Why Did Lawrence B. Solum Miss A Critical Point in the Natural Born Citizen Issue?
In September of 2008, Lawrence B. Solum, a John E. Cribbet Professor of Law at the University of Illinois College of Law, wrote a research paper entitled “Originalism and the Natural Born Citizen Clause.”[i] The main focus of the legal paper regards enigmatic areas of natural born citizenship and how an Orginalist or New Originalist would treat the natural born citizen clause in Article II of the United States Constitution.
Professor Solum believes there is an enigmatic area of the natural born citizen clause which comes to light when we have a candidate such as John McCain who was born to American citizens outside of the territory of the United States. Professor Solum writes:
What is the legal significance of what we can call “the natural born citizen clause”? There is general agreement on the core of settled meaning.2 Anyone born on American soil whose parents are citizens of the United States of American is a “natural born citizen.” Anyone whose citizenship is acquired after birth as a result of “naturalization” is not a “natural born citizen.” But agreement on these paradigm cases does not entail that the clause has a clear meaning. The clause becomes enigmatic once we focus on persons who are born outside the territory of the United States to parents who are American citizens. Are they “natural born citizens,” eligible for the presidency? Or do they fall into a constitutional twilight zone, neither “natural born” nor “naturalized,” but nonetheless citizens. (Ibid p. 1)
Professor Solum makes three very important points in this paragraph of his legal paper:
- He argues that there is general agreement that “[a]nyone born on American soil whose parents are citizens of the United States of America is a ‘natural born citizen’.”
- He argues that “[a]nyone whose citizenship is acquired after birth as a result of ‘naturalization’ is not a ‘natural born citizen’.”
- He concludes that there are individuals who fall between these two standards, i.e., individuals who cannot satisfy the general agreement of the definition of natural born citizen and individuals whom are citizens but they did not receive their American citizenship via naturalization such as John McCain. He describes these individuals as enigmatic to the natural born citizen clause.
The bulk of the paper goes on to discuss how Originalists or New Originalists will handle this conundrum. This article wishes to first focus on the point already made by Professor Solum and discover whether or not President Obama fits Professor Solum’s description of an enigmatic natural born citizen.
We know that Barack Obama was born in 1961, and as a result of his father being governed by the British Nationality Act of 1948, President Obama was also governed by that same act at birth. In accordance with the British Nationality Act of 1948, President Obama was a British citizen at Birth. Through inheritance from his mother, President Obama was also a U.S. citizen at birth; hence, he possessed dual citizenship at birth. In Professor Solum’s legal paper he is clear that anyone born on American soil whose parents (plural, not singular) are U.S. citizens are natural born citizens. Since Barack Obama at birth cannot meet the generally accepted interpretation put forth by Professor Solum, then Barack Obama would fall under Professor Solum’s enigmatic persons with respect to the natural born citizen clause.
Interestingly, Professor Solum never mentions Barack Obama nor Barack Obama’s birth circumstances in his legal paper. Why? Professor Solum resides and teaches in Chicago, Illinois. Surely Professor Solum is well aware of President Obama’s history and birth status. It is common knowledge that President Obama’s father was not a U.S. citizen when President Obama was born, yet Professor Solum doesn’t seem to note the importance of this fact when discussing the natural born citizen clause and originalism. In fairness to Professor Solum, let’s look at more of his legal paper to see if he would qualify President Obama as a natural born citizen without any enigma surrounding that qualification.
