Bench Memos

NRO’s home for judicial news and analysis.

Keep Teaching, Chief


Chief Justice John Roberts, talking to high school students in Bethesda yesterday, told them that “having a ‘judicial philosophy’ is not as important as deciding individual cases based on the law, but said judges should never think they hold the solutions to political problems.”

I hope the chief keeps saying this until he gets through to some of his colleagues on the bench who don’t seem to know it.

Roberts also rejected the televising of Supreme Court arguments: “It’s not our job to educate the public. Our job is to decide vitally important cases under the Constitution.”

This is half right.  It is, in important respects, the job of the Court to educate the public.  That’s one reason it publishes opinions.  But that educational purpose would not be advanced by having TV cameras on during oral argument.  It might even be harmed by it.

Judicial Legislation, Sub Rosa


The stealthy establishment of gay “marriage” continues, cloaked in the pretense of judicial modesty, in the courts of New York.


The Fictitious “Thurmond Rule”


This Politico article on the judicial-nominations deadlock in the Senate refers to Senator Feinstein’s invocation of the so-called Thurmond Rule, “named after the late Sen. Strom Thurmond (R-S.C.), who [supposedly] decreed that no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency.”  But it is highly dubious that Senator Thurmond ever proclaimed such a rule, and he certainly never implemented it. 


The mythical rule apparently traces to distortion of comments Senator Thurmond made at a September 17, 1980, Judiciary Committee markup, at which the committee favorably reported ten nominees to the full Senate for floor action.  Senator Thurmond merely stated:  “I would remind [the Committee] it is just six weeks before the election, and I want to say that for a year and a half before the last election, there was no action taken on judges when we had a Republican President.”  The Senate confirmed 14 judges during the last six months of 1980, including Stephen Reinhardt, the highly controversial nominee to the Ninth Circuit, and Stephen Breyer, who wasn’t even nominated (to the First Circuit) until after President Carter had lost his bid for re-election and Republicans had won control of the incoming Senate.  Also, Ruth Bader Ginsburg was confirmed to a D.C. Circuit seat on June 18, 1980.  How Senator Thurmond’s words and these confirmations amount to a “decree[] that no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency” is baffling.  (Also, of course, Jimmy Carter wasn’t a “lame duck” until after he lost the presidential election.)


More importantly, the dramatic slowdown that the Democrats have long had in place on judicial nominations—for example, only six courts of appeals nominees confirmed so far in the 2007-2008 Senate session, compared to fifteen in President Clinton’s last two years—makes any further slowdown particularly inappropriate.  As one senator has aptly put it: 


Having begun so slowly in the first half of this year, we have much more to do before the Senate takes its final action on judicial nominees this year.  We cannot afford to follow the ‘Thurmond Rule’ and stop acting on these nominees now in anticipation of the presidential election in November.  We must use all the time until adjournment to remedy the vacancies that have been perpetuated on the courts to the detriment of the American people and the administration of justice.  That should be a top priority for the Senate for the rest of this year. 


As it happens, those are the wise words, from July 25, 2000, of now-chairman Patrick Leahy.

Tags: Whelan

Supremely Odd


My friend Doug Kmiec is a distinguished law professor and public servant. He has for many years been a clear voice on questions of constitutionalism and the protection in law of unborn children. As readers are no doubt aware, Kmiec raised some eyebrows recently with a Slate essay contending that Sen. Obama “is a natural for the Catholic vote.” I thought (and think) the piece was misguided, and said so here.

Now, Prof. Kmiec is back with a follow-up, “A Prayer from Barack Obama.” The views expressed in this piece — like the ones expressed in the first one — are difficult for me to reconcile with Prof. Kmiec’s work and record. Particularly strange, though, was his answer to the objection he anticipated, namely, “Kmiec, get real, just think who Obama will appoint to the Supreme Court”. (Indeed.) Kmiec’s answer: “[I]sn’t it time for both sides to stop treating the Court like a political sinecure? Chief Justice John Roberts Jr. has done an able job of lowering the Court’s profile. Even when the Roberts Court takes on big issues — such as ‘partial-birth’ abortion [RG: since when does Prof. Kmiec use the New York Times-required scare-quotes when talking about partial-birth abortion?] and racial tie-breakers — it has a knack of writing small, preferring the ‘as applied’ to the ‘facial’ challenge.” Kmiec continues:

With that condo in Florida and his active tennis game, there’s no reason to think Justice John Paul Stevens won’t reach a Biblical age, and hey, if he hangs on long enough, maybe both sides will have decided so many jurisdictional, tax, and sentencing guideline cases that they won’t remember the Court’s previous, more activist history.

