Friday, February 29, 2008

Originalism Versus Straight Talk

In my post yesterday, I said that I would read the "natural born Citizen" provision of the Constitution's Article II to require that a President must have been "born" a citizen---regardless of whether that person acquired citizenship at birth because he or she was born in the United States or because he or she, while having been born outside the U.S., was born to U.S. parents. On this reading, John McCain is clearly eligible while Arnold Schwarzenegger---who was an Austrian citizen at birth and only acquired his U.S. citizenship later, via naturalization---is clearly ineligible.

Here I want to note how the best arguments for my McCain-friendly reading of the provision rely on a method of constitutional interpretation that McCain himself purports to dislike. First, let's establish McCain's bona fides as a potential President who would appoint judicial conservatives. Below are a few quotes from his campaign website. From a page called "Human Dignity & the Sanctity of Life, we learn:
John McCain believes Roe v. Wade is a flawed decision that must be overturned, and as president he will nominate judges who understand that courts should not be in the business of legislating from the bench. ... As president, John McCain would nominate judges who understand that the role of the Court is not to subvert the rights of the people by legislating from the bench.
Then, on a page describing McCain's "Strict Constructionist Philosophy":
[T]he rules we have agreed to live by are those made by the people themselves, not a small elite that claims to be wiser than everybody else. Our laws are legitimate precisely because they reflect decisions solemnly made by the people: in the case of Constitutional law, through the process of ratification and periodic amendment; in the case of statutory law, through their elected representatives in the legislative process. When applying the law, the role of the judge is not to impose their own view as to the best policy choices for society but to faithfully and accurately determine the policy choices already made by the people and embodied in the law.
In other words, McCain is an originalist. Okay, so, under the original understanding of the "natural born Citizen" clause, does McCain qualify? There is almost no contemporary evidence of what the framers and ratifiers thought the precise contours of the limit were. The leading scholarly treatment of the issue says that "no explanation of the origin or purpose of the presidential qualification clause appears anywhere in the recorded deliberations of the [Constitutional] Convention." The article, called "Who Can Be President of the United States: The Unresolved Enigma," was written in 1968 by Charles Gordon, then General Counsel of the INS and an adjunct law professor at Georgetown. It was published in the Maryland Law Review. [The article is not freely available on the web, alas, but you can find it in any decent law school library.]

Gordon ultimately concludes as I do, although along the way he is troubled by a number of doubts. For one thing, under the background English common law, the status of subject was acquired by birth in England (jus soli), although statutory modifications had also conferred
such status by birth to children of English subjects living abroad (jus sanguinis). (Apologies to Scots: Gordon uses "English" and "British" interchangeably, and I haven't independently figured out which is correct, though I suspect it's "British.") Gordon thinks that when the American Constitution referred to "natural born citizens" it meant to incorporate the broader rather than the older British notion, but this is mostly speculation on his part.

Second, a variety of American statutes adopted in the early Republic used language that could either be interpreted to mean that Congress thought that it needed to provide special legislation to confer citizenship on persons born outside the U.S., or that Congress assumed such people were "natural born citizens," and was merely confirming this assumption in legislation. Again, as Gordon himself concludes, the evidence of the original understanding is unclear.

What does a good originalist do when the evidence of the original understanding is unclear? Originalists aren't in full agreement on this point. Most of them usually say, in essence, that even if it's unclear what the original understanding was, judges (and other constitutional interpreters) should press on, and do their best to guess what it was. Others (perhaps this group doesn't quite deserve the name "originalists") allow for instrumental and normative arguments if the evidence of original understanding is truly indeterminate.

However, if one is not burdened by the label of "originalist," then this is a pretty easy question. The "natural born citizen" requirement manifests a distrust of the foreign-born that, in a nation of immigrants, can only be derided as repugnant. I both "reject" it and I "denounce" it! It's still part of the Constitution, however, and therefore we need to try to figure out what it means. My frankly normative move would be to limit the damage by limiting the scope of "foreign-born." There's no plausible way to read the provision to permit Schwarzenegger and other naturalized citizens to become President. There is a ready (if not 100% clearly the original) way to read it to permit Americans born abroad to U.S. parents to become citizens. Too bad for John McCain he can't in good conscience just say that. For though my position is straight talk, it's not exactly originalism.

Posted by Mike Dorf


egarber said...

Broadening the subject a tad to contradictions generally, here's one question I'd ask McCain in a debate:

Based on your declared judicial philosophy, you're essentially an originalist or strict constructionist. If so, how does that square with the notion that the President can engage in war absent a declaration from Congress? Article II is silent on the matter, while Congress is given explicit authority. Is it not an activist reading to find undeclared power for the president in this regard?

Caleb said...

This is a really tangential point, but some people from Wales and Northern Ireland might also feel offended at being referred to as English. (I can even speak with some first-hand experience)

egarber said...

