Monday, August 24, 2020

What is Nonoriginalism? A Response to Professor Ramsey’s Misunderstanding of our Analysis of the Natural Born Citizen Clause

 By Michael C. Dorf & Martin S. Lederman

Earlier this month, Chapman law professor John Eastman wrote an op-ed in Newsweek proposing that Senator Kamala Harris might not be a “natural born citizen” (NBC)—and thus not eligible to be elected Vice President—if her parents, who were foreign nationals rather than U.S. citizens, were not permanent U.S. residents at the time of her birth in California. The op-ed’s title suggested that Professor Eastman was only raising questions, but its content affirmatively argued against Senator Harris’s eligibility to be president if her parents were “merely temporary visitors.”

Professor Eastman’s op-ed was quickly weaponized by Donald Trump and his supporters, who used it to provide a patina of respectability to a repurposed “birther” attack—once again targeting the historic candidacy of a person of color. Accordingly, it was important to set the record straight by showing that Professor Eastman’s view is not merely unorthodox but well beyond the limits of reasonable disagreement among well-informed scholars. Thus, we joined 39 other constitutional scholars who signed a letter explaining what was so very wrong with Professor Eastman’s analysis.

Our letter first explained that Professor Eastman mistakenly focused almost exclusively on the citizenship clause of the Fourteenth Amendment rather than the most relevant constitutional provision—the NBC clause of Article II. That clause, we explained, is at the very least informed by the common law idea of a “natural-born subject,” and for many centuries that common law had covered people such as Senator Harris who were born within the sovereign territory, subject only to narrow exceptions not implicated by her circumstances. Meanwhile, we noted that even on its own terms—as an interpretation of the Fourteenth Amendment—Professor Eastman’s analysis badly misfired. Among other difficulties, his view, if accepted, would not merely deem Senator Harris and millions of other Americans like her ineligible for the presidency and vice presidency but would strip them of their citizenship entirely (which would mean, among other things, that Harris and many other federal legislators wouldn’t be eligible to serve in Congress).

Because it expressed the extremely conventional wisdom, the letter we signed garnered support from scholars with a wide range of views on a great many subjects. It would surely have garnered even more support if the organizers had held it open for voluntary signatures rather than soliciting signatures from particular individuals (as they did in order to publish it quickly, which is the same reason we did not solicit signatures for this sur-reply from a larger group). In a post on the Originalism Blog, University of San Diego law professor Michael Ramsey wrote that he would have signed it, too, at least if it had included “a couple of minor modifications.”  We very much appreciate his general support for our conclusion about Senator Harris. Statements like his and one by UCLA law professor Eugene Volokh underscore that Eastman’s view falls nowhere within the range of opinions held by scholars with a very wide variety of methodological and ideological commitments.

In addition to agreeing with the substance of the response to Professor Eastman, however, Professor Ramsey implicitly accused at least some of the letter’s signers (including one of us by name) of hypocrisy, although Professor Ramsey was too polite to put the charge that pointedly. Professor Ramsey observed that some of its signers “are prominent originalism critics (Erwin Chemerinsky, Michael Dorf, Pamela Karlan, etc.). Yet here they rely on originalist arguments.” With due respect, we think that Professor Ramsey misunderstood both what the letter said and the nature of the broader critique of originalism. 

(1) How Professor Ramsey Misunderstood the Letter

Our letter is deliberately minimalist, as one might expect it would have to be with such a wide range of signatory scholars. Basically, all that it says is that one thing has been more or less resolved for over two centuries—namely, that someone born in the U.S. (other than a diplomat or invader) is an NBC.

To be sure, the letter cites the original understanding of the NBC clause respecting U.S.-born persons because, of course, original understandings are relevant to constitutional interpretation.  The letter also emphasizes, however, that variants of Eastman’s argument were roundly repudiated long ago. The Citizenship Clause of the Fourteenth Amendment rejected the view of Dred Scott v. Sandford that persons of African descent could never become citizens of the United States. And then the majority in United States v. Wong Kim Ark rejected the pernicious argument offered by the Solicitor General that if U.S.-born children of Chinese nationals were citizens it would be “a most degenerate departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having.” In relying on the Fourteenth Amendment and on Wong Kim Ark, our letter was thus making arguments based on precedent and historical settlement, not merely based on the original meaning of the NBC clause (or the citizenship clause).

The letter’s core point is simply that the application of long-settled principles leads to the conclusion that Senator Harris is an NBC. (We might have added expressly that there’s no real argument of any kind for Professor Eastman’s contrary view, using any mode of interpretation, but such a claim is implicit in the letter.)

Professor Ramsey attributes to the letter a number of propositions it doesn’t contain. These include:

The Constitution's text “does nothing to define the eligibility clause’s phrase ‘natural born citizen.’” 

The letter doesn’t say that, in part because some of the signatories don’t think it’s right. The two of us take the view, for instance, that the text does define what’s covered at a certain level of generality, but the text itself doesn’t tell the reader what the answer is to the specific question whether Senator Harris is an NBC—a particular application of the clause. Indeed, the letter implies that “original public meaning” originalism is insufficient to answer the question. The letter certainly does not argue that there is, as Professor Ramsey writes, “a definite and binding original meaning of [this] constitutional phrase.”

“We must look elsewhere for the definition” of NBC because the Constitution’s text does not define it. 

The letter doesn’t say that, either. The letter acknowledges looking beyond the Constitution’s text, but not for the definition of the term NBC. The broader search (which takes us to the longstanding English common law) merely aims to discover whether someone in Senator Harris’s situation is an NBC.

“Every source cited is used to show what the English common law was—and thus what ‘natural born’ meant—when the Constitution was ratified.” 