First, I have no idea what Kmiec means when he suggests that both sides should stop treating the Court like a political “sinecure”, i.e., an office that requires little or no work and that usually provides an income. If he means that “both sides” should stop treating the question of Supreme Court appointments as such an important one, because our Nation’s most pressing moral questions should not be decided by unelected federal judges, well, then I can only assume that my friend Doug Kmiec is being held hostage someplace and that an alien unfamiliar with the Supreme Court’s history for the past 50 years is penning op-eds in his name. Yes, it sure would be nice if Supreme Court appointments did not matter much. But, they do; Prof. Kmiec knows this, and he knows why.

Second, while I share entirely Kmiec’s admiration for Chief Justice Roberts, I was quite surprised to learn that the Roberts Court’s recent decisions have “lower[ed] the Court’s profile.” My own recollections of the explosion of “Good Lord! Sharp Turn to the Right!” commentary last June, and my expectation of, to say the least, high “profile” rulings this summer on gun rights, the death penalty, military tribunals, and child pornography, make it hard to imagine what Kmiec is getting at here. The Court matters. Certainly, it matters to those who support Sen. Obama no less than to those of us who do not.

Third, it is a mystery why Prof. Kmiec would think that Justice Stevens’s longevity increases the likelihood that the Court “won’t remember the Court’s previous, more activist history.” Instead, the Justice’s longevity and other gifts increase the likelihood that, if Sen. Obama is elected, the Court will “flip”, and either un-do or stop the positive developments in constitutional law – an increased attention to federalism, for example, and a better understanding of church-state separation — that came about under Chief Justice Rehnquist’s leadership, and that I know Kmiec welcomed.

Prof. Kmiec has, apparently, taken some heat – and some of it has been, I gather, pretty uncharitable – for his suggestions that faithful Catholics might conclude that, all things considered, Sen. Obama is the better choice. I want to put that matter aside. What’s so hard for me to understand is not how a Catholic could vote for Obama – I know that Catholics can, and will – but how a law professor with Kmiec’s views and record, both in government and in the academy, could think about the Court and its relevance to the election what Kmiec says in his latest piece.

Specter Pushes on Judges


Last Friday Senator Specter called on Judiciary Committee Chairman Patrick Leahy to schedule “prompt hearings” on President Bush’s pending judicial nominees, according to The Hill.

Specter sent a lengthy letter to Leahy on Friday urging him to schedule “prompt action on nominees,” arguing that “President Bush is even farther behind President Clinton in total confirmations when contrasting their entire terms.

Specter stated that the Senate has confirmed only 57 of Bush’s circuit court nominees and 237 of his district court selections. Clinton saw 65 of his circuit court nominees and 305 district picks confirmed, according to the letter.

“[T]here must be confirmations or at least up-or-down votes on 9 additional circuit court and 23 district court judges to equal President Clinton’s record,” wrote Specter, who spoke on the Senate floor Monday to press his case publicly.


Henderson’s Idea of Balance


Detroit Free Press deputy editorial page editor Stephen Henderson hopes that the election of Democratic president will help restore “balance” to the U.S. Supreme Court.  Yet as Eugene Volokh observes, Henderson’s idea of balance is simply a more liberal court.  This is an odd thing to characterize as “balance” — just as it is odd Henderson claims there is a conservative “dominance” on the current court.

Long time Bench Memos readers may recall I’ve commented on Henderson’s work before.  While a Knight-Ridder correspondent he covered the Alito nomination, and raised some eyebrows with the slant of his reporting.  See, for example, here and here.

