Martin Lederman: History's Lessons for Wartime Military Tribunals
Michael Ramsey

Martin Lederman (Georgetown University Law Center) has posted If George Washington Did it, Does that Make it Constitutional?: History's Lessons for Wartime Military Tribunals (Georgetown Law Journal, forthcoming) on SSRN.  Here is the abstract:      

Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, targeting U.S. forces, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that the Supreme Court may consider as early as this Term.

In the rare cases where the Court has recognized exceptions to Article III’s criminal trial protections, it has almost invariably invoked functional and normative justifications; as this Article explains, however, the government has not offered any such justifications that would be sufficient to justify denial of the independent judge and jury that Article III guarantees when adjudicating domestic-law offenses, even in wartime. The government and judicial defenders of military tribunals thus must rely almost exclusively upon historical claims to defend the constitutionality of using commissions. This Article addresses one of the government’s central historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to “carry[] on war as it had been carried on during the Revolution.” According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a purported “backdrop” of military criminal adjudication of offenses that were not violations of the international laws of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against both spies and disloyal civilians who provided aid to the British.

The Article provides the first comprehensive account of those Revolutionary War precedents, how they were understood in the decades just after the Constitution was ratified, and the ways in which they have been invoked as authority, and mischaracterized, in later wars. It demonstrates that the age-old received wisdom about those precedents is almost entirely mistaken, and that they do not offer a basis for recognizing a new Article III exception for military adjudication of war-related domestic-law offenses.

The pre-constitutional history does, however, include one conspicuous aberration —a 1778 congressional resolution authorizing the trial by court-martial of civilians who provided a particular kind of aid to the British, which General Washington relied upon in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to capture West Point. In the Article, I argue that the Smith case—a striking deviation from Washington’s otherwise consistent conduct—should not be accorded much, if any, weight in interpreting Article III or in crafting exceptions to its criminal trial guarantees.

More broadly, this Article—together with another article that examines the government’s alternative reliance upon a series of military tribunal precedents in the Civil War and World War II (most importantly, the 1865 trial of the individuals accused of conspiring with John Wilkes Booth to kill Abraham Lincoln)—illustrates how a complex history can be misunderstood, and distorted, in the course of constitutional interpretation, particularly on questions of war powers.


A Reply to Saul Cornell on Natural Born Citizens (Part 3)
Michael Ramsey

This is my third and last post responding to Saul Cornell's essay The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism  (2016 Wis. L. Rev. Forward 92).  For part 1, see here, for part 2, see here.

In this post, I'll discuss how Professor Cornell's criticism relates to my reading of the natural born citizen clause (set forth here).  Cornell principally argues that the 1790 Act did not give natural born status to people born abroad with U.S. citizen mothers and non-citizen fathers; he sharply criticizes an essay by Neal Katyal and Paul Clement taking the opposite view of the Act.  In my prior posts I argued that his criticisms are misplaced, or at least are not as powerful as he thinks they are.

My view of the natural born citizen clause, however, does not depend on Katyal and Clement being right about the Act.  (Cornell says the Act is "a cornerstone" of my view, but it's not).  My view (explained in the article linked above) is that the clause requires some connection to the U.S. at birth but conveys to Congress power to decide what sort of connection is sufficient.  That view is principally based on English law and practice, in which parliament changed the definition of "natural born" status multiple times, in multiple directions, over the century prior to the Convention; the framers were presumably familiar with this practice because it is described in part by Blackstone.  Further, in my view, the 1790 Act supports this reading because the First Congress, in enacting the Act, apparently thought it had power to come up with its own definition of "natural born."

First, the 1790 Act defines "natural born" differently from English common law.  Some commentators (though I think not Professor Cornell) contend that the Constitution adopted the common law definition.  But the common law definition recognized natural born status only for people born in sovereign territory (with minor irrelevant exceptions).  The 1790 Act clearly grants natural born status to a large number of people born outside U.S. sovereign territory, even if one does not accept Katyal and Clement's reading: at minimum, it gives that status to people born abroad with two U.S. citizen parents.