That’s also not true. First of all, the letter is not making a case about what the term “natural born citizen” “meant” (any more than it makes sense to ask whether the word “planet” means Saturn, as opposed to the quite different question whether Saturn is a planet, given the meaning of planet). Moreover, we don’t do a lot to describe what “English common law was” generally; it’s sufficient to say that it had a clear answer to this question. Nor, to repeat, is our letter limited to questions of what the understanding of the term was when the Constitution was ratified. Our main point, in fact, is that it has long been essentially uncontested that the case of someone like Senator Harris is covered. So, for instance, we invoke SCOTUS precedent and, most importantly, the absurd implications of Professor Eastman’s argument (such as the fact that it implies that Senator Harris is not a citizen at all).  

(2) How Professor Ramsey Misunderstands the Critique of Originalism

Professor Ramsey’s misapprehensions of what we argue in our letter might not be all that important. After all, he agrees with the bottom line. But those misapprehensions appear to reinforce his broader misunderstanding of the critique of originalism that many of the letter’s signers have made. We worry that other originalists might share that misunderstanding, and so we should respond to his claims about what most critics of the recent turn to originalism believe.

Professor Ramsey accuses the letter’s signatories of being “originalism critics” yet “rely[ing] on originalist arguments … [w]hen it suits us.” He then surmises that we might reply to his (implied) charge of hypocrisy by saying

that originalism is indeed one of the “modalities” of constitutional argument, appropriate some times and not others. I think that’s a fair response (albeit a bit opportunistic). But in any event they now should be precluded from the two most common arguments against originalism: (a) that it’s inherently indeterminate, incoherent or impossible; and (b) that the original meaning, even if determinate, should have no force in the modern world.

There are three errors in that brief paragraph. First, when we question “originalism,” it’s not because we reject a particular modality or form of argument. Indeed, we consider arguments based on the text and on original understandings to be relevant to constitutional interpretation. (Is there anyone who doesn’t?)  In our view, however, originalism is, as BU law professor James Fleming aptly puts it, “an ism, a particular theory of constitutional interpretation holding that the relatively concrete original meaning of the Constitution is the only legitimate source of constitutional interpretation.  . . . By contrast, generic consideration of original meaning takes an eclectic approach and regards it as one among several available sources of constitutional interpretation.”

But perhaps that’s just an objection regarding nomenclature. Professor Ramsey does appear to acknowledge that nonoriginalists care about the text’s original meaning and understandings—or at least that we do so when it’s convenient.

That brings us to the second error. Professor Ramsey says that we nonoriginalists think that original meaning is “appropriate some times and not others.” We don’t know any serious constitutional scholar who thinks that original meaning is ever not an “appropriate” consideration in the sense of an important source of constitutional understanding. Where the text’s original meaning is sufficiently determinate to provide guidance, it is always relevant, even if it is sometimes outweighed by other considerations (such as stare decisis). Put differently, no one subscribes to Professor Ramsey’s proposition (b) “that the original meaning, even if determinate, should have no force in the modern world.” That is not, as he says, one of “the two most common arguments against originalism.” It is a straw man.

That brings us, finally, to Professor Ramsey’s most fundamental misunderstanding of the critique of originalism—i.e., that it entails an argument that “it” (by which he presumably is referring to original meaning of the text) is “inherently indeterminate, incoherent or impossible.” This is another straw man. Nonoriginalists acknowledge that the Constitution is determinate over a fairly wide range of cases. The core objection regarding determinacy (there are other objections) is that original meaning is substantially less determinate than originalists frequently claim, especially in the cases likely to be litigated, and that therefore other factors necessarily or appropriately play a large role in resolving disputes (including in determining who’s an NBC).

To be sure, some contemporary originalists make many fewer claims for determinacy than the first generation of self-styled originalists did. Some in the newer generation are content to relegate constitutional adjudication to a zone of “construction” as distinguished from “interpretation”—and they generally concede that the vast majority of contested cases must be decided in the “construction zone.”  In our view, this concession threatens to render this new school of “originalism” largely indistinguishable from other, more frankly pluralistic methodologies. But that’s an argument for another day.

3 comments:

Joe said...

I respect this reply as I respect Prof. Segall's work, but to be a bit blunt, I find the whole thing rather tedious. But, such is the state of the law now, especially with the judges and justices appointed since the 1980s by conservatives. Including by the tainted current occupant. This includes the tone of the person cited. The "you are a hypocrite" [quiet part: just making shit up -- the two professors here are too polite to phrase it that way here]. The reply here is a polite, if pointed, "no."

Michael C. Dorf said...

Prof. Ramsey has posted a reply: https://originalismblog.typepad.com/the-originalism-blog/2020/08/a-response-from-michael-dorf-martin-lederman-on-originalism-and-natural-born-citizensmichael-ramsey.html

As he notes, much of our disagreement now appears to be over what is essentially a sociological question: How many people believe the propositions about the supposed irrelevance of original understanding even when determinate that he attributed to non originalists? He also identifies what he calls the "right question": how to weigh plausible arguments based on original understanding against plausible arguments based on other factors (such as precedent, longstanding practice, prudence, ethics, etc.) when they conflict. Pluralists like Phillip Bobbitt and Dick Fallon have written extensively about that question both as a descriptive and normative matter. I find the first part of Fallon's analysis particularly persuasive as a descriptive matter: Judges try to get the different sorts of arguments to cohere. I find his second part--that there is a hierarchy of forms of argument--less persuasive, because I think that it's easy to find counter-examples to any hierarchy. But I do think that pluralism along the general Fallon/Bobbitt lines is overall a better account of "our law" than is originalism, at least if we're using originalism to mean something distinctive.

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