Dear Mr. Leary,
As a sometimes professor of Constitutional Law, I would like to point out a small issue with the lede to your article today regarding Marco Rubio’s eligibility to be President.
As printed in the Miami Herald, the article begins,
“Unable to prevent Barack Obama from becoming president, rigid followers of the Constitution have turned their attention to another young, charismatic politician many think could one day occupy the White House.”
The word I have a problem with is “rigid”. It is wrong to describe the view that “natural-born” means “born as the child of citizens” as being somehow a strict reading of the Constitution analogous to, say, a literal interpretation of the Bible or the “strict constructionist” school of constitutional interpretation. In fact, this reading is ahistorical and pretty nearly delusional. It has no support in case law or in history. To call it rigid is to suggest that there is some textual backing for it. There really is not. There may be the occasional comment here or there that can pulled out of context, but there is actually very little even of that, and nothing substantive, and it is not, and has never been, our law.
So the reading being proffered here isn’t “rigid” — it’s deviant, unprecedented, novel, extreme. No doubt these are all words newspapers hate to use in their quest to seem neutral. But an unwillingness to call something what it is should not push you into giving it even a shred of false legitimacy.
I might add that I am in no way a supporter of Mr. Rubio. That doesn’t change the the facts about our understanding of this clause of the Constitution.
Yours Sincerely,
A. Michael Froomkin
Professor of Law
Previously: Is McCain a “Natural Born Citizen”?
I felt the same way about the article and pointed out that very sentence to a colleague. The article gives false legitimacy to a non-sense argument.
Note page 2 of the article:
So who’s right? Professor Michael Froomkin, the Florida native son, or Professor
Larry Solum, the carpetbagger from Washington, DC?
Michael, as a long-term strategy, I think you might have more success convincing Larry to just say, “The arguments are crazy.”
Larry thinks — and has written — that is possible to construct an argument that the meaning of the term is ambiguous. He gets there based on some specialist types of originalist analysis that relies on what elites might have thought, which in turn is based on Blackstone’s use of a different phrase. All this is needed given that the public had no clue as the phrase was coined in the Constitution and it had no public meaning, He doesn’t ever come out and say that the clause should be read to exclude US-born persons with a foreign parent, just that there is an ambiguity using certain methods of analysis.
I don’t think that is the right way to read the clause, and in any case I am more than ready to argue that even if I was wrong about that the 14th Amendment changed the meaning of the clause to include, at a minimum, all persons born on US territory regardless of the citizenship of their parents. (And for what it’s worth the legislative history of the 14th amendment supports this view.) Cf. United States v. Wong Kim Ark, 169 U.S. 649 (1898),
Last night, somewhere in a pause while reading the dissent in Wong Kim Ark, I was struck by the thought of Korematsu v United States (1944).
Wikipedia remarks that Korematsu “has not been explicitly overturned.” But I hope, and expect, that you will agree with me when I say ‘Korematsu was wrong. The majority was wrong: morally and constitutionally wrong. The dissenting justices had the better arguments there.’
I am too much of a Jeffersonian, though, to ever be a ‘good originalist’. I recognize that our nation was birthed with a congenital illness: that ‘peculiar institute.’ We still struggle to overcome that historical accident of birth in each new American generation.
The “rigid followers” admit Senator Rubio was born in Miami, FL but still argue he is not a “natural-born citizen?” And as if everyone else is a “loose follower” of the Constitution. Write on Prof. Froomkin, write on!