The Toomey Constituent Letter

“LEGALLY UNSUPPORTABLE”

by Joseph DeMaio, ©2020

(Oct. 22, 2020) — With apologies for the length of this post – the issues are sometimes convoluted, – Senator Pat Toomey (R. PA) recently penned a letter to a constituent opining that, under his reading of the 14^th Amendment, he “[did] not believe there are any questions regarding Senator [Kamala Devi] Harris’s (“KDH”) eligibility to serve as vice president.”  Sen. Toomey also tells his constituent – one Jeffrey Harrison, a Marine veteran – to “not hesitate to contact [Sen. Toomey] in the future if [Toomey] may be of assistance.”  More on that later.  Your faithful servant offers the following observations in response to the Toomey letter.

First, because Sen. Toomey has announced that he will be retiring from the Senate when his term ends in 2022 and not running for Pennsylvania governor, he has, as they say, little to lose in taking a position – even an erroneous one – on the constitutional bona fides of Kamala Devi Harris.  But as Vice-President Pence reminded Senator Harris in their debate, while someone is entitled to his own opinion, he is not entitled to his own facts.  The same can be said of Sen. Toomey’s letter.

Second, Sen. Toomey apparently bases his conclusion that KDH is eligible to be Vice-President on the wording of the 14^th Amendment.  The 12^th Amendment is mentioned, but disregarded, in his letter.  Specifically – but erroneously – he asserts that the 14^th Amendment “is clear” that “U.S. citizenship is a birthright for all born on U.S. soil.”  That casual claim is manifestly wrong on its face, as there are clear exceptions for foreign diplomatic personnel and hostile occupying forces.

But Toomey then clarifies his words: “Specifically, the 14^th Amendment states: ‘[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  Since foreign diplomatic personnel and hostile occupying forces are not “subject to the jurisdiction” of the United States, they would in any event not be considered or deemed to be “citizens of the United States.”

However, the 14^th Amendment says “born or naturalized….”  Plainly, if one has been naturalized (a mechanism for bestowing citizenship on foreigners other than by birth in the nation), the person is by definition “subject to the jurisdiction” of the United States.  There are two – and only two – ways of becoming an American citizen: (1) birth, subject to certain qualifications, on U.S. soil; or (2) naturalization.  There is one – and only one – way of becoming an American “natural born Citizen”: birth on U.S. soil to a mother and father who are, at the time of the birth, already either native-born (which includes those who are also natural-born) or naturalized U.S. citizens, as originally intended by the Founders.  It is that simple.

Accordingly, as such, the 14^th Amendment is a “naturalization” law and not one bestowing “natural born citizen” status upon anyone.  In Schneider v. Rusk, 377 U.S. 163 (1964), the Supreme Court, with Justice Douglas opining for the majority, held, 377 U.S. at 165: “We start that the rights of citizenship of the native-born and of the naturalized person are of the same dignity and are coextensive.  The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.  Art, II, s [§] 1[, Cl. 5].”  (Emphasis added).  Naturalized persons are ineligible to either the presidency or the vice-presidency, which is why Arnold Schwarzenegger will never command the Oval Office.

Recalling that all natural-born citizens are also native-born citizens, but not all native-born citizens are natural-born citizens, Justice Douglas’s recognition of a “difference” between a “native born” citizen and a “naturalized” citizen with regard to the presidency destroys the argument that the terms “native-born citizen” and “natural-born citizen” are synonymous and interchangeable.  They are not, because there is a “difference drawn by the Constitution between the two.”  Again, it is that simple.

But after quoting the language of the amendment, Toomey’s letter falls into the same conceptual punji trap intentionally set and marketed by those who claim that so-called “birthright citizenship” under the 14^th Amendment trumps all contrary theories.  So goes the trap argument, the 14^th Amendment, coupled with the majority opinion in the U.S. Supreme Court decision in United States v. Wong Kim Ark (“WKA”) supports the conclusion that if one is merely born in the United States to parents otherwise “subject to the jurisdiction” of the nation, that person is, ipso facto, a “natural born Citizen” for presidential (and as to KDH, vice-presidential) purposes.  Sen. Toomey’s letter does not reference WKA, but its reasoning and conclusion mirrors the dictum of WKA.

As discussed here, here and here, that conclusion is a legally unsupportable and, until the Supreme Court holds otherwise, likely a colossal and erroneous “leap of faith.”

Indeed, all of the references in WKA to a “natural born citizen” and later cases parroting that line of thought – the term “natural born citizen” appearing nowhere in the 14^th Amendment, which was the only provision under consideration in WKA – constitute irrelevant “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.

While “dictum” appearing in a case may be interesting, and on occasion even decorative, it is neither “holding” nor “precedent” and those who contend that WKA “settles” the eligibility question are, respectfully, wrong.  There is no such thing as “precedential dictum.”

In this regard, the recent so-called “Newsweek Eastman Article” drew into question the KDH eligibility issue under the 12^th Amendment, which requires a Vice-President to possess the same eligibility bona fides as a president.  The article posits that KDH may not satisfy the “natural born citizen” criteria because, her citizenship status at birth – derivative from her Indian mother and her Jamaican father – fails since her parents were apparently here on student visas, rather than here as lawful resident aliens.  Thus, since her parents were not “subject to the complete jurisdiction” of the United States, neither was KDH upon her birth.  That assumes, however, that the 14^th Amendment has any relevance to KDH’s constitutional bona fides.  It does not.

Problematically, the Eastman article also claims, however, that if KDH’s parents were here as lawful permanent resident aliens instead of temporary students, “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.” (Emphasis added).  With respect, Professor Eastman is incorrect: the “actual holding” in WKA has nothing at all to do with the issue of who is – and who is not – a “natural born Citizen” for presidential eligibility purposes.  While a “citizen at birth” is concededly a “citizen,” that person is not necessarily a “natural-born Citizen” for Eligibility Clause purposes.  Yet again, it is that simple.