Second, the 1790 Act does not simply enact the English statutory definition of natural born that was in effect when the Constitution was adopted.  The principal English naturalization act in place in 1787-89, the Act of 1731 (4 Geo. II, ch. 21), gave natural born status to anyone whose father was an English subject.  As discussed, the 1790 Act gave that status to "children of citizens" -- which either means that both parents must be citizens (narrower than the 1731 Act) or that either parent may be a citizen (broader than the 1731 Act).  In either event, the First Congress evidently thought it could use its own definition of natural born and did not think it was constitutionally bound to the English statutory definition.  The 1790 Act also added the proviso that in order to gain natural born citizenship in this way, a person's father must have at some point been a resident of the U.S.  There is no parallel requirement for natural born status in any of the English statutes; this is simply an invention of the First Congress -- again showing that the First Congress thought it had power to set out its own definition.

Thus, whether or not one accepts the Katyal/Clement reading (that either a U.S. mother or a U.S. father is sufficient), the 1790 Act supports the view that Congress thought it had power to vary the definition of natural born.  As a result, the main point of Professor Cornell's essay, even if correct, does not refute my reading of the natural born citizen clause.

Cornell makes two other points that bear on my article.  First, he says (without further elaboration):

The most obvious problem with [my claim] is that it equates Parliament's power in this area, which was absolute under the English Constitution, with Congressional power under the American Constitution, which was far more limited in its scope.

I agree that one must be cautious equating Congress' power with Parliament's power, and I discuss this objection at some length in my article.  Although I agree it's a fair criticism, I don't see any other satisfactory original meaning of "natural born."  The framers used a legal phrase that they knew (from Blackstone) had no fixed definition in English law, but rather was subject to parliamentary definition.  To me, that indicates a decision to leave the matter in part to Congress.  Saying that Congress' power "in this area" was "far more limited in scope" just asserts a conclusion that's hard to fit with the text and its historical background.

Professor Cornell also invokes St. George Tucker's 1803 treatise.  (As an aside: Cornell criticizes originalists for not looking at "actual readers" such as Tucker nor taking into account their biases; this is an odd criticism, for originalists routinely look at what founding-era commentators including Tucker said about constitutional provisions -- this is a centerpiece of most originalist assessments -- and if they do it right they will take into account biases just as Cornell says).

Cornell says that Tucker did not think "Congress could alter the scope of the natural born citizen clause."  His assessment of Tucker's commentary is:

Tucker stated unambiguously that "[p]ersons naturalized according to [the 1790 and 1795 Naturalization Acts], are entitled to all the rights of natural born citizens" except for certain express limits on their ability to hold federal offices.  As far as the Presidency was concerned. Tucker was emphatic: "they are forever incapable of being chosen to the office of President of the United States."

However, this passage is ambiguous.  It's not clear whether Tucker was referring to all people granted citizenship under the 1790 Act (including those declared citizens at birth), or whether he was referring only to people who became citizens as adults through the naturalization process prescribed in the Acts.  If the former, he was really saying that the 1790 Act was unconstitutional, because the Act purported to give full rights of natural born citizens to those it declared to be citizens at birth.  But Tucker didn't say that the 1790 Act was unconstitutional; he said that the Act did not convey presidential eligibility on the people he was discussing.  That makes sense only if one reads Tucker's comments as directed only at people naturalized after birth.  (I discuss this quote in my article and reach this conclusion).

In sum, Professor Cornell's essay does not materially undermine my article, regardless of whether one thinks it is an effective criticism of Katyal and Clement.  In any event, though, it is a challenging and thought-provoking essay, and I'm grateful for the opportunity to further refine my thinking on the subject.


