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.
A law prefessor and a former Harward Law Review Editor questioned McCain’s eligibility and wrote the following:
“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.” Anyone whose citizenship is acquired after birth as a result of naturalization is not a natural born citizen. John McCain, born to American parents in the Panama Canal Zone in 1936, had citizenship conferred by statute in 1937, but there is dispute as to whether the statute granted retroactive naturalization or whether it merely confirmed preexisting law under which McCain was an American citizen at birth. That leaves John McCain in a twilight zone – neither clearly naturalized nor natural born.”
Good professor “forgot” to apply the same core meaning of NBC phrase to Obama.
Story described at Donofrio’s blog:
Why am I not surprised that neither you nor Donofrio understand how academic publishing works (I’m guessing Donofrio never got on a law journal while in law school, and it’s pretty clear you never even made it to law school).
First off, why did it take him 4 years to discover this? Some of us have been aware of this article since it was published. Secondly, it was part of a symposium on McCain’s citizenship, so why would it speak to Obama’s citizenship (I suggest you read some of the other articles published in that issue…the very first article of that issue contains the very catching line, “Those born in the United States are uncontroversially natural born citizens.”)? Finally, the article was published in Michigan’s online companion to thier law review. One they call “First Impressions,” which in their own words, “facilitates quick dissemination of the legal community’s initial impressions of important judicial decisions, legislative developments, and timely legal policy issues.” So while those totally ignorant as to how academic publishing in the legal world goes might see it as “scrubbing” there is nothing unusual in a professor of law refining her article between a less formal on-line publication designed to get out a “first impression” of a subject and the more formal final paper publication…which she clearly explains the reasons for her changes.
For the life if me, I could not follow how he arrived at this:
Solum says it “could be argued” but he doesn’t make the argument and indeed makes, if anything, the opposite argument. That sentence reminds me of a rabbit pulled from a hat by a magician. One can’t see where it came from.
You must be a time traveler if you had access to this document FOUR years ago.
Where does SHE clearly explain reasons for her changes?
It is interesting that only McCain’s eligibility was questioned – no symposium about Obama’s case. From the published article we see that prof. Solum did not think at the time that Obama was eligible for presidency.
Solum really doesn’t say that. Solum is not trying to argue who is and who is not eligible to be president, but rather to push the limits of what could be argued in order to demonstrate the limitations of originalism in resolving constitutional questions.
I’m sorry, I mispoke…two and a half years. And he makes it pretty clear in footnote 3 of the final, and his own words, “more scholarly” version. And there is nothing interesting about the fact that there was only a symposium about McCain’s eligiblity. Only McCain wasn’t born within the borders of the US, and law schools do not have symposia on junk law. And finally, no, your statement that “see see prof Solum did not think at the time that Obama was eligible” is a creation of your own mind. The same footnote 3 makes that pretty clear:
“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.”
More parsing of meaning of the word “is”.
ParentS is not really a plural. It can be whatever we want it to be.
“It can be whatever we want it to be.”
I completely agree with you! I want it to be “pets.” “Pets” can refer to a cat, a dog, goldfish, guppies, or even sheep. Speaking of sheep, Joseph Farah has never denied the strong evidence that barnyard animals become skittish when he is near.
Even worse, is Glenn Beck has never proved that he did not rape and murder a girl in 1990. All Beck has to do is release his criminal record abstract, no copies please, stamped “subject has clear record to date,” and this can be over today.
SHOW US YOUR RECORDS BECK!!!
No its just you don’t understand the english language. As has been pointed out to you before. With the “Only children whose parents are members can swim in the club pool”. This does not mean that both parents have to be members.
Donofrio is not even a good poker player, much less lawyer, even less Constitutional lawyer. In fact, Donofrio does not practice law. He just plays at being a poker player.
Leo: if you read this, please sue me. I need the publicity. My addy is in my profile.
Donofrio called Solum an intellectual coward for “scrubbing” his article.
Solum, in fact, did the opposite of scrubbing: He deleted no prior material, he annotated his changes from a prior version of the article, and he explained why he made the changes.
When I posted a comment to this effect on Donofrio’s site, Donofrio deleted my comment.
Who is intellectual coward again?
No parsing necessary, at least to those of us who have a grasp of both law and english. Just more whining by birthers that can’t accept the fact that there is not a single constitutional law scholar that accepts their twisted definition of Natural Born Citizen.
I had a similar experience.
I moved some on-topic comments from other threads here. I hope I haven’t broken too many links in the process.
Donofrio is rather adamant that he, and he alone has the moral right to change his mind, alter his writing, or clarify his meaning. All others are scum for doing that.
I was on the other end of Donofrio’s denigration while I was updating and correcting an article about Obama’s former British and Kenyan citizenship.
Unlike Donofrio, for me it’s not WHO is right and WHO is wrong, but rather WHAT is right and WHAT is wrong. In that instance, the argument I ended up with is what was right.
Donofrio scrubbed everything on his old web site. He has promised to make some of his old content available, but we haven’t seen how complete it is and how close it is to the original.
Swiming pool membership, you are streching it here!
Professor Solum used the phrase “anyone born” meaning a person (singular).
Let me rephrase his sentence: A child born on American soil whose parents are citizens of the United States is a ‘natural born citizen’.
What about my cat? I have his birth certificate right here:
I’m not sure whether Solum’s original statement could be construed as plural or not. What I do know, and Solum confirms, is that he was not defining natural born citizenship but trying to come up with the most restrictive statement that everyone would agree with. In his clarification, Solum states that one parent is also a most restrictive statement.
