by Joseph DeMaio, ©2022 

“No person, except a natural born Citizen…shall be eligible to the office of president…”

(Mar. 5, 2022) — Where to start…, where to start? 

Your humble servant’s post here generated several competing comments.  While replies to those comments would normally appear there, once again, a longer offering is prompted by certain ones received regarding your humble servant’s assertions and conclusions regarding who can – and who cannot – meet the criteria of a “natural born Citizen” as contemplated by the Founders in Art. 2, § 1, Cl. 5 of the Constitution.

Specifically, prolific commenter Becker offered several remarks challenging your humble servant’s conclusions and reasoning regarding the issue.  Neither your servant’s opinion nor Becker’s observations will likely alter anyone’s preexisting conclusions on the topic. 

That said, it is still important that the record be clear in the event that at some future date, a more thorough analysis of the issue is undertaken, perhaps even by the Supreme Court…, but do not hold your breath… unless you are L.A. Mayor Garcetti explaining why it was OK for him to pose maskless for pictures in mask-mandated San Francisco during the Super Bowl. Hypocrisy, thy name is Garcetti.

Back to text.

Mr. Becker offered several interesting comments.  Let us address three of the more significant ones serially.

First, in Mr. Becker’s 3/4/22, 2:29 PM comment, he discusses among other things the opinion of Justice William Johnson in Shanks v. DuPont, 28 U.S. 242 (1830).  At least he discloses that he is quoting from Johnson’s dissenting opinion…, more on that disclosure later.  

In the precedential Shanks majority opinion, authored by Justice Joseph Story, it was held that the daughters of a deceased South Carolina mother who sought their share of an inheritance could not inherit.  This was because when the mother married a British soldier and left the United States never to return, her prior allegiance to this country was abolished, or, as Justice Story characterized it, caused a “virtual dissolution of her allegiance, and fixed her future allegiance to the British crown….” 

Justice Johnson dissented because he believed that her status as a “citizen” – or as he characterized it, her status as a “natural born citizen to a community…” of South Carolina – was not abolished or dissolved.

But nowhere in the majority opinion is the term “natural born citizen” mentioned, and certainly not within the context of the Constitution’s “Eligibility Clause,” Art. 2, § 1, Cl. 5.  The only place where the term “natural born citizen” appears – and in the context of such a citizen under South Carolina law – is in Justice Johnson’s dissent.

While Justice Story’s majority opinion adverted, without specific citation, to the criteria of de Vattel’s The Law of Nations, § 212, he avoided use of the term “natural born citizen,” seemingly because the factual record in the case was incomplete.  That anomaly aside, Justice Story’s majority opinion nowhere uses the term “natural born citizen.”  Period.

It should go without challenge that while a dissent may, on occasion, presage future changes in the Court’s majority opinions, the statements of judges who disagree with the majority opinion – i.e., dissent – are not part of the “holding” of a case or properly deemed to be binding precedent. 

Accordingly, at most, Justice Johnson’s references to a “natural born citizen” under South Carolina law, coming in a dissent to the holding of Justice Story’s majority opinion – which majority opinion, to repeat, is devoid of any reference to a “natural born citizen” – can be said to constitute “dictum…, pure and simple.”  Again, as cogently noted by the Supreme Court in Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 351, n. 12. (2005): “Dictum settles nothing, even in the court that utters it.” (Emphasis added). 

Atty. Mario Apuzzo (1956-2021)

Second, and moving on, as to Mr. Becker’s comment of 3/3/22 at 10:19 PM, referencing a quote from eligibility expert – may he rest in peace – constitutional attorney Mario Apuzzo, he is quoted as stating: “[d]uring the founding, ‘natural born Citizen’ meant the same thing as ‘native born citizen.’” Apart from differences of opinion as to the sourcing and validity of that statement, but for present purposes assuming it to be true, a possible explanation exists.