New Book: "The Constitution Today" by Akhil Amar
Michael Ramsey

Newly published: The Constitution Today: Timeless Lessons for the Issues of our Era (Basic Books, Sept. 13,  2016).  Here is the description from Amazon:

America’s Constitution, Chief Justice John Marshall famously observed in McCulloch v. Maryland, aspires “to endure for ages to come.” The daily news has a shorter shelf life, and when the issues of the day involve momentous constitutional questions, present-minded journalists and busy citizens cannot always see the stakes clearly.

In The Constitution Today, Akhil Reed Amar, America’s preeminent constitutional scholar, considers the biggest and most bitterly contested debates of the last two decades and provides a passionate handbook for thinking constitutionally about today’s headlines. Amar shows how the Constitution’s text, history, and structure are a crucial repository of collective wisdom, providing specific rules and grand themes relevant to every organ of the American body politic. Prioritizing sound constitutional reasoning over partisan preferences, he makes the case for diversity-based affirmative action and a right to have a gun in one’s home for self-protection, and against spending caps on independent political advertising and bans on same-sex marriage. He explains what’s wrong with presidential dynasties, advocates a “nuclear option” to restore majority rule in the Senate, and suggests ways to reform the Supreme Court. And he revisits three dramatic constitutional conflicts—the impeachment of Bill Clinton, the contested election of George W. Bush, and the fight over Barack Obama’s Affordable Care Act—to show what politicians, judges, and journalists got right as events unfolded and what they missed.

Leading readers through the particular constitutional questions at stake in each episode while outlining his abiding views regarding the Constitution’s letter, its spirit, and the direction constitutional law must go, Amar offers an essential guide for anyone seeking to understand America’s Constitution and its relevance today.

And from the blurbs, Lawrence Lessig:

America’s most brilliant originalist constitutionalist is also perhaps her best constitutional journalist: In this beautifully written collection, Akhil Amar brings the words of our framers forward, and with wit and care, makes it easy for anyone to understand their wisdom and flaws, as he maps our constitution onto the culture of modern American politics.


Laurence Claus: Power Enumeration and the Silences of Constitutional Federalism
Michael Ramsey

My colleague Laurence Claus (University of San Diego School of Law) has posted Power Enumeration and the Silences of Constitutional Federalism (International Symposium on Constitutional Silence, Trinity College Dublin) on SSRN.  Here is the abstract:      

Enumerating power by subject is a familiar feature of federal constitutions that aspire to apportion power among governments. Long-serving federal constitutions seem to say a lot more about how power to govern their communities should be distributed among their governments than about how those governments should treat each other. Yet those texts come no closer to supplying actual answers to disputes about power distribution than they do to disputes about institutional independence. Power enumeration is indeterminate not merely because subjects of power are abstract, but because federal constitutions are silent about aboutness. Federal drafting conventions that resorted to the judiciary to enforce power enumeration seemed to assume that the range of rationally conceivable ways to decide whether laws are inside or outside specified subjects of power (the range of rationally conceivable tests of aboutness) would generally yield the same answers. The assumption is false; laws do not have single subjects. Laws are almost always susceptible of more than one characterization, almost always about more than one thing. Power enumeration defaults to constitutional dispute resolvers an open discretion to decide what to make of it, and an adjudicative necessity to develop a law of aboutness. In deciding disputes about power distribution, as surely as in deciding disputes about intergovernmental independence, constitutional courts have unavoidably responded to constitutional silence with court-created core constitutional law. That law of characterization has sometimes deferred to rational legislative judgment, and sometimes not. 

