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?
First, I am an attorney, but I don't pretend (unlike a lot of attorneys) to be a constitutional scholar. A year ago, really when I first began thinking about this issue, as my recent retirement gave me some free-time, I presumed - from my own academic and legal education, but not from professional experience - that to qualify as natural-born, you did indeed need two parents who were citizens. But, as I actually began to read the relevant case law, my understanding evolved.
Solum himself, makes a clarification to his own paper from it's original publication in the Michigan Law review, and has amended his paper to reflect his clarification. He plainly says now, that it only takes a single citizen-parent and jus soli to effect natural-born citizenship. Solum cites his revision in the first few pages' footnotes.
I think, at best, the matter is plainly undecided and subject to debate. Of that, I don't believe that there can be any argument. While the Court has issued opinions that could be interpreted that it's settled law, such interpretation would be defective, as the court has only discussed this issue in dicta; It's never been part of the legal holding of any decision the Court has rendered.
For me personally, I value Solum's opinion. I wouldn't say that I know him personally, but I have heard him lecture several times, and I've read most of his scholarly work. He is an originalist. If he thinks it's one citizen-parent and jus soli, I find that compelling. Of course, you - like anyone - are free to ignore Solum's opinion, because that's just what it is, an opinion. But, I do believe it's probably reflective of the positions of the other originalists who actually serve on the contemporary court.
Lastly, I wouldn't characterize Solum's opinion as a liberal one, or one that embodies a "living Constitution". If you have some time, read or listen to, as it's available on Oyez, the oral argument in Tuan Anh Nguyen v. INS. It's enlightening because while that case isn't about NBC, the justices do discuss it peripheral way when exploring Ahn with litigant's advocates. Ruth buzzie, in embracing a position I would characterize as liberal, thinks her grand-son, who was born in France to just a single citizen-parent, can be President (she actually says VP). Scalia disagrees - and while he doesn't take issue with just one citizen-parent, he does state that he believes jus soli is a requisite component for NBC.
Steven's notes - to some laughter in the courtroom - that...
"Of course the interesting thing about that provision, it requires that he be natural born at the time of the adoption of the Constitution.He's right. That is what it literally says because they inserted an extra and unneeded comma.That's what it literally says.
Again, it's not a binding decision, it's just an interest aside that may tip the hands of the justices with respect to where they might side in this issue.