THE SCRUBBING OF AMERICA: How Professor Lawrence Solum Disgraced Himself To Protect Obama’s Eligibility.
In September of 2008, the Michigan Law Review published an article by Lawrence Solum, the John E. Cribbet Professor of Law at the University of Illinois College of Law, entitled, “Originalism and the Natural Born Citizen Clause”. The article focused upon the issue of whether John McCain was eligible to be President despite his birth in Panama. The article did not even mention Barack Obama. The direct citation is Michigan Law Review: First Impressions Vol. 107:22 2008.
The opening paragraph of Solum’s article states:
“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.’” (Emphasis added.)
According to this reference, there is general agreement that the core meaning of the natural born citizen clause = born in the US to parents who are citizens. According to Solum back in September 08, anyone who doesn’t fit that description, like McCain, falls into a “twilight zone” of eligibility. This interesting choice of words mimics the US Supreme Court’s “doubts” expressed in Minor v. Happersett:
“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. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” (Emphasis added.)
Solum’s definition of the core meaning of natural born citizen seems to be taken directly from the SCOTUS in Minor. Solum then goes on to analyze McCain’s eligibility and concludes that there is no clear answer as to whether McCain was eligible to be President.
CUT TO… OCTOBER 27th 2008.
Solum published the original article in September 2008. But then something happened.
The issue of whether a dual citizen at birth may be considered a natural born citizen had been ignored in the run up to the election – prior to October 27, 2008 – when I brought my law suit, Donofrio v. Wells, against the New Jersey Secretary of State. Up until then, the issue of Obama’s dual citizenship was not on the radar of voters, pundits, or journalists.
By 2010, the dual citizen issue had become common knowledge. Today, four states - Montana, Nebraska, Tennessee and Arizona – have drafted bills requiring Presidential candidates to prove they have never been dual citizens, or that both of their parents were citizens of the United States when the candidate was born. If any of those states actually pass such a law, Obama will not be eligible for inclusion on their ballots.
On April 18, 2010, Solum republished the article under the same exact title but with a vastly different second paragraph. The revised article was released online via the Social Science Research Network. The citation for the scrubbed article is Illinois Public Law Research Paper No. 09-17. The second paragraph now reads:
“What is the legal significance of what we can call “the natural born citizen clause”? There is general agreement on the core of settled meaning.2 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″ (Emphasis added.)
Scrubadub dub dub…
When you go to footnote 3, it continues to scrub as follows:
“3 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…” (Emphasis added.)
That’s some serious scrubbing.
He starts with – “In an earlier version of this article” – but he doesn’t cite to the Michigan Law Review article anywhere in the scrubbed article. These so called “legal scholars” would list a citation to tissue paper if they sneezed in it while writing a report. But good old Solum here, he’s suddenly struck with a case of amnesia citosis.
THE MICHIGAN LAW REVIEW’S RESPONSE
The Michigan Law Review has not published Solum’s revisions. To their credit, the article remains unscrubbed at their web site. I spoke with Amy Murphy, Editor In Chief of the Michigan Law Review this morning. She informed me that they have a general policy of not publishing revisions of articles they have previously published.
I also informed her in detail about the scrubbing by Solum. I explained my background, the case I brought to the Supreme Court, and the timeline of events as they pertained to Solum’s articles. She agreed to listen as I read the original Michigan Law Review version and the recently scrubbed version of the second paragraph to her. When I finished reading, she informed me that the Michigan Law Review has “no comment”.
In another telling paragraph (in both versions), Solum states:
“How would an originalist approach the question whether the original meaning of the natural born citizen clause would permit McCain (and others not born of American parents on American soil) to become President?” (Emphasis added.)
This is a second reference to “parents”. This was not revised.
But there’s more. Solum also states (in both articles):
“If the American conception of ‘natural born citizen’ were equivalent to the English notion of a ‘natural born subject,’ then it could be argued that only persons born on American soil to American parents would have qualified…”
Parents – plural – again.
And one more time:
“This could result in the interpretation suggested above—which would limit “natural born citizens” to persons born of American parents on American soil.” (Emphasis added.)
Solum needs to scrub this thing down a bit more to make it fit the needs of Obama eligibility. Perhaps that is why the scrubbed version is only listed as a “draft” when you download it. But it’s not listed as a draft at the Social Science Research Network site’s abstract download page for the scrubbed version.
If Solum felt that the original article had been misinterpreted, he should have written a follow up report with a new title explaining the issue.
Solum chose to use “parents” – plural – throughout the original article, no footnote necessary. So when people took him at his word, he scrubbed his word. That’s not what an ethical professor does. He doesn’t publish research in an esteemed journal and then republish the same article with the very same title after scrubbing a controversial paragraph.
That’s intellectual cowardice and it’s also a professional disgrace. Shame on you, Larry. You know it and so do your colleagues. You are, after all, the “John E. Cribbett Professor of Law”.
(Hat tip to reader “Steve T” for pointing this scrubbing out in comments.)
Leo Donofrio, Esq.