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