In the LA Times, Thomas Lee (Fordham) has an article on natural born citizens that I discussed earlier. Here I want to say a few words on his discussion of textualism and originalism, which I find (with all respect) sort of odd.
He begins:
There are three leading theories of how to interpret the Constitution today. One is textualism: the Constitution means what its words say. The historical context of the words is important when a modern plain meaning is not self-evident. A second theory, adopted by many liberals, relies on a “living Constitution”: the Constitution means what is most consistent with fundamental constitutional values as applied to present circumstances. The third theory, championed by many leading conservatives, is originalism: The Constitution means what ordinary people would have understood it to mean at the time it was ratified, which is 1788.
I have doubts about this description of textualism. Perhaps there are people who think that we look to historical context only when a modern plain meaning is not self-evident. I am not sure who is in this category, and I wouldn't call it a "leading theory." In my view there are two main strands of textualism. One is what I've called "historical textualism," which always looks at the meaning of the words in their historical context. The second is modern-meaning textualism, which (as I understand it) only looks at modern meaning. (This theory is most associated with Professor Tom Bell of Chapman Law School).
Nonetheless, I'm willing to accept that it is a possible theory of interpretation to look at historical meaning only if the modern meaning is ambiguous (though I'm not sure why anyone would want to do it that way). Professor Lee continues:
In a textualist view of the Constitution, historical context is also important because “natural born Citizen” has no modern plain meaning and the words don't appear anywhere else in the Constitution. Textualists, by contrast to originalists, favor written statutes in mining historical context. In this case, two American laws enacted in 1784 and 1790 are applicable, along with older English statutes which use the similar words “natural born subject.”
This supposed contrast, I think, is simply wrong. I'm not aware of any textualists who "favor written statutes in mining historical context," and originalists also look to written statutes to find historical meaning. (Also note this has nothing to do with Professor Lee's purported distinction between originalism and textualism in the previous paragraph). Indeed, I think the effort to separate textualist and originalist views of the meaning of natural born is mostly misconceived. Historical textualism (in constitutional interpretation) is essentially a branch of originalism; with originalism's modern focus on original public meaning I would say it's the dominant view. It is the view explained and defended by Justice Scalia and Bryan Garner in their book Reading Law, which nowhere suggests the idea that contemporaneous written statutes are the best evidence of historical meaning.
There are some originalists who are not textualists, but the distinction does not turn on what sources they consult; it turns on how tied to the Constitution's text they are in reaching conclusions. I think Professor Lee has misunderstood the origin of the word "textualist." It does not refer to what kind of evidence the person considers (textual versus non-textual) but what ultimate source of authority the person identifies (the Constitution's text, or the framers' general purpose).
Professor Lee wants to make the distinction because he wants to say that textualists and originalists would reach different conclusions about the meaning of natural born. According to his article, textualists would look at eighteenth-century statutes (which seem to favor Senator Cruz) and originalists would look at broader ideas about citizenship (which seem to favor the opposing view).
Again, I think this is wrong, and the specific case of natural born citizens demonstrates it. Originalists and historical textualists (to the extent there is any meaningful distinction between them) agree on the relevant sources (although they may disagree on what the sources mean). They would look at both kinds of sources that Professor Lee identifies. Textualists would look at general ideas about citizenship because those ideas help assess what "natural born" means. Non-textualist originalists would look to contemporaneous statutes that defined natural born because that usage indicates what the framers' background assumptions were. And anyway, as I've said, most modern originalists are, generally speaking, historical textualists to a significant extent. (I bet Senator Cruz is).
A final point: to the extent there is a difference between an originalist and a textualist analysis on this issue, I think Professor Lee has it backwards. As I explain in my draft article, a narrow focus on the Constitution's text appears to raise problems for Senator Cruz, because it suggests that to be eligible his citizenship must be "natural" — i.e., not statutory. It's only by looking at historical uses of "natural born" in English and post-ratification U.S. statutes that one sees a meaning of "natural born" that includes statutory birthright citizenship. Thus, an originalist (looking at the whole historical context) would be more likely to support Senator Cruz than would a pure textualist looking only at the text.
Posted at 6:44 AM