One of the foremost authorities on semantic originalism Lawrence Solum, published a paper a few years ago that dealt with the semantic intent of "natural-born". It's a lengthy and somewhat heady piece, as it's written by an academic for the Michigan Law Review. But, in the article (titled ORIGINALISM AND THE NATURAL BORN CITIZEN CLAUSE and which may be found at papers.ssrn.com), Solum posits that a natural-born citizen is any citizen born on American soil to at least one citizen-parent.
Now, if we have Solum, who is extremely well-regarded as an authority on original intent and semantic originalism (see his own legal theory blog), positing this meaning of "natural-born" by characterizing it as "beyond dispute", how do you think the originalists on the Court are going to hold?
I have seen plenty of blog postings from a myriad of pseudo-constitutional scholars or other lawyers of absolutely no note or standing claiming what is so frequently and fervently claimed here - that natural-born means born on US soil to two citizen-parents. But, I have never seen such a theory advanced in any American law journal - to include conservative journals or legal advocacy groups.
Antonin Scalia, Clearance Thomas, Roberts and Alito are all academics - conservative academics, but academics nonetheless; Cut from the same exact cloth as Solum. You can bet a year's salary that the four conservative justices mirror Solum on this particular matter of law.
He also "posits" a view less favorable to Obama in the same article. You and I have discussed Lawrence Solum and his articles for Michigan Law Review, back when you first signed up to Free Republic. You know that semantic originalism is not particularly supportive of a more liberal interpretation of the term of art "natural born citizen," and yet here you are, leaving the impression that it does.
Why?
Where does he "posit" this? Oh, never mind I see it now, it's in a footnote, where he corrects "misreadings" from an earlier version of the paper. The version of the paper with that footnote is not from "a few years ago" but rather is clearly labeled "D R A F T April 18, 2010", mere days ago, less than a week ago. What he wrote a few years ago, well in 2008, since the original was written for a symposium about McCain's eligibility, was:
There is general agreement on the core of its meaning. Anyone born on American soil whose parents are citizens of the United States is a “natural born citizen.” Anyone whose citizenship is acquired after birth as a result of naturalization is not a natural born citizen.
What the current version says is:
As a matter of inclusion, it is beyond dispute that anyone born on American soil with an American parent is a “natural born citizen.”3 As a matter of exclusion, anyone whose citizenship is acquired after birth as a result of “naturalization” is not a “natural born citizen.” But agreement on these paradigm cases of inclusion and exclusion does not entail that the clause has a clear meaning. The clause becomes enigmatic once we focus on persons who are born outside the territory of the United States to parents who are American citizens
The footnote reads:
In an earlier version of this article, I used the phrase “whose parents are citizens of the United States.” Some readers have misread the original as implying that someone born of only one American parent on American soil is not a “natural born citizen.” That reading ignores the context of the original sentence, which was meant to provide a case where “natural born citizen” status was indisputable. The sentence did not provide criteria for clear cases of exclusion, which were provided by the very next sentence. Based on my reading of the historical sources, there is no credible case that a person born on American soil with one American parent was clearly not a “natural born citizen.” Indeed, the conventional view is that almost anyone born on American soil would be a natural born citizen: limited exceptions may have existed for the children of foreign Ambassadors, for the children of slaves, and perhaps others. This article does not address the question whether the conventional view is correct.
In the body of either version, the question of a person born on US soil, with a single US citizen parent, and one alien parent, is not analyzed at all.
You sir, are guilty of gross misrepresentation. Did you think no one would actually read the articles in question?
I think, for whatever reason, the Good Professor failed to consider his words in light of the parentage issues of the Democratic nominee. So he needed to make this clarification.
I guess there was no symposium to Consider the eligibility of Barack H. Obama. Now why would that be?