A Critique of “On the Meaning of ‘Natural Born Citizen’” | by Joseph DeMaio

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 43^rd 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

A Response to Neil Katyal and Paul Clement on the Meaning of a Natural Born Citizen by Mario Apuzzo, Esq.

Click on image for more info on Atty Apuzzo's legal filings and writings on the true meaning of the legal term of art "natural born Citizen" — Click on image for more info on Atty Apuzzo’s legal filings and writings on the true meaning of the legal term of art “natural born Citizen”

A Response to Neil Katyal and Paul Clement on the Meaning of a Natural Born Citizen

by Mario Apuzzo, Esq. – 13 Mar 2015

I read the March 11, 2015 article entitled, “On the Meaning of a ‘Natural Born Citizen,” written by Neal Katyal and Paul Clement, found at 128 Harv.L.Rev.F 161, and accessed at http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/ . The first sentence of the article says: “We have both had the privilege of heading the Office of the Solicitor General.” The article repeats the existing talking points offered in support of the constitutional eligibility of Senator Ted Cruz (all born citizens are natural born citizens) and offers nothing new. Mr. Cruz was born in Canada to a U.S. citizen mother and a non-U.S. citizen (Cuban) father. I have written a recent article in which I conclude the Mr. Cruz is not a natural born citizen and therefore not eligible to be President because he does not satisfy the one and only common law definition of a natural born citizen confirmed by the unanimous U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162 (1875), which is a child born in a country to parents who were its citizens at the time of the child’s birth. The article is entitled, “What Do President Obama and Senator Cruz Have In Common? They Are Both Not Natural Born Citizens,” accessed at http://puzo1.blogspot.com/2015/02/what-do-president-obama-and-senator.html . Katyal and Clement maintain that any child who becomes a citizen at birth, regardless of where born or by what means, is a natural born citizen. They add that since Mr. Cruz became a citizen from the moment of birth and did not need any naturalization after birth he is a natural born citizen. But there is no historical and legal evidence which demonstrates that this is how the Framers defined a natural born citizen and the authors surely have not presented that evidence even if it did exist.

The authors’ argument suffers from the fallacy of bald assertion. They provide no convincing evidence for their position on who is included as an Article II natural born citizen. They do not examine what was the source of the Framers’ definition of an Article II natural born citizen, let alone what was the definition of a natural born citizen when the Framers drafted and adopted the Constitution and when it was eventually ratified. They ignore so much of the historical and legal record in coming to their bald conclusions. For a discussion of this historical and legal evidence, see the numerous articles that I have written and posted at my blog, http://puzo1.blogspot.com .

They gloss over what the Framers’ purpose was for requiring the President and Commander in Chief of the Military to be a natural born citizen. They do not engage in any real discussion on what the Framers were trying to achieve through the clause. They dismiss all debate on the subject of foreign influence by flatly stating without any evidence: “The Framers did not fear such machinations from those who were U.S. citizens from birth just because of the happenstance of a foreign birthplace.”

The authors cite to the Naturalization Act of 1790 and ignore the fact that the Naturalization Act of 1795, with the lead of then-Rep. James Madison and with the approval of President George Washington, repealed it and specifically changed “shall be considered as natural born citizens” to “shall be considered as citizens of the United States.” This is even more a blatant omission given that they argue that the English naturalization statutes referred to persons born out of the King’s dominion to British subject parents as “natural born subjects.” They fail to address this critical change made by our early Congress, critical because Article II, Section 1, Clause 5 provides that a “Citizen” of the United States was eligible to be President only if born before the adoption of the Constitution and that thereafter only a “natural born Citizen” was so eligible. Hence, Congress referring to one as a citizen rather than a natural born citizen, given the presidential eligibility requirements of Article II, was a serious thing. They do not discuss what the language of the 1790 Act, “shall be considered as,” meant. They fail to address the issue that this was naturalization language and nothing more. They fail to discuss whether Congress even had the constitutional power to make anyone born out of the United States a natural born citizen, if that was Congress’s intent in the first place.

They assert without demonstrating that the English common law supports their position. But they totally ignore that under the English common law, only persons born in the King’s dominion and under his jurisdiction were natural born subjects and that those born out of the dominion and therefore out of his jurisdiction became subjects only through a naturalization Act of Parliament.