As Professor Solum goes on to state in his legal paper:
This Essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the Essay explains the relevance of originalist constitutional theory to the controversy with special reference to the New Originalism—the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism—the phrase “natural born citizen” may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a “term of art,” in particular, the idea that the meaning of “natural born citizen” derives from the English concept of a “natural born subject.” Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory. (Ibid p. 2)
Without sifting through the arguments for original intent and the New Originalism, let’s review Professor Solum’s conclusion to his paper and determine if President Obama continues to be an enigma to Article II of the U.S. Constitution. Professor Solum concludes:
The phrase “natural born citizenship” is semantically inaccessible to modern readers. Because this phrase violates the rule of compositionality, it must be understood as an idiom or term of art. For this reasoning, gleaning the meaning of the phrase requires us to investigate linguistic practice to recover the original meaning–the meaning of “natural born citizen” at the time of constitutional utterance. When we look for public meaning, we may discover that the division of linguistic labor in the late 19th century takes us to the shared understandings of those learned in the law. We may need to look to eighteenth century linguistic practice to make sense of a phrase that would otherwise be either mysterious or radically ambiguous. For this reason, the natural born citizen clause may illustrate what we might call the “inescapability of originalism.” Some constitutional provisions only make sense after we turn our attention to the way language was used when they were framed and ratified—there is good reason to believe that the natural born citizen clause is one of these. (Ibid p. 12)
In summary, he concludes that natural born citizen as used in Article II of the U.S. Constitution is a term of art and illustrates the “inescapability of originalism.” In getting to this conclusion, Professor Solum looks at the relevance of Constitutional Theory and cites the following:
[I]f one is not burdened by the label of “originalist,” then [McCain’s eligibility for the presidency] 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.6 (Ibid p. 3)
In this argument, he cites Michael Dorf, so the words above are not Professor Solum’s but rather Dorf’s; however, it seems clear from the passage that the argument above tends to lend itself to an affirmation of John McCain’s natural born citizen status. However, Professor Solum concludes as we saw earlier that the natural born citizen clause is bound by originalism, consequently, we cannot attribute Dorf’s conclusions to Solum’s. But we can ask under Dorf’s interpretation whether or not President Obama would be a natural born citizen, and the conclusion we must come to resides potentially in the negative.
Michael Dorf’s argument discusses foreign-born and a distrust of foreign-born, but what of foreign-inheritance. As is widely assumed, the Article II natural born citizen clause was included in the Constitution to prevent foreign influence in the highest office in the land, the Presidency. Is not a man with a foreign father that very influence which should be avoided? And in that avoidance, do we not strengthen Professor Solum’s “core of settled meaning” that a natural born citizen is born on U.S. soil to parents who are citizens of the United States?
Unfortunately, Professor Solum does not make his thoughts known on this subject because he does not address President Obama’s circumstances in his legal paper. I have one question for Professor Solum, why was President Obama’s birth circumstances not addressed in his legal paper? I have posed this question to Professor Solum via the following email, and I await a response:
From: [Redacted for Privacy Purposes]
Sent: Thursday, October 08, 2009 5:04 PM
To: [Redacted for Privacy Purposes]
Subject: A follow up question Regarding Research Papers Series No. 08-17
Dear Professor Solum,
I have an additional question for you regarding your Research Papers Series No. 08-17 and your article entitled “Originalism and the Natural Born Citizen Clause.” In writing your paper, you mention that “[t]he meaning of the natural born citizen clause became politically salient when John McCain became the Republican nominee for President in September of 2008…” I wonder why you did not come to this same conclusion when Barack Obama became the Democratic nominee in August of 2008. You stated in your paper that “[t]here is general agreement on the core of settled meaning.2 Anyone born on American soil whose parents are citizens of the United States of American is a ‘natural born citizen’.” Professor Solum, I make the assumption that you are aware that President Obama was not born to parents (plural, not singular) who were citizens of the United States. As President Obama readily admitted on his website Fight The Smears before the September 2008 Draft of your article:
“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.
Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”
Professor Solum, as you can see from the above quote, the British Nationality Act of 1948 governed Barack Obama’s citizenship making him through inheritance from his father a British citizen at birth. Certainly President Obama’s birth circumstances represent an enigma to the Article II natural born citizen clause as he does not fit your “core of settled meaning.” Can you please advise as to why you did not include Barack Obama in your legal paper on the subject of “Originalism and the Natural Born Citizen Clause.” I find it curious that you would make such an omission.
Should Professor Solum reply to my email and agree to make his reply public, I will provide his reply in this post. For now, we await his reply.
[i] Journal Article
Originalism and the Natural Born Citizen Clause
Solum, Lawrence B.
originalism, natural born citizen, president, presidency, constitution, constitutional theory, term of art, compositionality, original public meaning, new originalism, semantic originalism, John McCain