The actual “founding” of the nation occurred on July 4, 1776, a fact recognized even by Justice Johnson in his dissenting opinion in Shanks.  This took place at least a decade before the Constitutional Convention met in Philadelphia and may well have been the date to which Mr. Apuzzo was referring when making his observation, viz., at the founding of the nation on July 4, 1776, the terminology now at issue may have had different connotations.  

In the approximately dozen years transpiring between the 1776 “founding” and the 1787 insertion of the “natural born Citizen” clause in the Constitution, Mr. Apuzzo explains that a lot of evolutionary linguistic changes took place.  This could well explain, at least in Mr. Apuzzo’s mind, why in drafting the Constitution’s “Eligibility Clause,” the drafters differentiated between a “citizen” in the “citizen grandfather clause” and a “natural born citizen” with respect to general and future presidential eligibility.   

In this regard, Mr. Becker conveniently omits the rest of the contextual background in Mr. Apuzzo’s blog post addressing these changes.  Specifically, Mr. Apuzzo notes in the four sentences immediately following the one extracted by Mr. Becker these points:

“It is only in later years that the term ‘native born citizen’ came to mean a child born in the United States without any reference to the citizenship of his or her parents. [a likely reference to the 1898 decision in United States v. Wong Kim Ark, 169 U.S. 649 (1898)]. The term was so used to distinguish a born citizen from a naturalized citizen. But use of the word ‘native’ in this sense caused it to no longer mean the same thing as ‘natural born Citizen.’ In this modern context, ‘natural born Citizen’ means much more than ‘native born citizen,’ for the former also has a connection to the child’s parents and not just to the soil on which the child was born.” 

(Emphasis added)  

Because Mr. Apuzzo passed away in October, 2021, we cannot ask him for clarification.  But most would agree that, from his writings that remain, he strongly believed that a “natural born Citizen,” as contemplated by the Founders in 1787 in Philadelphia and as defined in § 212 of de Vattel’s treatise, was a person born in the United States to two parents who, at the time of birth, were already U.S. citizens.  Any suggestion to the contrary would be ill-informed.

Third, and finally, as to Mr. Becker’s comment of 3/3/22 at 10:13 PM, it might have been more persuasive – and far less misleading – if he had not premised his comment on the language of the dissenting opinion in Schneider v. Rusk, 377 U.S. 163 (1964).  At least with respect to his discussion of Shanks, a signal was given to readers that the source of the discussion was Justice Johnson’s dissent.  Not so in his 3/3/22 10:13 PM comment.

U.S. Supreme Court Associate Justice Horace Gray served in that capacity from 1882 to 1902, the year of his death

Specifically, the actual majority opinion in Schneider says, at p. 165: “only the ‘natural born’ citizen is eligible to be President. Art. II, § 1.”  On the other hand, the confusing dissenting opinion in Schneider says, at p. 177: “Only a native-born may become President, Art. II, § 1.” 

Mr. Becker thus commits the error (let us not at this point call it a “misrepresentation”) of quoting from the dissenting opinion in the case, but offering it up as purportedly being from the majority opinion by referencing the source of the quote as being “p. 165,” – where Justice Douglas actually referenced “natural-born” citizen – yet substituting the “native-born citizen” term from the dissent.  

Wrong.  Bad form.  Reminiscent of the linguistic chicanery of the Congressional Research Service and Justice Gray’s “in the same words” goof in United States v. Wong Kim Ark, 169 U.S. 649 (1898), a blazing error still unexplained (or justified) by anyone…, including Mr. Becker. 

There is no question that the dissent in Schneider, written by Justice Clark, used that terminology, albeit itself somewhat ambiguous.  However, recalling that all natural-born citizens are also native-born citizens, but not all native-born citizens are natural-born citizens, Justice Clark’s dissenting statement only makes sense when viewed against that “Euler diagram” backdrop: he was presumably speaking of native-born citizens who were also natural-born citizens, consistent with the unambiguous language of the majority – and controlling – non-dictum opinion.     

In conclusion, your humble servant awaits another slew of comments…, but at least now there is another post to which they may be appended.