Harvard Law School Events


Next Friday, March 14, I’ll be taking part in two events at Harvard Law School. 


At 12:15, I’ll be speaking on the topic “Judicial Nominations and the Next President” at an event sponsored by the law school’s Federalist Society chapter.  The event will take place in Pound 202.  For more information, contact [email protected].


At 4:00, I’ll be speaking truth to power on a Separation of Powers panel at the law school’s Celebration of Public Interest conference.  My fellow panelists are Deborah N. Pearlstein, visiting scholar at Princeton’s Woodrow Wilson School for Public and International Affairs, and Steve R. Shapiro, national legal director of the ACLU.  The panel is moderated by my former boss, Harvard law professor Jack Goldsmith.

Tags: Whelan

Re: The Court’s Business


Robert, to paraphrase Inigo Montoya in The Princess Bride, I do not think the Constitution means what you think it means.  Here are the difficulties I see in what you say below:

1.  The Second Amendment’s “right to bear arms is actually in the Constitution,” unlike some other so-called legal principles we might name.  Yes it is.  But it does not necessarily follow, from the fact of something’s being in the Constitution, that judicial enforcement of that something is a given.

2.  “The Bill of Rights is a limit on government.”  Yes, it is.  But even limits on government are not ipso facto matters of judicial enforcement.  The Tenth Amendment is the classic example, as John Marshall made plain in McCulloch v. Maryland.

3.  Ever “since Marbury v. Madison the courts have been charged with enforcing that limit through judicial review.”  Since Marbury v. Madison had nothing to do with the Bill of Rights, this is difficult to say with any confidence.  And since the phrase “judicial review” is entirely a twentieth-century coinage for the power we’re considering, I would proceed with great caution where Marbury is concerned.  But what Marbury assuredly is not, is a license for the Supreme Court to “enforce” every jot and tittle of the Constitution.  This is the case, after all, that first enunciates the “political question” doctrine–using the phrase itself, whereas the phrase “judicial review” never appears in the case.

The questions with respect to every part of the Constitution that is brought before the bar of the Court are two: what does it mean, and what is its relation to the judicial power of Article III?  In fact, the second of these questions should come first, since a conclusion that the judicial power cannot properly be brought to bear obviates the necessity for judges even to answer the first question.  The pandemic fever of judicial supremacy has persuaded countless judges, lawyers, and scholars that the second question is hardly even a question, with the result that the first question is assumed to be the only one.  And so the disease of judicial legislation rages unchecked–as it seems ready to do again in the Heller case.

Re: Second Amendment None of the Court’s Business


It’s certainly true that courts love to butt in where they don’t belong, but I have to disagree that the Second Amendment is one of those cases: Unlike abortion, the exclusionary rule, or Miranda rights, the right to bear arms is actually in the Constitution. The Bill of Rights is a limit on government, and since Marbury v. Madison the courts have been charged with enforcing that limit through judicial review. Though the process has frequently been abused — and certainly, tests and levels of scrutiny are far from perfect — it’s a crucial part of our system of checks and balances.

Also, it’s not at all clear that “the friends of keeping and bearing arms have, nearly always and everywhere, looked after themselves just fine.” In the city at the heart of the current case, Washington, D.C., the government has completely banned handguns and required that long guns be stored in non-functioning states. Chicago and many of its suburbs also ban handguns. In New York, it’s nearly impossible for an everyday person to get a permit. Granted, most states allow concealed carry through legislation, but these are three of the nation’s greatest population centers, and the Second Amendment is basically meaningless in them.

Laurence Tribe, No Help At All


Opining in the pages of the Wall Street Journal, Harvard’s Laurence Tribe says that the Supreme Court should not render a decision in D.C. v. Heller, the Second Amendment case to be argued two weeks from now, that goes to either “extreme.”  Tribe proclaims himself one of the “liberal scholars [who], having studied the text and history closely, have concluded, against our political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of state militias and national guard units.”  But he doesn’t want the D.C. Circuit ruling upheld on the grounds staked out by Judge Laurence Silberman, which he believes “went overboard.”  Neither does he want the Supreme Court to hold that “no firearms ban could violate the Second Amendment unless it were to prevent states from organizing militias in their collective self-defense.”

