At his point I think we are just talking past each other. Let me put this as simply as I can:


(1). There are modern justices who define the constituion by looking at all contempory authority to understood what the relevant terms were understood to mean at such time, they do not in any way limit such inquiry to the common law. You will find no quotation from Scalia, for example, suggesting such limitation to the common law, as it makes no sense.

(2). These justices have placed such original understanding ahead of contrary dicta.

(3). A substantive argument can be made that the framers understood the relevant terms in accordance with English law that is different than your interpretation

(4). It is possible the court would disagree with your interpretation.


Honestly, I don't see how you can disagree with any of these. If you want to argue that dicta in Wong Kim Ark is contrary to this, you can. That doesn't mean such dicta will prevail over a substantive arguement that the original understanding was different. In reality, you overstate what Wong Kim Ark addressed as they did not define the limits of naturalization or any argument out side of the common law. In addition, the court did not say the statutory meaning of the term was irrerlevant to the common understanding at such time. Your just making that up. I said from the beginning that post-ratification authority favors your interpretation. However, if you think this settles the issue, you are just wrong. I have never said my argument was compelling. I said it was plausible. I still don't get your fixation with the common law.

I am not just arguing Wong Kim Ark, which you attempt to dismiss as mere dicta, I am following the logic through Rogers v Bellei and Miller v Albright. I accept your argument as possible, not necessarily plausible as it relies on a set up assumptions that I feel have been poorly developed. Lacking substantive arguments, I am not convinced that I have to accept your position as plausible.

It is surely possible, as you claim, that the Court would disagree with my interpretation however that would require it to reject some pretty solid findings by the Courts ever since Wong Kim Ark was passed. Nothing is of course beyond the powers of the Court, it's just a matter of plausibility.

For instance



in Schneider v Rusk, clearly suggests that there are two rights of citizenship discussed here, being native born or being naturalized where naturalized differs in only one aspect, namely eligibility to be president.

Such conflation of native and natural born is found throughout the Courts, scholarly research, all pointing to the same conclusion that the two are considered to be the same concept.

Now surely the Court may reject such observations as mere dicta, and may decide to ignore the clear arguments that led to courts to what may be considered to be dicta, but it seems rather premature to reject the Courts well argued positions as 'just dicta'.

Even if you were right that they are dicta, they are based on solid foundations of reason, logic, historical and scholarly understanding and should not be dismissed just because...

I am interested in a discussion which goes beyond the purely speculative and at least attempts a more coherent argument that can be discussed, and for which supporting arguments can be formulated based on factual data.

For instance, one can take the premise that the Founders intended to include children born abroad to US citizens as natural born, which would mean that such children's status is covered by the Constitution and cannot be taken away. Once we accept the premise and its conclusions, we can look at the facts, which appear to be contradicting the conclusion, if any. We find them in US v Wong Kim Ark, we find them in the fact that Congress, accidentally, failed to extend citizenship to a class of such children, from the 1802 law until it was rectified. We look at Rogers v Bellei, which shows how Congress can take away the Citizenship of such children, and come to the conclusion that at least the premise that natural born citizen included children born abroad to US citizens, leads to a conclusion which is at odds with the facts, and the position of the Supreme Court.

And thus, rather than speculate about what the Courts may or may not do, we can look at what the Courts have done so far to determine how well their positions would support a certain premise. So far, accepting a certain premise, in two cases now, I have come to find contradictions which have forced me to have to reject the premise. I am hoping that someone can provide a better premise/argument that would match the facts as we know them. Hoping that the Court will rule against itself, will consider Wong Kim Ark's arguments historically flawed etc, are of little value really.

Have the grocery stores been giving away free Wheaties this week?

I have written the following on my website, and since it addresses originalism, Heller and Natural born in a single article, I would like to share it here:


Lawrence B Solum has written an interesting, thought provoking article, in the Michigan Law Review where he explores how one would establish the meaning of the term "natural born citizen" under Originalism.

Pointing out the 'new' Originalism approach as outlined by Scalia in Columbia v. Heller:



But, as Solum observes, the term natural born citizen is irreducible, in the sense that it cannot be reduced to its individual components. In other words, the term is idiomatic. So how does one establish the 'normal and ordinary' meaning of the words when the phrase itself is idiomatic? Solum points to Blackstone who argues that "terms of art "must be taken according to the acceptation of the learned in each art, trade, and science.""

As Solum points out, the term natural-born had a technical meaning in English law and "those learned in the law in the framing era would have been familiar with Blackstone's Commentaries."

