FOUNDING-ERA TRANSLATIONS OF THE U.S. CONSTITUTION Christina Mulligan, Michael Douma, Hans Lind, & Brian Quinn* I. INTRODUCTION After the United States Constitution was drafted in 1787, the document was translated into German and Dutch for the German- and Dutch-speaking populations of Pennsylvania and New Y ork. 1 Although copies of both the German- and Dutch- Christina Mulligan is an Assistant Professor of Law at Brooklyn Law School. Michael Douma is the Director of the Institute for the Study of Markets and Ethics at Georgetown University. Hans Lind is a Giamatti Fellow at Yale University. Brian Quinn holds an M.A. in Comparative Literature from the University of Chicago and a B.A. in English from Harvard University. Where uncited, Dutch interpretations were completed by Michael Douma and German interpretations were completed by Hans Lind. The authors wish to thank Jack Balkin, William Baude, Randy Barnett, Randy Beck, Jud Campbell, Nathan Chapman, Dan Coenen, Kent Dolphay, Riehard Epstein Bill Cilod, Christopher Green, Jill Hasday, Jeanne Hoffman, Martin Kagel, Kurt Lash, Robert Leider, Michael McConnell, Tim Meyer, Joe Miller, Thomas E. Mulligan, C ieorge Pike, Richard Re, Bo Rutledge, Stephen E. Sachs, Frederick Schauer. Larry Solan, Larry Solum, Christian Turner, Kirk Wetter, the faculty workshop participants at the University of Georgia, the fellows of the Information Society Project at Yak Law School, and the participants in the Sixth Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference. Special thanks to Michael Widener, Rare Book Librarian & Lecturer in Legal Research at the Lillian Goldman Law Library at Yale Law School, for his invaluable research help, without which this project could not have been completed. 1. The primary translations this Article will refer to are: YERFMIREN DER YEREINIGTEN CONVENTION GEHALTEN ZU PHILADELPHIA, IN DEM JAHR 17X7, lJND DEM ZWOLFfEN JAHR DER AMERICANISCHEN lJNABIIAN(iiGKEIT. AUF YLRORDNUNU DER GENERAL ASSEMBLY VON PENNSYLVANIEN AlJS Dl M ENGLISCHEN lJBERSETZT (Michael Billmeyer co., presumed 17X7) !hereinafter "U.S. CONST. (German)"!, http://modcrn-constitutions.de/US-00-17X7-0l)-17-dc-e.html; and CHARLES R. WEBSTER, DE CONSTITLJTIE, EENPARIGLYK GEACCORDEERD BY DE ALGEMFENE CONVENTIE, GEHOLJDEN IN DE STAD VON PHILADELPHIA, IN'T JAAR 17X7: EN GESlJBMITTEERD AAN HET YOLK DER YEREENIGDE STAATEN VAN NOORD-AMERIKA, YERT/\ALD DOOR LAMBERTUS DE RONDE, CiEDRlJCKT BY ORDER VAN DE FEDERAL COMMITTEE, IN DE 1 2 CONSTITUTIONAL COMMENTARY [Vol. 31:1 language Constitutions have been preserved2 and are reprinted in a German collection of constitutions edited by Horst Dippel,' they have largely escaped analysis until now. 4 This Article examines the text of the translations and explains how they can clarify the meaning of the Constitution's original text. By presenting and analyzing translations of the Constitution, this Article makes several modest but significant contributions to the field of constitutional interpretation. Principally, the translations provide evidence of the Constitution's original public meaning- the meaning of the text as understood by its contemporary translators and as reflected in their interpretive choices. This evidence may be of particular value when studying clauses in the Constitution that have not typically been the subject of discussion and commentary. The translations also provide examples of situations where there were multiple "original public meanings"- where members of the public developed different interpretations of the same text. More generally, this Article proposes that translations constitute a uniquely advantageous source of constitutional commentary by virtue of their ability to comprehensively and contextually analyze the Constitution's text. Unlike other sources, such as published pamphlets, the ratifiers' STAD VAN ALBANY (17XX) lhen:inafter "U.S. CONST. (Dutch)"!, http://modern- constitutions.de/US-00-17X7-09-17-nl-e.html. Both documents arc reprinted in I CONSTITUTIONS OF TilE WORLD FROM THE LATE I XTH CENTURY TO TilE MIDDLE OF THE 19TH CENTURY (Horst Dippel ed., 2006) !hereinafter "I DIPPEL" I. 2. An original copy of the German-language U.S. Constitution can he found at the Lilly Library at Indiana University, Bloomington, and an original copy of the Dutch- language U.S. Constitution is on file in the Historical and Special Collections of the Harvard Law Library. See U.S. CONST. (German), http://www.modern- constitutions.de/nhu.php?page_id=02a I h5aX6frt 39471 cOb I c57123acl %&show_doc=US- 00-17X7-0lJ-17-de&viewmode=thumhview (last visited Oct. 14, 2015) (:,tating that the Lilly Library, Indiana University has made copies of the German translation of the U.S. Constitution availahlc ); U.S. CONST. (Dutch), http://www.modern- constitutions.de/nhu.php?page_id=02a I h5aX6ffl 39471 cOb I c57123acllJ6&show_doe=lJS- 00-17X7-0lJ-17-nl&viewmode=thumhview (last visited Oct. 14, 2015) (stating that the Historical and Special Collections of the Harvard Law Library has made copies of the Dutch translation of the U.S. Constitution available). 3. I DIPPEL, supra note I (comprising the U.S. Constitution in English, German, and Dutch, as well as each proposed amendment in English and German through IXIO). 4. The German translation is so ohscure that the Library of Congress website appears to be unaware of its existence, incorrectly surmising that the Dutch translation was the earliest publication of the Constitution in a non-English language. See Widespread Interest in the FoundinR Dommenls, LIHR. OF CONGRESS., http://www.loc.gov/exhibits/ creating-the-united-states/constitution-lcgaey.html (last visited Oct. 14, 2015) ("Displayed here is a 17XX copy of the Constitution in Dutch, perhaps the earliest example of its puhlication in a language other than English."). 2016] FOUNDING-ERA TRANSLATIONS 3 speeches, or contemporary dictionaries, the translated constitutions exhaustively restate every term and phrase in the Constitution and represent those terms and phrases in context. Part II will introduce the translations by situating them in historical context. Part III will turn to the value of using translations to interpret the Constitution in the present day. The text of the translations will be analyzed in Part IV. Accompanying this paper is also an appendix, which includes a table of the English, Dutch, and German texts, together with extensive annotations and notes on the peculiarities of these translations. 5 Our aim is for these comments to be a helpful tool when using the translations to explore the meaning of the Constitution. II. HISTORICAL CONTEXT OF THE FEDERAL CONSTITUTION IN TRANSLATION On September 17, 1787, the Philadelphia Constitutional Convention adjourned after completing the drafting of the Federal Constitution. By the next morning, 500 copies had been printed in English, to be distributed to Congress, state governors, and state legislators. 6 Shortly after the convention adjourned, Pennsylvania's congressional delegation requested a meeting with the Pennsylvania General Assembly, the state's legislative body.7 Benjamin Franklin hoped that by quickly ratifying the Constitution, Pennsylvania could secure the location of the new nation's capital.