by Joseph DeMaio, ©2021

U.S. Supreme Court Chief Justice Horace Gray (public domain)

(Jan. 22, 2021) — With the current censoring and banning of facts casually labeled by the leftist language police to be “misinformation” and “disinformation” subject to purging from the public square, one must ask:  under that protocol, when will the U.S. Supreme Court’s decision in United States v. Wong Kim Ark, 169 U.S. 649 (1898) (“WKA”) be censored and erased from public view? 

The scrubbing of the opinion seems clearly to be warranted on the grounds that, at its core, its author, Justice Horace Gray, disseminates “misinformation” and, worse, potential “disinformation” bearing directly on the question of who is – and of greater importance, who is not – a “natural born Citizen” for presidential eligibility purposes.  Moreover, because of the 12th Amendment, the question applies as well to the Office of the Vice-President.  And no, Virginia, these are not academic or hypothetical questions.  Curious?  Read on.

Recall that the WKA decision held that a child (Wong Kim Ark) born in San Francisco to two permanent resident alien Chinese citizens was, under the 14th Amendment, a “citizen of the United States.”  The decision addressed only the question of the person’s U.S. citizenship under the 14th Amendment and not whether the person was in addition a “natural born Citizen” under Art. 2, § 1, Cl. 5 of the Constitution regarding eligibility to the presidency.  A good argument exists that those who would contend otherwise are themselves engaging in the dissemination of misinformation.

One of the more recent ominous assaults on freedom of speech and the First Amendment takes the form of censorship and “memory-holing.” These information assassinations are deployed by Leftists and the mainstream media – forgive the redundancy – against either inconvenient, empirical facts or against assertions which are deemed to be “misinformation” and/or “disinformation” because they are purportedly “false” or because they deviate from the Democrat Party’s acceptable narratives or the conclusions of the Left’s “fact checkers.” 

If, for example, someone has the temerity to suggest that under the Constitution, only a “natural born Citizen” – as defined and articulated by Emmerich de Vattel in § 212 of his 1758 tome, The Law of Nations – is allowed to serve as President, that suggestion is subjected to ridicule, lampooning, invective and, ultimately, censorship and memory-holing.

Emmerich de Vattel

Stated otherwise, because, according to the Congressional Research Service (“CRS”), two former U.S. Solicitors General and a bevy of lower court state and federal judges, the issue is “settled” other than consistently with the definition set out by de Vattel, any further discussion of the issue is forbidden.  Mind you, it is not only to be marginalized and erased from public view…, it is forbidden.  How that dictatorial edict squares with the First Amendment remains obscure, but no doubt leftist lawyers are working on a justification right now.

How dare conservatives and constitutionalists posit that the issue is not already “settled,” particularly in light of the 14th Amendment and the Supreme Court’s decision in WKA?  These conservative troglodytes must be taught a lesson: mock them on national television; censor their words on social media platforms; and memory-hole their contentions as being “misinformation” and/or “disinformation.”  Banish them to the nearest Trumper deprogramming camp, into the “birther” section!

Really?

Memo to the few Democrats and Leftists who visit and read postings at The P&E: if you will calm down for a moment, take a few deep breaths and reflect on some empirical facts, perhaps you will realize that the issue of presidential and vice-presidential constitutional eligibility with regard to who is – and who cannot be – a “natural born Citizen” as contemplated by the Founders is not as “settled” as you believe it to be.  This is particularly true once the details of the history of the 14th Amendment – not to mention its plain language – and the fundamental misstatement of fact lying at the core of the WKA decision are studied. 

First, the 14th Amendment says nothing – repeat, nothing – about “natural born citizens” for presidential eligibility purposes.  It speaks of “citizens” and the “citizenship” status of such persons.  And, as long-time P&E readers know from studying Euler diagrams, while all “natural born citizens” are “citizens,” not all “citizens” are “natural born Citizens” within the contemplation of the Constitution’s presidential Eligibility Clause, Art. 2, § 1, Cl. 5.

Second, and of greater importance after January 20, 2021, the factual error made by Justice Horace Gray in the WKA decision only underscores the likelihood that Mrs. Kamala Devi Harris now occupies the Office of the Vice-President as a common usurper, not unlike the Second Usurper in Chief (“SUC”), Barack Hussein Obama, Jr., who occupied the Oval Office between 2009 and 2017.

