Monday, August 24, 2020

"Originalism" and the Natural-Born-Citizen Debate

Marty Lederman

Last week, I joined 40 other scholars in a letter published here, explaining why there's no serious question that Kamala Harris is constitutionally eligible to be elected Vice President.  In a post on the Originalism Blog provocatively entitled "Originalism Is Our Law (At Least When It Suits Us)," Mike Ramsey concurred with the bulk and conclusion of our letter.  Professor Ramsey also, however, accused at least some of us of inconsistency, in that we're “prominent originalism critics" and yet we signed a letter that relies upon what Ramsey calls "originalist arguments.” 

In a post this morning over at Dorf on Law, Mike Dorf and I explain that, contrary to Professor Ramsey's reading, our letter doesn't rely exclusively on the "original public meaning" of the constitutional text--indeed, our letter doesn't rely on textual "meaning" at all.  To be sure, the letter does (in part) invoke pre- and early constitutional understandings of whether persons born in the United States to foreign nationals are "natural born citizens" eligible for the presidency (and thus to be elected Vice President, too).  As Mike and I explain, however, that quite ordinary, common inquiry into early understandings of how the Constitution should operate isn't at all inconsistent with the critique of contemporary "originalism" that many of the letter's signatories have made.

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