President Obama arguably works a delegation of an elected President’s Supreme Court appointment power to an unknown successor. While the Appointments Clause of the Constitution allows Congress to delegate a President's appointment power in certain instances, it does not permit delegation with respect to Supreme Court appointments. Hence this delegation raises a potential problem of separation of powers. Historical practice also cautions against any effort to delegate to a future President the authority to nominate and appointment a member of the Supreme Court. We show that there are 104 cases in which an elected President has faced a vacancy on the Supreme Court and began the appointment process prior to the election of a successor. In all 104 cases, the sitting President was able to both nominate and, with the advice and consent of the Senate, appoint a replacement Justice. We explain why this is a better reading of historical precedent than any limited to consideration of the last 80 years. Hence, constitutional text, structure and history suggest that the Senate Republicans’ current plan not to act at all on any Obama nominee may violate the Constitution. Given this possible constitutional problem, there are also heightened prudential risks to the position Senate Republicans have taken. 

None of this means that the Senate cannot vote against President Obama’s nominees on a wide range of grounds. The Senate also has broad discretion to determine its procedures for vetting a nominee. But the delegation problem identified in this Article provides a significant reason for Republican Senators, sworn to uphold the Constitution, to rethink their current position. They should instead consider and vote upon Garland or any other timely submitted nominee.

This article is a big improvement on prior claims that the Senate is acting improperly, in the sense that it actually offers an argument rather than just an assertion (compare, for example, here).  Unfortunately, though, in my view its argument is thoroughly unpersuasive.

(1) To begin, the word "delegation" is a misnomer.  A delegation is when one person or entity has a power and grants that power to another person or entity (as, most prominently, if Congress delegates legislative power to the President).  Thus it's wrong to say that the Senate action even arguably "works a delegation of an elected President’s Supreme Court appointment power to an unknown successor."  The Senate has no "Supreme Court appointment power" to delegate.  Rather, the claim is that the Senate action transfers (not delegates) the President's appointment power to a successor.

(2) While point #1 might seem like a quibble, it's not.  Once the correct word is used, it should be clear that there is no transfer of power.  President Obama's power is to nominate and, with the Senate's consent, to appoint.  (I'm omitting the "advice" issue here as I've discussed it elsewhere and it does not seem relevant to the Kar/Mazzone argument).  President Obama continues to have that power (as will his successor, if the vacancy is not filled).  No power has been taken away, transferred or granted by the Senate's failure to act.  The only way one could think otherwise is if one thought that the Senate had an obligation to formally consider the nomination in the first place.  But the point of the article is to show that the Senate has an obligation to consider the nomination -- so the entire argument is circular.  If the Senate doesn't have an obligation to act on the nomination (and the text imposes none) then its failure to act on the nomination doesn't transfer (or, obviously, delegate) any power to anyone.

(3) Like many arguments on this point, the article appears to be focused just on Supreme Court nominations.  But as Seth Barrett Tillman has argued, there is only one appointments clause.  There is no textual basis for believing that the Senate's obligations with respect to Supreme Court nominations are different from its obligations with respect to all other presidential nominations.  Yet as the authors surely know, the Senate during the Bush administration refused to formally consider multiple lower court nominations, and the Senate commonly fails to act on executive branch nominations for a variety of reasons.  Perhaps the authors believe these refusals are unconstitutional (but that point should be acknowledged more directly if it is intended).

(4) In any event, the article's final conclusion seems a non sequitur: that the Senate should "consider and vote upon Garland or any other timely submitted nominee" (emphasis added).  Even if the Senate has a duty to consider the nomination (and I cannot see how the text imposes such a duty), surely nothing requires that the duty be fulfilled by a formal vote.  Why can't the Senate informally decide, through its duly elected officers, that the nomination does not need formal consideration?  As Vikram Amar has forcefully argued, the Constitution in multiple places provides that a certain thing is accomplished if a given body consents, and in none of those places do we understand this phrasing to impose a duty to vote on the proposal.  To repeat his argument (because it seems so decisive):

If we look at other constitutional settings in which one entity must consent to the proposal of another actor before the proposal can take legal effect, we have as a general matter not inferred any duty on the part of the second actor to do anything. For example, no credible argument can be made that after the House of Representatives passes a bill and sends it to the Senate for consideration, the Senate must hold hearings and/or take votes. Or that the Senate has a duty to take up a treaty desired by the president. Or that state legislatures have a duty to debate and vote on federal constitutional amendments that Congress proposes (and that require ¾ of the states to ratify before they can take effect). In fact, in one place the Constitution does seem to create a duty on the second actor to make an up-or-down decision; if the president does not return a bill passed by Congress to Congress with reasons for his veto within 10 days, the bill becomes law. So when the Constitution seeks to attach some legal consequences to inaction within a particular timeline, it seems to know how to say so.