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  1. Mr. DeMaio, “Mr. Becker thus commits the error (let us not at this point call it a “misrepresentation”) of quoting from the dissenting opinion in the case, but offering it up as purportedly being from the majority opinion by referencing the source of the quote as being “p. 165,” – where Justice Douglas actually referenced “natural-born” citizen – yet substituting the “native-born citizen” term from the dissent. “

    Yes, I apologize for not researching the Schneider quote throughly. Normally I would have gone to the original court case and reviewed the quote for context. In this case I took the writings of Mr. Apuzzo at face value. He did not mention this quote is from Justice Clark’s dissent.

    “Rather, the Court in the second quote said that it is necessary to be a “native-born” citizen to be President (“[o]nly a native-born may become President”), or in other words, it is necessary to be born in the United States in order to be eligible to be President.”

    http://puzo1.blogspot.com/2012/02/tisdale-v-obama-and-natural-born.html

    Will respond to the rest later.

  2. So who was Washington talking about here April, 1777?

    “You will therefore send me none but Natives, & Men of some property, if You have them—I must insist that in making this Choice You give no Intimation of my preferance of Natives, as I do not want to create any invidious Distinction between them & the Foreigners.”

    https://founders.archives.gov/documents/Washington/03-09-02-0301

    And Jefferson in November, 1788

    “Native citizens, on several valuable accounts, are preferable to Aliens, and to citizens alien-born.”

    https://founders.archives.gov/documents/Jefferson/01-14-02-0054

    Seems that Washington and Jefferson only recognize natives or foreign born.

    Was the definition of natives the same in 1788 as in 1777?

    1. Washington was using the English Common Law definition of natives.

      Since there is no evidence that the definition changed, Jefferson most likely was too.

  3. He wrote: “Les Naturels, ou indigenes, sont ceux qui sont, nes dans le pays de Parents Citoyens”. “Naturels… indigenes” ARE those Natural Born Indigenous people of a society. The phrase in English is The Natural Born or Indigenous people ARE those [and ONLY those] who are BORN in the country to parents [plural] who are both Citizens [Plural] of said country.

    1. As you noted, “indigenes” is not “natural-born citizen.”

      There is no evidence the U.S. Constitution’s use of “natural-born citizen” was a reference to “indigenes.”

      1. The defining of the term of art “Natural Born Citizen” has since been long established by the U.S. Supreme Court in at least (8) opinions since the term appeared in Article II.

        It is now incontrovertible longstanding law that an NBC IS “one born IN the United States to parents who are both U.S. Citizens themselves”.

        Where is it “indicated” that indigenous people are not NBCs? ANY person who is born in a country to parents who are both that country’s citizens are Natural Born Citizens of said country.

        1. The U.S. Supreme Court has never defined the term natural-born citizen.

          There have been multiple presidents and vice presidents who did not have two U.S. citizen parents, so reality has controverted your belief of that term’s definition.

      2. Vattel did not write the book. He TRANSLATED it into French. As Cmdr. Kerchner points out French was understood by the founders and was spoken by them. French was the OFFICIAL language of diplomacy in the 18th century. The french phrase “Les Naturels OU indigenes” is translated into English as The Natural born OR Indigenous people. The entire phrase “Les
        [plural] naturels OU indigenes sont ceux qui sont nes dans le pays de parents citoyens” translates in English to: The natural born OR Indigenous people ARE those born IN the country to parents [PLURAL] who are both citizens. [Plural].

        1. Mr. Laity, “The entire phrase “Les
          [plural] naturels OU indigenes sont ceux qui sont nes dans le pays de parents citoyens” translates in English to: The natural born OR Indigenous people ARE those born IN the country to parents [PLURAL] who are both citizens. [Plural].”

          Can you link to the edition of Law of Nations which has this phrase “The natural born OR Indigenous people”?

          All of the ones I have seen translate it as either the natives or indigene or natives or natural born citizen.

          Also if Vattel did not write the book only translated it, can you link to the book he translated?