Kamala Harris from her Senate website

The author of the WKA majority opinion, Justice Horace Gray (appointed to the Court by the Nation’s First Usurper-in-Chief, Republican Chester A. Arthur) – intentionally or not – fundamentally misstated the history of two of the first enactments of the Congress in reaching his ultimate conclusion that Wong Kim Ark was a “citizen” under the 14th Amendment.  Here is why.

In 1790, Congress passed (and President Washington signed into law) 1 Stat. 103, entitled “An Act to Establish an Uniform Rule of Naturalization.”  In that statute, Congress stated, among other things, that children born “beyond sea” to U.S. citizen parents were “considered” to be “natural born citizens.”  However, only five years later, in 1795, that statute was repealed in its entirety. 

Yet Justice Gray claimed in his opinion that Congress “reenacted, in the same words, the 1790 statute” (emphasis added), with alterations not germane to the question.  For this demonstrable “disinformation” and/or “misinformation” transgression, under the tech tyrant censorship pogrom now in place, the WKA opinion – and all later cases, law review articles, Gray Trollop op-eds and professorial dissertations relying on it… should be memory-holed.  Erased.  Forgotten.

In 1795, a new statute – 1 Stat. 414, entitled “Chap. XX.  An act to establish an uniform rule of Naturalization; and to repeal the act heretofore passed on that subject [i.e., 1 Stat. 103]” (emphasis added) – the Congress, apparently recognizing that it could not by a statute like 1 Stat. 103 alter or amend the intent of the Constitution’s presidential Eligibility Clause regarding the understood definition of “natural born Citizen” therein, deleted the words “natural born” before the word “citizens.” 

That the Congress actually made the deletion – regardless of whether it was a conscious, intentional excision, as opposed to a “stylistic” or “accidental” omission – is beyond dispute: the words “natural-born” present in 1 Stat. 103 do not appear in 1 Stat. 414, contrary to Justice Gray’s assertion. 

And yet, 103 years after 1 Stat. 414 became law – deleting the “natural-born” modifier of the word “citizens” that had previously existed – this is what Associate Supreme Court Justice Horace Gray said in the majority opinion he authored in WKA, 169 U.S. at 672-673:

“In the act of 1790, the provision as to foreign-born children of American citizens was as follows: ‘The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.’ 1 Stat. 103 [at 104].  In 1795, this was re-enacted, in the same words, except in substituting, for the words ‘beyond sea, or out of the limits of the United States,’ the words, ‘out of the limits and jurisdiction of the United States.’ Id. 415.” (Emphasis added).

Respectfully, no, Justice Gray – and all others relying on the WKA decision to support the argument that anyone born here is both a “citizen” and a “natural born Citizen” for eligibility purposes – the Congress did not use “the same words” when it enacted 1 Stat. 414.  Instead, it deleted the critical words “natural born” which had previously preceded “citizens” and corrected itself to articulate that children born to U.S. citizen parents “out of the limits and jurisdiction of the United States” were nonetheless considered to be U.S. citizens.  In fact, contrary to Justice Gray’s assertion, the Congress deleted “natural born” in 1795 and has never since that time re-enacted the modifier found in 1 Stat. 103 to describe a child born to U.S. citizen parents beyond the boundaries of the United States as anything other than a “citizen.”

Section 3 of the 1795 Naturalization Act

And please, spare me the argument that Gray’s error is “irrelevant” and “no big deal” and that the history of the two statutes is not central to the rationale of the WKA opinion.  Gray’s “error” pervades the reasoning and rationale of the entire majority opinion.  Indeed, it could be argued that the erroneous characterization of 1 Stat. 414 by Justice Gray is the sine qua non of the opinion. 

Stated otherwise, between March 26, 1790, when 1 Stat. 103 became law, and January 29, 1795, when 1 Stat. 414 specifically repealed 1 Stat. 103 and itself became law, the argument that the children of U.S. citizens born abroad might properly be “considered” as “natural born citizens” was plausible, if not unconstitutional.  However, after the “natural born” modifier preceding the word “citizen” in the 1790 act was repealed and not re-enacted in the 1795 act, any contention that thereafter the same conclusion that applied under the former law continued in operation evaporated by operation of the repeal.