~ On Monday, September 24, 1787, and Tuesday, September 25, 1787, the Pennsylvania assembly ordered the printing of 3,000 copies of the Constitution in English and 1,500 copies of the Constitution in German "to be distributed throughout th[ e] state for the inhabitants thereof."l) At the time, 5. See infra app. 6. PAULINE MAIER, RATIFICATION: TilE PEOPLE DEBATE TilE CONSTITUTION, 17X7-17XX, at 27 (2010). 7. !d. at 59. X. !d. 9. 2 THE DOCUMENTARY HISTORY OFTHl' RATIFICATION OF THE CONSTITUTION 62-64 (Merrill Jensen ed., 1976) !hereinafter DHRC II 1. On September 24, Assemblyman William Findlay moved that 3,000 copies he printed in English and .'iOO printed in German. !d. at 62. Later in the day it appears Findlay moved for I ,000 copies to he printed in English and 500 copies in German, and the motion "was agreed to.'' !d. at 63. The following day, "IAssemhlymanl Rohert Whitehall!,! thinking the numher. ordered !the previous day! to he published of the plan of the federal government. I was! too small! I- .. moved to add two 4 CONSTITUTIONAL COMMENTARY [Vol. 31:1 around one-third of the population of Pennsylvania primarily spoke German, 111 and the relative number of constitutions printed in each language reflected this proportion. Assemblymen William Will of Philadelphia, Adam Hubley of Lancaster County, and Philip Kreemer of Berks County were appointed to a committee to "engage a proper person to translate the plan [Constitution] into the German language." 11 The assembly's German language printing was undertaken by Michael Billmeyer. 12 However, the translator's name does not appear on the Billmeyer copies 13 and does not appear to be known. The Dutch translation was produced separately at the bequest of a pro-Constitution faction. In the late 1700s, the Dutch language was still spoken widely in New York, specifically in the rural areas around New York City "west of the Hudson, in New Jersey, around Kingston, and along the upper reaches of the Hudson and the Mohawk." 14 The Dutch translation was printed in 1788 to gather support for New York's ratification, "by Order van de [of the] Federal Committee," 15 a group which explicitly advocated ratification of the Federal Constitution iin New York. 16 The printer of the Dutch translation, Charles Webster, owner of thousand more to that motion." !d. Assemhlyman Hugh Brackenridg,._: disagreed, arguing that, "the numher of fifteen hundred, ordered yesterday, would he enough to convey the information generally through the state." !d. It was eventually ordered that "two thousand copies in English and one thousand in German he printed in addition." !d. at 64. Adding the totals from SL:ptemher 24 and Septemher 25, it would appear that ],000 copies were printed in English and I ,500 were printed in German. Descrihing these events, Pauline Maier wrote, "On Tuesday, Septemher 25, the assemhly ordered two thousand copies of the Constitution printed in English and another thousand in German for distrihution throughout the state." MAIER, supra note o, at oO. Maier did not mention the Septemher 24 order. 10. According to the 1790 census, IoO,OOO of Pennsylvania's 4]4,]7] inhahitants were German, and this tongue "was the standard language in the area where the German population was concentrated." Juan F. Perea, Demography and Distrust: An F,ssay on American Languages, Cultural Pluralism, and Official 1--,'nglish, 77 MINN. L. REV. 2o9,] 10 ( 1992) (citing 2 ALBI-RT B. FAUST, THE GERMAN ELEMENT IN THE lJNITFD STATES 14 (1909) and HEINZ KLOSS, THE AMERICAN BILINGUAL TRADITION 140 (1977)). See also FRANK R. DIFFENDERI·TER, Till' GERMAN IMMIGRATION INTO PENNSYLVANIA (1977) (explaining that most authorities agree that German speakers in Pennsylvania constituted ahout one-third of the total population of Pennsylvania he tween I 7]0-1790). II. DHRC II, supra note 9, at 57, o]. 12. !d. atM. 1]. See U.S. CONST. (German), supra note I. 14. NICOLINE VANDER SUS, COOKIES, COLESLAW, AND STOOPS: THE INFLUENCE Or DUTCII ON THE NORTH AMERICAN LANGUAGES ]4 (2009). 15. I DIPPEL, supra note I, at XO. 16. MAIER, supra note 6, at ]2X. 2016] FOUNDING-ERA TRANSLATIONS 5 the Albany Gazette and Albany Journal, is notable for having printed pamphlets by both the Anti-Federal and Federal Committees. 17 The Dutch translator was Lambertus De Ronde, Is a Dutch- American minister of the Reformed Church in America (formally known as the Reformed Protestant Dutch Church). 19 De Ronde was born in Holland in 1720, and lived in the village of Zuilichem in Gelderland for some period until 17 46, before going to Suriname. 20 He visited New York in 1750. Upon De Ronde's arrival, he was approached by leaders of New York's Dutch Reformed Church "who anticipated their congregation soon would need another minister." 21 His preaching was praised as "so pleasing" 22 that he was hired by the Collegiate Church ''with the understanding that he was to join the Coetus." 23 The Coetus was the larger of two warring factions within the Reformed Church; the other was known as the Conferentie. Adrian C. Lieby describes the Conferentie as a group that "often appeared to be moved by a violent hatred for all things American." 24 Although "[t]he [C]onferentie sometimes represented its battle as one to preserve the authority of Amsterdam and the ways of the fathers in the American Dutch church," Lieby claims that "its real objective was to oppose the great religious revival that had swept the colonies in the thirty years before the Revolution, ... that has come to be called the 17. !d. at 333-34. On AprillO, 17HH, Webster printed a circular by the Anti-Federal Committee raising over thirty objections to the Constitution-about ten Jays later he published the Fetleral Committee's Jctaikd rebuttal. !d. I H. I DIPPEL, supra note 1, at HO. I Y. See EDWARD TANJORE CORWIN, A MANUAL OF TilE REFORMED CHURCH IN AMERICA (FORMERLY REFORMED PROTESTANT DUTCH CHURCH) 162H-IY02, at 417 (4th ed. 1(}02). 20. !d. 21. See Joyce D. GooJfrienJ, The Cultural Metamorphosis of Domine I ,ambertus de Ronde, HUDSON RIVER VALLEY REV., Spring 20()(}, at 63. 22. CORWIN, supra note IY, at 417. 23. !d. The Ecclesiastical Recortls of State of New York state that De Ronde was hireJ "under condition of becoming a cm:tus." 6 ECCLESIASTICAL RECORDS OF THE STATE OF NEW YORK 34Y5 (Etlward Tanjore Corwin et al. cos., I Y05) [hereinafter ECCLESIASTICAL RECORDS[. 24. ADRIAN C. LEIBY, TilE REVOLUTIONARY WAR IN TilE HACKENSACK VALLEY: THE JERSEY DUTCH AND NEUTRAL GROUND, 1775-17H3, at 20 (2J. cu. IYY2). During the Revolutionary War, most Confcrcntic supporters in the Hackensack Valley became British loyalists. /d. 6 CONSTITUTIONAL COMMENTARY [Vol. 31:1 'Great Awakening."' 2" In the 1750s and 1760s, the Coetus faction had adopted the liberal language of "rights" while emphasizing personal religious revival. To the Conferentie, such talk seemed to suggest that man could play a role in choosing his own salvation. But any suggestion that God's grace was resistible, or that man's free-will played a role in his own salvation, was heretical to the Orthodox Calvinists, whose position on this matter was defined at the Synod of Dordt from 1618-19. The Conferentie were traditionalists who held strongly to Dordt, and because Dordt determined the doctrines of the Dutch Reformed Church in the Netherlands, the Conferentie maintained ties with Amsterdam in order to counter what it envisioned were Arminian (free-will) tendencies in the American church. 