Power enumeration was pioneered at the United States Constitution’s Philadelphia drafting convention against the wishes of key nationalist proponents of the Virginia Plan. Power enumeration was an initiative of localist delegates, who relied on a precedent that proved a poor fit for the compromise system that in fact emerged. Their precedent was the specification of subjects in treaties, and in particular the subject specification in the then-operative Articles of Confederation. Power distribution under the Articles was policed by the member states themselves, through their direct control of Congress. Under the localists’ New Jersey Plan, that would have stayed true, and required no judicial enforcement. The Connecticut Compromise maintained this localist vision by constituting the Senate as a true states’ house that resembled the existing Confederation Congress. Even after losing the final vote on the compromise, nationalist delegates bitterly opposed this outcome, until they realized that through a subtle and carefully-timed amendment they could make equal state representation in the Senate about the vocational interests of small-state political leaders rather than about preserving a federal balance. That amendment, which has received little analysis in the leading historical scholarship, turned the Senate back into the independent, elite institution that nationalists had wanted all along and stopped the Senate from becoming a reliable political safeguard of federalism. Immediately thereafter, the convention referred the task of enumerating Congress’s powers to a committee of detail. Edmund Randolph’s preliminary draft of the committee’s enumeration explicitly linked power enumeration to an arbitral role for the Supreme Court. Having adopted the New Jersey Plan’s vision of enumerated national powers but discarded that plan’s vision of a reliable political mechanism to keep Congress within those powers, the convention backed into depending on the courts to make power enumeration meaningful. Late in the convention’s life, delegates coalesced around explicitly committing to the Supreme Court jurisdiction to decide all cases arising under the Constitution. 

Power enumeration affords constitutional courts adjudicative discretion that may be exercised to promote not only a federal balance, but individual rights too. Courts could read down constitutional delegations to legislatures so as not to reach valued liberties and not to permit invidious distinctions, much as some common law courts read down statutory delegations to executives. In this way, courts could vindicate the Founding-era Federalist claim that, for example, a law about interstate commerce cannot also be about freedom of speech. A constitutional court could construct a whole implied bill of rights to limit a government of enumerated powers.

I read a prior draft; this is an outstanding article, with (among other things) an engaging discussion of the Philadelphia convention that finds new insights in a familiar topic.


Glenn Reynolds: We Should Elect Supreme Court Justices
Michael Ramsey

In USA Today, Glenn Reynolds (Instapundit/Tennessee):  We should elect Supreme Court justices: The Supremes are functioning more like a legislature than a court, and no legislature is above politics.  From the introduction:

As the Supreme Court, once a body that mostly ruled on purely legal questions, has gotten more and more involved with every aspect of American life, the Supreme Court appointment process has become more political. Senate confirmation used to be almost pro forma, without even a hearing. Then we got hearings, which have now turned into political circuses of their own. (Remember Clarence Thomas?)

Even the election of a President — the most important selection that we make as a nation — has become about the Supreme Court. Partisans of both Donald Trump and Hillary Clinton have argued that, whatever the flaws of their own candidate, the importance of not letting the other side make potentially transformative Supreme Court appointments is reason enough to stand behind him or her.

Making a presidential election turn on Supreme Court appointments has the effect of minimizing lots of other important aspects of the election. The argument in favor of it is that it applies some degree of democratic accountability to the Court. But if you want democratic accountability, why not eliminate the middleman? Why not elect the Supreme Court?

I agree with the basic descriptive conclusion.  But another way to deal with the problem is to return the Supreme Court to being a primarily legal rather than political body.  That is a core goal of originalism.  (Whether it is a feasible one is a different question).


National Constitution Center Podcast on Article II Powers
Michael Ramsey

The National Constitution Center has posted this podcast: Article II and the Powers of the President (a discussion with me and Professor Christopher Schroeder (Duke), along with moderator Jeffrey Rosen).  It's not a debate and we don't end up disagreeing on much (even thought there is plenty we disagree on as an academic matter) -- it's mostly about whether the presidential candidates have an unduly expansive view of presidential power.

I had not thought specifically about that question previously, but as the discussion progressed I came to this conclusion: neither of the candidates has very many specific proposals that one can say are clearly contrary to Article II (mostly because most of their proposals are not very specific or rest on unclear sources of authority).  But what seems especially troubling about the views of both candidates (and to some extent about the views of the current President) is more their rhetoric than specific proposals.  They seem to view the President as the person who is charged with getting things done, and if Congress (or other actors) won't or can't act, the President will do it.  That is not how our system is supposed to work (especially in domestic matters; foreign affairs is a bit different).  The President carries out the law; nothing  more.  As Justice Black put it in the Steel Seizure case:

In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. . . ."


