Tuesday, March 17, 2015

Shooting A Blank: Clement and Katyal Fire a Dud in the Qualification Wars

In a post on the Harvard Law Review Forum, two well-regarded attorneys, Paul Clement and Neal Katyal, recently addressed a question that has lingered over the two most recent quadrennial presidential elections, the question being a ticklish one of eligibility to be elected President.

Setting aside more considerable qualification considerations, such as experience managing a large scale enterprise, familiarity with and competence for the duties of the office, and the like, the question they addressed pertained to one particular qualification for the Presidency stated in the Constitution. That qualification requires, to be elected, one must be a “Natural Born Citizen” of the United States. That phrase, “Natural Born Citizen,” appears nowhere else in the Constitution as originally enacted. It stands in contrast to its single exception, allowing one to be elected president though not a “Natural Born Citizen” if, “a citizen of the United States, at the time of the adoption of the Constitution.”

A number of alternative meanings of the Natural Born Citizen provision of the Qualifications Clause of Article II have been, or could be, proposed. 

In fact, a number of methods can be identified for giving meaning to any word, phrase, clause, section or article of the Constitution. Consider, for example, the contrast between a view that the Constitution is a document of fixed, determinate meaning, and a contrary view that the Constitution is an organic document the words, phrases, clauses, sections and articles of which may acquire new meaning over time.  The former view, the one of a “hide bound” Constitution, is often invoked by critics to describe the philosophy of Antonin Scalia and others that share his approach to construing the Constitution. The latter view, of the Constitution as a living, breathing and evolving document, has often been invoked to describe the philosophy of justices such as Ruth Bader Ginsberg and Stephen Breyer.

I have never worked with Neal Katyal. 

As Senior Counsel with the American Center for Law and Justice, however, I worked with Paul Clement several times. Clement cut his teeth as a law clerk for Justice Scalia. Unsurprisingly, in our casual conversation and work together at the time, I discovered that, like Scalia, like me, and like Thomas Jefferson, Clement held the view of the Constitution as a document of intentionally drawn words, phrases, clauses, sections and articles, a document of fixed and discernible meaning. 

Yes, I did just bring Thomas Jefferson, the author of the Declaration of Independence into the conversation; and, yes, I realize that he did not participate in the drafting of the Constitution. But Jefferson was an early watchman on the walls against judicial tyranny.

In a letter to Judge Spencer Roane, dated September 6, 1819, Jefferson debunked a view, asserted by the Supreme Court, that it had the position of ultimate interpretation of the Constitution, over the coordinate branches, the Legislative and the Executive. Such a construction of the Constitution created the serious risk of tyranny by the Judiciary. Jefferson explained, “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” 

I treasure Jefferson’s view – of the Constitution as a hide-bound document of fixed and discernible meaning – and his warning – that judges might treat it as a waxen plaything, softening it with the touch of their analyses and decisions until it took the shape of their desires.

But even among us hide-bounders, it appears, differences in approach to and resolution of constitutional questions will arise. Clement’s recent joint post, with Katyal, on the Harvard Law Review Forum, addressing the Natural Born Citizen provision of the Presidential Qualification Clause proves the point.

Clement and Katyal commit a regrettable error in construing our and England’s legal histories. They commit the error in seeking, as lawyers and judges will do, to provide a meaning for a constitutional provision, in particular a meaning that is one less than obvious from the language of the document.

As an initial matter, Clement and Katyal join in a popular, but unwise legal sport usually reserved to justices of the Supreme Court. (That excess on their part can be forgiven; both have served as Solicitor General of the United States, a position often referred to as “The Tenth Justice.”) That legal sport consists of artificially inducing an uncertainty about a word or provision of the Constitution.

Given uncertainty of meaning, as our courts have played the game, judges (and other armchair quarterbacks) magnanimously lend their service to the enterprise of “discovering” the intended meaning to be ascribed to the uncertain provision. 

Mark DeWolfe Howe, a legal historian, described this habit, as he observed its repetition by Supreme Court justices who rewrote the scope and meaning of the Establishment Clause in a series of decisions from the late 1940s through the early 1960s. In “The Garden and the Wilderness,” Howe skewered the enterprising justices for being artisans of the history of the law, rather than pupils of it. Though he did not use the precise term, his words and tone suggested that the pretend historians of the Supreme Court were no more to be believed than was Aaron when he told Moses that he had not fashioned a golden calf while Moses was on the mount, but had only thrown gold into the fire, and the idol fashioned itself.

Clement and Katyal would have nothing about which to write on the subject of the Natural Born Citizen language, however, unless the meaning of the phrase was, in fact, fraught with uncertainty. Given six continuous years of controversy over the question whether Barack Obama satisfied the Natural Born Citizen provision – a contentious debate disdainfully summarized as the “birther argument" – perhaps we must simply accept that a rather clear and seemingly precise phrase, “Natural Born Citizen,” is neither clear nor precise, or at least that it is only as clear and precise as Clement and Katyal will then show it to be.

In fact, what Clement and Katyal actually seek to do is to establish that a phrase of plain meaning and import was not intended as such by those that drafted and ratified the Constitution. That obvious meaning, it seems to this reader, is that one is Natural Born Citizen if one’s citizenship arises as a consequence of their natural birth within the United States. On this point, English common law is instructive. 

