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.
Well of *course* Solum has gone back and put an addendum on his own musings regarding the eligibility of John McCain. Can’t have inadvertant inference to the equally questionable Obama, now can we?
I much prefer Gabriel Chin on this matter, personally. At least he’s consistent.
http://www.law.arizona.edu/news/Press/2008/Chin071008.pdf
They were pretty free with commas in those days. Commas are not necessarily grammatical, changing the meaning of the words, they can just be pauses, to catch your breath so to speak. Consider the extra, non-grammatical, commas in the Second Amendment, well in some versions of it. The copy retained by Congress has the commas, but the versions sent to at least some states, and the version in the Congressional Statutes at Large from the first Congress, only had the one comma between "State" and "the right".
He doesn't say that at all. He says "there is no credible case that a person born on American soil with one American parent was clearly not a “natural born citizen", which is not the same as making a positive statement that such persons are natural born citizens. Neither does he cite any case indicating that they are.