Jack Balkin and Ilya Somin on Justice Scalia's Legacy
Michael Ramsey

 At Balkinization, Jack Balkin: Justice Scalia's Legacy,  From the introduction: 

Last week at the American Political Science Association, I gave a talk on a panel on Justice Scalia's legacy. This is a summary of my remarks.

In 2002, I wrote an article about John Marshall for the (then) upcoming 2003 bicentennial of Marbury v. Madison, in which I developed a way of thinking about the legacy of various Justices.  In predicting whether a Justice will be remembered as great, some of the basic questions to consider are:

(1) How useful is the Justice to later generations?

(2) Is the Justice central to or symbolic of the constitutional/political regime in which he or she lived? Did the Justice take prominent positions on the key decisions that arose during that regime that are still canonical today?

(3) Perhaps even more important, did the Justice stand for (or take) the "right" positions on the right issues as judged by later generations?  Was the Justice on the "right side of history" as determined by later generations?  

(4) Did the Justice have acolytes and supporters who will defend and promote the Justice's reputation, and launder it for later generations?  

Discussing Justice Scalia's legacy generally:

Viewed from this standpoint, Scalia has a definite shot at greatness. He is clearly symbolic of the Reagan regime that is nearing its end (or has just ended). Indeed, he sat on the Supreme Court during almost the entire regime. Scalia also took important positions on most of the key constitutional issues in the Reagan regime. Perhaps most important, Scalia has plenty of acolytes and cheerleaders who are eager to burnish his reputation and keep his memory alive.

 Potential issues for Justice Scalia's reputation:

Probably the most difficult hurdle Scalia's reputation will face  is whether he took too many positions that will turn out to be "wrong" from the perspective of later generations.  That might be especially so if the new political regime that replaces the Reagan regime is dominated by the Democratic Party's "coalition of the ascendant."  As Scalia himself once remarked, if the politics go against him, he might be remembered as "the Justice Sutherland of the late-twentieth and early-21st century."

But I emphasize that one shouldn't be too sure about this. We can't really predict what later generations will think is most important. 

Finally, Justice Scalia's relationship with originalism:

Scalia, of course, was one of the Court's two originalists, along with Justice Clarence Thomas. As I've pointed out before, originalism is not going away anytime soon.  As long as people advocate originalism (and textualism), they will find Scalia symbolically useful. But I don't think that Scalia will be remembered as great primarily because of his methodological commitments to originalism or textualism, although I do agree that these are currently very important to his reputation. In the long run, I expect, his substantive positions, judged from the perspective of the future, will probably prove most important.

At Volokh Conspiracy, Ilya Somin has extensive comments: Predicting Justice Scalia’s future reputation.  One of the central arguments: 

Scalia’s historical reputation might turn out to be similar to Black’s or Holmes': remembered mainly for his achievements, while his shortcomings are minimized. But I think it is likely that Scalia’s reputation will be more analogous to that of Earl Warren or William Brennan’s. These justices are beloved by many liberals. But most conservatives view them negatively. Brennan is a particularly close analogue to Scalia, in some ways. Both were associate justices who were, for many years, seen as the leaders of their particular wing of the Court. Both wrote numerous important opinions that were praised by one side of the political spectrum and abhorred by the other.

Decades after Brennan left the court, there is still no consensus about his legacy. The same may well be true of Scalia. In the future, as today, he may well be remembered as a hero by conservatives (and some libertarians). But most left-liberals will continue to view him negatively. In addition to his gay rights opinions, this division will be reinforced by his forceful opinions in affirmative action and abortion cases. Unlike gay rights, affirmative action and abortion are likely to continue to divide left and right for a long time to come.

