A helpful (and close) analogy as to the "natural-borncitizen"question?
Mitch Berman
MBerman at law.utexas.edu
Sat Nov 1 13:15:11 PDT 2008
Just to be clear, my suggestion is not that the Constitution ought to be
construed in accordance with the outcomes "preferred" by overwhelming
majorities. It's that we should take seriously the strong convictions
about the correct *legal* outcomes of particular cases (actual and
hypothetical) held by persons who are well-socialized into the practice
of law.
We spend a lot of time and energy trying to figure out (and argue about)
"correct" (or most warranted) normative theories of constitutional
interpretation. In doing so, we routinely reason from convictions about
more general or abstract considerations, like what we take to be the
nature of law, or what it means to interpret a text, or the value of
democracy and how best to realize it. The method of reflective
equilibrium counsels that we should pay regard as well to our
convictions about specifics, like what are correct particular legal
propositions. It may be that we don't often have strong convictions
about the latter that do not depend upon the application of interpretive
theories in which we have greater confidence. But when we do we should
be open to revising our (necessarily provisional) theories of
interpretation to accommodate those case-specific convictions.
Anyway, that's the general thought. The essay that floats it isn't
published or even posted. If it reaches a point at which I'm not too
embarrassed to have people see it, I might send a draft Larry
Rosenthal's way for his criticisms.
Mitch Berman
The University of Texas
-----Original Message-----
From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
Sent: Saturday, November 01, 2008 12:40 PM
To: Mitch Berman; lsolum at illinois.edu; CONLAWPROF at lists.ucla.edu
Subject: RE: A helpful (and close) analogy as to the
"natural-borncitizen"question?
I have my own reservations about originalism, and I am afraid that I
have not read Professor Berman's recent essay, but I find this critique
of originalism rather puzzling. There doesn't seem to be much point to
be having a constitution -- at least one in which constitutional
interpretation is vested in life-tenured judges rather than majoritarian
institutions -- if the Constitution must be construed consistent with
the outcomes preferred by the "overwhelming majority."
If an overwhelming majority rejects the results produced by originalist
interpretation, it is free to amend the Constitution. Thus, I am not so
worried about a method of interpretation if the only problem it creates
is that it will sometimes offend the views of an overwhelming majority.
Overwhelming majorities tend to be able to take care of themselves.
Larry Rosenthal
Chapman University School of Law
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Mitch Berman
Sent: Fri 10/31/2008 1:22 PM
To: lsolum at illinois.edu; CONLAWPROF at lists.ucla.edu
Subject: RE: A helpful (and close) analogy as to the
"natural-borncitizen"question?
For my money, this interesting debate between Larry and Eugene helps to
demonstrate (in addition to their seriousness and erudition), the
implausibility of originalism as a normative theory of constitutional
interpretation.
I venture that an overwhelming majority of us (whether that "us"
consists of citizens, lawyers, law professors, or even professors of
constitutional law) have a strong conviction that (assuming that basic
and noncontroversial reported details about his birth are true) John
McCain is eligible to the Office of President.
Now, it could well be, as Eugene argues, that McCain's eligibility is
consistent with the original understanding of the "natural born Citizen"
clause (or its original public meaning, or what have you). But, as
Larry's research shows, that is certainly not so obvious as to erase all
reasonable doubts. As originalists, however, both agree that the answer
to the contemporary legal question of whether McCain is eligible is
contingent on the correct answer to this historical debate.
If originalism is true, then those of us who are not professional
historians (or who have not seriously undertaken the relevant historical
inquiry) are not warranted in maintaining our strong belief that McCain
is eligible as a matter of correct constitutional understanding. So
something must give: originalism or our strong non-contingent conviction
that persons born to citizen parents in the Panama Canal Zone are
eligible to be president.
If you're already committed to a particular normative theory of
constitutional interpretation, then you might think it bizarre to
suppose that theories of interpretation can be answerable to
case-specific judgments of constitutionality. But the method of
reflective equilibrium--if it applies to the domain of constitutional
method--suggests that our judgments about theories of interpretation and
our judgments about correct case outcomes should be answerable to each
other.
I argue in a recent essay: that the McCain case does in fact provide an
unusually illuminating test case for the application of the method of
reflective equilibrium to the constitutional domain; that we are
justified in taking seriously our case-specific conviction that he is
eligible; and that this conviction tends to undermine
originalism--regardless of who's right in the debate between Eugene and
Larry.
Mitch Berman
The University of Texas
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Lawrence Solum
Sent: Friday, October 31, 2008 1:10 PM
To: Volokh, Eugene
Cc: conlawprof at lists.ucla.edu
Subject: Re: A helpful (and close) analogy as to the "natural-born
citizen"question?