2" Despite the expectations of De Ronde's appointment, he never attended another Coetus meeting and, in 1755, became a dedicated member of the rival Conferentie. 27 Although De Ronde had been a member of a committee that procured a preacher, Archibald Laidlie, to preach in English, De Ronde "afterward turned against him, and was the leading spirit of the 'Dutch party"' which opposed English preaching. 2x 25. !d. 26. See John W. lkardslce IlL The American Revolution, in .IAMFS W. VAN HOEVEN, PIETY AND PATRIOTISM 17-34 (llJ76). 27. CORWIN, SUJJra note llJ, at 417. 2K. !d. at 41 K. Laidlie "organize]d I special meetings where women by themselves, and men and youths by themselves expound]cd] the Scriptures by turns, repcat]cd] prayer from memory, discuss jed] questions of conscience, etc." Letter from Rev. Lambcrtus De Ronde to Rev. John Kalkocn, (Sept. lJ, 1765), in ECCLESIASTICAL RECORDS, supra note 23, at 4006. In a letter. De Ronde described the tension: ]E]vcr since the hour when a call was first extended to Rev. Laidlic, there has been no ]peace] in our congregation; that the Dutch party is much dissatisfied with the English party, on account of the election of certain members of the Consistory. These were chosen for the satisfaction of the (young) Americans, because they had voted for an English-speaking minister. The Dutch party took this very ill .... This quarrel has not abated at all since the arrivall,)f Rev. Laidlic. His Rev. was not willing to preach from Passion-texts, or holiday--sermons, as he ought to have done; nor is he willing to be subordinate .... Furthermore, he recommends that book of Marshall (on Sanctification), and gives utterance to incautious expressions, peculiar opinions, both in and out of the pulpit. All these things make matters worse, and cause many to fear that he will yet become an Independent; especially because he has many adherents." !d. Laidlic's all-female group "was perceived as a dangerous innovation by his orthodox colleague, Lambcrtus De Ronde." Joyce D. Goodfriend, Incorporating Women into the 1/istory of the Colonial Dutch Reformed Church: Problems and Propo.wls, in PATTERNS & PORTRAITS: WOMEN IN THE HISTORY Of THE REFORMED CHURCH OF AMERICA 30 (Renee S. House & John W. Coakley cds., llJlJlJ). 2016] FOUNDING-ERA TRANSLATIONS 7 But church politics eventually spurred De Ronde to learn English. In 1765, De Ronde reflected, "I had to learn a language, against which I had an antipathy for twelve or thirteen years." 29 By the 1760s, he frequently preached in English, at one point having to defend his practice of English preaching to the Amsterdam Classis. 30 Although De Ronde learned to preach in English, he was criticized for being "not in the least qualified" to do so. 31 Historian Joyce D. Goodfriend observes, "[h]ow widely De Ronde read in English remains a matter of conjecture, but he clearly read well enough to be conscious of contemporary English literary conventions. Yet ... it is not surprising that he exhibited concern about his comprehension of English. "32 De Ronde described his English-language book A System: Containing the Principles of Christian Religion, Suitable to the Heidelberg Catechism as "a bold Undertaking, by a person so little versed in the English Language .... [I]t would be Presumption to pretend to write it [in English] with Ease and Elegance."Tl In another English-language book, The True Spiritual Religion, he wrote that "flowers of rethorick, fine style, fancy, wit, and such other ornaments" were "more than my skill in the English language, could produce. " 34 The reception of De Ronde's work suggests that he sometimes traded conscientiousness for speed. After printing his book A System: Containing the Principles of the Christian Religion, Suitable to the Heidelberg Catechism, De Ronde was "admonished for leaving out an essential piece of doctrine" by the Amsterdam Classis. 35 De Ronde explained that "his eagerness to see the work in print precluded sending the manuscript to Amsterdam for approval" and that he would add an appendix to the work containing the missing material. 36 While De Ronde was capable, he was not always held in high praise, and he remained partial to the Dutch language and customs. The Manual of the Reformed Church in America 29. Goodfriend, supra note 21, at 64. 30. See id. at n5~nn. 31. !d. at n5. 32. /d. at n7. 33. /d. 34. /d. at n~. 35. !d. at n5. 3n. Id. 8 CONSTITUTIONAL COMMENTARY [Vol. 31:1 describes unattributed impressions of De Ronde: "He did not possess as high a standard of character and usefulness as his colleague, Ritzema, yet in many points, he was respectable." 37 However, given how much internal disagreement plagued the Reformed Church, it is not surprising that anyone would get mixed reviews. Goodfriend summarized De Ronde's complicated professional and personal relationship with Dutch and American culture. De Ronde ... cherished a vision of becoming a bicultural intermediary between the church's parties, equally honored by traditional Dutch artisans and worldly Anglicized merchants. Thwarted in his design, he ... cast himself as the vindicator of the Dutch partisans in their struggle against the innovations of the Anglicized Dutch. 1x Goodfriend ultimately laments others' "failure to acknowledge De Ronde for what might be considered his heroic efforts to bridge Dutch and English cultures.":w De Ronde reportedly stayed in New York City until1785, at which point he moved north to Schaghticoke, where he lived until his death in 1795.40 However, a note by Rev. Thornas de Witt of the Collegiate Dutch Reformed Church of New York indicates that De Ronde "retired to the country when the British took over [New York City] in 1776, and did not return to [his] charge at the close of the war, but remained in retirement in [his] old age." 41 Goodfriend similarly explains that De Ronde and his contemporary, Ritzema, were "forcibly retired by a Consistory under the control of Anglicizers. " 42 According to William Elliot Griffis, popularizer of claims of Dutch influence on early America, and author of the 1909 book The Story of New Netherland: The Dutch in America, De Ronde's translation of the Constitution into Dutch "had a tremendous influence among older men of the State, backing Alexander Hamilton, and securing New York for the Union and 37. CORWIN, supra note llJ, at 417. 3X. Goodfriend, supra note 21, at 70. 3lJ. !d. at o3. 40. See 5 APPIFfON'S CYCLOPAEDIA Or: AMERICAN BIOGRAPHY 31o (James Grant Wilson & John Fiske eds., New York, D. Appleton & Co. lXXX). 41. See I COLLHTIONS OF THE NEW YORK HISTORICAL SOCifTY 'J()I (IX41). 42. Goodfriend, supra note 21, at o(). 2016] FOUNDING-ERA TRANSLATIONS 9 Constitution."43 Nicoline van der Sijs claims, "[T]hanks to [De Ronde's] translation, the Constitution received such strong support from the older male population that the state of New York came to accept it." 44 But neither author provides primary sources to reinforce these claims, and the extent of the Dutch translation's influence is presently unknown. The exact date of printing is not recorded on the 17R8 Dutch translation of the Constitution, but it was presumably printed before voting for convention delegates began on April 29. 45 Eligibility to vote for convention delegates was not limited by property requirements, and so any free white male over 21 could vote. 46 According to Pauline Maier, property-less voters tended to vote Federalist. 