Blackstone clearly describes the term to mean 'born within the dominions of the Crown of England' but, also describes the statutory use of the term where children born abroad to natural-born fathers, would be natural-born, "to all intents and purposes". The latter statement does add some ambiguity to the term and since statutes cannot overrule the Constitution, unraveling the exact meaning becomes important

Solum then looks at Calvin's case:



leading to the conclusion that

If the American conception of "natural born citizen" were equivalent to the English notion of a "natural born subject," then it could be argued that only persons born on American soil to American parents would have qualified. This might lead to the conclusion that McCain would not be a natural born citizen under the Constitution because the Panama Canal Zone was not the sovereign territory of the United States but was instead merely subject to U.S. administrative control. On the other hand, the notion of a natural born subject might have been more flexible, encompassing all those who acquired citizenship at birth (as opposed to those whose citizenship was conferred after birth by "naturalization").

Solum then addresses the term subject versus citizen and establishes that the two phrases "natural-born subject" and "natural-born citizen" are equivalent, which would once again limit the term to persons born on American soil.

Solum continues to explore how under the Republican theory, children born to citizens would be equivalent to children born to the Crown and since the latter were natural born citizens under Common Law, such children in the US could be argued to be natural born as well. Solum references the 1790 naturalization act to support this position but observes that the act itself leaves an ambiguity. The term "shall be considered as natural born citizens", could mean that they were not actually "natural born" but were treated as such, but then under this interpretation McCain would not qualify as natural born based on the



Solum concludes that

Maybe I can put an end to this debate:

McCain is not going to be running again.

And the issues presented by Bobby Jindal and Barack Obama do not implicate the issues of this great debate.

(To try to have the last word -- I know I won't -- I doubt that 5 justices of SCOTUS, or any more than 1, would deprive NBC status to the child of an American soldier who served overseas with her husband. As with all methods of legal reasoning, they would find a way.)

Declaration and Resolves of the First Continental Congress
October 14, 1774



Which outlines what parts of English Common Law and English Statutes became part of the former colonies.

They could follow Lohman's proposal that such children are born under US allegiance or at least protection

Think about it. The whole idea of an infant being infused with "allegiance at birth" is preposterous. In fact, the whole reason for the clause was to keep Baron von Steuben from coming over here and taking over or being installed King of this little piss pot of a country.

Yes, this is also what confuses Birthers who do not appreciate how the term owing allegiance is to be interpreted. Basically it means nothing more than born under the protection of and owing obedience to the laws of.

Allegiance is a tricky concept but well explored by the Judiciary.

To paraphrase Shakespeare: "There are more things in law and equity, Horatio, Than are dreamt of in your philosophy."

You cite one small part of one modality among many used in construing constitutional text. It is one favored by, e.g., Scalia who, himself, has done some rather creative things in the name of intent. However, even in originalism, English common law (as opposed to our own common law), is merely one form of evidence used in an originalist analysis.

Originalism prefers that, in most cases, the Constitution be interpreted as it would have been meant to be interpreted in 1789. Some constitutional text is particularly well-suited to such analysis. For example, the Seventh Amendment's guarantee of a right to a jury trial in cases that would have been tried at common law by a jury can really only be interpreted in an originalist fashion by examining the common law split between law and equity. So far, that method of analysis has served us rather well.

Additionally, you have this strange notion that terms are "undefined in the Constitution." Except for a few phrases, which are at least partly defined in the Constitution, most terms used in the Constitution are not. Most terms in the Constitution are supposed to be interpreted, not defined.

Originalists wil look to how terms were used by average speakers, though their notion of an average speaker would be more an average Founder than an average hick. Still, the Constitution was meant to be understandable, at least in broad terms, to the reasonably intelligent educated landowning white man of the time.

To find the intended meaning of constitutional text, originalists use a variety of sources. These include the common law, but the common law is one of many sources of authority. For example, what is "commerce among the several states?" Would one, today, look to the English common law for a concept which could not possibly exist outside our own unique federal system?

What is "necessary and proper?" This term remains undefined in the Constitution. You will not find it in the common law (except of course our own which developed after the ratification of the Constitution and can, therefore not have been divined from original intent except in broad terms).

You look where you will find the answer, not in one fixed place by some mechanical, robotic method, where the moment you see an undefined term, you run off to common law whether or not it will be of any use. The only reason why English common law (and what it actually was in 1789) is critical to understanding the original meaning of the natural-born citizen clause is that it is nearly certain that by the use of the phrase "natural-born," the Framers specifically intended to adopt English common law. That definition of "natural-born," as modified by the Fourteenth Amendment, is what a true originalist would use. Whatever the common law actually was in 1789 would be the issue of the original meaning. There is literally no federal common law on the meaning of the phrase, as no court has made any binding pronouncements on the subject in its ratio decidendi. The only issue where a binding opinion could be issued would be if there were actually a Presidential candidate whose eligibility were challenged by someone with standing.