Okay, what does Professor Tribe think the Court should say?  On this, he conspicuously says nothing at all.  Perhaps he may be excused for having run out of space, in a mere 800-word column, just trying to tell the Supreme Court what it shouldn’t do.  Perhaps he will write a sequel giving the Court positive counsel to accompany the negative he supplies today.  I would be very interested in reading it.

Or maybe Tribe has nothing more to say.  This would be no particular fault of his.  Hoist on Judge Silberman’s petard, the Court now seems to have no choice but to say something about which it has no particular expertise and on which it really has no proper authority–namely, how much and what kinds of gun control are consistent with the Second Amendment.  In short, the Court is trapped in a box it has carefully, lovingly constructed over the last century–the box called judicial supremacy.  Before it is finished–and having entered this thicket it may never finish at all–the Court will have to construct myriad “doctrines,” “tests” (some with multiple “prongs”), and “standards of review.”  It will have to utter nonsense about rational bases, compelling interests, medium-lukewarm-sorta-serious “scrutiny,” and other assorted absurdities.  I’ve said before that friends of the right to bear arms will rue the day they asked the Court to take care of their interests.  Win or lose in Heller, the Constitution–including the Second Amendment–will be the loser.

Or the Court could make a bold dash for the exit from this jail cell it has constructed for itself, declare the Second Amendment’s meaning none of its business, and leave the battle over gun control where the friends of keeping and bearing arms have, nearly always and everywhere, looked after themselves just fine–in electoral and legislative politics.

This Week in Liberal Judicial Activism—Week of March 3


Dred Scott, substantive due process, and the liberal plantation:

Mar. 6       1857—Chief Justice Taney’s ruling in Dred Scott marks the Supreme Court’s first use of the modern liberal judicial activist’s favorite tool—“substantive due process”—to invalidate a statute.  In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts:  “[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.”  

The dissenters in Dred Scott invoke, and properly apply, the originalist principles that liberal judicial activists regard as abhorrent.  As Justice Curtis declares rhetorically in exposing Taney’s deviation from originalist principles:  “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it.”  Further:   “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”


                  1996—On the anniversary of Dred Scott, an en banc panel of the Ninth Circuit, in Compassion in Dying v. State of Washington, rules that a Washington statute prohibiting physician-assisted suicide violates substantive due process.  The majority opinion, by notorious liberal activist Stephen Reinhardt, garners votes from eight of the eleven panel members.

A year later, the Supreme Court unanimously reverses the Ninth Circuit (in an opinion styled Washington v. Glucksberg).  But any assurance or clarity that the unanimous judgment might seem to provide is undercut by five separate opinions (by Stevens, O’Connor, Souter, Ginsburg, and Breyer) signaling a willingness to concoct at some future point some sort of constitutional right to physician-assisted suicide.

2003—Senate Democrats use the anniversary of Dred Scott to punish a Hispanic judicial nominee who has escaped from the liberal plantation.  Initiating the unprecedented use of the filibuster as a partisan weapon to block forever an up-or-down vote on a judicial nominee, 44 Democrats prevent a Senate floor vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit.  This is the first of seven unsuccessful cloture votes before Estrada ultimately withdraws his candidacy.


Mar. 8       1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Week entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented.  As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version.


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Further Notes on McCain’s Eligibility


Yesterday while I wasn’t paying attention (thanks to the day job), The Corner erupted with more discussion of the question whether John McCain is eligible to be president, having been born in the Panama Canal Zone.  This is all prompted by this Thursday article in the New York Times, which I dissected here.  First David Freddoso weighed in, then Mark Hemingway and Jonah Goldberg, finally Mark Krikorian–with digressions on judicial power by Ramesh Ponnuru and Andy McCarthy.  (For chronological order, go here first, then second, third, fourth, fifth, sixth, seventh, and eighth.)  I also got a fair amount of e-mail about it.  So here are some further thoughts prompted by all this discussion.