47 When the votes to elect ratifiers were counted, the Federalists had won nineteen seats, compared with the Anti- Federalists' overwhelming forty-six. 4~ The Federalists had taken New York (Manhattan), Kings (Brooklyn), Richmond (Staten Island), and Westchester Counties; the Anti-Federalists had won the rest. 4') In light of the Federalists' poor showing at the delegates' election, it is possible that Griffis's and Vander Sijs's views of the positive impact of the Dutch translation has been expressed too strongly. Few Federalist candidates were elected to the state ratifying convention, and the change of heart among the elected Anti-Federalist delegates is best explained by events following the delegates' election. New York's ratifying convention began on June 17, 1788.50 By that time, eight states had already ratified the Constitution. New York's Federalist delegates hoped that if a ninth state ratified before the New York convention ended and the new Constitution went into effect in the ratifying states, then New York would be more likely to decide to stay with the union. 51 As hoped, New Hampshire ratified the Constitution on June 21, 43. WILLIAM ELLIOT GRIFriS, THE STORY OF NEW NFTIIERLAND: TilE DUTCH IN AMERICA 250 (190Y). 44. Sus, supra note 14, at 35. 45. See generally MAIER, supra note 6, at 327. 46. !d. at327,341. 47. !d. at 341. 4X. !d. 4Y. /d. 50. !d. at 34X. 51. See id. at342. 10 CONSTITUTIONAL COMMENTARY [Vol. 31:1 and Virginia ratified the Constitution on June 26, 1788.52 News of these two events reached the New York convention while it was still in session and tipped the balance in favor of ratification, despite the strong Anti-Federalist presence. 53 Notably, a copy of the German translation of the Constitution is "bound up in the same volume" as the Dutch translation in the State Library of New York.54 It was printed under the same authority and is of the same date and imprint as De Ronde's translation. 55 This German translation was identical to the Billmeyer print, and the translator's name is again omitted.56 III. THE INTERPRETIVE VALUE OF TRANSLATIONS A. TRANSLATION AS ANALYSIS Part of the reason we consult the works of prominent late eighteenth-century commentators to understand the Constitution is "because they reflect the considered analyses of intelligent observers far closer to the relevant events [of the Founding] than we are today."'7 De Ronde and the German translator were similarly-situated, intelligent members of the late eighteenth- century American polity, but one might question whether their 52. DHRC II, supra not~ lJ, at 23. 53. See generallv MAIER, supra not~ 6, at 376. 54. CORWIN, supra note llJ. at 41X-IlJ. See generally John P. Kaminski, New York: Fhe Reluctant [>i/far, in Till: Rl:l.l!CTANT PILLAR: N!:W YORK AND THE ADOPTION OF THE F;I'DI RAL CONSTITUTION (St~ph~n L. Sch~cht~r ~LL, llJX5). See also Clrcgory E. Maggs. ,1 Concise Guide w the Federalist Papers as a Source of the Original !VI caning of the Uniled States Constitution, X7 B.ll. L. RFV. XOI, X32-:n (2007). 55. CORWIN,SllfJranot~ llJ.at41X-IlJ. 56. I DIPPEL, supra not~ I, at M n.l (noting that th~ Billm~y~r print is id~ntical to th~ 17XX Charles W~hstcr print). 57. See John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 GEO. WASH. L. REV. 1337, 1356 (llJlJX). In othn words, "th~s~ works ar~ simply good constitutional commentary hy mcmh~rs who w~r~ or n~arly w~r~ m~mhcrs of th~ political community within which th~ Constitution was adopted.·' Vasan K~savan & Micha~l Stok~s Pauls~n. The Interpretive Force of the Constitution's Secret Drajiing History, lJl GEO. L.J. 1113, 117X (2003). To th~ ~xt~nt that th~ original und~rstanding of th~ ratificrs is consid~r~d significant. th~ translations ar~ additionally r~lcvanl to thos~ qu~stions, as th~r~ is a good chanc~ that som~ ratifi~rs in P~nnsylvani<:1 and N~w York had s~~n th~ translations. Notahly, th~ chairman of th~ P~nnsylvania ratifying conv~ntion, Fr~d~rick Augustus Muhlcnh~rg. was th~ son of a G~rman Luth~ran pastor and had studi~d in Germany for many y~ars. See Oswald S~id~nstick~r. frederick Augustus Conrad Muhlenherg, Speaker of the /louse of Representatives, in the First Congress, 1789, 2 PENN. MAG. or HIST. & BIOatent Clause ofthe U.S. Constitution, IX GEO. WASil. L. REV. 50,54 (194lJ). 11 X. Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Background and Origin of the lnte//ectua/ Property Clause of the United States Constitution, 2 J. INTELL. PROP. L. I, 52 ( 1994 ). 11lJ. Lee, supra note 117, at X llJ. 120. RICHARD B. BERNSTEIN, THOMAS JEFFFRSON 71 (2005). 121. See Edward C. Waltcrscheid, To Promote the Progress of ,\'cience and Useful Arts: The Anatomy of a Congressional Power, 43 IDEA I, 2-3 (2002). 122. Madison wrote: The utility of this power will scarcely he questioned. The copyright of authors has heen solemnly adjudged, in Great Britain, to he a right of the common law. The right to useful inventions seems with equal reason to helong to the inventors. The puhlic good fully coincides in hoth cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision on this point, hy laws passed at the instance of Congress. THE FEDERALIST No. 43 (James Madison). Madison's reference to copyright heing a right at common law in Great Britain was likely a reference to Millar v. Taylor, ( 17olJ) 4 Burr. 28 CONSTITUTIONAL COMMENTARY [Vol. 31:1 and contemporary readers of the Progress Clause interpreted it. The Dutch and German translations of the Progress Clause tend to comport with the dominant academic understanding of the phrase "science and useful Arts." "Science" was rendered "Wissenschaften" ("sciences") in German and "wetenschap," meaning science, knowledge, or scholarship, in l)utch. "Useful Arts" in German became "ni.itzliche Ki.inste," indicating the skills and techniques of industry and craft, and standing in contrast to "schone Ki.inste" ("the beautiful arts"), which included painting and poetry. The Dutch translation was similarly rendered "nuttige konsten"- the useful arts, which excluded the visual arts. Other language in the Progress Clause has been the subject of judicial scrutiny. The Progress Clause's phrase "for limited Times" was at the center of a constitutional challenge to the Copyright Term Extension Act ("CTEA") in the 2003 decision Eldred v. Ashcroft. 123 Eldred challenged the CTEA for extending the copyright term by twenty years, arguing that this extension violated the constitutional requirement that copyrights be granted only "for limited Times." The Supreme Court held that even though the CTEA extended the copyright term by twenty years, the period of copyright protection still comported with the Constitution's requirements because the term was not infinite. 124 The Dutch and German translations suggest a meaning of "for limited Times" which may slightly differ frorn the Supreme Court's interpretation. De Ronde translates the phrase to "voor bepaalde tyden"- "for some time" or "for certain times." Similarly, the German is "fi.ir eine gewisse Zeit"- "for a period of time" or "for a sure/certain time." 125 Both suggest that in addition to not being infinite, the term of a patent or copyright may have to be a specific, particular length of time, not necessarily alterable 2303 (K.B). The holding that there was a copyright at common law in England was reversed five years later in Donaldson v. Beckett, (1774) I Eng. Rep. ~:37 (H.L.). See Malia Pollack, The Owned l'uhlic Domain, 22 HASTINGS COMM./ENT. L.J. 265, 2X4 n.Y2 (2000). 