Now that Leo Donofrio is publishing again, I needn’t fear running out of material for the blog. In his most recent article: THE SCRUBBING OF AMERICA: How Professor Lawrence Solum Disgraced Himself To Protect Obama’s Eligibility, Donofrio looks into an article from 2008 in the Michigan Law Review and we see in Donofrio’s article a continuation of his pattern of misleading the reader by redefining terms and denigrating anyone who disagrees with him. Professor Solum revised his article and Donofrio calls this “serious scrubbing.”
So what is “scrubbing?” The generic term means to clean something, to remove dirt. Scrubbing an audio file means to remove hiss or hum or other unwanted material. When it comes to a publication or the Internet, it means to remove something — to make it go away. In this last sense, scrubbing has a negative connotation, like “revising history” or covering up something. Glenn Beck used it in this sense when he said “Stuff is being scrubbed from the Internet…overnight.”
Solum, however, is not covering up or scrubbing anything. In the revised article where the change appears, a footnote is added explaining what the change was and why it was made.
What is more important, though, is what Solum is saying in the clarification to his original article. Solum’s original version, according to him, had been misunderstood. This is not surprising since this misunderstanding (or possible misunderstanding) has happened before.
The Law of Nations
Vattel, in his book The Law of Nations, wrote (in one English translation):
The natives, or natural-born citizens, are those born in the country, of parents who are citizens
The misunderstanding here is reading “parents who are citizens” to imply two parents, where in French the plural “citizens” follows the plural subject “citizens” and does not imply “two each.” A modern example showing the error is: “children whose parents are club members may use the pool table downstairs.” No one would ever read that to imply two parent members.
Minor v Happersett
We have exactly the same ambiguous language in the Supreme Court decision Minor v Happersett that says:
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.
Again we have some ambiguity in whether this really means two parents, or whether the plural “parents” follows the plural “children”.
Now to the case at hand. Lawrence Solum, the John E. Cribbet Professor of Law and Philosophy at the University of Illinois, wrote in the original version of ORIGINALISM AND THE NATURAL BORN CITIZEN CLAUSE:
What was the original public meaning of the phrase that establishes the eligibility for the office of President of the United States? 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”.
Here is the ambiguous language again, a class of people “anyone born on American soil” and the plural “citizens.” Unlike Emerich de Vattel or Chief Justice Waite, Professor Solum has the opportunity to clear up what he meant.
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… 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…
The revised article reads:
There is general agreement on the core of settled meaning. As a matter of inclusion, it is beyond dispute that anyone born on American soil with an American parent is a ‘natural born citizen.’
I want to be clear that there are no facts or citations above that are not plainly available in Donofrio’s article. The difference is that I have taken a straitforward approach to the material, rather than spinning it. Just as Donofrio has made his public claim to fame the redefinition of “natural born citizen,” now he is trying to redefine “scrub.”
Oh, and by the way, Donofrio scrubbed his entire web site a few months back. Pot, kettle, black.