Author: Gerard Magliocca


Bingham on Natural-Born Citizenship

I learned recently that there is an Internet meme that John Bingham took a view that means Barack Obama is not eligible to be President.  This argument suffers from the flaw of being wrong, so let’s discuss.

For starters, it’s worth noting that the Natural Born Clause was never addressed during Bingham’s career in Congress.  Thus, he never gave a speech about the Clause or thought much about it.  In some speeches on other citizenship issues, though, Bingham said that someone born here to parents not bearing allegiance to another country was a native-born citizen.  Aha!  President Obama’s father was a Kenyan citizen, so he did bear allegiance to another nation. This means Obama, despite being born here, is not natural born.

Well, no.  What Bingham meant by allegiance (note he did not say that both parents must be American citizens) was the common-law understanding that birth made you a citizen unless:  (1) your parent was a foreign diplomat; or (2) your parent was a foreign soldier who was occupying American territory.  Diplomats and soldiers bear allegiance to a foreign sovereign in a manner that is very different from the average person.  (Slavery was the exception to the common law rule and Bingham strongly condemned that exception.)

Accordingly, Bingham did not say anything that undercuts the President’s eligibility (or Ted Cruz’s, for that matter).  Nice try.



Happy Birthday John Bingham!

96px-BinghamFacingForwardToday is the 201st anniversary of John Bingham’s birth.  This is an excellent time to announce that my biography of him is coming out in paperback and is now available for pre-order.

I’ve reflected further on Bingham’s life since writing the book and wanted to share my thoughts.  The book concentrated on explaining the development of Bingham’s thinking to help those seeking to understand Section One of the Fourteenth Amendment.  I also wanted to show that Bingham was the central figure in shaping America’s policy during Reconstruction, in contrast to the orthodox view that Thaddeus Stevens was the dominant figure.

I think, though, I did not fully capture how innovative Bingham was.  Part of the problem with his Reconstruction policy was that it was far ahead of its time.  He emphasized individual rights (including the incorporation of what he called the Bill of Rights), voting rights, and the power of textual limitations on racism.  These things eventually came to pass, but not in his era.  When we say that a scientist, an artist, or an author is ahead of her time, that is a compliment.  For a politician, it’s a criticism.  Bingham was unable to see that Stevens was right in focusing attention on addressing economic inequality in the South. Perhaps that strategy could not have succeeded, but then again Bingham’s also did not in his time.

In this presidential election cycle filled with many dispiriting statements, I want to repeat a quote from Bingham that closed the book and best expresses his creed:

When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken, where the holy Temple of Freedom, the foundations of which our fathers laid amidst prayers, and sacrifices, and battles and tears, shall be complete, lifting its head-stone of beauty above the towers of watch and war, then conscious of duty performed, and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands–come.


Take Care Tea Leaves

The most interesting aspect of the Court’s certiorari grant in the immigration case yesterday was its decision to add a Question Presented on the constitutionality of the President’s Executive Order.  It strikes me that this is an ominous development if you think that the Order should be upheld.

I think it’s very unlikely that the Court will reach the merits of the claim that the President is violating the Take Care Clause with his immigration/deportation policy.  (Though Justice Thomas might write a separate opinion about this).  But adding this question gives the Court room to execute Chief Justice Roberts’ bread-and-butter play–reading the relevant statutes to avoid a constitutional question by saying that the Order was not authorized by Congress.


More on the Natural-Born Citizen Clause

I want to make some additional observations on Ted Cruz’s eligibility to serve as President.

The op-ed in today’s Washington Post that concludes Cruz is not eligible is unpersuasive.  First, the piece presumes that we must use an originalist approach in resolving the issue without defending that assumption.  Second, even accepting that assumption as valid, the analysis is still flawed.  The author asserts that Blackstone held that natural-born meant “born within the country.”  She then says that those who take a different view “rely on three radical 18th-century British statutes” that were “revolutionary” departures from his view.

I’m confused about what work “radical” does in this passage.  Something is either a statute or it is not.  And these statutes were part of the background law when the Constitution was ratified.  To me, “radical” is the author’s way of saying “Please ignore these laws because they undercut my conclusion.”  This is not, I submit, a great argument. Parliament, after all, was free to alter the common law.


One final suggestion.  The Framers were quite hypocritical in imposing a limitation on future generations that they refused to apply to themselves.  If they really felt that there was a prospect of some foreign-born Manchurian Candidate becoming President, why were they so certain that did not apply to anyone who was a citizen before 1788?

UPDATE:  I deleted the part of the post about the fact that the Clause did not matter until long after the Founding because it was not well-written and was just confusing people.