The vaunted Congressional Research Service, the repository of the nation’s “best thinking,” disingenuously explains this chronology (but not Justice Gray’s error, which it does not even acknowledge) thusly (see 2016 Congressional Research Service Report R42097 at 20, fn. 96):

“The 1790 statute was repealed and superseded by a 1795 naturalization statute which omitted the phrase ‘natural born.’ Act of January 29, 1795, Ch. 20, 1 Stat. 414, 415. There is no legislative history indicating the reason for the deletion of that term; however, in that statute the phrase ‘shall be considered as citizens’ referred to the status of minor children derivatively naturalized upon the naturalization of their parents, who are not ‘natural born,’ as well as to the children born abroad to U.S. citizens, so it is possible that the deletion is merely a stylistic/grammatical decision.

(Emphasis added)

As now departed Supreme Court Justice Antonin Scalia would say: “Pure applesauce.”  One is reminded of Chief Justice Roberts’s linguistic gymnastics in morphing the word “penalty” into the word “tax” in order to save the SUC’s signature law, Obamacare.  Even a first-year law school dropout learns that when a legislating body (such as Congress) changes the language of a statute – as occurred in 1795 with the formal repeal of 1 Stat. 103 and the enactment of 1 Stat. 414 – and in the process deletes words or modifiers, it intends to change the law in some way. 

U.S. Supreme Court Chief Justice John G. Roberts

The conscious deletion of the modifier “natural born” before the word “citizen” in 1 Stat. 414 plainly confirms that, although Congress was still prepared to deem children born abroad to citizen parents to be themselves “citizens” and thereby welcome them into citizenship of the United States body politic, they were no longer to be even “considered” or deemed to be “natural born citizens.” 

Stated otherwise, plainly, these were not mere “stylistic” or “grammatical” changes.  The deletion of the modifier was a deliberate action by the Congress intended to change the law from what it was in 1790 to what it became in 1795, and indeed, in the 220-plus years and numerous variations on the naturalization statutes amended and enacted thereafter.

Accordingly, since Justice Gray’s majority opinion relies on a demonstrably wrong historical fact, it constitutes at minimum “misinformation” and at maximum “disinformation.”  As such, it is a prime candidate for the Left’s memory-holing exercise…, no?

A few posts ago, your humble servant suggested a new term – a “portmanteau,” if you will – describing the favored pastime of liberals and the Left.  That term is “stupocrisy,” a blend of the words “stupid” and “hypocrisy.”  Kinda has an appropriate ring when it comes to discussing the Left’s lionizing of WKA on the constitutional eligibility issue while simultaneously defending Justice Gray’s error, dontcha think?

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  1. “In 1795, a new statute”

    This new statute added this to the new Section 2:

    “when the alien applying for admission to citizenship shall have borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, on his, moreover, making in the court an express renunciation of his title or order of nobility, before he shall be entitled to such admission”

    This is the amendment added by Congressman Giles. It was during the debate over the Giles amendment that Congressman Hillhouse said that an alien’s children would be “natural born citizens”.

      1. This portion of Section 2 comes from an amendment by Congressman Giles of Virginia. His stated goal was to prevent a class of citizens with titles.

        Congressman Hillhouse of Connecticut objected to the amendment as he thought it would actually work contrary to what Giles thought.

        To support his position, Hillhouse gives an example of a titled alien coming to the US and refusing to renounce his title (under the Giles amendment such an alien could not become a citizen) but his children would be “natural born citizens” and could inherit his title.

        https://memory.loc.gov/ll/llac/004/0500/05211045.tif

        1. Response from Joseph DeMaio:
          ———————
          May we assume that at some point in time…, perhaps even within the next few days…, Mr. Becker will explain and justify Justice Gray’s “in the same words” misstatement of fact peddled as truth in the Wong Kim Ark case? In addition, will that explanation reveal why Justice Gray’s “error” does not undercut the whole of the decision, necessitating its banishment from the public square as “misinformation?”

