Interested readers may want to check out the Federalist Society National Lawyers Convention, which will be held in Washington DC this week, Thursday to Saturday. At least two Conspirators will be speaking on various panels (Randy Barnett and yours truly). The full schedule is available here. There is still time to register.
It’s only fitting that a Federalist Society convention should have a panel on federalism. So I will be speaking on the panel on “Federalism and the Economic Crisis” on Thursday, 3:45 to 5:15, along with fellow lawprofs Rick Hills (NYU), Malcolm Feeley (Berkeley, coauthor of an important recent book on federalism that I discussed here), and Dean John Eastman of Chapman Law School.
By design, Fed Soc panels usually have liberal participants as well as conservative and libertarian ones, so you will see a wide range of perspectives represented, if you come. For example, Feeley (who believes that federalism is mostly useless in the modern United States) and Hills have very different views on federalism from mine. So, come one, come all.
CONFLICT OF INTEREST WATCH: I am a member of the Fed Soc Federalism and Separation of Powers Practice Group Executive Committee. This exalted position doesn’t carry any salary, nor is the Society paying me for speaking at the Convention or for writing this post — though I’m happy to accept contributions in this age of diminishing blogger advertising revenue.
Mick says:
Will you be discussing the original meaning and reason for the Natural Born Citizen requirement of POTUS eligibility? Born in the US to 2 citizen parents. It seems that our “federalist” lawyers don’t really care that the President is not eligible for the office. You should be discussing how to bring Quo Warranto against Obama in the DC District court. There is NOTHING else more important.
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November 10, 2009, 1:08 amzuch says:
Too bad that Willie Fletcher’s a judge and not really eligible for such a panel ... that is, if he had an interest in gracing FedSoc events....
Cheers,
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November 10, 2009, 2:33 amIlya Somin says:
Sorry Mick, I don’t waste time on BS conspiracy theories or other assorted idiocy.
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November 10, 2009, 3:16 amHadur says:
You mean that the other framers disliked Hamilton?
Personally, I think that the natural born citizen requirement should be repealed. Hamilton was merely the first in a long, long line of immigrants who understood and furthered the ideals of the United States and contributed to our nation’s growth and success.
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November 10, 2009, 8:41 amSmooth, like a Rhapsody says:
First order of business should be to try to lengthen the name of that committee you serve on.
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November 10, 2009, 9:09 amJosh Blackman says:
Ilya, I look forward to seeing you at the Convention. For those who cannot make it, I will be LiveBlogging the 2009 Federalist Society National Lawyers Convention. During the Convention, please visit http://JoshBlogs.wordpress.com for summaries of the events updated in real time, YouTube videos of convention discussions, interviews with some of the luminaries in attendance, and more. To receive updates during the Convention, please follow JoshBlogs on Twitter at http://twitter.com/joshbtweets or subscribe to the RSS Feed at http://joshblogs.wordpress.com/feed/.
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November 10, 2009, 9:38 amAJK says:
For what it’s worth, Hamilton was constitutionally eligible for the presidency.
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November 10, 2009, 11:04 amjimM47 says:
Y’know, I’ve always wondered at that. Wasn’t he covered by virtue of being a state citizen at the time of ratification, foreign birth aside?
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November 10, 2009, 11:14 amADF Alliance Alert » Federalist Society National Lawyers Convention This Week says:
[...] Somin at the Volokh Conspiracy: “Interested readers may want to check out the Federalist Society National Lawyers [...]
Member of the Bar says:
Is CLE credit available for the National Lawyer’s Convention? IIRC it has been in the past, but there’s no mention of it on the website.
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November 10, 2009, 12:13 pmMick says:
Ilya,
That’s why it (the Usurpation of the Presidency) has been allowed to happen. Those that should know what a Natural Born Citizen is, Don’t, and the Progressives have gradually degraded it’s meaning over the last 50 years of their control of public education. Natural Born Citizens can NOT have dual allegiances at birth, it is a National Security measure. Obama admitted on Fight the Smears that his citizenship was “GOVERNED”(his word) by the British Nationality Act of 1948 at the time of his birth. Even if he were born in the White House in JFK’s lap, he could not be a Natural Born Citizen due to his father not being a US Citizen at the time Obama 2 was born. It is not a conspiracy theory, it is a serious legal constitutional question.
