Author: lawreview

Michael D. Ramsey In his essay, 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, Professor Saul Cornell uses the debate over the Constitution’s natural born citizen clause to illustrate what he regards as the shortcomings of originalist methodology. He makes three main points: (1) that historians’ methodology is different from and superior to the approach of originalist legal scholars; (2) that originalist scholars have reached an erroneously broad reading of the 1790 Naturalization Act; and (3) that, as a result, originalist scholars have misread the natural born citizen clause. I believe each of these points is mistaken. This response addresses them in turn.

Terry Smith In Bond v. Floyd, the United States Supreme Court held that members of the Georgia Assembly could not deny civil rights activist Julian Bond his oath of office based on his antiwar statements. Bond, duly elected by his constituency, enjoyed “the widest latitude to express [his] views on issues of policy.” Bond’s right to speak was not merely an individual right; rather, his freedom of speech enabled his constituents to “be represented in governmental debates by the person they have elected to represent them.” Long viewed in a doctrinal silo, Bond in fact dovetails with a maturing opprobrium of the partisan gerrymander. For it seems odd to forbid the state to silence a representative of the people but to permit the state to deprive the people of representation in the first place through the partisan gerrymander. If the First Amendment secured Bond’s speech from censure both in his individual and representative capacity, it makes little sense to permit the state, by use of the partisan gerrymander, to do at an earlier juncture in the electoral process what it could not do after Bond was elected.

Richard L. Hasen In theory, softening of voter identification laws through litigation is a positive development aimed at avoiding disenfranchisement of both voters who face special burdens obtaining an acceptable government-issued identification necessary to vote and of those voters who face confusion or administrative error. In practice, however, softening may do less to alleviate the actual burdens of voter identification laws than to make judges feel better about their Solomonic rulings. In fact, softening devices still leave an uncertain number of voters disenfranchised. These burdens might be justified if there were evidence that state voter identification laws solve a serious problem, but there is no such evidence.

Saul Cornell During the 2016 Presidential election a number of constitutional scholars debated Ted Cruz’s eligibility to be President. This was not the first time in recent American history that the meaning of the Constitution’s “natural born citizen” clause was a live issue in American law. The answer to this legal question depends on the particular theory of constitutional interpretation one favors. There has been a good deal of speculation on this issue by scholars of different methodological commitments. Much of the debate focuses on the meaning of the 1790 Naturalization Act, which raises deeper questions about the evolving debate over the legitimacy of originalism as a constitutional theory. Rather than approach the meaning of eighteenth-century constitutional and legal texts in a genuinely historical fashion, originalists have adopted a method plagued by anachronism, which invariably leads to distortion.