What is the Best Constitution in the World?

Consider this a poll.  There are many folks who are critical of the American Constitution.  If you are in this camp, I’m wondering what you would call the best global constitution. (Mind you, I don’t mean what country is governed best, as that could be largely unrelated to its constitution.)  Is it Germany? Canada? Britain?  Someplace else.  And feel free to explain why.


Using Secret Materials for Interpretation

Greetings from the AALS! I wanted to post about something that I’m thinking about in relation to a paper idea.

Many Supreme Court opinions are ambiguous or susceptible to different readings.  The Justices discuss the issues in confidence until the decision comes down, and then decades later the papers from those deliberations become available.  What a wonderful resource, you would think, in understanding what a particular opinion is supposed to mean.

Except courts don’t use those materials.  In other words, it is seen as inappropriate to cite the “work product” of the Court to ascertain the meaning of a decision.  This, of course, is unlike the interpretation of statutes, which often look to legislative history.  Ah, you might say, legislation is different.  Those discussions are public, and that makes them fair game in a way that confidential deliberations are not.

Except that when courts interpret the Constitution, they do use the secret deliberations of the Framers in construing that text.  Why is that appropriate when citing the Court’s work product is not?  (I’m talking about lawyers and courts.  Historians can cite anything they want.)  What is the principled distinction between these two?

Granted, the work product of the Court may often be unhelpful in shedding light on a decision.  But right now you can’t use them even if they were helpful.  Do decisions always speak for themselves?

Two last thoughts.  One is that the first case that extensively cited the deliberations of the convention was Dred Scott, which suggests that perhaps that practice should be reexamined.  Second, there is one case where the Justices do cite extrinsic materials to construe a case–Brown.  The Court has cited the briefs in Brown to determine what Brown, which tells you something about Brown’s place in the constitutional canon.


Racial Preferences in University Admissions

In Round 2 of the Fisher litigation, there was another discussion about the use of racial preferences at the military academies.  In Grutter, the Justices were clearly influenced by a brief from top military officers arguing in support of those preferences to ensure diversity of the officer corps.  When Fisher is decided, the Court may distinguish the military schools from all other state universities as a special case where there is a compelling state interest in using race.

Another way of looking at that potential distinction, though, is that the service academies are federal institutions.  Giving them greater latitude to use race would, in effect, resuscitate Metro Broadcasting, Inc. v. FCC, a 1990 decision that held that the Federal Government had more freedom to use racial preferences because the Equal Protection Clause was directed at the states.  Metro Broadcasting was subsequently overruled, but I wonder if there was something to the federal/state distinction that case made.


William Winslow Crosskey

apf1-02037tIn my research, I keep coming across Professor Crosskey’s work and the intellectual puzzle of the man.

If you don’t know, Crosskey was a constitutional scholar at the University of Chicago from 1935-1962. His most prominent student (I think) was Robert Bork, who probably absorbed Crosskey’s keen interest in history as he developed the first version of originalism.

Crosskey was capable of astounding insights that no other person could have produced.  For example, he would supposedly begin his con law class by slamming Max Farrand’s book on the podium promising “to demonstrate to you that Madison was a forger–[that] he tampered with the notes he kept of the debates at the federal constitutional convention in order to suit his own political advantage and that of his party.”  Turns out that there was a lot of truth in this claim, as Mary Bilder’s new book on the Notes explains.  Crosskey also was the strongest academic critic of Charles Fairman’s article rejecting incorporation, and made many telling points in favor of what the Court eventually (for the most part) embraced.

On the other hand, Crosskey also said a lot of wacky things.  Indeed, I would be very reluctant to take anything he said about history as true without checking, and I think others who have used his work would say the same thing.  How to explain this paradox?

When Crosskey died in 1968, Harry Kalvan wrote a tribute explaining that he did not start at Law School until he was 30, but that at Yale he was “a formidable figure who sat in the front row scowling at everything that was said, his arms obdurately folded as he conspicuously declined to take notes.”  After clerking for Chief Justice Taft and working with John W. Davis in practice, he went to Chicago at age 40.

I would be curious if any of our readers was a student of Crosskey’s.



Revised Paper on the Bill of Rights

I’ve posted a substantially revised version of my draft article on “How Did The Bill of Rights Become the Bill of Rights?”  This draft reflects some changes in my thinking as I’ve been writing the book and doing additional research.  In particular, there is more emphasis here on how the Bill of Rights was used (prior to World War II) to justify extensions of federal power; a process that culminated in FDR’s “Second Bill of Rights” speech in 1944.