Or, as Thomas Sowell argues here, "the 'advice and consent' provision of the Constitution is a restriction on the President's power, not an imposition of a duty on the Senate. It says nothing about the Senate's having a duty to hold hearings, or vote, on any Presidential nominee, whether for the Supreme Court or for any other federal institution. The power to consent is the power to refuse to consent..."

The short of it is that the President has power to appoint if the Senate consents and has no power to appoint if the Senate, for whatever reason and in whatever manner, fails to consent.  The Constitution says nothing more on the matter.

UPDATE:  Seth Barrett Tillman points out that Kar and Mazzone suggest (p. 24):

The only remaining lapsed appointments relate to judges on lower federal courts. Federal judges are not inferior officers and they have Article III protections. These appointments are nevertheless distinguishable from Supreme Court appointments because the Constitution creates the Supreme Court whereas lower federal courts are created by legislative act. Once again, Congress’s greater power to create or extinguish lower courts therefore arguably includes the lesser power to allow the Senate to let certain late appointments to those courts lapse shortly before a presidential transition. However, the Supreme Court remains distinct.

This seems weak on two grounds.  First, if the Senate has a duty to consider and vote on presidential nominees as a result of Article II, Section 2, I do not see how Congress could alter this duty.  The Constitution gives Congress express ability to alter the appointment process in specified ways with respect to some appointments, but this is not one of those ways nor one of those appointments.  No one thinks that Congress has the ability to alter the appointments process for lower federal judges in other respects, merely because Congress can choose not to create lower federal courts in the first place.  In creating lower federal courts (and other offices), Congress necessarily accepts the Constitution's appointments process (else what would be the point of spelling out the appointments process in the Constitution?).  Second, even if Congress has such a power, it hasn't exercised it.  Congress hasn't purported to say anything about how the Senate should approach confirmations.  Perhaps the contrary is "arguabl[e]," as Kar and Mazzone say (if one were, for example, counsel to the Democratic Party), but it seems far from the best interpretation of the relevant clauses.

I also don't see how the Kar/Mazzone argument deals with, for example, Senate consent to treaties (a point Professor Amar raises).  The treatymaking clause is parallel to the appointments clause (apart from the two-thirds requirement).  Congress has no special authority in the area.  Yet the Senate has failed to vote on treaties submitted for its consent by the President, and this has not generally drawn sustained constitutional objection.

I think the Kar/Mazzone paper would be much stronger if they followed it to its logical conclusion, namely that Senate failure to vote on any nominee (or treaty) would be a constitutional violation.  Trying to create an argument tailored only to the issue of current interest makes it look like they are ... trying to create an argument tailored only to the issue of current interest.

A FURTHER THOUGHT: Actually, while the Constitution creates the Supreme Court, Congress creates the ninth seat on the Court.  Just as Congress could constitutionally abolish the lower federal courts, it could constitutionally abolish the ninth seat on the Court.  So if one (implausibly, in my view) thinks that "Congress’s greater power to create or extinguish lower courts therefore arguably includes the lesser power to allow the Senate to let certain late appointments to those courts lapse," that should also be true of the Court's (optional) ninth seat.

03/29/2016

Seth Barrett Tillman on Originalism, Nonoriginalism and Senate Confirmation
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: The Two Discourses: How Non-Originalists Popularize Originalism and What that Means.  The whole post is just brutally awesome, but here is a key part: 

The problem is that non-originalists have an entirely different discourse, a second discourse, when they communicate with the public. When non-originalists communicate with the public ... non-originalists transform themselves and their discourse into naked, unabashed originalism. It is really quite astounding.

For example, several days ago, some 350 legal academics signed a letter calling for Senate hearings on the Merrick Garland nomination. My understanding is that this letter was circulated by the über-liberal Alliance for Justice. What did the letter say?

The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty.