123. 537 U.S. IX6. 124. !d. at 201-\-0lJ. 125. The German 'gewiss' presupposes, as the Latin 'certus,' that the time in some way is sure (or for the Cierman, that the time is "known," which is the literal translation of "gewiB"). 'Gewiss,' as a participle that can hoth serve as an adverh man adjective, stems from 'wissen,' ("to know"). In this regard, Grimm can state that only mathematics is "gewiss" ("certain") as a science. Kruenitz also uses 'gewiss' in the meaning of 'steady,' as in requiring an artist to have a steady hand ("cine gewisse hand"). See KRUENITZ, supra note 102. 2016] FOUNDING-ERA TRANSLATIONS 29 in the future~ although one could argue that even an extended term was still for a certain time, and that the certain time had merely changed. In this vein~ the term 'gewisse' is also colloquially used in the sense of "some time" as opposed to "an infinite time~" in which case an exactly determined or determinable duration is not presupposed. C. THE NECESSARY & PROPER CLAUSE Necessary & Proper Clause~ Art. I,§ 8~ cl. 18. English To make all Laws which shall he necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested hy this Constitution in the Government of the United States, or m any Department or Officer thereof. German Aile Gesetze zu machen, die nMhig und erforderlich seyn werden, die vorhergehende und aile andere Gewalt, die kraft dieser V erfassung der Regierung der Vcreinigten Staaten oder einem Department oder Beam ten dersclhen ntheilct worden, m Ausuhung zu hringen. Dutch Om aile wellen te maken, die noodig en he4uaam zullcn zyn om ter uitvoer te hrengen de voorgaande magten en aile andere machten, gevestigt hy deese Constitutie in het government van de Yereenigde Staaten of in eenig department of officiant daarven. The question of what laws are "necessary and proper" for Congress to make harkens all the way back to the ratification debates. Anti-Federalists "pejoratively dubbed the Necessary & Proper Clause 'the Sweeping Clause~' arguing that it granted dangerously broad and ill-defined powers" to the Federal Government. 126 In contrast~ "Federalist supporters of the Constitution ... insisted that the Necessary and Proper Clause was not an additional freestanding grant of power~ but merely made explicit what was already implicit in the grant of each enumerated power." 127 12fl. Gary Lawson et al., Raiders of the Lost Clause: Excavating the Buried Foundations of the Necessary and Proper Clause, in THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE 1, 1-2 (Gary Lawson ct al. eds., 2010). 127. RANDY E. BARNElT, RESTORING THF LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 155 (2004). The dehates at the Philadelphia Convention 30 CONSTITUTIONAL COMMENTARY [Vol. 31:1 Although Mark Graber pessimistically clairned, "no one, including the framers, knows the point of the phrase 'necessary and proper,"' 12K Robert Natelson argues that contemporary documents indicate that "necessary and proper" was a legal term of art frequently used in agency instruments when granting incidental powers to one's fiduciaries. 129 Indeed, during the ratification debates, Federalists wrote as though "proper" indicated that laws must accord with the governrrtent's fiduciary duty to the people. 130 The question of what laws were "necessary" quickly became salient after the Founding, when each branch of government considered whether Congress had the power to charter a bank. James Madison, Thomas Jefferson, and Edmond Randolph interpreted "necessary'' in a narrow manner.u' In contrast, provide little guidance to the Clause's meaning. The Necessary and Proper Clause was added to the Constitution hy the ''Committee on Detail" and never 1.khatcd prior to the Convention's final adoption of the Constitution. !d. 12X. Mark A. C!raher, Unnecessary and Unintelligihle, 12 CONST. COMMENTARY 167, 16X(IYY5). 12Y. Rohert Natclson argues the clause "tracks the language found in many Founding- and pre-Founding-era private agency instruments, which used 'necessary and proper' or some equivalent to give fiduciary agents incidental powers heyond those explicitly derived in the instruments." Lawson ct al., supra note 126, at 6. See generally Rohcrt G. Natelson. The !.ega/ Origins of the Necessary and Proper Clause, in TilE ORIGINS OF TilE NECFSSARY AND PROPER CLAUSE 52 (Gary Lawson ct al. cds., 2010). Corporate charters also frequently contained "[c]lauscs similar to the Necessary and Proper Clause ... to ensure that an organization with limited powers and purposes would not he frustrated in the essential conduct of its governmentally assigned activities hut still would he confined to its assigned functions." !d. at 7. See generally Geoffrey P. Miller, The Corporate Law Background of the Necessary and Proper Clause, in THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE 144 (Gary Lawson ct al. eds., 2010). Natelson concluded that, in agency instruments, a provision using the word 'necessary' "communicated the grant of incidental powers, hut no more or less." Natclson, supra, at 76. British administrative law also contemplated "'incidental'" power~, as contrasted with '"principal'" powers. See William Baucle, Rethinking the Federal f~minent Domain Power, 122 YALE L.J. 173X, 1750 (2013 ). Empowering the agent "to act in a 'proper' manner would signal that the agent was hound hy fiduciary responsihilities." Natelson, supra, at XO. In a governmental context, "the founders frequently used the term 'proper' to refer to the ohligation of each government hranch to respect its jurisdictional houndaries." !d. at XY- YO (citing Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267 (IYY3)). The records of the Constitutional Convention generally support the interpretation that the founders understood "necessary and proper" hy reference to its contemporaneous legal usage. Natelson, supra, atY3. 130. Natelson, supra note 12lJ, at IOX-OY. 131. See BARNEIT, supra note 127, at 15X-66; Edmund Randolph, Opinion of Edmund Randolph, in LEGISLATIVE AND DOCUMENTARY HISTORY OF TilE BANK OF THE UNITED STATES: INCLUDIN(i THE ORIGINAL BANK OF NORTH AMERICA XY (M. St. 2016] FOUNDING-ERA TRANSLATIONS 31 Alexander Hamilton took the view that "necessary often means no more than needful, requisite, incidental, useful or conducive to." 132 When Chief Justice John Marshall ruled on the constitutionality of the Bank of the United States in 1819, he sided with Hamilton. To Marshall, "necessary" meant "convenient."133 Although Marshall weaved flexibility into the notion of necessity, he suggested that "necessary" laws must still remain incidental in character. 134 Marshall went on to suggest that the term 'proper' limited Congress to passing laws actually, rather than pre- textually, aimed at achieving the ends listed among the enumerated powers. 