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November 10, 2009, 4:01 pmMick says:
To AJK,
Hamilton was eligible to be President because he was a citizen when the Constitution was ratified in 1787 (See Article 2 Section 1 Clause 5—””ör a citizen at the ....). Washington and the others born before 1787 were grandfathered in by A2S1C5. They were not Natural Born Citizens.
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November 10, 2009, 4:05 pmMick says:
Are you people really that clueless about the Constitution? I find that most lawyers are.
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November 10, 2009, 4:07 pmsmrstrauss says:
Hamilton would have been grandfathered in, since he was not natural born. He was born on the Caribbean Island of Nevis.
Washington, Adams, Jefferson, Madison, etc. were all Natural Born because they were born in the colonies that became states.
Natural Born at the time meant “born in the country.” It was the term used in those days instead of Native Born, which was virtually never used. The word Naturalize comes from Natural Born, meaning to make someone who is not a citizen just like someone who was born in the country.
Here is an example of how the phrase Natural Born was used at the time.
“The position is founded on that clause of the British act of navigation, which forbids any but a natural-born or naturalized subject to exercise the occupation of a merchant or factor, in any of the British dominions in Asia, Africa, and America.” Hamilton, (Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 5 [1793]) (http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php&title=1382&search=%22natural+born%22&layout=html#toc_list)
As you can see, since there were only Natural Born and Naturalized subjects mentioned, Natural Born has to mean born in the country, while Naturalized means born outside of the country but made a subject by law.
Here is another example: “Prior to the adoption of the constitution, the people inhabiting the different states might have been divided into two classes; natural born citizens, or those born within the state and aliens or such as were born out of it.” (A LETTER FROM FROM GEORGE NICHOLAS, OF KENTUCKY, TO HIS FRIEND, IN VIRGINIA. Justifying the conduct of the Citizens of Kentucky, as to some of the late Measures of the General Government; AND CORRECTING CERTAIN FALSE STATEMENTS, Which have been made in the different States, of the Views and Actions of the People of Kentucky. Published in 1789. (http://memory.loc.gov/cgi-bin/query/r?ammem/faw:@field%28DOCID+icufawcbc0009%29)
As you can see, before there were naturalization laws in the colonies and the states, the residents could only be those who were Natural Born citizens and aliens.
This shows that Natural Born’s original meaning was “born in the country” and that George Washington, Adams, Jefferson, Etc were all Natural Born Citizens. (Hamilton wasn’t. He was only eligible due to the grandfather clause.)
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November 10, 2009, 4:59 pmMick says:
To smrstrauss,
Here you are again spreading your disinformation. A2S1C5 says a Natural Born Citizen OR a Citizen at the time of ratification, clearly saying that their was a difference in the 2 terms. Anyone born outside of the continent, but a citizen in 1787 was grandfathered in by A2S1C5(such as Hamilton). So you see they did solve the dilema of Hamilton’s eligibility. Washington, born in Va., a British dual citizen in 1787, of British Citizen parents, was certainly not a NBC and was also grandfathered in. Anyone not born in the US or born of less than 2 citizen parents after 1787 is not a Natural Born Citizen (Like Obama, and he knows it). Marbury v. Madison says that any argument that seeks to render a constitutional term moot is INADMISSABLE. Thus an argument that seeks to identify a “Born Citizen of the 14Amendment as a NBC is INADMISSABLE (there would be no need for a Article 2 NBC).
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November 10, 2009, 5:51 pmSarcastro says:
I also find that people who disagree with me are misinformed about the Constitution! Really, there is one arbiter of Constitutional meaning: me.
I do wish people would stop being wrong and start following what I say. Well, me and the Einstein was Wrong I have Proof e-mailer guy.
Also: INADMISSIBLE!
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smrstrauss says:
Re: “Washington, born in Va., a British dual citizen in 1787, of British Citizen parents, was certainly not a NBC and was also grandfathered in.”