Letter from Professor William Andreen et al. to Majority Leader Mitch McConnell et al., Re: President Obama’s Nomination of Judge Merrick Garland (Mar. 7, 2016) (emphasis added). Read the list of signers—are any of them originalists, much less originalists of the original intent variety? Perhaps somewhere in that list of 350, there might be a couple. But aren’t the vast majority garden-variety non-originalists? Why did these people sign this letter? Could not they have crafted a letter for the Senate and for the public explaining their position: that Judge Merrick Garland deserves a Senate hearing, and also support their conclusion via a mode of constitutional interpretation that they actually believe? Do any of these people teach their students that constitutional meaning, obligation, and duty are determined by the intent! of the Framers!? (Most originalists stopped teaching this discourse a generation ago: they upgraded from original intent to original public meaning.)

Professor Tillman then specifically notes one non-originalist signer, Dean Chemerinsky of UCI law school, and asks: 

[Might it be that] Chemerinsky signed the letter because he agrees with the result argued for, and because he understands that non-originalist discourse is not favored by the American public he is hoping to convince. In other words, Chemerinsky and his colleagues are unwilling to make the effort to explain to the public that a better mode of constitutional discourse is possible; indeed, the 350 signers hope to convince the American public via a mode of discourse that they themselves reject, without even putting the public on notice that they reject that discourse. No one is stunned by this situation precisely because it is the norm.

RELATED:  Also at New Reform Club, Professor Tillman posts his letter to the Boston Globe responding to the op-ed by Dean Martha Minow (Harvard) and Dean Deanell Tacha (Pepperdine).  It concludes:

... [F]or over two centuries, the received wisdom—based on the highest legal authorities—has been that the President has no duty to nominate anyone to a vacant office, and the Senate has no duty to consider any of the President’s nominees. 

Why Deans Minow and Tacha would assert otherwise is a mystery.

03/28/2016

The Meaning of the Natural Born Citizen Clause
Einer Elhauge

[Editor's note:  for this guest post we welcome Einer Elhauge, the Carroll and Milton Petrie Professor of Law at Harvard Law School.]

Professor Mike Ramsey has generously invited me to respond to his and Andrew Hyman’s blog posts on my amicus brief explaining why Ted Cruz is not a natural born citizen eligible to be President.  (Or Vice-President, which may be more relevant given how the primaries are going.)

Let me first say that I think the articles by Professors Ramsey and Mary Brigid McManamon are the two most erudite articles so far published on the meaning of the natural born citizen clause.  My conclusions parallel Professor McManamon’s.   I also agree with 99% of Professor Ramsey’s article, but end up surprised when, having marched the reader to the one-yard line, he shrinks from the logical conclusion, like Pete Carroll deciding not to run Marshawn Lynch in from the one-yard line in the Super Bowl.

Professor Ramsey ultimately defends the interpretation that anyone born a citizen is a natural born citizen, even if they are born a citizen only because of a naturalization statute.  But as his article acknowledges, “If anyone born a U.S. citizen is eligible to the presidency, the word ‘natural’ in the eligibility clause seems superfluous. To give it meaning, there should be some ‘born’ citizens who are not ‘natural born.’”  Ramsey at 2.  Yet, surprisingly, his ultimate conclusion is that there are none. 

Professor Ramsey also acknowledges that “in general in eighteenth-century legal language, natural meant the opposite of ‘provided by statute.’ …  The most obvious meaning of ‘natural born Citizen’ thus is not a person who claims citizenship from a statute, but rather a person whose citizenship comes from the natural state of things….  In eighteenth-century legal language ‘natural’ meant arising from the nature of things – a usage reflected, for example, in natural law (as opposed to statutory law) and natural rights (as opposed to statutory rights).”  Id. at 2, 5-6.  Yet, surprisingly, his ultimate conclusion is that a person who gets citizenship at birth only because it is provided by statute is a natural born citizen.

In contrast, my interpretation is consistent with Ramsey’s two textual points because it does give “natural” some meaning that is non-statutory.  Namely, “natural” means a citizenship that arose under the natural law that was recognized at common law, rather than citizenship created by a “naturalization” statute.  At common law, a person was “natural born” only if they were either (1) born in national territory to a parent who was not serving a foreign nation as ambassador or soldier or (2) born abroad to parent who was serving the nation abroad as an ambassador or soldier.  John McCain, Barack Obama, and Marco Rubio were all clearly eligible under this common law standard.  But Ted Cruz falls within neither category and is thus not a natural born citizen.  He was automatically a citizen at birth only because a naturalization statute provides that the foreign-born children of certain U.S. citizens are citizens at birth.