  4. Vattel’s Influence on U.S. Founders & Constitution’s Framers: https://www.scribd.com/lists/3224507/Vattel-s-Influence-on-U-S-Founders-Constitution-s-Framers

    Papers Discussing Natural Born Citizen Meaning to Constitutional Standards: https://www.scribd.com/lists/3301209/Papers-Discussing-Natural-Born-Citizen-Meaning-to-Constitutional-Standards

    A Lesson from History. Is Being Born a Citizen (Citizen at/by Birth) of the United States of Sufficient Citizenship Status to be President of the United States and Commander in Chief of Our Military? The Founders and Framers Emphatically Decided — No, It Is Not!: https://cdrkerchner.wordpress.com/2021/11/18/a-lesson-from-history-is-being-a-born-citizen-of-the-united-states-sufficient-citizenship-status-to-be-president-the-founders-and-framers-emphatically-decided-no-it-is-not-by-cdr-charles-kerch/

    CDR Kerchner (Ret)
    http://www.ProtectOurLiberty.org

  5. Hi Sharon,

    This is the url for the Apuzzo qoute by our “humble servant” Joseph DeMaio in his post.

    Puzo1.blogspot.com
    >> https://puzo1.blogspot.com/2009/01/difference-between-natural-and-native.html
    Saturday, January 10, 2009

    THE DIFFERENCE BETWEEN “NATURAL” AND “NATIVE” AS APPLIED TO
    AN ARTICLE II “NATURAL BORN CITIZEN”

    On September 30, 2019 I posted all of the urls for Mario’s posts from December 20, 2008 to June 2, 2019. I will be updating the urls to include the last post on February 8, 2021 with 16 comments. It ends with the last post on June 13, 2021.

    > https://original-genesis-original-intent.blogspot.com/2019/09/natural-born-citizen-archive-listed-by.html

    Natural Born Citizen Archive Listed by Title and Date

    “For people interested in reading about the original genesis original intent meaning of “natural born Citizen” in Article II Section 1 clause 5, below is a list of Attorney Mario Apuzzo’s 357 articles on his Natural Born Citizen blog (puzo1.blogspot.com) from December 20, 2008 to June 2, 2019.

    “Copy and paste the list of the articles to your Microsoft Word or LibreOffice.org doc for key word searches.

    “Following the list of articles are his links to his other resources:
    (1) SCRIBD Links to Obtain Court Docs Filed,
    (2) Useful Info, Docs, & Videos,
    (3) Radio Interviews – Sampling,
    (4) Print Media Announcements and Advertorials.”

    Art

  6. There is a huge difference between native born and natural born, a difference the left refuses to acknowledge because they want to see America destroyed. They erroneously think they will be immune from the consequences of their support of satanic plans. Like the supporters of Stalin and Hitler they will eventually fall victim to evil people who seek only total control over everything and everyone!!!!!!!!!!

    1. Good comment, thanks Bob Russell. The left wanted to use their Soros funded, Brennan and the CIA created, race protected candidate Barack Hussein Obama to destroy America and he was ready for the job by the 2008 election. Hillary was a threat to reveal the truth about Barry, so IMO she was made an offer she had better not refuse to drop out of the Democrat primary and be a part of Obama’s administration, and also to attain her lifetime dream of being America’s president as the badly needed after Obama cover president. Her dream was interrupted by her 2016 loss to Obama’s biggest nemesis, Donald Trump, and both parties complicit in the Obama fraud and the still on-going cover-up panicked fearing President Trump would reveal the truth about Barry and all complicit in The Obama Fraud. Trump was kept under siege with B.S. investigations and removed from office in the stolen 2020 election.

      The current after Obama president, Joe Biden is not what either party really wanted. Hillary would have been the perfect after Obama cover president and better at covering for the huge crimes of herself and the crimes committed by both parties by assisting, allowing and/or covering for the fraud Obama, but they took what they could get and Obama gave Biden an ineligible, know nothing V.P………Obama himself is getting the third term he wanted by, at least in part, pulling the strings of both Biden and of Obama’s choice for Biden’s V.P. Kamala Harris………The left is still winning because the race and ineligibility protection of Obama is still in place, and protecting the many complicit of crimes up to and including treason from being prosecuted. Too often the complicit are investigating the complicit, meaning time passes and nothing happens.