135 Clair Clarke & D.A. Hall cds., Gales & Seaton 1X32) (hereinafter LEGISLATIVE AND DOCUMENTARY HISTORY). Madison stated, "]The clause's] meaning must ... he limited to means necessary to the end, and incident to the nature of specified powers." The Founders' Constitution: James Madison, The Bank Bill, /louse of Representatives, UNIV. OF CHICAGO, http://prcss-puhs.uchicago.edu/foundcrs/print_documcnts/a 1_X_1 Xsl).html (last visited Oct. 1A, 2015). Jefferson similarly interpreted the Constitution to "allow]] only the means which arc 'necessary,' not those which arc merely convenient for effecting the enumerated powers .... ]T]hc ]C]onstitution restrained ]Congress] to ... those means, without which the grant of power would he nugatory." Thomas Jefferson. Opinion of Thomas Jefferson: Secretary of State, on the Same Subject (Feb. 15, 1791 ), in LEGISLATIVE AND DOCUMENTARY HISTORY l)3. 132. Alexander Hamilton, Opinion of Alexander 1/amilton, on the Constitutionality of a National Bank, in LEGISLATIVE AND DOCUMENTARY HISTORY l)7 (1X32). 133. Marshall wrote: I I ]n the common affairs of the world, or in approved authors, we find that I 'necessary'] frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as hcing confined to those single means, without which the end would he entirely unattainahle. McCulloch v. Maryland, 17 U.S. 31(), 413-14 (1Xll)). 134. Part of Marshall's rationale for holding the hank constitutional was that the power to charter a hank was not "a great suhstantivc and independent power, which cannot he implied as incidental to other powers, or used as a means of executing them." McCulloch, 17U.S. at 411. This conclusion was consistent with Randolph's claim that "]t]o he necessary is to he incidental." Randolph, supra note 13 I, at Xl). William Baudc has recently argued that the Necessary and Proper Clause permits the government to exercise incidental powers hut not, in the language of Madison, 'great' powers. See Baudc, supra note 12l), at 174<}-55. 135. See BARNETT, supra note 127, at IX4-Xl). Marshall wrote: ]S ]ound construction of the constitution must allow to the national legislature that discretion, with respect to the means hy which the powers it confers arc to he carried into execution, which will cnahk that hody to perform the high duties assigned to it, in the manner most hcndicial to the people. Let the end he legitimate, let it he within the scope of the constitution, and all means which arc appropriate, which arc plainly adapted to that end, which arc not prohihitcd, hut consist with the kttcr and spirit of the constitution, arc constitutional. 32 CONSTITUTIONAL COMMENTARY [Vol. 31:1 The Dutch and German translations of "necessary" denote a stronger requirement than Marshall's notion of convenience, just as the plain text of the English does. De Ronde used the word 'noodig,' meaning "needed'' or "demanded." The German translator chose 'nothig,' 131' also meaning "necessary." The translation of "proper" provides more insight into the minds of the translators. In the Dutch translation, "proper" became "bequaam," spelled 'bekwaam' in modern Dutch, meaning competent, able, or capable. 137 For a law to be "noodig en bequaam," it would have to be necessary and capable of achieving the end it sought. This suggests an interpretation of "necessary and proper" where laws passed under the Necessary and Proper Clause are constitutional when they are capable of solving the problems or addressing the situations the enumerated powers of Congress were designed for. The German translation used "erforderlich" for proper, meaning required, requisite to have happen, or "what the situation demands." The translated phrase as a whole, "nothig und erforderlich," is thus somewhat redundant--laws must be "necessary and required." This is a surprising translation because in the German legal vocabulary there was a non-redundant analog to the Necessary and Proper Clause that could be found in contemporary texts: "notwendig und angemessen." "Angemessen" would mean "proper" in the Aristotelian sense, ensuring not only the effectiveness of the means, but also that the means are limited by the goal. In other words, it would not be "angemessen" for one to crack a nut with a sledgehammer. The redundant form the translator uses is not necessarily wrong, and might be understood to have a rhetorical function instead: it emphasizes that the power given is essentially restricted. Neither translation evinces an understanding of Natelson's notion of agency or a sense that "necessary and proper" laws are McCulloch, 17 U.S. at 421. D6. "[N[rivileges and Immunities Clause of Article IV, Section 2: Precursor to Section I of the Fourteenth Amendment, 34 SAN DIEC'O L. REV. X09, X90 (1997). 141. /d. See also Chester James Antieau, Paul's Perverted Privileges or the True Meaning of the Privileges and Immunities Clause of Article Four, 9 WM. & MARY L. REV. I, 5 (1967). The substantive view is perhaps most famously associaled with Corfield v. Coryell, No. 3,320, 6 F. Cas. 54() (C.C.E.D. Pa. IX23), written hy Justice Bushrod Washington while riding circuit. Justice Washington's interpretation of the Privileges and Immunities Clause in Cor_field v. Coryell "was long considered the authoritative interpretation of the Privileges and Immunities Clause." David R. Upham, Corfield v. Coryell and the Privileges and Immunities of American Citizenship, x:, TEX. L. REV. 14X3, 14X3 (2005). In Corfie/d, he claimed that the privileges and immunities of citizens of the 2016] FOUNDING-ERA TRANSLATIONS 35 Supreme Court jurisprudence currently treats the Privileges and Immunities Clause as a non-discrimination clause, preventing the governments of a state from discriminating against citizens from other states. 142 Under this interpretation, the phrase "Privileges and Immunities" does not consist of specific protections of substantive rights, but rather requires that any "Privileges and Immunities" granted or recognized by a state are granted or recognized equally in citizens of that state and of other states. One textual question that persists amidst the debate about the meaning of the Privileges and Immunities Clause concerns the meaning of terms 'privileges' and 'immunities.' Robert Natelson several states were "those privileges and immunities which arc, in their nature, fundamental; which hclong, of right, to the citizens of all free governments; and which have, at all times, hccn enjoyed hy the citizens of the several states which compose this Union, from the time of their hccoming free, independent, and sovereign." Corfield, 6 F. Cas. at 551-52. Among the privileges and immunities of citizens of the several states were: lplrotcction hy the government; the enjoyment of life and lihcrty, with the right to acquire and possess property of every kind, and to pursue and ohtain happiness and safety! I ... I tjhc right of a citizen of one state to pass through, or to reside in any other state! I ... to claim the hcncfit of the writ of hahcas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than arc paid hy the other citizens of the state .... /d. Many scholars understand Corfield as standing for the proposition that "the privileges and immunities protected under Article IV arc not those graciously accorded to its citizens hy a state of sojourn, hut the rights, privileges and immunities of citizens of the several or United States-the natural, fundamental rights of free men everywhere." Chester James Anticau, Paul's Perverted Privileges or the True Meaning of the Privile!