They cite to Blackstone’s Commentaries on the Laws of England, but they do not cite to Emer de Vattel and his The Laws of Nations (1758) (1797) or Minor, two leading sources that inform on U.S. citizenship. Both Vattel and Minor defined a natural born citizen as a child born in a country to parents who were its citizens. What is incredible is that they cite U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) to demonstrate that British statutes called children born out of the King’s dominion to subject parents “natural born.” But they fail to tell the reader that Wong Kim Ark considered children born out of the United States to U.S. citizen parents to be naturalized by acts of Congress. In fact, they give virtually no discussion of the Wong Kim Ark case because they know that the case said that under the English common law, only children born in the King’s dominion and under his jurisdiction were natural born subjects and that any child born out of that dominion needed an act of Parliament to naturalize him or her. They also fail to discuss the U.S. Supreme Court case of Rogers v. Bellei, 401 U.S. 815 (1971), in which both majority and dissent said the same as Wong Kim Ark which was that children born out of the United States to U.S. citizen parents become citizens of the United States only through the grace of Congress who made them citizens through a naturalization Act without which those children would be aliens. It simply defies logic and good reason to conclude that a person who would not be a citizen at all without a naturalization act of Congress is a natural born citizen.

Katyal and Clement argue that John Jay had children born out of the United States while he was on diplomatic assignment and that he would not have disqualified his own children from being natural born citizens. This is a really baseless point since Jay’s children would have been born out of the United States to parents who were serving the national defense of the United States and therefore reputed born in the United States. Likewise, they present the John McCain situation as proof for their position. But they fail to realize that John McCain was born in Panama to U.S. citizen parents who were serving the national defense of the United States which makes him reputed born in the United States to U.S. citizen parents and therefore a natural born citizen under the one and only common law definition of a natural born citizen as confirmed by unanimous U.S. Supreme Court in Minor. See Vattel, Section 217 (children born out of the country to citizen parents serving in the armies of the state are reputed born in the country). They give the examples of Senator Barry Goldwater and Governor George Romney who they say were eligible to serve as President although neither was born within a state. The argument is meritless, for they were both born to U.S. citizen parents in U.S. sovereign territory subject to no foreign power and hence were born in part of the country known as the United States, all of which made them natural born citizens under the common law definition of a natural born citizen.

The authors conclude without demonstrating: “Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a “natural born Citizen” within the meaning of the Constitution.” They simply make this conclusion without having shown how their position is valid given the historical and legal record.

The authors also show contempt to the constitutional requirement that the President has to be a natural born citizen and for any person who dare raise any such issue. For example, they say: “simply because he was delivered at a hospital abroad,” rather than saying that he was born in a foreign nation; “born in a Canadian hospital,” rather than saying that he was born in Canada; “[d]espite the happenstance of a birth across the border;” they call arguments with which they do not agree “spurious;” and they consider objections to candidate’s eligibility as “specious objections to candidates eligibility,” as if no one ever made any valid argument.

In short, Katyal and Clement’s article lacks any critical research and reasoning and is nothing more than an attempt to convince the reader that Senator Cruz is a natural born citizen because they said so and the reader has to believe that because they were former heads of the Office of Solicitor General of the United States.

Mario Apuzzo, Esq.
March 13, 2015

Source link: http://puzo1.blogspot.com/2015/03/a-response-to-neil-katyal-and-paul.html

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Update 18 Mar 2015 – Attorney Henderson joins in rebutting K&C Harvard Law Review disinformation article about “natural born Citizenship”: http://jimsjustsayin.blogspot.com/2015/03/ina-post-on-harvard-law-review-forum.html and http://www.birtherreport.com/2015/03/law-professor-and-former-aclj-senior.html

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CDR Charles Kerchner, P.E. (Retired)
Lehigh Valley PA USA
http://www.protectourliberty.org/
https://cdrkerchner.wordpress.com/
http://www.scribd.com/protectourliberty/collections/

P.S. Also read this essay regarding the constitutional term in the presidential eligibility clause “natural born Citizen” and basic logic, i.e., trees are plants but not all plants are trees. Natural born Citizens are a subset of “born Citizens (citizens at birth)” but not all “born Citizens (citizens at birth)” are “natural born Citizens”: https://cdrkerchner.wordpress.com/2012/06/20/of-natural-born-citizens-and-citizens-at-birth-and-basic-logic-trees-are-plants-but-not-all-plants-are-trees-natural-born-citizens-nbc-are-citizens-at-birth-cab-but-not-all-cab/ … AND … http://www.art2superpac.com/issues.html Also watch this video by the renowned constitutional scholar Dr. Herb Titus — Part I: http://www.youtube.com/watch?v=esiZZ-1R7e8 and Part II: https://www.youtube.com/watch?v=xoaZ8WextxQ