As noted earlier, Saul Cornell (Fordham – History) has an interesting and challenging essay in the Wisconsin Law Review Forward, The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism (2016 Wis. L. Rev. Forward 92). It sharply criticizes originalist scholarship regarding the Constitution's "natural born citizen" clause, and particularly that scholarship's reading of the 1790 Naturalization Act. As I am one of the scholars criticized (albeit somewhat indirectly), I will undertake a response in this post and perhaps a few subsequent ones.
Professor Cornell's essay appears to make two main points. First, originalism methodology is defective, especially as compared to historians' methodology, in determining original meaning. Second, this deficiency is illustrated by errors originalists have made in interpreting the 1790 Naturalization Act (which in turn have lead to misunderstanding the natural born citizen clause). In this post, I will address the first claim.
Although there may be some differences between the way legal scholars and historians approach the meaning of historical texts, I think Professor Cornell has largely failed to identify them, and indeed his account does not show any departure from what I would regard as a standard originalist approach. He begins by saying that "[h]istorians and originalists interested in discerning [the 1790 Act's] legal meaning in 1790 approach the problem from radically different methodologies." He then appears to identify three core components of the historian's approach.
First, "[f]or most historians, the first step in any such inquiry is to establish the range of possible beliefs this provision might have had in the founding era." Assuming he means "range of possible meanings" rather than "range of possible beliefs" (the sentence makes little sense otherwise), I agree this the right approach and I doubt any originalists would disagree. Of course it's key to establish a range of possible meanings. I'm not even sure what the alternative is.
Second, he says, there must be a "holistic approach to meaning"; quoting historian Jonathan Gienapp, he says: "The meaning of individual linguistic components … can only be understood in terms of their relations with the conceptual vocabulary of which they are part." Again, of course that's true. A text draws meaning from its context, including its linguistic context. Only a caricature of originalism says otherwise.
Third, he says, there must be "a form of thick contextualism … Historical actors, and the historians who interpret their words, must actively construct the relevant linguistic and ideological context for interpreting texts…" I'm not entirely sure what some of this means, but it sounds similar to what originalists do in considering the backgrounds, influences and goals of the framers. Again, context matters for originalists. It's curious that people persist in thinking it does not.
Cornell may think that originalists do not do these things well (and he might be right about some originalist scholarship), but I think he is simply wrong that originalists do not embrace these approaches. He says "[b]y contrast, originalists approach meaning in an atomistic fashion, looking at the meaning of words as isolated linguistic facts." Again I'm not entirely sure what these general words mean when applied to specific disputes, but they strike me as not much more than empty insults, or at most critiques of straw men. Rather, I think originalist scholars seek to find meaning from the way words were used in their historical context, very much not in isolation. They may not always do a good job, but Cornell is not describing a difference in methodological theory.
(As an aside, I do think there is at least one methodological difference that sometimes exists between historians and originalist legal scholars, but it's not one Cornell identifies. It is that legal scholars are much more interested in, and tied to, the meaning of the actual text of the legal provision under examination, and are less comfortable drawing abstract conclusions from social and ideological background without a concrete foundation in the text.)
To illustrate, let's examine what he says is wrong with the originalist reading of the 1790 Act. (To be clear, here he is mostly criticizing a short essay by Neal Katyal and Paul Clement, neither of whom is an originalist scholar). A key interpretive question is whether the 1790 Act recognized "natural born citizen" status for persons born outside the U.S. whose mothers were U.S. citizens but whose fathers were not. The Act recognizes as natural born citizens the "children of citizens of the United States, that may be born beyond the Sea, or out of the limits of the United States." Clement and Katyal say this language includes children of U.S. mothers and alien fathers. (That's important because they were writing about the eligibility of Ted Cruz, who fits this description).
Cornell says Clement and Katyal are wrong because they ignore the eighteenth century law on the status of married women and the longstanding rule of English law that "natural born" status could only be acquired from one's father. In particular, Cornell says, under the law of coverture the citizenship of a married woman necessarily followed that of her husband. Leave aside whether Cornell is right on this point. Assuming he is, would ordinary originalist scholarship see this is relevant to interpreting the 1790 Act? In my view, the answer is: obviously yes. It is part of the background on which the 1790 Act was written. If Cornell's view of coverture is correct, and if Clement and Katyal did not take it into account, that is a substantial originalist criticism of the Clement/Katyal essay (bearing in mind, though, that it is a short essay by two distinguished lawyers, not an extensive academic article). I would be surprised if any originalist would say otherwise.
My point here is that Cornell is actually using standard originalist methodology to critique arguably overstated originalist claims. He is not standing outside originalism but arguing within it. He only imagines that he is doing something qualitatively different because he has a caricatured view of originalism.
(In a subsequent post, I'll address whether Professor Cornell is right about the eighteenth century background. I think in some important ways he is not).
Posted at 6:24 AM