To reiterate that which was discussed here, the author of the 14^th Amendment, John Bingham, intended that the 14^th Amendment would bestow citizenship via naturalization upon an entire class of people – freed American slaves – to make them “citizens” of the United States.

He well-understood that the individuals affected by his amendment would become “citizens,” but not “natural born Citizens” as contemplated under Art. 2, § 1, Cl. 5 of the Constitution.  He well-understood that the Founders differentiated between a “citizen” and “natural born Citizen” from the language of the Eligibility Clause itself, creating a “grandfather exception” in the clause in recognition that, at the time the Constitution was created, there were no “natural born Citizens” eligible to the presidency.

Indeed, in the years preceding the passage and enactment of the 14^th Amendment, Bingham argued eloquently for the abolition of slavery.  He correctly argued that it was an outrage against the Constitution, but that no enforcement mechanism was available under the existing Constitution, and accordingly, that an amendment would be needed.

This sage recognition, of course, is diametrically opposed by contemporary “close-enough-for-government-work” eligibility fabricators.  Those folks contend that no amendment of the Eligibility Clause – other than outright repeal – is needed when all that is required is for the Congressional Research Service (“CRS”) and a couple of former Solicitors General to opine that “birthright citizenship” under the 14^th Amendment is “good enough” to render one a “natural born Citizen” for presidential and vice-presidential eligibility purposes.

Stated otherwise, the “ipse dixit” – “it is so because I say it is so” – pontifications of the CRS and Messrs. Clement and Katyal are claimed to suffice to dispense with the need for a constitutional amendment or a binding opinion of the Supreme Court.  Respectfully, unless and until the Supreme Court declares otherwise, those pontifications are wrong.

Returning to Bingham’s views regarding the 14^th Amendment, on April 11, 1862, when the amendment was but a future glimmer in his eye, Bingham rose on the House floor in support of such a proposed amendment.  See Congressional Globe, House of Representatives, 37^th Congress, 2^nd Session at p. 1639.

During his remarks to the assembled Representatives addressing the concept of citizens and citizenship, he specifically identified the persons to whom the proposed amendment would apply thusly: “There is no such word as [“]white[”] in your Constitution.  Citizenship, therefore, does not depend upon complexion any more than it depends upon the rights of election or of office.  All from other lands, who, by the terms of your laws and a 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.” (Emphasis added)

Then, some four years later, on March 9, 1866, less than one year following the end of the Civil War, Bingham rose again on the floor of the House.  This time he addressed his assembled colleagues on a Senate bill (S. 61) entitled “An act to protect all persons in the United States in their civil rights and furnish the means of their vindication” forwarded to the House for action.

Congressman Bingham again articulated his recognition of the distinction between “citizens” and “natural born citizens” thusly: “I find no fault with the introductory clause, 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….” (Emphasis added)  See Congressional Globe, House of Representatives, 39^th Congress, 1^st Session at p. 1291.

The significance of Mr. Bingham’s remarks in 1866 lies in his reference to the term “natural-born citizen” as being found “in the language of [the] Constitution itself….” (Emphasis added).  Faithful P&E readers, take note: the only place in the Constitution where the term “natural-born Citizen” is found is Art. 2, § 1, Cl. 5, the presidential Eligibility Clause.  The term appears nowhere else in that founding document.  It is therefore abundantly clear that Mr. Bingham was referring to the term the Founders had included as the Eligibility Clause restricting the presidency exclusively to a “natural-born Citizen.”

Plainly, Congressman Bingham’s understanding of the term “natural born citizen” when he was identifying persons included within that subset of the “citizens” to be covered by his proposed constitutional amendment was grounded in the term appearing in the Constitution’s Eligibility Clause.  Bingham recognized that the “language of the Constitution itself” meant that, insofar as eligibility to the presidency was concerned, a “natural born Citizen” was a person born here to parents who were already citizens of the United States since, by definition, U.S. citizen parents are those “not owing allegiance to any foreign sovereignty.”

The import and significance of Bingham’s words – as opposed to the ruminations of the CRS and former Solicitors General – are clear: he understood and acknowledged that, insofar as a proposed amendment to the Constitution guaranteeing the enforceable rights of citizenship to all persons born or naturalized in the United States was concerned, the subset of the society who were born here to “parents owing allegiance to no other sovereignty” were “natural born Citizens.”  While others were “native-born” citizens, they were not natural born citizens, yet all would be covered by the terms of the proposed amendment.

Moreover, while the views of individual congressmen as to what a particular law – including constitutional amendments – means carries less weight in evaluating the history or intent of the law, the rule is different when the congressman expressing those views is the author and sponsor of the law.  See, e.g., Federal Energy Administration v. Algonquin SNG, Inc. (statements by sponsors as to the intent of a proposed law deserve to be “accorded substantial weight in interpreting the law.”)

Accordingly, Senator Toomey’s letter provides no support for the proposition that a “citizen” who may be the product of naturalization via the 14^th Amendment is the equivalent of a “natural born Citizen” for eligibility purposes.  Thus, his conclusion that Kamala Devi Harris is eligible to serve as Vice-President is, respectfully, in error.

Finally, as a third (and, mercifully, last) point of this post, the recipient of the Toomey letter, Jeffrey Harrison, may wish to take Sen. Toomey up on his offer to contact him in the event that he needed additional assistance.  The additional assistance needed: a request that Sen. Toomey read your humble servant’s post – including the embedded links – and respond to Mr. Harrison with an explanation of why, in the Senator’s view, KDH remains eligible to serve as Vice-President, and hopefully, without ipse dixit reasoning.

Just sayin’….