The born-in-Virginia subjects of Virginia Colony became automatically citizens of Virginia State, just as the born-in-Ireland subjects of Britain living in Ireland became citizens of Ireland when it became independent, and the born-in-India subjects of Britain automatically became citizens of Indian when it became independent.
In 1776 or 1777 a committee of the Continental Congress, with Thomas Jefferson as a member, wrote to the US Ambassadors abroad, including John Adams and Benjamin Franklin that the congress had: “Resolved, that it is inconsistent with the interests of the United States to appoint anyone, not a natural born citizen thereof, to the office of minister, charge d-affairs.....“http://books.google.com/books?id=l1gpkmF4YPgC&pg=PA105&dq=%22good+character+who+comes+to+settle+in+this+state,+having+first+taken+an+oath+or+affirmation+of+allegiance+to+the+same,+may+purchase,+or+by+other+just+means+acquire,+hold,+and+transfer+land+or+other+real+estate%22#v=onepage&q=%22natural%20born%22&f=false
So you see that they were already using the term Natural Born Citizen during the Revolution, well before the Constitution, and the quotation refers to people like themselves. Adams and Jay where among those who received the letter were Natural Born, and Jefferson, who was among those who wrote it, was also Natural Born.
All of their parents were presumably British, but they were Natural Born. Natural Born meant “born in the place.’
The statute of Pennsylvania regarding elections of 1799 clearly shows that Natural Born simply means citizen at birth because there are no alternatives, a person is either Natural Born, naturalized or a foreigner who is not eligible to vote. There is no category of native-born but not Natural Born. it reads: “That the elector is required to take an oath, 1, that he is a natural born citizen of the state &c; or 2 That he is a natural born citizen of some other of the United States; or 3, that having being a foreigner or alien, he has been naturalized.” (http://books.google.com/books?id=ERgvAAAAIAAJ&pg=PA251&dq=%22a+natural+born+citizen%22&lr=#v=onepage&q=%22a%20natural%20born%20citizen%22&f=false)
So, in 1799, there was legislation referring backwards to people who were ALREADY Natural Born Citizens of Pennsylvania or other US States. And, there were only two categories, those who were Natural Born Citizens or those who were Naturalized. Natural Born meant “born in the USA.”
Hamilton was not Natural Born, which was the reason for the grandfather clause (and I think there was one or two others who had been born outside of a Colony who thought that they should be eligible. Wilson was one, I believe.) But Washington was certainly a Natural Born Virginia citizen and a Natural Born US citizen.
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November 11, 2009, 4:21 amDavid Nieporent says:
Somehow, I think it’s mutual.
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November 11, 2009, 2:30 pmThe Volokh Conspiracy » Blog Archive » Liveblogging the Federalist Society National Lawyers Convention says:
[...] own pay grade in the Vast Right Wing Conspiracy). Among other things, Josh will probably liveblog the panel on federalism at which I will be speaking tommorrow, and a later panel that includes co-conspirator Randy [...]
Mikey says:
Natural Born Citizen= Born in the US to 2 citizen parents. Obama does not qualify
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November 11, 2009, 9:30 pmDavid Nieporent says:
It doesn’t mean that; it never meant that. But thanks for playing.
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November 11, 2009, 10:38 pmMikey says:
Mr. Nieport,
What is your definition and what is the basis for it.
Minor v. Happersett (1874)
“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners”
This also means that a Natural Born Citizen is not a 14 Amendment “Born” citizen, since this case was in 1874 and the 14A was in 1866.
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November 17, 2009, 10:58 amDavid M. Nieporent says:
It doesn’t mean anything of the kind. This is why you can’t trust tax protesters/birthers; they’re either dishonest or they rely on dishonest people. The very next sentence of that case, not quoted by Mikey, is:
In other words, this case provides no support whatsoever for Mikey’s claim.
Mikey, here’s a hint that will help you in many contexts in life, not just law: the statements “If A, then X,” and “If not A, then not X” are not logically equivalent.
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November 17, 2009, 11:42 amMyrtle Beach Attorney says:
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December 2, 2009, 10:20 pm