Thanks for posting the link to Solum. Several days ago it is coming back to me that I read with interest the extensive debate over the article including wrangling over the date when he made the most recent modifications. Part of my neurological condition affects my creation of short-term memory and I appear to have expunged recollection of reading about this obviously recent article.
The NBC eligibility of a candidate or president with a foreign citizen father has never come before SCOTUS so it is not surprising that SCOTUS has never ruled on the relevance of Vattel’s definition of NBC or John Jay's admonition explicitly against foreign influence for POTUS which appears to have clearly led to the NBC clause and dovetails with Vattel.
My take on Solum, now that I have refreshed my memory (as the witness is asked to affirm in court) is that his scholarship is subject to the inevitable heavy taint of being published after 2004 when the entire Democratic Party supporting Trial Bar and its allies in Law School academia became invested in clearing the way for Obama to become president.
Just because an article is published by a distinguished professor in a peer reviewed journal doesn't mean the article is free of collusion in furtherance of a political agenda. Do you expect us to be so naive as to believe that this never could happen, especially in defense of Obama, given the stakes?
In fact Solum’s piece seems to pointedly constructed to attack Vattel without explicitly naming him.
Just look at the intro to Solum’s piece:
BEGIN QUOTE
Part III argues that that the clause creates a problem for public meaning originalism - the phrase “natural born citizen” may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a “term of art,” in particular, the idea that the meaning of “natural born citizen” derives from the English concept of a “natural born subject.”
END QUOTE
Using the classic sales technique of “answering objections in advance” Solum posits that even though NBC “may not have had a widely shard public meaning” it might just be a “term of art.” Oh, really?
That is the whole Vattel NBC argument in a nutshell, i.e. that Vattel’s NBC (”les naturelles ou indigenes”) was not in common usage but was a term of art understood and embraced by the founders as they wrestled with a new type of nation requiring an new type of citizen and as being radically distinct from a common law “natural born subject” as described by Blackstone.
But instead of having an honest academic exploration of alternative possible meanings for this term of art, notice how Solum pointedly derails any concept or discussion of such alternative meanings by affirmatively positing that NBC meant “natural born subject”!
Solum then goes on to ignore Vattel and John Jay's obvious link to Vattel and Washington and the other founders pouring over Vattel and instead he extensively explores his theory that NBC was analogous natural born subject.
This, to me, is academic dishonestly by omission in furtherance of an obvious political agenda of protecting Obama’s rear!
As to Mark Levin and Ann Coulter your comments about them “assume facts not in evidence” to which “I object”.
You said:
“Coulter and Levin BOTH have practical experience as constitutional attorneys -that is to say that they have both made a living at arguing constitutional law. And, both are keenly aware that Obama was born to a parent who WAS NOT a citizen, but both Coulter and Levin agree that Obama is ELIGIBLE to be President. How about that?”
They have never explicitly affirmed Obama’s eligibility under any NBC theory to my knowledge. Not 14A, Wong, Minor, Elk, Elg, natural born subject or any other basis. Please provide a link to support your contention that they “both agree that Obama is ELIGIBLE.”
I have no explanation for why they have actually distanced themselves from birther theories (which are very diverse despite your attempts to deride all in one pot) as opposed to why they say that have distanced themselves from birthers.
As lawyers, they know that you should never assert facts not in evidence (or not in your back pocket yet to be disclosed and placed in evidence) and much about Obama concerns facts that are not yet in public evidence beginning with his original HI vital records. A public commentator with a huge stake in personal credibility would be placing themselves at risk to assert suspicions that HI public officials are mistaken or to presume that SCOTUS would chose Vattel over Blackstone or Wong when the matter has never reached SCOTUS.
As Glen Beck has been going on about this week, Cass Sunstein has advocated making internet conspiracies illegal and using the FCC backed up by an army of paid internet operatives to punish and suppress folks who, in the view, of the government, are spreading “conspiracies.” Why make themselves a target of a federal inquisition by promoting “conspiracies” (speculations that Obama’s behavior is virtual proof that he is hiding something, for example).
Perhaps my best response to your query “How about that?” is that it is best for Levin and Coulter to focus on persuading the public that Obama’s policies deserve to fail on the merits. That is a sure thing. Hoping for a SCOTUS NBC ruling or release of original HI vital records or a living credible Kenyan birth witness or official Kenyan authentication are speculative before the 2012 election.
While speculative, I believe such attempts to find the truth are worthwhile and at the very on the margin move public opinion against Obama as his failure to release his HI vital records becomes increasingly inexplicable for an eligible president.
You have a way of saying it that makes many of us out here wish that we had your disability.
On Coulter and Levin.....I would say FOLLOW THE MONEY.