At Dorf on Law, Michael C. Dorf & Martin S. Lederman: What is Nonoriginalism? A Response to Professor Ramsey’s Misunderstanding of our Analysis of the Natural Born Citizen Clause. From the introduction:
Earlier this month, Chapman law professor John Eastman wrote an op-ed in Newsweek proposing that Senator Kamala Harris might not be a “natural born citizen” (NBC)—and thus not eligible to be elected Vice President—if her parents, who were foreign nationals rather than U.S. citizens, were not permanent U.S. residents at the time of her birth in California. … [W]e joined 39 other constitutional scholars who signed a letter explaining what was so very wrong with Professor Eastman’s analysis. … In a post on the Originalism Blog, University of San Diego law professor Michael Ramsey wrote that he would have signed it, too, at least if it had included “a couple of minor modifications.” We very much appreciate his general support for our conclusion about Senator Harris. Statements like his and one by UCLA law professor Eugene Volokh underscore that Eastman’s view falls nowhere within the range of opinions held by scholars with a very wide variety of methodological and ideological commitments.
In addition to agreeing with the substance of the response to Professor Eastman, however, Professor Ramsey implicitly accused at least some of the letter’s signers (including one of us by name) of hypocrisy, although Professor Ramsey was too polite to put the charge that pointedly. Professor Ramsey observed that some of its signers “are prominent originalism critics (Erwin Chemerinsky, Michael Dorf, Pamela Karlan, etc.). Yet here they rely on originalist arguments.” With due respect, we think that Professor Ramsey misunderstood both what the letter said and the nature of the broader critique of originalism.
I’ll largely leave aside quibbles about what the letter does or does not say — partly because I simply don’t understand them. For example, the response says: “The letter acknowledges looking beyond the Constitution’s text, but not for the definition of the term NBC [natural born citizen]. The broader search (which takes us to the longstanding English common law) merely aims to discover whether someone in Senator Harris’s situation is an NBC.” But isn’t discovering “whether someone in Senator Harris’s situation is an NBC” part of finding the definition of NBC? In any event, my core claim about the letter is that it used originalist sources, such as the eighteenth-century English common law, to answer the question whether someone in Senator Harris’s situation is a natural born citizen. That still seems right to me, and it’s not clear that the response denies it.
The response’s second point — that is, the nature of the broader critique of originalism — is the more important one. My main point was that the letter showed both (a) that definitive answers could be had from originalist sources, and (b) that original meanings are relevant to modern constitutional interpretation. I don’t think the response undermines either claim. The response’s main argument seems to be that no one actually denies these propositions.
The response states: “[W]e consider arguments based on the text and on original understandings to be relevant to constitutional interpretation. (Is there anyone who doesn’t?)” I’m glad to hear that. But from many academic and non-academic debates, I can assure the writers that there are many people who do not.
Relatedly, the response says: “[N]o one subscribes to Professor Ramsey’s proposition … that the original meaning, even if determinate, should have no force in the modern world.’ That is not, as he says, one of ‘the two most common arguments against originalism.’ It is a straw man.” Again, I’m glad to have the response on my side, but I think actually people do commonly say that it doesn’t matter what meaning the Constitution had at the founding because that was long ago, the people who wrote it were aristocrats and slaveowners, etc.
Finally, the response says the claim that “the original meaning of the text … is ‘inherently indeterminate, incoherent or impossible’ … is another straw man. Nonoriginalists acknowledge that the Constitution is determinate over a fairly wide range of cases.” I’m glad to hear that too. But I don’t think the argument for indeterminacy is as unusual as the response suggests. I hear it all the time.
So in sum the response confirms that (a) the original meaning of the Constitution “is determinate over a fairly wide range of cases” and (b) “arguments based on the text and on original understandings [are] relevant to constitutional interpretation.” The disagreement appears to be mainly the extent to which these propositions are disputed.
I entirely understand and respect the interpretative position the response seems to be taking — that original meaning is a relevant, but not decisive, consideration. That position clarifies what I regard as the core question in the originalismism/nonoriginalism debate: what additional things should be considered, and how strongly do they weigh in the resolution? Clearing away the arguments the response calls “straw men” helps focus on the right question.
NOTE: This 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.