Scalia was a far more substantial intellectual figure than Warren or Brennan. That has won him praise even from some liberal legal scholars who think he was wrong about most substantive issues, including Cass Sunstein and Jamal Greene. But, at the end of the day, Balkin is right to argue that substance plays a much larger role than technical skill in determining justices’ historical reputations. So it is likely to be with Scalia.

And, as in the case of Brennan (who otherwise had little in common with Scalia), his substantive legacy is likely to remain controversial for a long time to come. If there is a difference, it is that some of Scalia’s critics on the left may be more likely to view him as an intellectually serious opponent than is the case with most of Brennan’s critics on the right. Scalia may enjoy greater respect from his adversaries, for that reason. On the other hand, Scalia’s sometimes-harsh rhetoric often attracts more hostility than Brennan’s more soft-spoken opinions.


A Reply to Saul Cornell on Natural Born Citizens (part 2)
Michael Ramsey

This is the second part of my comments on Professor Saul Cornell's essay  The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism  (2016 Wis. L. Rev. Forward 92).  For part 1, see here.

As discussed in the prior post, Professor Cornell's essay appears to make two main points.  First, originalist methodology is defective, especially as compared to historians' methodology, in determining original meaning.  Second, this deficiency is illustrated by errors originalists have made in interpreting the 1790 Naturalization Act (which in turn have led to misunderstanding the natural born citizen clause).  In this post, I will address the second claim.

The essay's principal target is an earlier essay by Neal Katyal and Paul Clement defending Ted Cruz's eligibility to be President.  (Cornell also criticizes my draft article The Original Meaning of Natural Born, but I do not rest my argument principally on the meaning of the 1790 Act).  He says:

Focusing on the 1790 Naturalization Act, [Katyal and Clement] conjure up a reading that is almost impossible to imagine being accepted by most lawyers and judges in the founding era.  "The Naturalization Act of 1790[,]" they assert, "expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the Untied States at some point."  Their textualist approach is patently ahistorical.  The two lawyers have unconsciously imported modern norms of gender equality into their analysis and produce an interpretation that is utterly implausible.

The 1790 Act provides that the "children of citizens of the United States" shall be considered as natural born citizens.  Katyal and Clement say this includes people who had citizen mothers and alien fathers.  Cornell says this is "utterly implausible" and that the Act only applies to people with citizen fathers -- and also that Katyal and Clement's error illustrates the deficiencies of originalist methodology.

However, Cornell himself appears to rely principally  on just four founding-era sources in opposition to Katyal and Clement: a brief passage from Blackstone's Commentaries, together with some general statements about British practice; an 1805 decision of the Massachusetts Supreme Court, Martin v. Commonwealth; a portion of a comment by Representative Livermore in the congressional debates on the Act; and a comment in St. George Tucker's 1803 treatise on the Constitution.  Leaving aside for the moment whether these sources prove his point, it's noteworthy that these are exactly the kind of sources originalists use to determine original meaning.  There is simply no daylight between his approach and the standard originalist approach.  True, Katyal and Clement do not consider these sources, and they may be criticized on this ground if the sources are informative on the particular subject at hand -- but that is not a critique of originalist methodology; it's a critique of Katyal and Clement for failing to follow originalist methology.

Further, Cornell's sources do not appear necessarily to prove what he thinks they prove.  His central claim is that under the law of coverture as it stood in the late eighteenth century, a married woman took on the nationality of her husband and "could have no separate political identity outside her husband's national allegiance."  Thus the 1790 Act shouldn't be read to include children of U.S. mothers and alien fathers because (I guess -- Cornell does not spell it out) the U.S. mothers would not be considered U.S. citizens under the law of coverture.