Based on your declared judicial philosophy, you're essentially an originalist or strict constructionist. If so, how does that square with the notion that the President can engage in war absent a declaration from Congress?

Answering my own post, I suppose one acceptable reply could be:

The framers intended for that to be a political question -- so I wouldn't want a judge inserting the courts into that debate.

Neil H. Buchanan said...

Following two block quotes from McCain's website, Mike says: "In other words, McCain is an originalist." Based on this evidence, I'm not so sure. The only thing in the two quotes that even arguably pushes in the direction of originalism is the final sentence, where his ghost-writers say that the role of judges is "to faithfully and accurately determine the policy choices already made by the people and embodied in the law."

Why couldn't that statement embody any other interpretive mode, such as textualism -- or even "the living Constitution"? In support of the latter approach, talking about "policy choices already made by the people" could certainly include a policy preference for privacy.

I tend to read McCain's statements as quoted in Mike's post (and what little McCain has said elsewhere on the subject) not as an endorsement of originalism or anything else. He would probably admit privately to knowing nothing about the constitution, just as he happily admitted recently that he isn't particularly well-informed about economics.

More likely, as with so much of McCain's attempts to court the Right, I think he's just mouthing stuff that they like to hear, in this case words that amount to nothing more than a denunciation of judicial activism, which means nothing in current usage except "outcomes that movement conservatives deplore."

Michael C. Dorf said...

1) Caleb: For what it's worth, Wales is part of Great Britain but Northern Ireland is not (although it is part of the United Kingdom). I mentioned only the Scots because I mean to win Wimbledon. See

2) Neil: I slightly disagree. McCain has been consistently pro-life and he knows enough about judicial politics to know that this means he actually favors the conservative judicial agenda. For what this is worth, the only brand of constitutional textualism seriously on offer these days is orginalism (although, of course, it's possible to be a non-originalist textualist).

Unknown said...

Cases like McCain's are fairly easy to reconcile with the Constitutional language: people who are born outside the US to military personnel and spend at most infancy abroad are hard to distinguish qualitatively from people born on US soil.

It's considerably more difficult to deal in the same way with cases where, for example, people are born outside the US to recently naturalized US citizens and spend most of their lives abroad. These people seem to have much more in common with those who are clearly intended to be excluded from the presidency than with people who uncontroversially "natural born citizens."

This won't be a problem for people like Dorf who think that the restriction is mere xenophobic excess, but for people who think it makes sense, it will have to be interpreted either so narrowly as to exclude candidates like McCain or so broadly as to include candidates indistinguishable from those it was clearly meant to exclude.

Since I tend to agree with Dorf on the restriction, I'm not particularly troubled by this, but I do think it adds a possible wrinkle for originalists who are now arguing that the broader interpretation is obviously consistent with the framer's intent.

Neil H. Buchanan said...

Mike, I don't doubt your analysis of McCain's commitments, etc. I was merely making the semi-pedantic point that the passages that you quoted are so generic that they could be endorsed by anyone. If I didn't know that they were code and took them at face value, even I would feel comfortable endorsing them. (When everyone's an activist, everyone also deplores the other side's activism.)

So, I concede that McCain knows what his political goal is and that he has a very well-defined idea about who he would put on the court. To the extent that my previous remarks said otherwise, I both denounce and reject myself, which I hear is all the rage.

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The open letter below to Supreme Court Chief Justice Roberts concerns the Revised Rules for processing misconduct and disability complaints against federal judges filed under the Judicial Conduct and Disability Act by anybody. The Revised Rules are pending for adoption next March 11 by the Judicial Conference of the U.S., which is the highest policy-making body of the Federal Judiciary and presided by the Chief Justice.

This open letter is being submitted as an incentive for your media organization to investigate this important matter and as an Op-Ed, modifiable, if requested, as a letter to the editor of your online and print publications.

Indeed, the official statistics on the disposition of such complaints against judges show that during the 10-year period 1997-2006, there were filed 7,462 judicial complaints, but the judges had only 7 investigated by special committees and disciplined only 9 of their peers!

By the judges’ own categories, the dismissed complaints dealt with misconduct and disability such as:

* conflict of interests
* bribery
* corruption
* abuse of judicial power
* bias
* prejudice
* incompetence
* mental or physical disability preventing the discharge of official duties.

Despite the seriousness of these complaints, the judges systematically and without any investigation dismissed 99.88% of them. Thereby they self-exempted from any discipline for their misconduct and disability and in practice deprived the people of a right conferred upon them by an Act of Congress.

Such abuse prompted Congress to criticize the judges and propose the establishment of an inspector general for the judiciary. To ward off Congressional supervision, the Late Chief Justice Rehnquist set up a committee chaired by Justice Breyer to study the handling of such complaints.