1  David Freddoso cites 8 U.S.C. 1401, which I should have quoted in my original post.  The statute identifies children born to U.S. parents overseas as “citizens of the United States at birth,” and David wonders aloud how one can be a citizen “at birth” and not also a “natural born” citizen under Article II of the Constitution.  Good point.  One can’t be the first without also being the second.  But here is where those “Ptolemaic epicycles” start spinning.  I have seen it argued that there is a statutory birthright-by-parentage citizenship, and a constitutional “natural born” citizenship resting on place of birth.  The statute in question seems clearly to be a denial of such a distinction.  One thing Horace Gray got right in Wong Kim Ark (discussed in my original post) is that one is a citizen either by birth or by naturalization.  He was wrong to suppose that children born to U.S. parents overseas are naturalized.  No, their citizenship is not statutory in origin (true of all naturalized citizens), it is instead a constitutional citizenship confirmed (not conferred) by statute.  Yes, Congress too interprets the Constitution–usually at least as competently as the Supreme Court does (see point 5 below), and with just as much authority where it acts in its purview, as it does here.

2.  One correspondent wonders why I left out of my analysis the fact that the Canal Zone was a U.S. possession in 1936 when McCain was born.  I didn’t think it was necessary to the argument, and I thought the case could be made for eligibility of all foreign-born birthright U.S. citizens.  Then I got another reason to leave this out.  My dad, who was in Panama in 1940 (and who was born overseas himself), wrote to say he remembers a U.S. Army hospital in Colon, outside the Zone and in Panamanian territory, and wonders whether McCain was born there.  In that case the location of McCain’s birth wouldn’t help him.  But his parentage still clinches it.

3.  Another correspondent, born to overseas military parents in the 1960s, says he has a State Department-issued “Report of Birth Abroad,” which has helped him get past pesky bureaucrats asking for his “naturalization number” on various occasions.  Could this man be president?  You betcha.

4.  A writer I’ll call Concerned Overseas Mother says I was wrong to believe that this question hasn’t nagged at many American parents of foreign-born kids:

I daresay if you walked into a gathering of adults at any of the many American clubs or international schools overseas, an overwhelming majority would confirm that the topic has bothered their children (and themselves) at some time or the other.

Wow.  I stand corrected.  I had originally written, “Dear overseas American moms and dads: if you haven’t been worrying about this, don’t start.”  Now I’ll say, if you have been worrying about this, stop!  Your kids are as eligible to be president as their siblings and cousins and friends born in the U.S.  (Note to my niece so situated: that means you too, sweetheart.)

5.  Finally, one reader notes my argument that this is a political question, not to be settled by judges but by the electoral college and the Congress in choosing and confirming a new president.  (I agree with Mark Krikorian that judicial intervention can’t be ruled out altogether–the reasons for which, see in a moment.)  The reader wonders whether these authorities could blow past the commonsense barrier to a naturalized president and choose, say, Arnold Schwarzenegger.  Wouldn’t we want judicial intervention then?  Sorry, I won’t bite.  This is the sort of hypothetical that some law professors love.  But I prefer truly realistic possibilities–not just what can be imagined, but what we can imagine happening.  The reader’s hypothetical is about as likely as the people voting for, the electoral college choosing, and the Congress confirming the choice of, a 30-year-old person when Article II requires a minimum age of 35.  The track record of Congress is reassuring when such questions are posed–far more than the track record of the Supreme Court.  When hypothesizing about what the Court might say, experience suggests a much smaller gap between wild imaginings and actual decisions.  I am sure that just ten years before Roe v. Wade, virtually every constitutional scholar would have laughed out loud if you had posed it as a hypothetical, much less predicted it as an actual decision.

Budding Greenhouse?


One unfortunate byproduct of Linda Greenhouse’s imminent departure from the New York Times will be the generation of fawning articles like this one in the Harvard Crimson.  It may not be surprising that the reporter would take at face value statements like these from law professor Larry Tribe:


“This is shocking and it’s most unfortunate. However good a deal Linda got out of it, the country is so much worse off.”


“She is a national treasure.”


