DOES THE 14TH AMENDMENT CONFER STATUS AS A “NATURAL BORN CITIZEN?”

by Joseph DeMaio, ©2020

Sen. Kamala Harris speaks on the floor of the U.S .Senate June 23, 2020 following the police-involved deaths of several black Americans (C-Span, Harris’s website)

(Aug. 18, 2020) Backdrop

Like Mt. St. Helens 40 years ago, the constitutional “natural born citizen” eligibility issue has again erupted.  Following the announcement that Slow Joe Biden had selected a “person of color” who was in addition a woman – Kamala Devi Harris – as his running mate, renewed questions immediately began surfacing as to whether she was constitutionally eligible to serve as either Vice-President or President.

Oh, the horror… the humanity!  The pyroclastic flow of outraged invective from leftist editors, media hacks and talking heads at CNN sped furiously toward President Trump.  It focused, of course, on his temerity in failing to immediately quash any questioning whatsoever of Harris’s eligibility as being premised on (you guessed it…): racism, misogyny and the “discredited” theories of “birtherism.”  When reasoned debate and rational discussion do not suffice, rest assured, the left will always fall back on false pejoratives.  Always.

As a preliminary matter, faithful P&E readers, let us agree that neither the melanin content of one’s skin nor the XY/YY structure of one’s cellular-embedded chromosomes should operate as an inoculation against analysis or examination of one’s constitutional eligibility.  A black, brown, polka-dot, plaid or albino person – XY male or YY female in gender – aspiring to the presidency or the vice-presidency has no more right to claim immunity from such scrutiny than would a “white” person – XY or YY in gender – with similar goals.  To contend otherwise is irrational…, as well as stupid.

And, by the way, the current woke acronym du jour – “POC,” meaning “person of color” as referencing anyone other than an individual of Anglo or Caucasian background – is not only dumb, but scientifically wrong as well.  White is a “color,” albeit an achromatic color, just like “red,” “blue,” “green” and “orange”… as in “orange man.”   Thus, the use by leftist woke speech warriors of “POC” to describe persons other than those possessed of Anglo or Caucasian characteristics is not only scientifically erroneous, it is because of its scientific inaccuracy that its utterance or printing is, at bottom, itself racist in nature.

What possible justification exists for excluding, “between the lines,” persons of the “white” color from the class of individuals called “persons of color?”  Is the “Orange Man” to be included or excluded?  The civil rights violations are manifest.  Moreover, the POC acronym constitutes “misinformation” which should be “culture-canceled” and censored on the Internet and social media platforms.  Where are the social justice warriors?  Where is the ACLU?

But I digress.

The Harris eligibility issue was recently addressed by many at numerous places, including by your faithful servant here.  The general topic of presidential eligibility as relating to Barack Hussein Obama, Jr., of course, has been addressed here at the P&E for many years by various persons, such as here, here and here.

Among the “other places” where Ms. Harris’s constitutional eligibility has recently been addressed was Newsweek Magazine (print as well as online) in an op-ed piece authored by one John Eastman, a law professor at Chapman University Law School.

A column published in the July 20, 1868 New York Tribune announcing the ratification of the 14th Amendment (courtesy Library of Congress)

It is that article which triggered the leftist howls.  Professor Eastman questioned whether Ms. Harris was a natural born citizen in light of the fact that, when she was born, neither of her parents were U.S. citizens.  The focus of his article was on whether Ms. Harris could properly claim “birthright citizenship” under the 14th Amendment as the equivalent of status as a “natural born Citizen” under Art. 2, § 1, Cl. 5 of the Constitution.

A contrary view, positing that Ms. Harris is, in fact, eligible as a “natural born citizen,” was also published in Newsweek in response to a flood of criticism claiming that the Eastman article was legally wrong, and suggesting that it was racist to boot.  That article, penned by UCLA law professor Eugene Volokh, posits that Ms. Harris enjoys “birthright citizenship” under the 14th Amendment as interpreted by the U.S. Supreme Court decision in United States v. Wong Kim Ark (“WKA”) and is therefore eligible to the office of the Vice-President as a natural born citizen.

So who is right?  Answer: nobody knows for sure, because the Supreme Court has not yet directly ruled on the question.  However, there are some indicators as to which argument is the better reasoned and is more consistent with the intent of the Founders.  Interested readers should continue; disinterested readers should not.

The Wong Kim Ark Decision

Still here?  Good.  Let us begin.