Every one of the newly independent States adopted English common law as a rule for the decision of cases until modified or repealed by acts of their legislatures. While we rejected the tyranny of the Crown, and disassociated ourselves from our brothers in Parliament because of their indifference to our suffering, we retained the majesty of the English common law. [For those to whom English common law is an unfamiliar concept, it is the entire body of judicial made law resulting from the decision of cases in England over the course of centuries. By adopting English common law, newly independent States generally populated with Englishmen and their descendants retained a familiar and workable body of law for the resolution of disputes.]

Under English common law, there was no such thing as a “Natural Born Citizen.” Rather, a different but related concept existed, “Natural Born Subjects of the Crown” or “Natural Born Subjects.” The concern over one's status in England as a “Natural Born Subject” existed for many reasons. A primary reason for needing certainty about status as a “Natural Born Subject” was that English law limited hereditary title and the capability to inherit properties to those who were “Natural Born Subjects.” Thus, one’s status – whether one was a Natural Born Subject – could powerfully affect the course of one’s life. And, as it turns out, under English common law, only a person born within the realm of Great Britain, within the kingdom, could lay claim to status as a “Natural Born Subject.”

As it turns out, the meaning of “natural born” in English common law is too confining for their purposes, it must be stretched. That stretching is the hallmark of their error and their erroneous conclusions regarding the eligibility of Ted Cruz, John McCain, and George Romney (Mitt’s dad) to be elected to the Presidency.

Their conclusion rests on a fallacious conflation of English statute law and English common law. 

The significance of that conflation cannot be overstated. As noted, under English common law, only persons born within the realm were entitled to status as “Natural Born Subjects.” Hard choices faced those living with such a reality. Called to service, engaged in mercantile trade, traveling for study, many reasons provoked Natural Born Subject to remove to other lands. Living abroad – even in service to country and Crown – would risk that offspring would suffer disinheritance of title and property. So Parliament necessarily, wisely, granted to specific categories of persons born abroad status as Natural Born Subjects.

In fact, Clement and Katyal gloss over this dichotomy. English statutory law, enacted by Parliament, extended “Natural Born Subject” status to additional classes of persons not within the English common law’s sweep of the term. It is from that premise – Parliament’s expansion of the scope of “Natural Born Subject” – that Clement and Katyal illogically leap. The leap is illogical because they refer to the vaunted role of English common law in understanding our early legal history and as a source work for understanding the Constitution but then invoke English statute law to give meaning to our Constitution’s “Natural Born Citizen” provision. But what transmitted, via adoption of English common law in the newly independent States of 1776, was that Natural Born Citizen status would be determined, not by parentage, but by birth within the United States (or citizenship in them at the time of the adoption of the Constitution).

The Constitution deposits all legislative power afforded to the federal government in the Congress of the United States. It defines and limits the scope of, and the subjects of, that legislative power given to Congress. Among the powers given it, Congress has sole power among the federal branches, “to make a uniform rule of Naturalization.” 

“Naturalization” converts one that was a foreigner, an alien, into a citizen. 

In the United States, whatever requirements for naturalized citizenship set by the Constitutions and laws of each of the thirteen independent States would be superseded by such “uniform rule of naturalization” as Congress might enact. And, in fact, as Clement and Katyal point out, Congress quickly acted to adopt such a uniform rule of naturalization, the Naturalization Act.

Congress quite properly exercised its Naturalization Clause power to create such uniform rules as it did. 

To the contrary, however, the decision of Congress, when it enacted the Naturalization Act of 1790, to extend Natural Born Citizen status to persons who were not, in fact, by operation of the common law, Natural Born Citizens was not a proper exercise of the Naturalization Clause power. (Congress reversed that exact position just five years later when it repealed that Act in its adoption of the Naturalization Act of 1795.) 

The essence of naturalization is to make one a citizen that is not a citizen. 

So the whole, express, power of Congress in relation to citizenship is related to naturalization, and it is limited to the task, making, as it were, citizens out of whole cloth. But therein lays the rub for Clement and Katyal, while Parliament had power to grant Natural Born Subject status to persons denied that status by operation of common law, our Legislative Branch is one of limited and defined powers. 

For Clement and Katyal to succeed, they must identify a legitimate ground upon which Congress could expand the meaning of the Natural Born Citizen provision. Though decades of sifting have sought it out, there is no Revisionary Power Clause granted such power to Congress, or the Courts, or the President, not anywhere in the Constitution. There is, of course, Article V, with its established processes for amendment the Constitution. But the Naturalization Act was not such an amendatory exercise.

So, the Naturalization Act notwithstanding, the question will remain, in each case of a challenged qualification, was the candidate born in the United States to parents not present in the United States on diplomatic service from another land. On that analysis, Clement and Katyal reach the wrong conclusions about the eligibility of Ted Cruz, John McCain, and George Romney to be elected President. While each of these would certainly be entitled to claim citizenship under the Naturalization Act, none is a Natural Born Citizen.

The conclusion Clement and Katyal reached regarding Barry Goldwater’s eligibility, however, might be supported for an oddly different reason. Goldwater was a citizen of Arizona at the time that Arizona, by admission as a State of the Union, adopted the United States Constitution. His eligibility, nearly two hundred years after the ratification of the Constitution, might well be justified under the sole exception to the Natural Born Citizen provision, namely that one must be a citizen of the United States at the time of the adoption of the Constitution.