After all, how might any naïve cub reporter, in the so diverse atmosphere of Cambridge, Massachusetts, imagine that Tribe might be lamenting that he will no longer have Greenhouse to propagate his liberal gospel on constitutional law?  


But the reporter’s illustration of the fact that “Greenhouse’s long career at the Times has not gone unmarked by controversy”—ah, that gentle double negative—indicates that something more is at work.  Here’s the reporter’s account of Greenhouse’s notorious Radcliffe speech:


Greenhouse’s remarks two days later at a Radcliffe Institute luncheon, that the government had “turned its energy and attention away from upholding the rule of law” would draw the criticism of the Times’ public editor, who issued a reminder that the “merest perception of bias in a reporter’s personal views can plant seeds of doubt that may grow in a reader’s mind.”


This account dramatically understates both Greenhouse’s remarks and the public editor’s response.  In particular, the reporter excludes Greenhouse’s cri de coeur:  “And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.”  Greenhouse defended these comments as “statements of fact”.  The Times’s public editor, Byron Calame, was forceful in his condemnation of her remarks:


The Times’s ethical guideline states that news staffers appearing on radio or television ‘’should avoid expressing views that go beyond what they would be allowed to say in the paper.’’ It is obvious, I think, that the guideline also applies to other venues….  It seems clear to me that Ms. Greenhouse stepped across that line during her speech….


[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions….


Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….   Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.

Tags: Whelan

How to Fumble a Sure Thing


That New York Times story I wrote about this morning showed a bit of life today when some reporter asked John McCain on his plane today what he thought of the question whether he was eligible for the presidency as a “natural born citizen.”  His answer: “Barry Goldwater was born in Arizona when it was a territory . . . and it went all the way to the Supreme Court.”

Say what?  There was never any adjudication by the Court of the question of Goldwater’s citizenship.  McCain expressed confidence that there is no question of his own eligibility, and he should have stopped there.  Now he has a misstatement to retract.  It’s a strange virus, judicial supremacy–the infection can even cause people to think they are sure that a constitutional question whose answer is evident to them must have been answered that way by the Supreme Court!

Natural Born Foolishness


I suppose I shouldn’t be surprised when frivolity goes mainstream.  This morning’s New York Times carries an article raising the issue whether John McCain, born in the Panama Canal Zone while his father, a Navy admiral, was stationed there, is a “natural born citizen” under Article II of the Constitution and therefore eligible to be president.  Of course he is.  I spent a weekend a while ago in an intermittent e-mail debate with a few other constitutional law scholars on this question, and I was amazed at how such a simple question could be made so needlessly complex.  The last line of the Times article, quoting the author of a long-ago law review article, is that “it is certainly not a frivolous issue.”  I think that’s just what it is, Ptolemaic epicycles of abstruse constitutional reasoning to the contrary notwithstanding.  Herewith some thoughts:

1.  The Times mentions a 1790 act of Congress–the first naturalization act–that declared that the offspring of citizens overseas would be considered “natural born” citizens.  Reporter Carl Hulse says “that law is still seen as potentially unconstitutional,” though by whom he does not say.  Yet while it is true that subsequent naturalization acts omitted this language, it is a mistake to see the 1790 act as adding to the class of “natural born citizens” beyond those already indicated by Article II (or to read the subsequent acts as repudiating that inclusion by their later omission of it).  Such addition would have been unconstitutional, and it would not have occurred to the First Congress to attempt it.  The language is instead an instance of congressional interpretation of the language of the Constitution.  It does not confer a statutory “natural born” status, but recognizes a constitutionally conferred status.  While the views of the First Congress, including many of the framers and ratifiers of the Constitution, are often given great weight in interpreting its meaning, those views should not be considered binding on us today.  The question is whether that Congress was right to read Article II as including foreign-born children of U.S. citizens.  It was.