      There is still the Durham Report, but expecting the many complicit in The Obama Fraud to ever be brought to justice at this point may be like chasing rainbows…….

  7. I think it is important to note that Vattel himself defined what he meant when he used the term “natives” in his treatise, which the founders and framers widely read and knew well and understood. The term “natives” in Vattel’s treatise section on citizenship did not mean what the common day meaning of “native-born” is today. Vattel himself stated it in the sentence in which he defined the meaning of both words/terms, natives and natural-born Citizen, as he used them in that sentence and section of his treatise on citizenship:

    ” … The natives, or natural-born citizens, are those born in the country, of parents who are citizens. …”
    https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/

    The term “natives” is used in the meaning of the indigenous, i.e., those who have naturally been there in the country. And again, Vattel told us exactly what he meant in his use of the word “natives” with the immediately following definition in the same sentence.

    The progressives are using the manipulation of language as advocated by one of their philosophical mentors Antonio Gramsci, the Italian Communist and Linguist, to conflate and confuse the meaning of words and phrases over time in order to change the culture and in doing that change the politics, i.e., change the meanings of words and phrases in our U.S. Constitution rather than try to amend it. See these links for more on Antonio Gramsci and his advocated strategies to overthrow the western democracies via a long-term process of changing the political language and culture of a nation: https://cdrkerchner.wordpress.com/2020/10/13/gramsci-alinsky-the-left-by-jeff-carlson/ and https://cdrkerchner.wordpress.com/tag/antonio-gramsci/

    One must understand the meaning of the words and phrases in the Constitution as they were understood to mean by the founders and framers at the time the Constitution was written, not as modern Gramscian conflators and constitutional abrogators argue what the words to mean. Unfortunately with the help of a complicit major media during the progressive era they have been quite successful in their Gramscian style efforts to change the language, culture, and subsequently the politics.

    CDR Kerchner (Ret)
    http://www.ProtectOurLiberty.org

      1. Duh! Of course he did not write those exact English words because he wrote the definition in French. And the founders and framers read it in French, which was a language they were fluent in because it was the diplomatic language of that time. The founders and framers were very knowledgeable and influenced by Natural Law. And Vattel’s treatise on The Principles of Natural Law was widely read by them, men such as Franklin, Jefferson, and Washington.

        Part of the title of Vattel’s legal treatise on Natural Law and the Law of nations is: ” … Ou Principes De La Loi Naturelle … “. The title of Section 212, the section about citizenship, is: “Des citoyens et naturels”. And the key sentence where he defines who the “naturels” are states “Les naturels, ou indigines, sont ceux qui sont nés dans le pays, de parents citoyens”. And that was subsequently translated to English as: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Vattel defined the meaning of his use of the French words for “natives” and “natural-born” in the French language in the very sentence he used them.

        And do note historically in the colonies, the French word “naturels” was translated in communications between France and the colonies as “natural born”. Example: In 1781 the French word “naturels”, years prior to the writing of the U.S. Constitution in 1787, had been translated in treaty correspondence with the French and Continental Congress to mean “natural born” in U.S. English.” See: https://www.thepostemail.com/2015/06/21/cdr-kerchner-ret-responds-to-professor-gutzmans-dodgy-comments-about-vattel/

        Also see: https://www.thepostemail.com/2010/05/03/jefferson-used-vattels-the-law-of-nations-to-write-our-founding-documents/ and https://cdrkerchner.wordpress.com/2010/04/27/benjamin-franklin-in-1775-thanks-charles-dumas-of-the-netherlands-for-sending-him-3-more-copies-of-the-newest-edition-of-vattels-law-of-nations/

        Mr. Sherman is engaging in “gas lighting” and other Gramscian inspired tactics to change the meaning of words and terms in order to confuse the readers.