First, the WKA majority opinion (yes, Virginia, it was a 6-2 decision with a dissenting opinion which is, in your humble servant’s view and respectfully, better reasoned than the majority opinion…) has become the lodestar decision for those who argue that all presidential eligibility questions have been “settled” and that if a person in merely born on United States soil, that person is constitutionally eligible to the presidency regardless of the citizenship status of the person’s parents.  Simple…, yes?

Ummmm…, no.

It is (or should be) no secret that your faithful servant believes that serious and legitimate questions remain as to whether Ms. Harris is, in fact and in law, a natural born citizen under Art. 2, § 1, Cl. 5 of the Constitution, the so-called “Eligibility Clause.”

On the rebuttable presumption that we are still allowed to discuss the issue, please note that your faithful servant does not subscribe to the argument that the WKA opinion is the “be all, end all” decision completely “settling” the question, as posited by virtually all of those supporting the notion that Ms. Harris is constitutionally eligible.

Second, the WKA decision does not, as argued by Professor Volokh in his article (or others of a similar mind, including Cleveland-Marshall College of Law Professor Reginald Oh, here, resolve the issue.  Specifically, Professor Volokh claims that in the WKA opinion, the Supreme Court “interpreted the 14th Amendment as reaffirming [sic] that people born in the U.S. are indeed natural-born citizens, regardless of their parents’ citizenship.”

Ummmm…, wrong.

Summary of United States v. Wong Kim Ark (Wikipedia)

The decision in WKA says no such thing, and the dissent therein underscores that simple reality.  That which the majority opinion does say is that, under the only constitutional provision at issue in the case – the 14th Amendment, and not the Constitution’s Eligibility Clause – “the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.”

A majority of the Court – again, over the dissenting opinions of Chief Justice Fuller and Associate Justice Harlan – concluded that, under the 14th Amendment, Wong Kim Ark was a U.S. “citizen” upon his birth in San Francisco.  However, nowhere in the opinion does the majority state that Wong Kim Ark was, in addition, a “natural born citizen.”  Recall that all natural born citizens are also 14th Amendment native-born citizens or “citizens at birth,” but not all native-born citizens are natural born citizens.  Think Euler diagrams.

Third, as for the argument posited by many WKA enthusiasts that the various discussions in the majority opinion of “natural born citizens” in other than a presidential eligibility context are “precedential” and, purportedly, control the result, those discussions are “dicta, pure and simple.”  See C. Gordon, “Who Can Be President of the United States: The Unresolved Enigma,” 28 Md. Law Rev. 1, 19 (1968).  At the time he wrote his article, Charles Gordon was the General Counsel, U.S. Immigration and Naturalization Service, and Adjunct Professor of Law, Georgetown University Law Center.

Dictum consists of the passing comments or observations of a judge in a case, but on facts or points of law unrelated to the issue presented in the case and having no effect on the holding of the case or judgment.  While “dictum” appearing in a case may be interesting, it is neither part of the “holding” of the case nor citable as binding or controlling “precedent.”

Accordingly, those who would contend that WKA “settles” the eligibility question are, respectfully, wrong.  There is no such thing as “precedential dictum” because, as noted by the Supreme Court, “[d]ictum settles nothing, even in the court that utters it.” (Emphasis added).  See, Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 351, n. 12. (2005).

At least Professor Oh in his Newsweek article acknowledges that the WKA majority discussions of “natural born citizens” in non-Eligibility Clause contexts constitute dicta in the case.  He nonetheless argues that WKA “effectively ratified the plain meaning of the Citizenship Clause, and the case remains to this day the most definitive explication of that clause’s meaning.”

The “Citizenship Clause” to which Professor Oh is referring is found in the first section of the 14th Amendment defining “citizens” as being persons born here who are in addition “subject to the jurisdiction” of the United States.  Not all persons born here are “subject to the jurisdiction” of the United States, as, for example, children born here to diplomatic personnel of foreign nations.

With due respect, the “Citizenship Clause” of the 14th Amendment – the sole constitutional provision presented and adjudicated in WKA – addresses only whether a person born here of alien parents is to be considered a “citizen.”  The Citizenship Clause of the 14th Amendment has nothing… repeat, nothing to do with the proper analysis of the term “natural born Citizen” under the Eligibility Clause of the Constitution, Art. 2, § 1, Cl. 5.  Period.  Full stop.  Boom.