2.  Sen. Lindsay Graham, taking McCain’s side, notes that McCain’s father “was posted [in Panama] on orders from the United States government.”  (One might also argue that the Canal Zone was not truly “foreign” as a U.S. possession at the time, but we can leave that out of the analysis.)  But this should not be dispositive.  Whether U.S. citizens are overseas on military or diplomatic assignment, or on private business, or merely tourists; whether their children are born on embassy or military grounds considered “U.S. soil” for some purposes, or are born unquestionably on foreign soil–these cannot be the considerations that dispose of the question.  It is their parentage that matters.  The laws of nations differ as to citizenship, and while some countries will recognize children born on their soil of sojourning parents as citizens, others will not.  Would we say that the child born of U.S. parents in a country according that child no citizenship is not a U.S. citizen either, and is therefore a citizen of no country at all?  That is an absurdity that cannot be imputed to the Constitution.  While the framers may not have anticipated significant numbers of American military and naval forces on extended foreign assignments, with whole military families stationed overseas and children being routinely born, it is inconceivable that they could have intended that a) U.S. diplomats’ children be ineligible for the presidency due to the accident of overseas birth, or even that b) the children of private citizens travelling abroad be likewise ineligible.

3.  The argument is sometimes made that such children have no constitutional status as citizens, but only statutory citizenship by virtue of naturalization.  But while special circumstances such as illegitimacy may complicate the question (see Tuan Anh Nguyen v. INS, 2001), and require statutory settlement, it makes no sense to suppose that the legitimate children of U.S. citizens, if born overseas, would be left in limbo in the absence of Congress’s exercise of its power over naturalization. 

4.  Some of the confusion stems from remarks made by Justice Horace Gray in U.S. v. Wong Kim Ark (1898), the case that held that under the first sentence of the Fourteenth Amendment, children born on U.S. soil to immigrant parents are U.S. citizens.  Gray wrote that the Constitution

contemplates two sources of citizenship, and two only:  birth and naturalization.  Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law.  But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution.  Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.  A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

Gray’s error, repeated by some people today, is to consider the location of birth the only relevant consideration in determining citizenship under the Constitution, and to rule out the possibility that parentage is relevant.  The Fourteenth Amendment rendered parentage irrelevant for the child of immigrants on U.S. soil (though some still raise questions about the children of illegals under the “subject to the jurisdiction thereof” language of the amendment).  But it did not thereby render parentage irrelevant for the children of U.S. citizens, as Gray seems to suppose when he erroneously refers to those born abroad as “naturalized” under congressional “enactments.”  And this conclusion in Wong Kim Ark is the purest obiter dicta, unnecessary to settle the case Gray was considering.  Parentage alone can confer citizenship by “birth” no less than can the location of birth.

5.  Speaking of illegal aliens, is it not preposterous on its face to suppose that their children are eligible to the presidency of the United States–or that Yaser Esam Hamdi is–while John McCain is not?

6.  The Times article contains a fair amount of handwringing over the fact that there has been no authoritative Supreme Court ruling on this presidential eligibility issue–though near the end it recognizes the difficulty of determining who might have “legal standing” to raise the issue in a court of law.  This is the simplest question of all.  No one has standing.  This is a quintessentially political question, to be settled outside the judiciary by the constitutional authorities responsible for choosing presidents.  If, next January, the joint session of Congress, presided over by Vice President Cheney, determines that John McCain is to be president by virtue of a victory in the electoral college, and either assumes silently or addresses openly (in case of a member’s objection) the question of McCain’s U.S. citizenship eligibility and holds in his favor, that will be an authoritative settlement of the matter–at least as far as McCain is concerned.  No court of law could possibly have authority to gainsay such a decision.  It never ceases to amaze me, though, how many otherwise sharp legal analysts consider constitutional questions to be unsettled until the Supreme Court has something to say on them.

Perhaps the oddest thing about the Times article is its lead: “The question has nagged at the parents of Americans born outside the continental United States for generations: Dare their children aspire to grow up and become president?”  Actually, I doubt very much that this has ever nagged very many of them at all.  Dear overseas American moms and dads: if you haven’t been worrying about this, don’t start.

CORRECTION: I refer to McCain’s father above as a “Navy admiral,” which he was in later life, but not of course when Sen. McCain was born in 1936.  I’m not sure what rank he was then, but it should read “naval officer” instead.