We do not know whether Solum believes any parents at all are required, but we do know that he believes that Barack Obama qualifies.
Exactly: In the revised version of the article, Solum expressly stated that one citizen parent is sufficient. He even explained that he changed this particular language because people like Donofrio (and nc1) were incorrectly interpreting what he originally wrote.
Here’s Solum profile from the University of Illinois Law School (one of the most prestigious law schools in the world, by the way). On it, you will find his e-mail address: If you have any doubts that Solum’s very clear statement nonetheless somehow implies Solum ever thought President Obama was ineligible, please contact him.
Not necessarily he clarified that Obama qualifies as he meant a person born of a citizen parent. But he also said that anyone born on US soil would qualify. Again you don’t understand the english language and are trying to make it whatever you want it to be where no caselaw, legal scholar has agreed with you.
While the above is true, it is also true that any child born in the United States, no matter what his citizenship, is a natural born citizen.The first anyone heard of any requirement for a child born in the US to have even one citizen parent was about November of 2008. Before that it was always universally understood that “born in the US means natural born citizen.
Something odd apparently happened in 2008. I wish I could remember what it was.
I’m beginning to understand your reading comprehension problems.
The word “anyone” is not necessarily singular. Example: “Anyone in the class is eligible to join the club.” In that sentence, “anyone” is synonymous with “all members of the class are eligible to join the club.” On the other hand, “Any one in the class is eligible to join the club” means that only one person in the class can join.
If Professor Solum had wanted it to mean one person, he would have used “any one” (two words) instead of “anyone.”
It’s just like that guy in Georgia joking about who is going to shoot Obama.
He wasn’t talking about shooting the president – he was talking about shooting a black man.
I’m divorced, and my ex-wife is a member of a country club on the otherside of the country. My children visit her during the summer, so it would be nice for them to be able to use the pool.
Now, my ex-wife’s countryclub has a rule that says “Only children of members may use the country club.”
Now, my ex-wife and I only have one child. Does this rule apply to him (the rule says children, which is plural, so they must mean that they mean at least two). Should I contact my wife so that we can go and have another child, so that my child may use the pool?
Furthermore, do I have to join the Country Club, across the country, so that my child may use the pool? After all, they do say “memberS” Therefore, the child must be the children of more than one member. So, do I have to pay thousands of dollars a year to a club that I will never set foot in, just so that my child can use the pool at the country club that my ex-wife already belongs to when my child is staying with her?
I’m just wondering, since your legalistic comprehension of the English Language is far superior to my own…
In fairness to nc1, Solum, concludes the sentence: “is a natural born citizen.” That’s a singular verb. “Anyone” in the sentence is grammatically singular even if the concept involves a class. One can make a much better case for two parents in Solum than can be made in Minor and especially Vattel. I’m not 100% sure what Solum originally intended, but I know what he said after being asked about it, and that was “one parent.” Whether he changed his mind or not is irrelevant.
This discussion reminded me that when I was in school, if I missed a day I was told to “bring in a note from your parents.” Nevertheless, a note signed by one parent was always sufficient.
Not necessarily. A child could be born in the United States to the British ambassador, and then the parents could, upon the child’s 22nd birthday become US citizens. In that instance your formulation would fail after these events transpired.
I don’t believe that is necessarily the case. Take the example I used and change it slightly:
“Anyone in this class is eligible to join the club and become a member.” The word “member” is singular, but in that sentence “anyone” clearly refers to the entire class.
nc1 is being even more asinine than usual.
There are two issues here:
1) Where does this “parents” thing come from? Vattel. Is Vattel relevant in this case. No.
2) assuming Vattel is somehow relevant, what then dies this sentence mean? Dies it mean two parents? No.
End of story.
nc1 is to understanding of English, logic and law what a hammer is to a Beethoven concerto.
As far as I’m concerned, you Americans can define your legal terms as you see fit (nc1’s proposed definition might for example be: “no uppity n*** shall be eligible etc.”) but stop dragging Vattel into it.
An interesting exchange on Daily Kos:
A birther writes:
CONSTITUTION SAYS NOBAMA!
Here’s the thing: a nigger shouldn’t be president. And it’s not racism, it’s in the Constitution. The Constituition of the United States says that the president has to be “representative of the people of the United States”. This means that if the country is 70% white, then the president also has to be white. Simple. Basically you have no argument but I guess you don’t need to because the lib communists have wiped their ass with the Constitution since day one.
And just to prove that I’m not a racist, I’m ready to admit that when the US is more than 50% latino, then the president should also be latino. That’s called honesty, which you know nothing about.
Hmmm, a majority of the population is female, so the president can only be a woman. And since the South is a minority of the United States, the president can never be southerner. Which means that no Republican will ever be president again. Cool!
Submitted for your edification, the birther rules of evidence. Thank you for the honesty.
> This means that if the country is 70% white, then the president also has to be white.
These people, notwithstanding their utter racism, even fail at basic logic. Of course if that argument were correct, the president has to be 70% white. And a bisexual hermaphrodite who mixes his Christian belief with some Muslim and Jewish add-ons.
“This means that if the country is 70% white, then the president also has to be white.”
I say we elect a Hebrew hermaphrodite. That will cover all the bases.
Solum may not make it clear what he believes, but he does make clear what the current state of law is:
“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”