My brief adds many other reasons to think the Framers meant “natural born” to incorporate the meaning at common law rather than under statute:

  1. On citizenship, the Constitution only gives Congress the power of “Naturalization.” To “naturalize” something necessarily means it was not otherwise “natural”.  The suffix “-ize” means “to render, make”.  You cannot sterilize someone who is already sterile, radicalize someone who is already radical, or legalize something that is already legal.  Likewise, you cannot naturalize someone who is already natural.
  2. The Fourteenth Amendment expressly distinguishes citizenship by birth in the U.S. from citizenship by naturalization. The Supreme Court explicitly concluded that persons who become citizens because of statutes “conferring citizenship upon foreign-born children of citizens” are “naturalized,” rather than citizens by birth under the Constitution.  Wong Kim Ark, 169 U.S. at 702-03.
  3. James Madison and early U.S. commentators indicated they understood natural born citizenship to follow its common law meaning.
  4. The Supreme Court stated that natural born citizenship tracks the common law meaning, at 655-65, rather than the statutory meaning, id. at 669-71.
  5. Cruz himself acknowledges that Black’s Law Dictionary consistently defined “natural born” as “born within the dominions” until 1990, when it “defin[ed] ‘natural born citizen’ for the first time to include ‘those born of citizens temporarily residing abroad.’”

Professor Ramsey nonetheless concludes that the Constitution incorporated British statutes, which extended “natural born” status to the foreign-born children of natural-born fathers.  Why?  Because the Framers were aware of those British statutes.  However, concluding that general awareness trumps all the above evidence that the Framers meant to incorporate the common law meaning hardly seems consistent with Professor Ramsey’s own conclusions that “An interpretation of the clause should … strive to find some meaning of the word natural” and that “giving ‘natural’ its ordinary legal meaning suggests the exact opposite of the conventional conclusion regarding citizenship derived from statutes.”  Ramsey at 5. 

Nor are the British statutes telling, for reasons detailed in my brief:

  1. Each British statute described itself as a “naturalization” statute, which is also how Blackstone described them, indicating they covered persons who were not “natural” born subjects.
  2. Each British statute used language (like “deemed adjudged and taken to be”) that indicated Parliament was treating the foreign-born children of subjects like “natural born subjects,” not concluding that they actually were natural born.
  3. This understanding is confirmed by the fact that other British statutes used the same type of language (“deemed, adjudged, and taken to be”) to treat various persons as “natural born subjects” based on post-birth activities, such as serving on British ships. Because these persons could not have been natural born subjects at birth, these statutes confirm that such language meant only that covered persons would be treated as natural born subjects, not that they were actually natural born.
  4. The British statutes treated foreign-born persons as natural born only if the father was natural born, which would not help Cruz because his father was not a U.S. citizen.

Contrary to Ramsey and me, Andrew Hyman argues “natural” did not refer to natural law.  He points out that, in the Ash and Johnson dictionaries, the definition for “natural” included “native” and the definitions for “native” included not only the primary definition of “One born in any place, an original inhabitant” but also the secondary definition of ‘Offspring.”  His argument has several problems:   

  1. He relies on definitions about the use of “natural” and “native” as a noun, but “natural” is plainly an adjective in “natural born citizen.”
  2. Even the noun definition of “natural” in the Johnson dictionary is “native; an original inhabitant”, clearly adopting the primary definition of native.
  3. The Constitution contrasts “natural born” with “naturalization,” and these dictionaries define “naturalization” as “The act of investing a foreigner with the privileges of a native subject.”
  4. Interpreting “natural born” to mean “offspring born” would make the word superfluous because all offspring are born.
  5. The key issue is the meaning of the phrase “natural born,” and interpreting it to mean “native born” cuts the other way because that phrase clearly meant born in the nation.
  6. Hyman’s interpretation would logically mean that all foreign-born offspring of citizens are “natural born” citizens, but the law clearly denies them citizenship unless it is provided by a naturalization statute. From 1802-1855, all foreign-born offspring of citizens were denied citizenship unless their father was a citizen before 1802 because federal statutes failed to naturalize them, and even today foreign-born children of citizens are denied citizenship unless their parents satisfy statutory residency requirements.

