Author Archives: Michael Froomkin

Dear Mr. Leary,

As a sometimes professor of Constitutional Law, I would like to point out a small issue with the lede to your article today regarding Marco Rubio’s eligibility to be President.

As printed in the Miami Herald, the article begins,

“Unable to prevent Barack Obama from becoming president, rigid followers of the Constitution have turned their attention to another young, charismatic politician many think could one day occupy the White House.”

The word I have a problem with is “rigid”. It is wrong to describe the view that “natural-born” means “born as the child of citizens” as being somehow a strict reading of the Constitution analogous to, say, a literal interpretation of the Bible or the “strict constructionist” school of constitutional interpretation. In fact, this reading is ahistorical and pretty nearly delusional. It has no support in case law or in history. To call it rigid is to suggest that there is some textual backing for it. There really is not. There may be the occasional comment here or there that can pulled out of context, but there is actually very little even of that, and nothing substantive, and it is not, and has never been, our law.

So the reading being proffered here isn’t “rigid” — it’s deviant, unprecedented, novel, extreme. No doubt these are all words newspapers hate to use in their quest to seem neutral. But an unwillingness to call something what it is should not push you into giving it even a shred of false legitimacy.

I might add that I am in no way a supporter of Mr. Rubio. That doesn’t change the the facts about our understanding of this clause of the Constitution.

Yours Sincerely,

A. Michael Froomkin
Professor of Law

Previously: Is McCain a “Natural Born Citizen”?