{es and Immunities Clause of Article Four, l) WM. & MARY L. REV. I, II (llJ67). See, e.g., JAMES H. KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 160X-IX70, at 25lJ-6() (llJ7X); Michael Conant, Antimonopoly Tradition Under the Ninth and Fourteenth Amendmenls: Slaughter- House Cases Re-Examined, 31 EMORY L.J. 7X5, XI6-1X (llJX2); see also MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 123-24 (1l)X6); LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW§ 6-34, at 52l) (2d cd. ll)XX). For a further discussion of these authors and others' interpretation of the Privileges and Immunities Clause, sec Upham, supra, at 14X7, n.20. David Currie presents a different interpretation of Corfield-that the decision "concluded no more than that the clause allowed discrimination against an outsider if the right in question was not 'fundamental."' DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS, 17XlJ-IXXX, at 23lJ, n.l2 (1lJX5). Despite Corf'ield's prominence, it was in fact one of several decisions that interpreted the Privileges and Immunities Clause in a variety of ways. See Upham, supra, at 14lJX-1510. 142. See Jon David Phcils, Defining the Scope of the Article Four Privileges and Immunities Clause, 54 lJ. CIN. L. REV. XX3, XX4-X5 (ll)Xfl). Note the history and interpretation of the Privileges and Immunities Clause of Article Four of the U.S. Constitution differs strongly from the Privileges or Immunities Clause of the Fourteenth Amendment. 36 CONSTITUTIONAL COMMENTARY [Vol. 31:1 argues these terms are far from inkblots 143 and arrives at the meaning of the terms 'privileges' and 'immunities·· by looking at the terms' historic usage. Privilege, as defined in a variety of legal dictionaries, tended to mean "(1) a benefit or advantage; (2) conferred by positive law; (3) on a person or place; ( 4) contrary to what the rule would be in absence of the privilege." 144 Lay dictionaries reflected the sa1ne definition. Natelson concludes, "Nothing in these definitions identified privileges with natural rights or natural law. Nor did the definitions suggest that privileges were necessarily created, as some have asserted, by the English common law. On the contrary, the definitions suggest that privileges were departures from the usual course of common law." 145 Similarly, an immunity constituted "an exemption, otherwise contrary to law, given to a person or place by special grant." 146 Although "privileges and immunities" were considered grants from the government to particular, often small, classes of people under early English law, today several "privileges" and "immunities" could be seen as natural rights, such as the right to acquire and alienate land. 147 De Ronde's translation of "privileges" to "voorregten" 143. Natelson argues "'Privilege' was a legal term of art with a clear definition, elucidated hy a large body of Anglo-American case law and commentary. The same was true, in !some! degree. of 'immunity."' Robert G. Natelson, The Original Meaning of the Privileges and Immunities Clause. 4] GA. L. REV. 1117, 1122 (200Y). Natelson went on to criticize Justice Washington's view of Privileges and Immunities as failing to make sense on both its own terms and as a historical matter, and to note a varil:ty of other intnprctations of the clause: that the Clause protected a general right to travel, that the "privileges and immunities of citizenship" were the rights specifically enumerated in the Constitl\tion, and that "privileges and immunities" wne "the ancestral privileges of Englishmen- transferred to Americans through their colonial charters." !d. at 1126. See also David F. Forte & Ronald Rotunda, Privileges and lmmunilies Clause, in THE HERITAGE GUIDE TO TilE CONSTITUTION 26Y (Edwin Meese, Ill et al. eds., 2005) ('"Privileges and immunities' constituted a summary of ancient righb of Englishmen that the colonists fought to maintain during the struggle against the mother country."); Michael Conant, Antimonopolv Tradition Under the Ninth and Fourteenth Amendments: Slaughter- House Cases Re-f~xamined, 31 EMORY L.J. 7X5, XOY-15 (IYK2) (describing rights granted in colonial chartns and claiming that these "privileges and immunities" amounted to British constitutional limitations). Natelson rejects these intnpretations. 144. Natelson, supra note 143, at I 130-] I. 145. !d. at IB2. 146. !d. at I BJ. Natelson concludes that the terms 'immunity' and 'privilege' effectively referred to the same legal concept. !d. at I BJ. "Because an immunity was a benefit, otherwise contrary to law, given to a person or place hy special grant, it was a privilege. A privilege to act in a certain way necessarily implied an 1.:xemption from the normal consequences of so acting-hence, an immunity." !d. at 1 B4. 147. !d. at I BK-JY. 2016] FOUNDING-ERA TRANSLATIONS 37 reflects the notion that privileges were benefits granted by the state, instead of rights. For "immunities," De Ronde uses "vryheden" (freedoms), a word that reflects a notion of natural liberty rather than a special grant by the state. Sewel's Dutch- English Dictionary from 1766 attests that "voorrecht" is a special privilege, and that freedom (vryheid) is a more general term. 14x Where the term 'privilege' is used in Article 1, Section 9, clause 2, describing the "privilege of habeas corpus,'' De Ronde chooses the cognate "privilegie" to stand in for privilege. The German translator also gives a meaning to "privileges and immunities" that is not quite in accord with existing theories, but which is notably aligned with the meaning evoked in De Ronde's translation. For "privileges," he uses "Vorrechte," meaning a special benefit granted. But for "immunities,'' he uses "Freyheiten" (freedoms). "The Privilege of the Writ of Habeas Corpus," however, becomes the right of habeas corpus- "Das Recht des Habeas Corpus," now equating "privilege" ("Vorrecht") and the more modern "right" ("Recht"). E. NATURAL BORN CITIZEN Natural Born Citizen, Art. II, § 1, cl. 5. English No person except a natural horn Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall he eligihlc to the Office of President .... German Nicmand ausscr em gchorncr Burger, odcr dcr zu dcr Zeit, da dicsc Vcrfassung angcnommcn wird, cin Burger dcr Vcrcinigtcn Stattcn ist, soli zu dcm Amtc cines Prasidcntcn wahlfahig scyn .... Dutch Ciccn pcrsoon dan ccn ingcdmorcn hurgcr, of die ccn hurgcr 1s van de Vcrccnigdc Staatcn op den tyd can de adoptic van dccsc Constitutic, zal vcrkicshaar zyn tot hct officic van President .... Recent presidential elections have raised the question of what it means to be a "natural born Citizen" eligible to become President of the United States. The Republican presidential candidate in 2008, John McCain, was born to American parents in the Panama Canal Zone in 1936, while his father was on active 14X. BUYS, supra note 113. 38 CONSTITUTIONAL COMMENTARY [Vol.31:1 duty in the U.S. Navy. 149 Before McCain, a shadow was also cast on George Romney's attempt to win the Republican presidential nomination in 1968; Romney was born in Mexico to U.S. citizen parents. 150 There are competing interpretations of the phrase "natural born Citizen." Gabriel Chin argues that to be a natural born citizen, one must be a citizen "at the moment of birth," whether or not that citizenship is acquired under the citizenship clause of the Fourteenth Amendment or by Congressional statute. 151 A competing view is that one is only a natural born citizen if one is born within the United States. Under this view, a child who is born to American citizens abroad is naturalized at birth by statute and is not a natural born citizen. 