Others stress a 1790 Congressional statute that conferred citizenship on the foreign-born children of certain citizens, but my brief shows that:

  1. The 1790 statute aimed to change who was a citizen and thus affirmatively undermines the claim that 1790 Congressmen thought such persons were already natural born citizens under the Constitution.
  2. Nothing in the 1790 statute or legislative history suggests Congress thought it was changing (or could change) the constitutional meaning of natural born citizen.
  3. The 1790 statute described itself as a “naturalization” statute and stated only that such persons “shall be considered as natural born Citizens,” suggesting that Congress thought they were not natural born citizens but should be treated as such.
  4. In 1795, James Madison observed that Congress only had constitutional authority to naturalize “aliens” and got Congress to adopt his amendment taking the words “natural born” out of the 1790 statute. This confirms they thought such foreign-born children were natural aliens, not natural born citizens.
  5. Contemporaneous scholars stated that the 1790 and 1795 Acts meant that persons “naturalized according to these acts, are entitled to all the rights of natural-born citizens, except . . . they are forever incapable of being chosen to the office of president of the United States.”

My brief thus shows Ted Cruz is not a “natural born citizen” under either an originalist approach that considers only the text and contemporary usage or an approach that also considers legislative history, precedent, and purpose.

 

Benjamin Oliphant & Leonid Sirota on Originalism in Canada
Michael Ramsey

Benjamin J. Oliphant (Gall Legge Grant & Munroe LLP) & Leonid Sirota (New York University JSD Program) have posted Has the Supreme Court of Canada Rejected 'Originalism'? on SSRN.  Here is the abstract:   

The notion that “originalism” is fundamentally incompatible with Canadian constitutional law has achieved the status of dogma, both in the courts and the Canadian legal academy. However, this understanding tends to be premised upon the rejection of early and undertheorized conceptions of originalism that have been largely left behind.Originalism has evolved considerably over the past few decades, as scholars from across the political spectrum have developed more nuanced and defensible approaches to constitutional interpretation, which by no means freeze constitutional law in the era of constitutional enactment. In fact, the two core propositions upon which Canada’s anti-originalist myth is based – that constitutional law must evolve to meet new social realities, and that the framers intentions may be relevant, but not binding – have been largely embraced by modern originalist scholarship. Drawing upon the vast diversity of originalist thought in the United States, the authors reconsider the cases most frequently cited for the belief that originalism is fundamentally incompatible with Canadian constitutional thought, and show how many fit rather easily within the new originalist paradigm. The authors conclude that once the frequent compatibility between various forms of originalism and living constitutionalism are appreciated, there is no reason to conclude that originalist thinking is inconsistent with Canadian constitutional law and practice, and no basis for relying on outdated assumptions or caricatures for its rejection.

The same authors have also posted Originalist Reasoning in Canadian Constitutional Jurisprudence.  Here is the abstract: 

Amongst the fundamental assumptions underlying the practice of Canadian constitutional interpretation is the belief that originalism – whether directed at the original intentions, expected applications, meaning or understanding – plays no meaningful role in discerning the meaning of constitutional provisions. This paper sets out to correct that mistaken narrative. Through a survey of historical and contemporary decisions, the authors show that various forms of originalism have played a significant role in Canadian constitutional interpretation. Its influence can be felt both with respect to the structural provisions of the constitution – those relating to the division of powers, constitutional “bargains”, and the core jurisdiction of superior courts – as well as in the context of rights protecting provisions, such as those found in the Charter and aboriginal rights in section 35. At the same time, it cannot be questioned that the Court has rejected or refused even to consult original intentions or meanings just as frequently as it has found them persuasive or even dispositive. The Court has provided little guidance as to those circumstances in which various forms of originalism, or any other forms of constitutional argument, can and should be relied upon, which has led to a troubling state of uncertainty. The authors suggest that whether or not originalist approaches to constitutional interpretation should be accepted in any given case, it is not possible (or desirable) to avoid them entirely, and conclude that Canadian constitutional practice would benefit from openly engaging with originalist ideas and how they can be most fruitfully employed.

03/27/2016

Ronald Rotunda Reviews 'The Once and Future King'
Michael Ramsey

Ronald D. Rotunda (Chapman University, The Dale E. Fowler School of Law) has posted a book review (65 Journal of Legal Education 434 (2015)) of Frank Buckley's The Once and Future King: The Rise of Crown Government in America (Encounter Books, 2014) on SSRN.  Here is the abstract:  

If you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin — Great Britain and Canada — have done. As Professor F.H. Buckley notes, "He who knows only his own country knows little enough of that." He is one of the few people who has thoroughly mastered the legal structure and history of all three countries.