Admittedly, reasonable minds can and do differ.  That is why Professors Eastman, Volokh and Oh – to name but a few – continue swapping ideas and arguments on the Newsweek (and other) websites.  But none of those esteemed law professors are Justices of the U.S. Supreme Court.  If they were, their arguments might have more force for their respective positions.

But until the actual U.S. Supreme Court – with actual Justices participating – issues a decision in a ripe “case or controversy” addressing the eligibility question in the context of a sitting president or actual candidates for the presidency and vice-presidency, the issue will remain decidedly not “settled.”  WKA is not that case.


Editor’s Note:  Part 2 of the above essay will follow in the very near future.

 

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  1. The three stooges to truthfully vetting a “natural born Citizen” are misunderstanding, missed understanding and myth understanding! – JD Mooers

  2. John Bingham, the primary framer of the 14th Amendment (1868), understood “natural born citizen” to mean a person born in the United States to parents not owing any allegiance to a foreign Sovereign or power. To wit:

    “All from other lands, who, by the terms of your laws and in compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. Gentlemen can find no exception to this statement touching natural born citizen except what is said in the Constitution in relation to [Native American] Indians”.
    — John Bingham, Congressional Globe, 1862

    and

    “I find no fault with the introductory clause of the 1866 Civil Rights Act, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen”. — John Bingham, Congressional Globe, 1866

    John Bingham also made clear that citizen (born or naturalized) and natural born citizen are not one-in-the-same…that every citizen is not also a natural born citizen but that every natural born citizen is also a citizen. To wit:

    “As to the question of (Dr. Houard’s) citizenship I am willing to resolve all doubts in favor of a citizen of the United States. That Dr. Houard is a natural born citizen of the United States there is not room for a shadow of a doubt. He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution, as amended to-day, he is declared to all the world a citizen of the United States by birth”.
    — John Bingham, Congressional Globe, 1872

    Permit me to hint that the primary framer of the 14th Amendment understood natural born citizen to mean the same thing that John Jay and the Founders understood it to mean — born in the country to citizen parents of the country.

      1. Regarding Mr. DeMaio’s response, permit me to say that my comment was not directed at him — obviously he has gotten it from the get-go — but, rather, it was directed at the intellectually dishonest, misinformed and uninformed.

        Prosit!

  3. Is a SCOTUS ruling the only way to “settle” a legal question?

    What if a bunch of lower courts all come to the same conclusion? Would SCOTUS grant cert. just to tell the lower courts they were all correct all along?

  4. Here is Professor Eastman’s article on Ted Cruz:

    “The requirement in Article II that one be a “natural-born citizen” in order to be eligible for the presidency simply means that one be a citizen from birth, rather than subsequently becoming a citizen by later naturalization.”

    He cites the 1790 Naturalization Act as proof of Founder’s understanding,

    “Under that widespread and long-standing interpretation, Senator Cruz is clearly a natural-born citizen and therefore eligible for the presidency. His mother was a U.S. Citizen (born in Delaware) as well as a long-time resident of the United States, who happened to be living in Canada when Ted was born while her husband was temporarily employed there.”

    https://www.nationalreview.com/2016/01/ted-cruz-natural-born-citizenship-eligibility-president/

    Eastman must not understand Euler Diagrams or three-legged stools.

  5. “Professor Eastman questioned whether Ms. Harris was a natural born citizen in light of the fact that, when she was born, neither of her parents were U.S. citizens.”

    A couple of points about Professor Eastman’s article on natural born citizens:

    1) He does not say that Harris is not a natural born citizen. His position is that under the precedent of Wong Kim Ark, she is an NBC if her parents were permanent resident aliens like Wong Kim Ark’s. He recognizes that there are only two types of citizens – natural born and naturalized. This position puts him closer to Chief Justice Fuller than to Mr. DeMaio.

    Here is the important paragraph:

    “Were Harris’ parents lawful permanent residents at the time of her birth? If so, then under the actual holding of Wong Kim Ark, she should be deemed a citizen at birth—that is, a natural-born citizen—and hence eligible.”

    He then goes on to say if her parents were here temporarily as students then she is not a citizen at birth and not a natural born citizen. She may be a naturalized citizen depending on when her parents naturalized.