Re: Greenhouse’s Departure


This AP story confirms my scoop on Linda Greenhouse’s impending departure from the New York Times.

Tags: Whelan

William F. Buckley, Jr., R.I.P.


I never had the privilege of meeting Mr. Buckley, and I am ill qualified to add meaningfully to the outpouring of appreciation for him and his life that his death has deservedly triggered.  I will observe only that, like so many people in this country and throughout the globe, I am deeply in his debt, undoubtedly including in many ways that I don’t fully recognize.  May he rest in peace.

Tags: Whelan

Encountering WFB


I never met William F. Buckley, Jr., whose passing we mourn today, and whose life and legacy are being celebrated on The Corner these last few hours.  But I can remember when I first encountered him.  It was in my college days in the 1970s, when, on a bookcase in a dormitory lounge, I ran across a discarded copy of his anthology of modern American conservative thought, titled Did You Ever See a Dream Walking? (later revised with the aid of Charles Kesler and republished under the title Keeping the Tablets).  The reason the book had been tossed aside by its previous owner was probably that, in a binding error, part of the book’s contents had been sewn in upside down.  (I think that you had to turn the book over to read Harry Jaffa’s essay–which ought to make this copy a collector’s item somewhere!  I still have it.)

What struck me right away was the richness of the anthology, what a diverse and fertile garden was conservative thought.  And what struck me next was, what manner of man could put together such an anthology, and inhabit such a comfortable familiarity with such a range of humane and thoughtful contributions to political and moral thinking?  Buckley’s introduction to the book evidenced a man of deep learning, who wore that learning lightly–someone who could engage all the interlocutors in the anthology as an equal, yet who entertained a stray reader (such as myself at 20) with his wit, never condescending.

I carried the book around with me for a few years before first subscribing to NR while in grad school during the Reagan years.  Then I came to know WFB’s work still better.  But Dream Walking was a heck of an introduction to conservatism, and to William F. Buckley, Jr.  I will miss that mind and that voice.

UPDATE: Trust not to memory.  I was at work and the book was at home when I posted this earlier.  Its title is Did You Ever See a Dream Walking?–corrected now above–not Have You Ever Seen, as I originally wrote.

Re: Breyer’s and Souter’s Drift to the Right?


On the same day that we learn of Linda Greenhouse’s imminent departure from the New York Times, Greenhouse provides further evidence of her bias (or, for those of her supporters who contend that she’s steadfastly impartial, of her incompetence).


Recall that in early December Greenhouse wrote an article, based on the previous day’s oral argument (in Sprint/United Management Co. v. Mendelsohn), raising in its lead paragraph whether the Supreme Court has “drifted so far toward the employer’s side in job discrimination cases that it is now to the right of the Bush administration.”  As I pointed out, Greenhouse’s alarm was patently baseless, not least because (as the diligent reader would learn only towards the end of her article) two of the justices who supposedly were drifting so far toward the right were Justices Souter and Breyer.


Yesterday, the Supreme Court, in a unanimous ruling by Justice Thomas, adopted the position that the EEOC had advanced.  Greenhouse’s article today oddly characterizes Thomas’s straightforward analysis as “somewhat cryptic”—Greenhouse has provided hostile and distorted accounts of Thomas’s opinions from the beginning (see This Week for Feb. 25, 1992)—and buries at the end her conclusion* that the “decision is likely to prove more favorable in the long run to discrimination plaintiffs.” 


Given her various (mis)understandings, why didn’t Greenhouse lead with something like this:  “In a surprising victory for job-discrimination plaintiffs, the Supreme Court unanimously ruled Tuesday …”?  Because that wouldn’t fit her broader narrative about a Court supposedly moving “to the right”.


* Greenhouse’s reasoning appears to misunderstand the interplay between rulings on evidentiary motions in limine and rulings on summary-judgment motions, but that’s a different matter.

Tags: Whelan

Greenhouse’s Departure


According to a well-placed Supreme Court source, New York Times reporter Linda Greenhouse is telling folks at the Court that she has accepted a Times buyout package and will be ending her coverage of the Court at the end of the current term.

Tags: Whelan


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