152 Still another view holds that the citizenship clause of the Fourteenth Amendment is not the right place to look for the definition of "natural born Citizen," as the Fourteenth Amendment was passed after the Constitution was adopted, and that the notion of "natural born Citizen" can be extracted from the common law. 153 Larry Tribe and Ted Olson claim the "natural born Citizen" language contemplates the inclusion of children of American citizens, arguing that the clause was inspired by the British Nationality Act of 1730, which provided that children born abroad to "natural-born Subjects'' of the British crown were "natural- born Subjects" themselves. 154 In Tribe and Olson's view, the Natural Born Citizen Clause tracks the existing understanding of natural born subjects in England, simply substituting the word "Citizen" for "Subject." 155 Larry Solum similarly looks to 149. See, e.g., Gahricl J. Chin, Why Senator John McCain Cannot Be President, 107 MICH. L. REV. FIRST IMPRESSIONS I, 2 (200X), http://rcpository.law.umich.edu/cgi/ vicwcontcnt.cgi'!articlc=IOX9 &contcxt=mlr_fi. Much of the dchatt: ahout John McCain concerned a statutory question of whether the Canal Zone was wilhin the "limits and jurisdiction" of the United States, which reaches issues hcyond the argument ahout the text or this clause. 150. See, e.g., Peter J. Spiro, McCain's Citizenship and Constitutional Method, 107 MICH. L. REV. FIRST IMPRESSIONS 42, 43 (200X), http://rcpository.law.umich.edu/cgi/ vicwcontcnt.cgi'!articlc= I OXo &contcxt=mlr_fi. 151. Chin, supra note 149, at 2. 152. See Chin, surmz note 149, at 5. 153. !d. at lo. 154. See British Nationality Act, 1730,4 Gco. 2, c. 21; Laurence H. Trihc & Theodore B. Olson, Opinion Letter, Presidents and Citizenship, 2 J.L. 509,510 (2012). 155. Trihc & Olson, supra note 154. See also Hennessey v. Richardson Drug Co., IX9 U.S. 25,34-35 (1903). 2016] FOUNDING-ERA TRANSLATIONS 39 Blackstone's discussion of "natural born subjects" as an indication of what people during the Founding might have looked to in order to understand the phrase "natural born Citizen." 156 However, Blackstone is "not completely clear or precise." 157 Blackstone states, "Natural-born subjects are such as are born within the dominions of the crown of England." 15H But he also qualifies the statement, noting "all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes." 15" De Ronde translates "natural born Citizen" to "ingeebooren burger" (an inborn or innate citizen). As written, De Ronde's language is close to a word-for-word literal translation of the English text, but in Dutch the language becomes somewhat redundant. In Dutch, a 'burger' meant a person who was a citizen automatically or at birth, 160 as contrasted to a 'porter,' who was a naturalized citizen. 161 The different terms arose from a physical understanding of Dutch cities. At the center of old Dutch cities was a fort (burg or burcht, the same root existing in the French adjective bourgeious); the "poort" was the gate into the city. One 156. Lawrence I3. Solum, Commentary, Originafism and the Natural Horn Citizen Clause, 107 MICH. L. REV. FIRST IMPRESSIONS 22, 23 (200X), http://scholarship.law.getngett)Wn.edu/cgi/viewcontent.cgi?article=IX46&context=facpuh. 157. /d.at27. 15X. I WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 354 (Oxford, Clarendon 1765-1769), http://avalon.law.yalc.edu/subject_menus/ hlackstone.asp. 159. Solum, supra note 156, at 27. Other evidence cuts both ways. The first naturalization act of 1790 provided that "children of citizens of the United States, that may he horn beyond sea, or out of the limits of the United States, shall he considered as natural horn citizens." /d. at 29. On the one hand, this statute could he read as simply codifying the original meaning of the citizenship clause. On the other hand, it could he seen as setting a discretionary rule beyond that which a common law notion of "natural horn citizen" or "natural horn subject" would include. !d. Given the ambiguous evidence, Solum gestures towards the "'new originalist'" notion that there can he a point where "interpretation runs out" and sources beyond the Constitution's text and the original public meaning of the document must he referenced. See id. at 30. 160. Sewel's 1766 dictionary equates the status of "burger" to one who is free. For the English word "infranschise," he says, "(or to make a freeman) iemand burger maaaken." BUYS, supra note 113, at 3X6. A recent work exploring the history of idea of citizenship in the Netherlands is JOOST KLOEK & KARIN TILMANS, BURGER: EEN GESCHIEDENIS VAN HET BEGRIP "BURGER" IN DE NEDERLANDEN VAN DE MIDDELEEUWEN TOT DE 21STE EEUW (2002). 161. Cf. Jakohson, supra note 5X, at 116 (stating that "languages differ essentially in what they must convey and not in what they may convey."). Whereas English only has one term for citizens, Dutch splits the concept into two terms- one for citizens at birth and another for naturalized citizens. 40 CONSTITUTIONAL COMMENTARY [Vol. 31:1 thus belonged truly to the center of the city, or one was admitted from the outside. The choice of "ingeebooren'' could indicate De Ronde's belief that a citizen needed to be born in the United States, or the entire phrase could simply be understood as an imperfect attempt to literally translate the English text, as De Ronde does at many points in the Dutch copy. The German translation gestures at the broader interpretation of the Natural Born Citizen Clause, using the phrase "ein geborner BUrger." A BUrger belonged to a privileged group in urban society: he was neither noble nor clergy, but nevertheless had, unlike the rest of the population, 162 certain freedoms and rights. Although 'BUrger' is thus not a perfect substitute for 'citizen,' it could nevertheless be corrtmonly used in this way during the eighteenth century, especially when translating the Latin term 'civis' or the English 'citizen.' Since Germany was not a republic, a more adequate term was not at hand.i('3 "Ein geborner BUrger" then roughly means "a born citizen," dropping the term 'natural' entirely. Why did the translator omit the word 'natural'? One possibility is that the translator believed the notion of "natural born" was completely captured by "geborner," that he could not conceive of how sorrteone who was "born a citizen" would not be a "natural born Citizen," and that he understood such tautology in the original simply as a rhetorical cliche .... Ersch-Gruher, 164 an early nineteenth century German Encyclopedia, includes the statement that "every Son of a Citizen is a born Citizen," !hs which could easily be regarded as tautological. Naturalization or birth were the only two ways of 162. The so-called "viL:rtcr Stand" (fourth estate). 163. Adclung lists a number of different meanings of the term 'Burger." First, a Burger is defined as an inhabitant of a city whose inhabitants were allowed to partake in the freedom the town itself had (the word is traced hack to "Burg" ("castle") which is understood to refer to any fortified place). Second, as the so-called "third estate," in contrast to the nobles and clergyman. Third, as a translation for the Latin "civis," in a republic or a comparable form of slate. Finally- in a figurative meaning- anyone living in a town. I ADEUJNG, supra note 100, at 1263(1). 164. ALLGEMEINE ENCYCLOPADIE DER WISSENSCHAFTEN UNIJ K()NSTE IN ALPIIABETISCIIFR FOI