Also, originalism is only one methodology, and arguably, not one actually consistently applied by any jurist. There is also textualism. There are also evolutionary approaches. There is legal realism, pragmatism such as that of Sandra Day O'Connor, evolutionary approaches, mixed approaches which combine a common law approach with a progressive social agenda, of the sort one saw in the Warren Court, which would be typified by the Warren Court, and which Stevens somewhat resembled.

However, the common law approach has essentially died out at the highest levels of jurisprudence, with Stevens being the last of the great common law judges. Current judges are more likely to use approaches like law and economics, attempting to find efficient ways of carrying out the broader goals of the Constitution, such as individual liberty, stability, and security, rather than running to the common law. Obviously, the more results-oriented will seize on any modality that works.

But the notion that invariably, when one encounters an undefined term, one runs back to 1789, is frankly a fringe view at best. It would have been easier to notice this sooner if, in fact, originalism is not rather well adapted to understanding the natural born citizen clause. I have to make it clear, though, that you are simply wrong about how constitutions are interpreted.

We most certainly cannot. Congress may limit Constitutional rights if the limitation passes muster under the appropriate standard of review. For example, laws which discriminate by race or limit a fundamental right must pass muster under strict scrutiny: they must serve a compelling government interest by the narrowest means, and the government bears the burden of proving it. Laws which discriminate by sex (and some other undefined things) must pass intermediate scrutiny: they must serve an important government interest by a means substantially tailored toward that end. Laws which are nondiscriminatory and do not impact fundamental rights get almost a free pass: rational basis scrutiny. Under rational basis scrutiny, a law must serve a legitimate purpose by rational means.

Just plain wrong. As I pointed out, much of what became common law originated in statute, including many of the prerogative writs. You can't simply ignore that and continue repeating this falsehood and have it be unchallenged.

It depends on when. The Alien and Sedition Acts (from 1798 through 1918) would clearly be unconstitutional under modern jurisprudence, even Scalia's. But at the time each enactment occurred the Act was thought by the courts to be a Godsend and a violation of no one's rights.

Your quarrel is with the Courts, not with me. But if you disagree, could you explain to me where the term "natural born citizen" is defined in the Constitution?

Let me provide you with some examples



Source: C.L. Bates, Federal procedure at law: a treatise on the procedure in suits at common law




Source: Schick v. United States, 195 U.S. 65 (1904)

Your accusation has no foundation in fact. I am neither ignoring your statement nor repeating a falsehood. So let's try to maintain a more mature level of discussion...

I think you are missing the point here. It's not that there exists no federal common law on this topic, it is that the term had to be found in the common law of those days which had included English Common Law, as appropriate, as its foundation.

The phrase "natural born citizen" was, as far as I can tell, looked at by several courts to establish the citizenship status. Minor v Happersett, US v Wong Kim Ark.

Minor v Happersett



Similarly, in answering the Government's position that argued against the lower court finding which had found WKA to be natural born, the Court addressed the meaning of the term by observing that the term remained undefined in the Constitution and that its meaning thus had to be found in Common Law. A very defensible position given the circumstances. The Court then, meticulously analyzed the Common Law in England, the colonies, and the early republic, incorporating scholarly findings to establish the meaning of the term natural born citizen. It explicitly rejected the jus sanguinis concept as a foundation for citizenship other than through statute.

Our friend Tes has done an excellent job at tracking the usage of these terms in Supreme Court Rulings. They are an invaluable resource to anyone interested in becoming more familiar with how the term was being used.



In addition she has prepared a compendium of scholarly resources as well legal scholarship

That's funny. The actual lawyers here seem to think what I'm saying has some meaning.

You are confusing two separate arguments I am making. This is probably partly my fault, as I jumped back and forth between them without being particularly clear about what I was doing. I'll actually split them out this time.

First Argument

The example of common law writs is a clear example of how much of what we now call "common law" originated in statute, many if not all of the prerogative writs being an example. Trespass quare clausum fregit is another. Trespassing remained tortious in most if not all states after they adopted new constitutions, even in the absence of a statute on the books. How could this be, if not through their adoption clauses, by which they adopted English common law?

English common law was mostly judge-made law, and mostly sounded in equity. Indeed, equity is the core of judge-made law, largely for the reason that equity was created for situations where there was no adequate remedy at law. Law would generally be statutory. While this sounds very neat and clean, nothing of the sort is the reality.

You not only have a very simplistic notion of constitutional construction, but of what common law itself is. It undermines your arguments when you make simplistic, absolutist statements that have little to do with how people whose job it is to interpret constitutions do it.

For example, your statements in another post that common law was very clear would make any common lawyer hoot. Common law, whatever its merits, and I am personally a big fan of common law over code-based systems, is anything but clear. It is a haven of complex balancing tests which require a nearly Solomonic wisdom to apply, areas of the law where there are twenty different cases, each applying the law slightly differently and possibly even in a contradictory fashion, where sometimes, it takes decades of case law before a fault line is apparent, and a doctrine previously considered well-settled suddenly collapses under its own weight and is replaced with another, which itself eventually perishes.

