Originalism, Natural Born Citizens, and the 1790 Naturalization Act: A Reply to Saul Cornell

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.

Bond v. Floyd and Expressive Proscriptions on the Partisan Gerrymander

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.

Softening Voter ID Laws Through Litigation: Is It Enough?

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.

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

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.

Comment: Regulating Virtual Property with EULAs

James Bonar-Bridges

Online games like World of Warcraft and Second Life are intensely successful products that have changed the face of modern entertainment. Contracts between the user and the publisher, called end-user license agreements (EULAs), control these online interactions—and entire virtual worlds. Players must agree to a given game’s EULA before starting the game.

This comment argues that EULAs, which purport to control all facets of the user’s in-game experience, are a poor shield for users of these alternate realities—especially in situations where players have large monetary investments. Part I explores the property interests at stake in these massively multiplayer online role-playing games (MMORPGs) by looking at World of Warcraft, specifically. Part II then explores issues that have arisen with the World of Warcraft and other EULAs in terms of who they bind, what they allow software developers to do to users who exploit flaws in programming, and what they regulate. Finally, Part III questions whether these agreements are enforceable contracts and whether contract law is the appropriate mechanism for regulating virtual property by exploring the alternative enforcement mechanisms of property law, consumer protection law, and criminal law.

Can Mandatory Reporting Laws Help Child Survivors of Human Trafficking?

Jonathan Todres

Once thought of as primarily a criminal justice issue, human trafficking is now recognized as an issue that implicates all sectors of society. Trafficked individuals have been identified in a breadth of industries, including agriculture, manufacturing, construction, mining, fisheries, forestry, health care, hospitality and tourism, domestic service, restaurants, forced-begging operations, and the sex industry. Preventing exploitation across so many sectors requires a comprehensive, coordinated response. In other words, in addition to the criminal justice system, social service professionals, health care providers, educators, businesses, media, and others all have a role to play in addressing human trafficking and its attendant forms of exploitation. As part of the recent push to broaden engagement in anti-trafficking efforts, policymakers and advocates have identified mandatory child abuse reporting statutes as a vehicle for engaging health care providers, educators, and other professionals who work with children to help identify children at risk of or exploited by human trafficking.

The Counterintuitive Costs and Benefits of Clinical Legal Education

Richard E. Redding

Learning experiences often produce outcomes we do not expect. Professor Yackee’s study finding no relationship between a schools’ clinical offerings (measured by “the number of positions available in faculty supervised law clinic courses . . . as a percent of total JD enrollment”) and student employment outcomes (measured by the school’s Law School Transparency employment score) was greeted with skepticism by practitioners and advocates of clinical legal education (hereinafter “CLE”). Law students and recent graduates may also be skeptical given the popularity of clinical courses and surveys finding that many lawyers view their law school clinical experiences as useful in preparing them for law practice, which is often advertised to students and employers as a key benefit of clinics.

Sexbots; an Obloquy

Thomas E. Simmons

Sexbots may displace humans in the sex trade (or on a wider scale) sometime between the 2020s and the 2050s. Although some perquisites may derive from the proliferation of sexbots (lower levels of sexually transmitted diseases, for example), significant social harms can also be predicted. In anticipation of those harms, lawmakers may endorse targeted regulation or outright bans. The uncertain limits of Lawrence v. Texas and its progeny of sex-toy decisions will present vague constitutional shoals to these aims. The legislating-of-sexbots crusade will also make for strange bedfellows, politically speaking, as social conservatives aiming to maintain traditional values ally with liberals concerned with amplified objectification.

Civil Rights as Treatment for Health Insurance Discrimination

Valarie K. Blake

Section 1557 of the Patient Protection and Affordable Care Act (ACA) broadly prohibits discrimination on the basis of race, color, national origin, gender, age, and disability in healthcare programs or activities receiving federal dollars. The provision should hold interest for civil rights scholars and health policy scholars alike. It’s the first civil rights statute to combine four different civil rights statutes into a single provision creating nightmarish ambiguity about the proper standards for cause of action and remedy. Section 1557 also represents the first civil rights statute to broadly tackle discrimination in healthcare, including private health insurance, and to apply sex discrimination to healthcare (including discrimination based on gender identity and possibly sexual orientation).

Unleashing the Fourteenth Amendment

Ann L. Schiavone

Do Justice Anthony Kennedy’s opinions in the gay rights cases of Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges have any impact on the future of Fourteenth Amendment jurisprudence beyond rights for gays, lesbians, and transgender persons? We don’t know. It is possible these cases will simply remain siloed in their unique legal and cultural niche, but viewing them through the lens of 150 years of Fourteenth Amendment jurisprudence suggests they may signal a shift in due process and equal protection analysis. This shift could open the doors for challenging discriminatory laws under a more robust rational basis analysis than that which is generally employed under the traditional tiered-scrutiny structure.