I'm not an expert on the eighteenth century law of married women's rights and status, and it seems that the law in this regard was a bit confused and possibly contradictory.  But  am not persuaded by Cornell's sources, none of which addresses the question directly.  His Blackstone quote describes the status of married women in general terms, without specifically addressing nationality.  The Martin case addresses a somewhat different question: whether a Massachusetts statute penalizing failure to support the state during the revolution should be applied to a married woman whose husband did not support the state.  The court concluded that she was not within the meaning of the statute because at most she had only acted at the direction of her husband.  Although there is some language in some of the opinions supporting the idea Cornell advances, it is not central to the case.  St. George Tucker's comment is interesting and worth considering separately, but it does not go to the question of married women's rights.  Livermore's quote is the most helpful to Cornell, though he also was not addressing the question directly and quote is more ambiguous when given in full.  Livermore said: 

That question [that is, the residency requirement] is introduced to prevent any abuse.  If these citizens had children they might become citizens, but not to transmit their rights of citizenship.  The child of a citizen if abroad may be useful.  But that right might be transmitted from father to son and so on to perpetuity.

Cornell relies on the last sentence to say that Livermore thought the statue only applied to children of citizen fathers.  Perhaps -- though earlier Livermore spoke generally of "citizens."  He may simply have been giving an example that he thought would be most common.  And it is not clear if Livermore's observation -- even if it means what Cornell thinks it means -- was representative.

Moreover, there is substantial evidence that women who married aliens did not lose their prior allegiance.  First, English statutes prior to 1731 had given "natural born subject status" to persons whose fathers or mothers were English subjects.  (A 1731 statute changed it to fathers only, where it remained through the founding era).  Thus English law must not have supposed that the woman lost her subject status upon marriage to an alien.  Second, the U.S. Supreme Court considered this exact question in Shanks v. Dupont in 1830.  Writing for the Court, Justice Story stated (28 U.S. at 246):

Neither did the marriage with Shanks [a British subject] produce that effect [of a loss of U.S. citizenship], because marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not effect her political rights or privileges. The general doctrine is that no persons can by any act of their own, without the consent of the government, put off their allegiance and become aliens. If it were otherwise, then a femme alien would by her marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband, which are clearly contrary to law.

While Dupont was decided well after the 1790 Act was passed, Story seemed to regard the law as longstanding, and he cited a New York case from 1800, Kelly v. Harrison, to the same effect (see 28 U.S. 246, n.1).  Kelly involved an Irishman who emigrated to the United States and became a U.S. citizen, leaving a wife behind in Ireland; the question was whether she was alien who could not make a claim on his estate.  As Story indicated, the court held that the wife did not become a U.S. citizen merely because her husband did.

Finally, a passage from the congressional debates immediately prior to the one Cornell cites suggests an intent to extend citizenship to children of U.S. mothers.  (Documentary History of the First Federal Congress, v. 12, p. 529).   Representative Burke wanted to make a slight change to the bill's language to clarify that both parents need not be citizens to make the child a citizen: "it is unnecessary that the father and mother would both be citizens."  He then referred to a "Statute [that] was made in W[illiam] the 3rd."  Probably he was referring to the statute of 1698, 9 Will. III, ch.20 (the only statute passed under William relating to subjectship), which gave natural born subject status to persons with English fathers or mothers.  Representative Livermore replied that Burke's change was unnecessary because the bill already had the effect Burke wanted: 'This [that is, natural born citizenship] is extended to all people and the expression sets forth the children of every citizen."

This exchange, while not crystal clear, appears to support Katyal and Clement's view of the statute, and in any event is inconsistent with Cornell's suggestion that under coverture the husband and wife could not have different allegiances.

Ironically, the strongest evidence Cornell offers against the Katyal/Clement reading is textual: if the 1790 Act gave natural born citizenship to children with U.S. mothers and alien fathers, why did it then require the father -- but not the mother -- to reside in the United States?  The Act's language again is:

And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:  Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.