        2. As Charles Gordon pointed out statements by Justice Gray and Chief Justice Fuller about Citizenship for children born outside the jurisdiction of the United States are “dicta, pure and simple.” Since Gray’s error does not refer to the crucial facts or law in Wong’s case, it is considered harmless.

          But back to Congressman Hillhouse’s statement on children born in the U. S. to alien parents being natural born citizens. Congressman Giles nor any other members of Congress disputed Hillhouse’s argument.

          Why not? Why wouldn’t Giles defend his amendment? James Madison supported the Giles amendment, why didn’t he point out that Hillhouse was wrong?

          BTW, both Congressman Hillhouse and Congressman Swift (also from Connecticut) voted against the Giles amendment. We know from Swift’s treatise on the laws of Connecticut that children born in the state to alien parents were considered natural born.

        3. Here is the section of Gordon’s article on Justice Gray’s discussion of citizenship to children born outside the US to citizen parents.

          =========
          Proceeding from his initial thesis, Mr. Justice Gray then stated that the fourteenth amendment, declaratory of the common law,

          “has not touched the acquisition of citizenship by being born abroad of American parents; and has left this subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”

          Moreover, in the view of the Justice, the fourteenth amendment

          “contemplates two sources of citizenship, and two only: birth and naturalization. . . . A person born out of the jurisdiction of the United States can only become a citizen by being naturalized …by authority of Congress… either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tri- bunals, as in the ordinary provisions of the naturalization acts.”

          Chief Justice Fuller’s dissenting opinion,on the other hand, believed the statutes regarding the acquisition of citizenship through descent, by children born abroad to American citizens,

          “are clearly declaratory, passed out of abundant caution to obviate misunderstandings…. In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this Government.”

          It is manifest that these statements of the majority and dissenters in Wong Kim Ark were dicta, pure and simple. The question before the Court concerned children born in the United States, and it was not asked to pass on the status of children born abroad

          https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2068&context=mlr

          Note Gordon calls Gray’s and Fuller’s statements on citizenship by descent to the foreign born, “dicta, pure and simple.”

          Any error’s made by Justice Gray in dicta is considered harmless under 28 USC §2111.

  2. Respectfully, Mr DeMaio, don’t you know (actually, I believe you do know, and I’m just saying this to make a point to everyone) that any mentioning of the words, or the meaning of, “natural born American citizen” is now (and has been for several years) TABOO! Think about it. Yes, I did say, and I do mean (notwithstanding our 1st Amendment) TABOO! Even the U. S. Supreme Court, especially in the person of its politically active and compromised billionaire “Chief Justice” John Roberts Jr, dares not to speak these words, or define or re-affirm their meaning.. As you no doubt are aware, Associate Justice Clarence Thomas said that the high court was “EVADING” the issue. What chance of surviving does our U. S. Constitution and Republic have in the face of such idiotic and arguably traitorous domestic opposition (enemies)! And, in what I think is a related matter, why does there seem to be such an unbelievable urgency to destroy our 45th president Donald Trump? Actually, I DO KNOW WHY, AND I WOULD BE GLAD TO SHARE THE ANSWER WITH AND TELL ANYONE WHO REALLY WANTS TO KNOW! Are there any “takers?” I’ll wait and see. Tom Arnold.

  3. Thank you, excellent article.
    Unfortunately, the ignoring, distorting and outright lying about the Constitution’s original meaning and and reasons for the “natural born citizen” clause has been been every effective on the masses.
    We now have massive empirical evidence of what can happen when the Constitution is ignored on something as important as who is president and commander-in-chief of America’s military. It can, and without a miracle has, cost America her Constitutional Republic, her freedom and hope for the future for her citizens…….Ignoring of the Constitution’s meaning of natural born citizen by people in government who did nothing to stop Obama’s usurpation was used as a weapon to keep them quiet. Speaking out after Obama was sworn-in could get them changed with treason and sedition for allowing this to happen, so they joined the enemy in protecting Obama even if they did not want what they saw happening……They had to protect themselves from their inaction and ignoring of their sworn oath to protect the Constitution. Obama was the perfect pick to take over America and her military from the inside for his puppet-masters………..race protection to get him elected, and then after being sworn-in protected by those who should have prevented him from ever being on the ballot……..