by Joseph DeMaio, ©2021

“No person, except a natural born Citizen…shall be eligible to the office of president…”
Art. II, Sect. 1, cl. 5 of the U.S. Constitution

(Mar. 21, 2021) — Regarding this P&E post, it has attracted a growing number of comments, some insightful, others…, not so much.  Your humble servant offers a few observations regarding the comments made by one reader.

Commenter Becker asserts in his 3/20/21 remarks that, “[f]or the most part, those court decisions [i.e., decisions rejecting the de Vattel analysis of “natural born citizen”] were based on the 1898 Supreme Court decision in US v Wong Kim Ark [169 U.S. 649 (1898)].

The commenter then adds: “There have been two or three lower court rulings that children born overseas to US citizen parent(s) are also natural born citizens.”  The word “also” festoons the comment, seemingly to suggest that the Wong Kim Ark decision held that Wong Kim Ark was himself a “natural born citizen” and that the “two or three lower court rulings” merely built on that precedent. 

Not so.

As careful readers of that decision know, the Supreme Court case had nothing to do with whether Wong Kim Ark was a “natural born citizen.”  Rather, the exclusive question presented was whether he was a U.S. “citizen” under the 14th Amendment.  All other discussion of “natural born citizen” in the case is “dicta, pure and simple.”

Moreover, careful readers also know that Justice Gray, author of the majority opinion (Chief Justice Fuller and Associate Justice Harlan dissented) goofed big time in misstating the history of two statutes passed in 1790 and 1795 and bearing directly on the issue.  That blunder by Justice Gray, joined in by the non-dissenting Justices, is discussed and dissected here.

Specifically, 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 (note the use of the plural term “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  However, only five years later, in 1795, that statute was repealed in its entirety.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 majority opinion that Congress “reenacted, in the same words, the 1790 statute” (emphasis added), 169 U.S. at 672-673, with alterations not germane to the question. 

That assertion by Justice Gray is manifestly and demonstrably wrong.

In 1795, in 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 Art. 2, § 1, Cl. 5, the Constitution’s presidential Eligibility Clause, regarding the widely understood definition of “natural born Citizen” therein, consciously 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 as some have lamely claimed – is beyond dispute: the words “natural-born” present in 1 Stat. 103 do not appear in 1 Stat. 414, exactly the opposite of and contrary to Justice Gray’s “in the same words” assertion. 

Gray’s judicial blunder – intentional or not – has enabled “de Vattel deniers” to claim that the Wong Kim Ark decision is the “be-all-end-all” of the dispute as to who is or can be deemed to be a “natural born citizen” for both presidential and vice-presidential eligibility questions.  Wrong.  And the U.S. Supreme Court, even under Chief Justice John Roberts, has never opined to the contrary.

U.S. Supreme Court Chief Justice Horace Gray Wikimedia Commons,
public domain)

Stated otherwise, statements by commenters (and even former U.S. Solicitors General suggesting or claiming that the 1795 statute, 1 Stat. 414, preserved the “natural born” modifier of the word “citizen” in the 1790 statute, 1 Stat. 103, or that the deletion of the words “natural born” was immaterial, are wrong.  Such assertions or suggestions constitute, in the vernacular of leftist “fact-checking” thought police, “misinformation” and, as such, are subject to being censored and purged from the public square. 

But because those statements support the false narrative that anyone born here, regardless of the citizenship status of the parents – or even born elsewhere to at least one U.S. citizen parent – is purportedly constitutionally-eligible to the presidency or vice-presidency, not only will those statements likely remain viable and robust, they may even be nominated for a Pulitzer.  Or an Emmy.  Or even the Nobel Prize for Literature.

Faithful P&E readers, witness the damage attending the election of Democrats to public office and trusting the “products” of the repository of “the nation’s best thinking,” the Congressional Research Service.

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  1. I’m not festooning anything. I’m simply clarifying Ms. Rondeau’s comment describing the various theories on the meaning of the term natural born citizen. To date no recent Court has accepted the two-citizen parent theory. They have accepted the theory that states that anyone born in the US (with few exceptions) is a natural born citizen. These dozen or so case were decided under the guidance of the Wong Kim Ark decision. That Justice Gray did not specifically use the term natural born citizen is, as the Indiana Appeals Court indicated, “immaterial”. Why? Because the Courts only recognize two types of citizens – natural born and naturalized.

    As to the theory of children born outside the US. Several Courts have ruled that someone like Ted Cruz is a natural born citizen. Those Courts did not rely on Wong Kim Ark as it does not apply.

    Justice Gray’s error in citing the 1795 naturalization act is irrelevant as the case did not involve a child born outside the US to citizen parents.

    1. Response from Joseph DeMaio:

      ————————-
      Mr. Becker doubles down, asserting that “[t]o date no recent Court has accepted the two-citizen parent theory.” By decorating (a synonym for “festooning”) that comment with the word “recent,” the apparent objective is to sideline and marginalize the Supreme Court’s 1875 decision in Minor v. Happersett, 88 U.S. 162 (1875) (https://www.law.cornell.edu/supremecourt/text/88/162.

      That decision, of course, noted (88 U.S. at 167-168) that “[a]t common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” (Emphasis added).

      The fact that the case was abrogated – not overruled… look it up… – on a totally separate issue by the 19th Amendment (women’s suffrage) does nothing to change the reality that a unanimous U.S. Supreme Court stated that there was “no doubt” in the Founders’ minds that a child born here to citizen parents was a “natural born citizen” but that as to a child born here to alien or foreign, non-U.S. citizen parents, “there have been doubts” as to that child’s purported “natural born” citizen status.