This language may seem to suggest that the drafters were thinking only of citizen fathers.  Otherwise it does create an asymmetry: a male U.S. citizen could go abroad, marry an alien and have children who were U.S. citizens, but a female U.S. citizen could not do so unless the alien she married happened to have lived in the United States.  But perhaps the drafters intended this asymmetry, which reduces the ability of women to transmit citizenship.  Perhaps they thought that female U.S. citizens were not likely to marry aliens other than ones who had lived in the United States, so the difference was immaterial.  Perhaps they thought that, due to the dominant role of the father in the household in that time, the father should have some connection to the United States even if citizenship came through the mother.  In any event, the text, given its natural meaning, does not appear to lead to an absurd result, despite the asymmetry it creates.

In sum, despite claims to be engaged in a different methodological enterprise, Professor Cornell's critique of Katyal and Clement follows conventional originalist/textualist methodology and invokes standard originalist sources.  In the end, though, his sources do not greatly undermine the Katyal/Clement reading -- at minimum, they surely do not render it "utterly implausible."

(With apologies to overburdened readers, I plan one additional post discussing how Professor Cornell's essay relates to my theory of the eligibility clause).


William Baude & Ryan Doerfler: The (Not So) Plain Meaning Rule
Michael Ramsey

William Baude (University of Chicago - Law School) and Ryan David Doerfler (University of Pennsylvania Law School) have posted The (Not So) Plain Meaning Rule (University of Chicago Law Review, Vol. 84, 2017, forthcoming) on SSRN.  Here is the abstract:  

Under the "plain meaning rule," courts interpreting a statute look beyond that statute's text -- but only if the text's meaning is not "plain." Though this rule has some intuitive appeal, it is quite puzzling upon further examination. We explain the puzzle, and then attempt to solve it.


Is the Syria Deal Unconstitutional?
Michael Ramsey

News outlets have reported that U.S. and Russian negotiators reached an agreement about future military operations in Syria, including a (very optimistic) "cease fire" between the Syrian government and the rebels.  Obviously, this deal is not going to be submitted to the U.S. Senate for its advice and consent.  Does that make it potentially unconstitutional, like the nuclear deal with Iran and the Paris climate agreement?

No one seems to be arguing that it is unconstitutional.  I think that's right, but it's important to ask why.

(a) It might be a nonbinding agreement.  I haven't seen the relevant documents, if there are any.  But quite possibly, the "deal" is all just statements of intent, not incorporated into any formal agreement.  If this is the case, as I suspect it is, then the "agreement" fits comfortably with the President's executive power to make nonbinding agreements.  It would not seem to raise any of the concerns I pointed out regarding the Iran nuclear deal, including (1) it is not likely to be misunderstood as a binding agreement by some of the parties; and (2) it probably does not promise specific actions at specific times in the relatively distant future.  Thus it probably does not intend to bind, and would not be understood by other parties as binding, future U.S. Presidents.

(b) Even if it is binding, the agreement might be a constitutional executive agreement.  This is not simply because it it a military agreement.  Long-term military agreements need to be approved by the Senate, like other long-term agreements.  For example, the 1817 agreement with Britain limiting armaments on the Great Lakes (the Rush-Bagot agreement) was submitted to and approved by the Senate (although President Monroe at first thought perhaps Senate approval wasn't necessary).  However, temporary military agreements such as cease fires were undertaken as executive agreements in the nineteenth century, notably in the War of 1812 and the Mexican War.  That is consistent with the idea that minor short term agreements can be done on the President's sole constitutional authority because they do not amount to treaties.  Indeed, one of the prominent international law treatises of the eighteenth century, by Christian Wolff, uses cease fires as an example of international agreements that are not treaties.

Of course, it is hard to assess the Syria deal without knowing its terms.  It's possible that it contains specific long-term obligations that are intended to be binding --  in which case it should be submitted to the Senate.  But it is easy to imagine circumstances in which it need not be.  That suggests caution in making broad statements about the need to submit "all" international agreements to the Senate.  Despite the clear command of the treatymaking clause, the Constitution's design is not that simple.