« Linda Greenhouse on Friedrichs v. CTA and 'Scalia's Putsch'
Michael Ramsey
| Main | Curtis Bradley & Neil Siegel: Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers
Michael Ramsey »


Daniel Rice: The Riddle of Ruth Bryan Owen
Michael Ramsey

Daniel B. Rice (Duke University School of Law '15) has posted The Riddle of Ruth Bryan Owen on SSRN.  Here is the abstract:

This Article recovers a lost chapter of constitutional history — the ill-fated challenge to Ruth Bryan Owen’s congressional eligibility. Owen was the brilliant (and American-born) daughter of famed politician William Jennings Bryan, and a pioneering figure in her own right. But the Expatriation Act of 1907 stripped Owen of her American citizenship when she took a British husband. Congress swiftly repealed this loathsome feature after the Nineteenth Amendment’s ratification. Yet Owen’s defeated opponent claimed that she hadn’t “been seven Years a Citizen of the United States” as the Constitution requires. Because Owen had been a naturalized citizen for only three years at the time of her 1928 election, the House faced an unenviable adjudicative dilemma: does “seven Years” mean the immediately preceding seven years, or any seven years cumulatively?

Owen’s case demonstrates that the perceived clarity of even “mathematical” constitutional provisions can be shaped by purposive and pragmatic considerations extraneous to the text, considerations that often change in light of freshly received facts. This Article also presents powerful new evidence that women came to be seen as improper objects of state-sanctioned discrimination soon after the Nineteenth Amendment’s ratification. Owen’s triumph marks an important turning point in American women’s effort to achieve full constitutional equality. Because scholars have forgotten her story, they have overlooked crucial sources that might have helped provide a historically firmer basis for modern sex-discrimination doctrine. And as Owen’s case shows, historical practices repugnant to the modern constitutional order should never be accorded residual legal effect. This Article accordingly criticizes the Supreme Court’s plurality opinion in Kerry v. Din (2015) for citing the Expatriation Act to downplay an asserted liberty interest’s historical pedigree under the Due Process Clause.

Via Larry Solum at Legal Theory Blog, who says "Wonderful and fascinating.  Highly recommended.  Download it while it's hot!" and adds a interesting extended discussion of the seven-year citizenship requirement.  

My view, for what it's worth, is that the seven-year requirement means -- fairly clearly -- seven years immediately prior to being elected.  Otherwise, what's the point of the requirement?  It would be absurd to say that a person who was a U.S. citizen for seven years in the distant past (say, from birth to age seven), having become the citizen of another country and renounced U.S. citizenship, should nonetheless be eligible.  Since the possible textual meanings are "seven years immediately prior" and "any seven years," and the latter is absurd, the former is the answer.

Note: Daniel Rice is also the author of a great student note, as discussed here and here.