        CDR Kerchner (Ret)
        http://www.ProtectOurLiberty.org

        1. It isn’t gaslighting to note, as you admit, Vattel never wrote the words “natural-born citizen.”

          You say “naturels” was translated as “natural-born citizens,” despite it later being translated as “natives.” And Robert Laity claims it was “indigines” and not “naturels” that was later translated as “natural-born citizens.”

          Regardless of your and Laity’s beliefs, there’s no evidence the Framers translated Vattel as either you do.

      2. He wrote: “Les Naturels, ou indigenes, sont ceux qui sont, nes dans le pays de Parents Citoyens”. “Naturels… indigenes” ARE those Natural Born Indigenous people of a society. The phrase in English is The Natural Born or Indigenous people ARE those [and ONLY those] who are BORN in the country to parents [plural] who are [BOTH] Citizens [Plural].

        1. But Kerchner just said that “naturels” and not “indigenes” was later translated as “natural-born citizen.”

          Both of you can’t be correct.

  8. I believe that author is right about natural born citizen and native born citizen meaning the same thing to the Founding/Framing Fathers. Then, the creeping changes came along, either due to ignorance or agenda-driven in order to change the complexion of the word “native”.

    Those deceptive individuals in this world who want to change the real facts will often use a known and common word known to the masses by conflating it or obfuscating it in order to support a new idea or a concept to justify their agenda to shove down the throats of the population with evil intentions or to divide the people.

    Case-in-point, the word “gay”.

    This humble commenter is old enough to know when the word “gay” only meant such things as happy, fun, feeling of excitement, and never at the time was the word associated with nor meant two bowling balls or two tree limbs trying to make love to each other.

    But since this new ‘gay’ chick has hatched and has become a household word, here is the success of adding a new meaning and changing the PRIORITY of the meanings. gay

    adjective
    1. Of, relating to, or having a sexual orientation to persons of the same sex.
    2. Showing or characterized by cheerfulness and lighthearted excitement; merry.
    3. Bright or lively, especially in color.
    https://www.wordnik.com/words/gay

    Evil people stole the words “native” and “gay” to mold the thinking of ignorant people.

    1. Duh, … of course he did not write those English words because he wrote the definition in French. And the founders and framers read it in French, which was the were fluent in because it was the diplomatic language of that time. The founders and framers were very knowledgeable and influenced by Natural Law. And Vattel’s treatise on The Principles of Natural Law was widely read by them, men such as Franklin, Jefferson, and Washington.

      Part of the title of Vattel’s legal treatise on Natural Law and the Law of nations is: ” … Ou Principes De La Loi Naturelle … “. The title of Section 212, the section about citizenship, is: “Des citoyens et naturels”. And the key sentence where he defines who the “naturels” are states “Les naturels, ou indigines, sont ceux qui sont nés dans le pays, de parents citoyens”. And that was subsequently translated to English as: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Vattel defined the meaning of his use of the French words for “natives” and “natural-born” in the French language in the very sentence he used them.

      And do note historically in the colonies, the French word “naturels” was translated in communications between France and the colonies as “natural born”. Example: In 1781 the French word “naturels”, years prior to the writing of the U.S. Constitution in 1787, had been translated in treaty correspondence with the French and Continental Congress to mean “natural born” in U.S. English.” See: https://www.thepostemail.com/2015/06/21/cdr-kerchner-ret-responds-to-professor-gutzmans-dodgy-comments-about-vattel/

      Also see: https://www.thepostemail.com/2010/05/03/jefferson-used-vattels-the-law-of-nations-to-write-our-founding-documents/ and https://cdrkerchner.wordpress.com/2010/04/27/benjamin-franklin-in-1775-thanks-charles-dumas-of-the-netherlands-for-sending-him-3-more-copies-of-the-newest-edition-of-vattels-law-of-nations/

      Mr. Sherman is engaging in “gas lighting” and other Gramscian inspired tactics to change the meaning of words and terms in order to confuse the readers.

      CDR Kerchner (Ret)
      http://www.ProtectOurLiberty.org