The Breyer Committee held no hearings, published no comments submitted to it, and did not release even the redacted complaints on which it based its knowingly false conclusion that the judges “have properly implemented the Act in respect to the vast majority of the complaints filed”.

Next March 11, Chief Justice Roberts and the top judges on the Judicial Conference will meet to adopt the Revised Rules for implementing the Breyer Committee recommendations. Far from stopping the systematic dismissal of complaints, these Rules authorize it as the official policy of the Judiciary, as shown below in the open letter.

Judges who exercise enormous power over people’s property, liberty, and even life and self-exempt from any discipline wield absolute power, which corrupts absolutely. Wouldn’t your audience want to know more about having their rights decided by judges who have so little respect for the rule of law that they will in all likelihood adopt the Rules in defense of their arrogated “Unequal Position Above Law”?

To show you that if you decide to investigate this matter I can provide you with information and data that can help you hit the ground running, I have prepared the list of Judicial Conference members, addresses, and phone numbers, which can prove very useful to conduct phone interviews to begin with. You can retrieve it through

The Revised Rules, the statistics, the Breyer Report, etc., and their analysis can be downloaded through

I look forward to hearing from you.


Dr. Richard Cordero, Esq.
tel. (718)827-9521
59 Crescent Street
Brooklyn, NY 11208

(sample of the letter sent to each member of the Judicial Conference of the U.S.)

February 9, 2008

Chief Justice John G. Roberts, Jr.
Presiding Officer
Judicial Conference of the U.S.
c/o Supreme Court of the United States
Washington, D.C. 20543

Dear Mr. Chief Justice Roberts,

I am writing to you as member of the Judicial Conference, which next March 11 will consider the adoption of the Revised Rules for processing judicial misconduct and disability complaints. These Rules, just as the current ones that they are supposed to replace, are irremediably flawed as part of the inherently biased system of judges judging judges

Indeed, the official statistics on the disposition of such complaints show that during the 10-year period 1997-2006, there were filed 7,462 judicial complaints, but the judges had only 7 investigated by special committees and disciplined only 9 of their peers! This means that the judges systematically dismissed 99.88% of all complaints.

The Late Chief Justice Rehnquist and the Breyer Committee knew about these statistics, yet pretended that the Act had been satisfactorily implemented. Likewise, the Committee on Judicial Conduct and Disability pretends that if only the rules are reworded, judges will handle complaints against themselves as anything other than a dismissible nuisance. However, its Rules only authorize the continuation of such systematic dismissal by:

Rule 2(b) allowing the non-application of any rule by the judges handling complaints, thus rendering the Rules optional rather than mandatory and ensuring their inconsistent and capricious application;

Rule 3 and its Commentary depriving the official Commentaries of any authoritative status as well as the Code of Conduct for U.S. Judges and even mandatory rules on gifts, outside income, and financial disclosure reporting of any guidance value;

Rule 13 Commentary pretending that special committees may be barred from disclosing information about judges’ criminal conduct to prosecutors and grand juries, thus providing for cover ups.

My comments at (accompanied by all relevant documents or links to them) show that these are but some of the most blatant provisions to ensure the Rules’ ineffectiveness.

They also show how they are procedurally flawed, for the facts establish the intentional circumvention of the requirement of “giving appropriate public notice and opportunity for comment”.

Therefore, I respectfully request that you and through you the Conference:

1) take cognizance of my comments, hereby submitted to both;

2) not adopt the Revised Rules;

3) in the interest of justice and the public’s trust in the integrity of judicial process, call on Congress to replace the current system of judicial self-discipline inherently flawed through self-interest with an independent citizens’ board for judicial accountability and discipline, neither appointed by, nor answerable to, any judges; otherwise,

4) submit the Revised Rules to public scrutiny through appropriate notice and make public all comments thereupon submitted as well as all those already submitted by judges and others in what was supposed to be a process of public comment rather than a veiled opportunity for judges to indicate to its drafting peers and the Conference how to turn the practice of systematically dismissing judicial complaints into the official policy for defeating the Act through self-exemption from all discipline.

Looking forward to hearing from you, I remain,

Sincerely yours,

Dr. Richard Cordero, Esq.

Caleb said...

Ahh - that's what I get for being a know-it-all. And I always did love that sketch (although I'm afraid I had to go watch it to remember the reference).

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Anonymous said...

In reading a number of treatises on the subject of NBC written by so-called educated intellectuals I find it instructive that all exclude the works of Vattel, as if its being was unimportant to the councils of the Framers.

The 'term of art' of the term of natural born citizen was well understood, "...the children of citizen parents are the natural born citizens...” When one accepts the fact that a woman, wife, mother received her citizenship from the man, husband, father the term of art is an obvious colloquialism that is being smothered beneath a guise of intellectualism. I ain't buy'n it.

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