    2) Professor Eastman has previously written that Ted Cruz is a natural born citizen

    1. Response from Joseph DeMaio to comments from Lindsay Boxer:
      ————————

      As to the first comment (9:03 AM), L. Boxer is correct that Professor Eastman never accused Ms. Harris of lacking status as a natural born citizen: his position was that because her parents, not being U.S. citizens, but being here only (presumably) on student visas, could not derivatively bestow upon Ms. Harris her “complete” subjection to the jurisdiction of the United States. Thus, it was her ineligibility to the presidency stemming from that condition – potential lack of “birthright citizenship” under the Wong Kim Ark (“WKA”) decision – upon which he based his objection.

      Mr. DeMaio regrets any confusion engendered by the suggestion that Professor Eastman was asserting that Ms. Harris was not a natural born citizen, when instead, the intent was to underscore that even if Ms. Harris could legitimately claim status as a 14th Amendment, Oakland, California, “native-born” citizen possessed of “birthright citizenship,” that would still not make her a “natural born citizen” under Art. 2, § 1, Cl. 5, the presidential Eligibility Clause.

      Under that hypothetical, she would be only the legal equivalent of Mr. Wong Kim Ark, who also was not a “natural born citizen” and also, therefore, ineligible to the presidency. Again, WKA addressed only the 14th Amendment “citizen” status of individuals, not their additional status as a “natural born citizen.” Any suggestions to the contrary in WKA are “dicta, pure and simple.” Stated otherwise, Mr. DeMaio disagrees with Professor Eastman’s conclusion to the contrary upon the hypothetical he posed.

      As for the second comment (10:39 AM) regarding Professor Eastman’s 2016 article purporting to confirm the constitutional eligibility of Senator Ted Cruz (https://www.nationalreview.com/2016/01/ted-cruz-natural-born-citizenship-eligibility-president/), Mr. DeMaio’s position on that topic is set out here (https://www.thepostemail.com/2016/04/25/the-decisions-in-elliott-v-cruz-and-williams-v-cruz/) and here (https://www.thepostemail.com/2016/04/26/the-decisions-in-elliott-v-cruz-and-williams-v-cruz-conclusion/).

      While Professor Eastman does not mention in his Jan. 15, 2016 National Review article the March 2015 Harvard Law Review Journal article on “natural born citizen” eligibility by law professors Paul Clement and Neal Katyal (https://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/), the analysis he uses there is quite similar to that of the former Solicitors General. Both Messrs. Clement and Katyal, as well as Professor Eastman, offer that among the pieces of best evidence supporting the conclusion that WKA “birthright citizenship” is “good enough” to satisfy the “natural born citizen” requirements of the Eligibility Clause is the first Naturalization Act passed by the Congress in 1790 (1 Stat. 103). L. Boxer notes that Professor Eastman cites the act – parenthetically, as do Messrs. Clement and Katyal – as “proof of the Founder’s [sic] understanding.”

      Respectfully, that “proof” fails to rationally justify or even take into account that (a) it is difficult to reconcile in a “naturalization” statute the creation of status as a “natural born citizen,” whether born “beyond sea” or otherwise; and (b) only five years after the enactment of the 1790 Act, the Congress – arguably recognizing its prior error – repealed it in its entirety, replacing it with 1 Stat. 414. That 1795 Act deleted altogether the prior reference to “natural born citizens,” replacing it with the word “citizens.”

      Professor Eastman’s article asserts that, with respect to the 1790 Act (1 Stat. 103), “[u]nder that widespread and long-standing interpretation [i.e., that children born of U.S. citizen parents “beyond sea,” viz., not on U.S. soil, were “deemed” to be “natural born citizens,”], Senator Cruz is clearly a natural born citizen and therefore eligible for the presidency.” As discussed in the posts cited above, Mr. DeMaio disagrees.

      The “natural born citizen” term has never again been added back into those statutes dealing with naturalizations since they were repealed in 1795. If the deletion was, as some have argued, merely “stylistic” or in “error,” the Congress has had 225 years to make a correction…, but has not done so. A statute like 1 Stat. 103, purporting to establish a definition of “natural born citizen” inconsistent with that which was intended by the Founders, cannot amend the Constitution: that is why the U.S. Supreme Court has on myriad occasions held wayward statutes to be “unconstitutional.”

      Moreover, this is also why the eligibility debate will continue until either (a) a constitutional amendment of some sort is proposed and ratified, or (b) the Supreme Court accepts jurisdiction over a ripe “case or controversy” and resolves the matter, instead of continuing to “evade the issue.” (https://www.youtube.com/watch?v=Eu6OiTiua08).