So the notion that common law is "clear" is nonsense. Common law is good because it contains the accumulation of sometimes centuries of the best thinking on a particular legal issue that was available, rather than the momentary and uninformed whim of the popular will, as expressed by legislators attempting to curry favor with the public or their corporate contributors.

Now, let me note what I am not saying. I am not saying that the NBC necessarily adopted jus sanguinis. I am saying that because the common law is unclear, and much statutory law does pass into it (and I have given specific examples which you have utterly failed to address) stating that the NBC definitely did not originally include jus sanguinis is basically overstating your case. There are good arguments both ways.

One used to be the majority view. However, the opinions of Tribe and Amar cannot be ignored, and frankly, nobody who knows anything about constitutional law would simply dismiss their opinions as clearly wrong in an area where the law is arguable.

Second Argument

The second argument is a lot more simple. There is no connection between the common law writs argument and my "bet" on how the Supreme Court would vote in a controversial case where the popular child of a war hero is challenged on the grounds of eligibility when running for President, except that the common law argument (i.e. that the centuries-old jus sanguinis rule as subsequently amended) is one possible way for the Supremes to reach their desired goal.

My second argument is basically based on the philosophy of legal realism. You don't really know what the law is until it's decided. Some issues are easier to have a clue about. For example, we know the common law known as trespass originated in statute, but has subsequently been incorporated into common law (and in most states that common law has subsequently been codified or abrogated in statute again). The reason we know that is that thousands of courts have ruled on issues relating to trespass. It's an obvious fact.

The NBC is entirely different. No competent court (and in this case that would mean SCOTUS) has ever stated a rule in the ratio decidendi of a case where the meaning of the clause was a determinative factor. So we can't know what the law "really" is. People have argued about it.

Another prong of legal realism is that due to the indeterminacy of what the law really is, what really determines the law is what judges do. In this case, therefore, what the law really is is what five Supreme Court Justices say it is. The "realism" aspect of this is that the law is what really happens when you go into a court and make an argument.

The crux of this argument is that no Supreme Court in its right mind would unveil for public view a ruling that stated that the Constitution disenfranchises the child of a war hero who is a major party candidate for the Presidency. It just does not happen. At least not in reality.

Since the Supreme Court is infallible, at least when they speak ex cathedra through ratio decidendi, that would be the law.

Quod erat demonstrandum, baby.

Do you really still completely fail to grasp the difference between dicta and holding?

I have given you the facts, specific examples where statutory law has become incorporated into common law. You've ignored them. I have repeated them over and over. You have yet to address a single one. You continue to repeat a falsehood which belies a total failure to grasp what common law even is.

An obsolete treatise is not "the courts."

[snip irrelevance]

Quote something saying that in every single instance, common law is the method of interpreting the Constitution, or stop saying it. What you quote says that in ONE PARTICULAR CASE, one particular long-obsolete treatise said that for this one case, the common law was necessary. Nobody would say that as a universal rule. At least nobody who knew what they were talking about.

I had forgotten about Hollander v McCain
in its order granting Motion to Dismiss, udge Joseph N. Laplante observed



Hollander had argued in his first amended complaint that McCain was granted citizenship under a statute which "declares Senator John McCain a "naturalized" citizen" and as the Court in Schneider v Rusk observed, the difference between a "native born" citizen and a "naturalized" citizen differs in the matter of eligibility to be President.

That darn standing again...

I once again point our your unnecessary ad hominem suggesting that I do not know what I am talking about as if this were a valid argument against the issues I raised. You appear to be calling Wong Kim Ark obsolete which is fascinating to me as it appears to present the 'argument' that Wong Kim Ark somehow has become irrelevant. Or is there some other 'treatise' which you have deemed to be long obsolete for no apparent reason other than that it disagrees with you?


Nor am I saying that there is one particular case that states that when terms remain undefined its meaning should be found in Common Law. So I am not sure where you are going with your 'arguments' here.

Perhaps rather than attacking anything and anyone that disagrees with your position, you could make an effort to show why the treatise is long obsolete.

Let me refresh your memory as you may have forgotten what the Judge in Wong Kim Ark found

Where does that say any time any term, anywhere, is undefined, you robotically go off and search the common law?

Oh. Yeah. It doesn't. Because as I pointed out, nobody who knew what they were talking about would say that.

Again focusing on the ad hominem and ignoring what I did say?

Truly fascinating...

I guess that we can thus freely ignore what the Courts have said because you believe it to be dicta? At least you should do the work to show that it is indeed dicta. But it may be simpler to just resort to silly games...