It is frequently argued by opponents of the “two-citizen parents” requirement of Emer de Vattel’s definition of a “natural born Citizen” (“nbC”) found in Book 1, Ch. 19, § 212 of The Law of Nations (1758), that the requirement “is nonsense.” Indeed, the 2015 article purporting to “resolve” the meaning of the nbC term (“C&K article”) by former high officials in the Department of Justice – Solicitor General Paul Clement and Acting Solicitor General Neal Katyal – completely rejects the relevance of the de Vattel nbC definition by ignoring any discussion of de Vattel or the definition in his 1758 treatise altogether. Ignoring facts, however, does nothing to eradicate them.
Instead, the C&K article deploys ipse dixit (“it is so because I say it is so”) to merely declare that “someone born to a [i.e., singular] U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States…,” adding, cryptically, that “a ‘natural born Citizen’ means a citizen from birth with no need to go through naturalization proceedings.” (Emphasis added)
Stated otherwise, the C&K article announces, ex cathedra, that as long as “a” parent – in the singular – is a U.S. citizen, that alone will suffice to render the child born abroad to that parent a “citizen from birth with no need to go through naturalization proceedings [thereafter].” The C&K article then somersaults to the non-sequitur conclusion that therefore, purportedly, “a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase ‘natural born Citizen’ in the Constitution encompasses all such citizens from birth.” (Emphasis added)
Stated otherwise, the C&K definition posits that, in addition to being seen as a 14th Amendment “citizen,” the person must also be recognized as fitting the definition of a “natural born Citizen” as intended by the Founders in Art. 2, § 1, Cl. 5 of the Constitution. Respectfully, your humble servant posits that this simplistic definition is unsupported by the history of the nbC provision and plainly not what the Founders intended or adopted in the Constitution. Accordingly, the C&K conclusion requires closer analysis. … continue reading at: https://www.thepostemail.com/2024/05/05/the-nbc-two-citizen-parents-issue/
In 2015, two former high officials in the Office of the Solicitor General in the U.S. Department of Justice – Messrs. Paul Clement, a Republican, and Neal Katyal, a Democrat – jointly authored an article on the Constitution’s “natural born Citizen” term (hereafter, for brevity, “nbC”). Entitled “On the Meaning of ‘Natural Born Citizen,’” the article appeared in the March 2015 edition of the Harvard Law Review Forum (128 Harv.L.Rev.F. 161), which describes itself as the “the online companion to the print journal (i.e., the Harvard Law Review) and where “[i]t hosts scholarly discussion of our print content and timely reactions to recent developments.” Even today, the article is still widely cited as an authoritative source on the nbC issue, thus now warranting a revisiting for a more detailed examination of its contents.
By way of background, Paul Clement was nominated in 2005 by President George W. Bush to be the 43rd Solicitor General of the United States. He served in that capacity – well and honorably – between 2005 and 2008. After graduating magna cum laude from Harvard Law School, he clerked (1993-1994) for Associate Supreme Court Justice Antonin Scalia, in your humble servant’s view, one of the best Supreme Court Justices of the last century.
Neal Katyal is a former Acting Solicitor General of the United States (2010-2011) and Principal Deputy Solicitor General (2011), having been appointed by President Barack Obama to replace at the Office of the Solicitor General now-Supreme Court Justice Elena Kagan. After graduation from Yale Law School, he clerked (1996) for Associate Supreme Court Justice Stephen Breyer.
Both gentlemen (hereafter, for brevity, “C&K”) now lecture at the Georgetown University Law Center and practice law in the Washington, D.C. area. Accordingly, both attorneys are, shall we say, well-educated and well-credentialed. That said, however, even well-educated and well-credentialed lawyers occasionally can arrive at questionable and even erroneous conclusions.
Although your humble servant has in the past addressed here at TheP&E various aspects of their 2015 article – which concluded, among other things, that Senator Ted Cruz was an nbC under the Constitution and thus eligible to the presidency – the following critique is intended to be a “deeper dive” into the article and its many legal interstices.
Spoiler alert: it is your servant’s view that the article reaches the erroneous conclusion that if a person is merely a “citizen at birth” or a “citizen by birth,” with no need for subsequent naturalization to be a U.S. citizen, and regardless of place of birth or the U.S. citizenship status of both parents, as long as one is a U.S. citizen, that person qualifies as an nbC.
The C&K “definition” is directly at odds with § 212 of Book 1, Ch. 19 of the 1758 treatise, “Le Droit des Gens,” or “The Law of Nations” by Swiss lawyer, jurist and scholar Emer de Vattel. There, a “natural born citizen” is defined as a person born in a country where both parents are already its citizens, hereafter, for brevity, “§ 212.” Your servant has for years maintained that the § 212 definition is the one accepted and adopted by the Founders into Art. 2, § 1, Cl. 5 of the Constitution: the presidential “Eligibility Clause.”
It is left to the P&E reader – and many “de Vattel Deniers” who reject outright the argument that the Founders adopted the § 212 definition of an nbC and instead, subscribe to the conclusions of the C&K article – to debate and decide (a) if your servant is correct or (b) whether Messrs. Clement and Katyal have the better argument. Granted, your servant did not attend Hah-vahd or Yale and has never served as Solicitor General of the United States…, but he has in the past occasionally slept at a Holiday Inn Express®. Is the First Amendment great, or what? … continue reading of Part 1 of this series is found at:
Another excellent piece about the legal and constitutional meaning of the Natural Law term “natural born Citizen” in Article II, Section 1, Clause 5 of the U.S. Constitution written by the constitutional scholar and editorial contributor at ThePostEmail.com — Joseph DeMaio.
