A Critique of “On the Meaning of ‘Natural Born Citizen’” | by Joseph DeMaio | @ ThePostEmail.com
(Apr. 2, 2024) — Introduction
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 The P&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:
PART I — 2024-04-02: Here is the linke to Part I of this critique and analysis of the linquistic trickery of Paul Clement and Neal Katyal’s 2015 paper on “natural born Citizen” (nbC): https://www.thepostemail.com/2024/04/02/a-critique-of-on-the-meaning-of-natural-born-citizen/
PART II — 2024-04-04: Here is the link to Part II of this critique and analysis of the linguistic trickery of Paul Clement and Neal Katyal’s 2015 paper on “natural born Citizen” (nbC): https://www.thepostemail.com/2024/04/04/a-critique-of-on-the-meaning-of-natural-born-citizen-2/
PART III — 2024-04-08: Here is the link to Part III of this critique and analysis of the linguistic trickery of Paul Clement and Neal Katyal’s 2015 paper on “natural born Citizen” (nbC): https://www.thepostemail.com/2024/04/08/a-critique-of-on-the-meaning-of-natural-born-citizen-part-iii/
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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.
CDR Charles Kerchner, P.E. (Retired)
Author: Natural Born Citizen
http://www.kerchner.com/books/naturalborncitizen.htm
https://cdrkerchner.wordpress.com
https://www.scribd.com/user/52640192/protectourliberty/lists
https://www.protectourliberty.org
CDR Kerchner (Ret)'s Blog 
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