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Originalism Is Our Law (At Least When It Suits Us)

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Via Neil Siegel at Balkinization, 40 law professors have signed a letter concluding that Senator Kamala Harris is a natural born citizen and thus eligible for the presidency and the vice-presidency.  The letter’s argument generally parallels my thoughts on the issue, here.  (I would have signed the letter — with a couple of minor modifications —  if anyone asked, but no one did).

Notably, the letter relies almost entirely on originalist arguments.  The Constitution’s text does nothing to define the eligibility clause’s phrase “natural born citizen,” so we must look elsewhere for the definition.  Here is the letter’s argument:

As the Supreme Court long ago unanimously observed, “[t]he Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167 (1874). A primary source to which the Supreme Court has consistently resorted is English common law.

And that common law, from centuries before the creation of the United States up through the nineteenth century, always treated children born within the sovereign’s territory as “natural-born subjects”—“subjects” within a monarchy being equivalent to “citizens” in a republic. The great English jurist William Blackstone, who significantly shaped the legal understandings of the Framers of the U.S. Constitution, explained in his Commentaries published shortly before American independence that “Natural-born subjects are such as are born within the dominions of the crown of England,” because by being born in English territory, they owed allegiance to the king. 1 Blackstone *365-66. In particular, he emphasized that “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”  1 Blackstone *373. The only exception Blackstone identified was children born to enemies of the realm [ed.: um, also children of foreign diplomats]. And the great U.S. Supreme Court Justice Joseph Story made exactly the same point a few decades later: “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99, 164 (1830).

The letter also relies on the Supreme Court’s description of English common law in United States v. Wong Kim Ark, 169 U.S. 649, 658 (1898). And that’s it.  Every source cited is used to show what the English common law was — and thus what “natural born” meant — when the Constitution was ratified.  This is exactly the methodology I used in The Original Meaning of “Natural Born” so of course it seems right to me.

But most of the signatories of the letter are not originalists (Keith Whittington, Jack Balkin and a few others excepted).  Some are prominent originalism critics (Erwin Chemerinsky, Michael Dorf, Pamela Karlan, etc.).  Yet here they rely on originalist arguments.

Will Baude is right, at least part of the time:  Originalism is our law.  When it suits us.

To be sure, these scholars may reply 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.

The natural born issue joins others (the meaning of “emoluments,” the meaning of “high crimes and misdemeanors”) in which nonoriginalist scholars have found a definite and binding original meaning of a constitutional phrase.  I’m keeping a list.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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