As you read this new article by Joseph DeMaio of the Paul Clement and Neal Katyal (aka C&K) paper which tried to prove that Ted Cruz, who was born in Canada to a Cuban national father is a “natural born Citizen” of the United States, refer to the below Euler Diagram and possibly have a printed copy of it handy to help you follow the logical truth laid out by Joseph DeMaio in his article as he points out the logical fallacies of the key arguments in the C&K paper about the true constitutional meaning of the ‘natural born Citizen’ term in the presidential eligibility clause of our U.S. Constitution.
The ‘natural born Citizen” term was chosen by John Jay and conveyed to George Washington who was presiding over the Constitutional Convention in July 1787 to encourage him and the delegates to provide the strongest possible check against foreign influence via birth nationality and citizenship status for the person who would be allowed to serve as President and Commander-in-Chief of our military once the founding generation was gone. The logical fallacy arguments put forth by C&K in their paper does not provide that. Their argument allows a dual-national/citizen at birth to gain the office of President and Commander-in-Chief or our military, once the founding generation is gone.
The founders of our nation and framers of our U.S. Constitution are likely rolling over in their graves knowing what the Progressive Movement in both major political parties have enabled as to who can gain Commander-in-Chief control of our military forces via the manipulation of language in our U.S. Constitution with the subversive help of their Progressive Movement partners in the major media.
It started with Obama and the Progressive Movement in both major political parties continue maneuver to nominate and run for high office more and more constitutionally ineligible people for the highest political offices of our nation, with a national security be damned attitude regarding regarding the said person’s dual-nationality at birth.
The Progressive Movement has opened up Pandora’s Box when they manipulated language and facts with the help of the major media to get Obama into the Oval Office. And the nation is now reaping the whirlwind of the decision by the controlling legal authorities (including the Chief Justice Robert’s led U.S. Supreme Court) to allow it to happen.
All who are a ‘natural born Citizen’ are a ‘Citizen at Birth’ but not all who are a ‘Citizen at Birth’ are a ‘natural born Citizen’. Think with sound logic: trees are plants but not all plants are trees.
(Mar. 29, 2024) — The characterization of Brandon as “the slug at 1600” does not adequately describe him. A potential better term might be the “quisling slug at 1600.” Accordingly, a new, abbreviated moniker for the current occupant of the Oval Office is suggested: “the q-slug,” pronounced: “cue-slug.”
The term “quisling” derives from the surname of one Vidkun Quisling, a traitor who headed a domestic Nazi collaborationist regime in Norway during World War II. Webster’s defines the term thusly: “One who betrays a trust or an allegiance.”
When the Founders adopted the “natural born Citizen” (“nbC”) provision into Art. 2, § 1, Cl. 5 of the Constitution – the nbC “Eligibility Clause” – their intent was to ensure as much as possible that the president was a person of complete and undivided fidelity and allegiance to the United States …, and the United States alone….” The president was to be a person who also could be trusted to “faithfully execute the laws.”
That said, if ever there were proof that the nbC clause is a critical, yet also imperfect guarantee of that objective, it comes in the form of two notables in the nation’s history: Benedict Arnold, who was not an nbC, and the q-slug at 1600, who is.
Never before in the history of the Republic since, arguably, the Civil War has the nation faced the threat of internal immolation it now suffers. This condition has been largely, if not entirely, facilitated and brought on by the q-slug at 1600 and his insane (yet some might argue calculated “fundamentally transformational”) policies and fevered edicts…, between gulps of ice cream. … continue reading this article at: https://www.thepostemail.com/2024/03/29/the-quisling-at-1600/
(Feb. 13, 2024) — One of the more useful features of The P&E platform, apart from the topical articles appearing here, is the comments section. There, some insightful and frequently robust discussions can take place where differing views can be voiced and compete with one another. Is not the First Amendment cool, despite the efforts of many on the Left to censor and neuter its existence?
One of the topics generating some of the more spirited and robust exchanges is – that’s right, Virginia – the “natural born Citizen” (“nbC”) presidential eligibility issue under Art. 2, § 1, Cl. 5 of the Constitution. That provision restricts eligibility (not “qualification”) to the presidency to a “natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution….”
It is assumed that most, if not all who are reading this offering, are generally familiar with the competing theories of what the nbC term actually meant to the Founders in 1787 when they were drafting the Constitution. For a quick “refresher course,” some may wish to review this post.
In addition, from time to time it is useful to explore in more detail some of the comments submitted to posts addressing the issue. That has happened several times in the past, as for example here and here.
Such a time again presents itself regarding multiple comments offered by commenter Joe Leland to a recent article by your humble servant addressing references to the nbC issue occurring at the recent Supreme Court oral arguments in Trump v. Anderson. That is the case where the Colorado Secretary of State is attempting to keep President Trump off the primary ballot on the claim that he is an “insurrectionist” barred under the 14th Amendment. Your servant addressed that mile-high anomaly here.
Mr. Leland offers many comments relating to the nbC issue as discussed in your servant’s “Anderson” article, and readers are encouraged to review those comments…, and perhaps offer their own comments.
As for the present article you are reading, the objective will be to respond to and counter some selected comments offered by Mr. Leland. There are many responses that might be made, but a complete analysis would rival “War and Peace” in length. Your servant will offer, instead, examples and responses that would typify those for a complete novel…, but shorter.
CDR Kerchner (Ret)'s Blog 
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