Eugene's argument is certainly persuasive, but as I read the
materials, it appears that the actual English law differentiated
between who "was" a natural born subject and those who were given the
rights of natural born subjects. It's a very fine distinction, but it
actually makes a VERY BIG LEGAL DIFFERENCE. Natural born subjects
were subjects whether or not Parliament passed a statute conferring
that status, and classes of persons naturalized by statute could be
altered prospectively by Parliament.
On Fri, Oct 31, 2008 at 12:55 PM, Volokh, Eugene <VOLOKH at law.ucla.edu>
wrote:
> I appreciate Larry's point, which we always have to remember
> when analogizing from British law to U.S. law. Nonetheless, as
> Blackstone and Wilson describe it, the actual practice was that only
> natural-born subjects could be members of Parliament or holders of
other
> leading offices. Yet if this practice coincided with the practice of
> allowing such officeholding by children of English subjects who were
> born outside England, that would strongly suggest that the common
> understanding of "natural-born subject" -- and likely "natural-born
> citizen" -- was to include such people, no?
>
> Eugene
>
>> -----Original Message-----
>> From: Lawrence Solum [mailto:lsolum at gmail.com]
>> Sent: Friday, October 31, 2008 10:48 AM
>> To: Volokh, Eugene
>> Cc: conlawprof at lists.ucla.edu
>> Subject: Re: A helpful (and close) analogy as to the
>> "natural-born citizen" question?
>>
>> Eugene's inquiry is an excellent one--but there are some differences.
>> In the English context, the disabilities that flowed from
>> being a "naturalized" as opposed to "natural born" subject
>> could be removed by Parliament. That is, Parliament could
>> naturalize a class of subjects from birth & give then the
>> rights of natural born subjects. Congress, however, cannot
>> override the Constitution--in the English system, there was
>> not binding written constitution to be overridden.
>>
>> On Fri, Oct 31, 2008 at 12:25 PM, Volokh, Eugene
>> <VOLOKH at law.ucla.edu> wrote:
>> > Blackstone also reports that a "naturaliz[ed]" alien
>> in England
>> > -- as opposed to one "born in the king's ligeance" -- couldn't be a
>> > member of Parliament or a holder of various offices. James
>> Wilson's
>> > Lectures on Law, delivered in 1790 to 1791, discuss this
>> (specifically
>> > treating "a subject natural born" as the antonym of "a subject
>> > naturalized"). It seems quite likely that the limitation of the
>> > Presidency to "natural-born citizens" was understood as a vastly
>> > narrowed version of the English limitation of high
>> government office
>> > to natural-born subjects.
>> >
>> > Did this English office-holding disability extend to English
>> > citizens' children who were born outside the King's
>> dominions, or did
>> > some such people hold office? If they were seen as being
>> entitled to
>> > hold office, then it supports my reading of the earlier Blackstone
>> > passage, which treated them as being "natural-born subjects" (even
>> > though their status was conferred by statute). And the
>> same, I think,
>> > would apply to the American Presidency.
>> >
>> > Eugene
>> > _______________________________________________
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>>
>>
>> --
>> Lawrence Solum
>> Associate Dean for Faculty and Research, John E. Cribbet
>> Professor of Law, & Professor of Philosophy Co-Director,
>> Institute for Law and Philosophy University of Illinois College of
Law
>> 504 East Pennsylvania Avenue
>> Champaign, IL 61820-6909
>> lsolum at gmail.com or lsolum at illinois.edu
>>
>> --
>>
>> http://lsolum.typepad.com/legaltheory/
>> (blog)
>> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316
>> (ssrn page)
>> http://home.law.uiuc.edu/~lsolum/
>> (personal home page)
>> http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum
>> ,+Lawrence
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>> http://www.phil.uiuc.edu/faculty/list/Solum/index.htm
>> (homepage at the University of Illinois Department of
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>>
> _______________________________________________
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--
Lawrence Solum
Associate Dean for Faculty and Research, John E. Cribbet Professor of
Law, & Professor of Philosophy
Co-Director, Institute for Law and Philosophy
University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL 61820-6909
lsolum at gmail.com or lsolum at illinois.edu
--
http://lsolum.typepad.com/legaltheory/
(blog)
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316
(ssrn page)
http://home.law.uiuc.edu/~lsolum/
(personal home page)
http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence
(homepage at the University of Illinois College of Law)
http://www.phil.uiuc.edu/faculty/list/Solum/index.htm
(homepage at the University of Illinois Department of Philosophy)
http://www.pbase.com/lsolum/root
(photography galleries)
Assistant: Amy Fitzgerald
(217) 333-9115 / amfitzge at law.uiuc.edu
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