      If the Founders’ goal was to eliminate completely the potential for foreign influence in persons who would be president, why would they have chosen a standard as to which “there were doubts” when a standard as to which there have never been doubts was available? Answer: they didn’t. Instead, at the suggestion of John Jay, they turned to Emmerich de Vattel and selected the standard as to which there had never been doubts.

      As for Mr. Becker’s attempt to explain away as “immaterial” Justice Gray’s blunder in the Wong Kim Ark case, perhaps he could relate that claim to Messrs. Clement and Katyal (https://cdn.harvardlawreview.org/wp-content/uploads/2015/03/vol128_ClementKatyal.pdf), as discussed here (https://www.thepostemail.com/2016/04/26/the-decisions-in-elliott-v-cruz-and-williams-v-cruz-conclusion/). And if the Wong Kim Ark decision was “irrelevant” to the Ted Cruz presidential candidacy, one must wonder why the Clement/Katyal article referenced (fn. 5) 17 pages of the decision in reaching its conclusion that Sen. Cruz was, purportedly, eligible as a “natural born citizen?”

      Finally, as for the nonsense offered up as reasoned analysis in the Ankeny decision (https://www.casemine.com/judgement/us/5914b120add7b049347573b9), this may help (https://www.thepostemail.com/2012/02/24/of-presidential-eligibility-doubling-down-and-linguistic-torts-part-3/).

      Side out.

      1. I used the word recent as they were the Court cases deciding the issue of presidential eligibility. These Courts have rejected the Minor v Happersett opinion as having decided the eligibility issue, for example in Arizona in Allen v Obama, Judge Gordon specifically rejects Minor v Happersett as holding that two citizen parents are required for someone to be a natural born citizen. Rather he concludes that his Court is bound by the precedent of Wong Kim Ark.

        “If the Founders’ goal was to eliminate completely the potential for foreign influence in persons who would be president”

        They chose what they were familiar with – the English Common Law.

        Mr. DeMaio should contact Messrs. Clement and Katyal as to why they referenced the Wong Kim Ark case. Justice Gray was unambiguous in his opinion,

        “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of congress, exercised 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 tribunals, as in the ordinary provisions of the naturalization acts.”

        Justice Gray it would appear considers Senator Cruz as a naturalized citizen.

        But as Wong Kim Ark was born in the United States, Justice Gray’s statement on the foreign-born are merely dicta.

  2. The fAct that “natural born” precedes “citizen,” shows there is something more meaningful than just “citizen.” We know what that is according to John jay’s letter to Washington. Once that is understood the two parent citizenship at the time of birth makes perfect sense.
    Great job Sharon.

  3. Supreme Court Justice Charles Evans Hughes ran for President as a Republican against Woodrow Wilson in 1916. A question arose about his eligibility to be President, as Hughes was born in the United States to alien parents. The contention was while Mr. Hughes was a native-born Citizen, he was not a natural-born Citizen.

    Breckinridge Long was a well-known Democrat who worked for a year in the State Department and was appointed by FDR ambassador to Italy in 1933.

    Charles Evans Hughes resigned from the Supreme Court on June 10, 1916 to run for President. Breckinridge Long wrote an article entitled: Is Mr. Charles Evans Hughes a “Natural Born Citizen” published in Chicago Legal News, Vol. 146-148, pp. 220-222.

    Long stated, the Constitution placed a specific requirement on those who become President and Vice-President. For all other offices one must be a “Citizens of the United States”, but for President and Vice-President one must be “natural-born Citizens.”

    The word “natural” means “of nature”; “naturally a part of”; “by the laws of nature an essential part of” a structure. A “natural born citizen” is one who naturally, at birth, is a member of the society; naturally; -by the laws of nature a citizen of the society into which he is born.

    No other sovereign has claim on him; his only allegiance is to the nation into which he was born, and that nation is responsible for his protection.

    “Native born” does not denote the same meaning. He could be born in a country under circumstances like those of Hughes (born in the U.S. to alien parents), and later become a citizen of the country of his birth. After he became a citizen, he would be a “native-born” citizen, but would not be a “natural-born Citizen”. From his birth the U.S. government was not the only sovereign responsible for his protection.

    Long stated, a man born on U.S. soil to alien parents, had dual citizenship and owed a double allegiance. Anyone born in that dual circumstances could later choose his citizenship and allegiance.

    Anyone from birth who owes, or may owe, allegiance to a foreign sovereign is not a “natural-born Citizen“.

    Under the Military draft law of 1862, due to the Civil War, the following persons were excused by the U.S. Government from being drafted into the army:

    (1) All foreign-born persons who have not been naturalized; and

    (2) All persons born of foreign parents and who have not become citizens.

    Long stated, the government Mr. Hughes sought to preside over as President classified him as an “Aliens” in the year he was born (1862) and drew a distinction between him and “natural born Citizens”.

    Hughes lost the election to Wilson and the matter became moot.

    In 1916, Breckenridge Long, wrote the following in the Chicago Legal News:

    “It is not disputed [i.e., claimed] that Mr. Hughes is not a citizen of the United States, but… if he had the right to elect, he must have had something to choose between. He was native born because he was born in this country, and he is now a native-born citizen because he is now a citizen of this country; but had he been a “natural born” citizen, he would not have had the right to choose between this country and England; -he would have had nothing to choose between. He would have owed his sole allegiance to the government of the United States, and there would have been no possible question, -whether he found himself in the United States or in any other country in the world, that he would be called upon to show allegiance to any Government but that of the United States.”

    1. No judge has agreed with Long’s analysis. And every judge who considered an eligibility challenge on the merits came to a contrary conclusion.