by Joseph DeMaio, ©2022
(Nov. 28, 2022) — Your humble servant has a “minor” clarification to make relating to some of his prior posts here at The P&E. These matters are brought to P&E readers’ attention out of an abundance of caution lest those prior posts leave a confusing or misleading impression regarding the history of two early pieces of congressional legislation. Those two congressional enactments are the 1790 “Act to establish an uniform Rule of Naturalization” (1 Stat. 103) and the act of the same name of 1795 (1 Stat. 414). The clarification is intended to make clear the record of Supreme Court jurisprudence with respect to – yes, Virginia, that pesky perennial issue – the “natural born Citizen” provision (“nbC”) of Art. 2, § 1, Cl. 5 of the Constitution, the “Eligibility Clause.”
While many, if not most people labor under the impression that the question of eligibility to the presidency as an nbC is “settled,” respectfully, your servant posits that it is not yet finally settled and remains unclear. By “unclear,” your servant means that, at least as to a precedential decision “on the merits” by the Supreme Court or a constitutional amendment, no such finality yet exists.
Two opposing, nbC ideological camps exist. One claims that the Founders adopted the meaning of the term as referring to persons born here to two parents who are already U.S. citizens. The other camp contends that mere birth here, regardless of parental citizenship – and on occasion even one born elsewhere if only one parent is a U.S. citizen – satisfies the criterion. The two Supreme Court decisions most frequently cited by these opposing camps in support of their respective claims are Minor v. Happersett, 88 U.S. 162 (1875), abrogated by the 19th Amendment (1920) (“Minor”) and United States v. Wong Kim Ark, 169 U.S. 649 (1898) (“WKA”).
Without going into the painful and convoluted details, the decision in Minor is usually cited for the proposition that, at the time of the inception of the nation, the Founders knew and understood that the term “natural born citizen” meant a person born here to two parents who were already, at the time of birth, U.S. citizens. This principle is consistent with § 212 of the legal treatise by Swiss legal philosopher, attorney and jurist Emmerich de Vattel, The Law of Nations, and with which treatise the Founders were familiar and relied upon when drafting the Constitution.
On the other hand, the decision in WKA is most often cited by the other camp as “settling” the presidential eligibility question, meaning “no contrary opinions allowed…, move along…, nothing to see here.” The WKA decision held, of course, that an ethnic Chinese man born in San Francisco to two permanent resident alien Chinese nationals was, under the 14th Amendment, a “citizen” of the United States. The decision has been interpreted by the Congressional Research Service, lower appellate courts, law professors and others as meaning that if one is a “citizen at birth” or a “citizen by birth,” such would satisfy the Constitution’s nbC requirement.
Your servant disagrees. Since day one he has subscribed to the Minor principle and the definitions included in § 212 of the de Vattel tome, i.e., that in order to satisfy the nbC requirement, the Founders intended that an individual needed to be born here to two parents who were already U.S. citizens. Consistent with that position, he has criticized the WKA decision as being irrelevant to the determination of the nbC issue under Art. 2, § 1, Cl. 5 of the Constitution. This criticism arises because the sole and exclusive issue before the Court in that case was whether under the 14th Amendment, a person born to alien parents residing in the United States was to be deemed a “citizen.” Accordingly, the verbiage therein about what constitutes an nbC is “dictum, pure and simple.”
The case did not hold that such a person would, in addition, be a “natural born Citizen” for presidential eligibility purposes. That “ipse dixit” (“it is so because I say it is so”) interpretation has been engrafted onto the decision by others, but not (as yet) by the Supreme Court itself. Many in the opposing camp have made that extrapolating “leap” in reasoning in support of the “birth here alone makes one an nbC.”
That distinguishing matter aside, your servant has also criticized the WKA majority opinion of Associate Justice Horace Gray as misstating what Congress did in 1795 when it repealed certain language from its prior, 1790 “Act to establish an uniform Rule of Naturalization.” Specifically, your servant asserted that Justice Gray was wrong when he stated – in support of his discussion of what the Founders considered to be an nbC – that in 1795, Congress reenacted “in the same words” the nbC language it had previously included in the original 1790 Act. It did no such thing. Instead, it repealed and did not reenact that language in 1795.
In your servant’s view, that was a major problem undercutting the remainder of Justice Gray’s discussion of the nbC issue, quite apart from whether or not that discussion were to be deemed dictum. The opposing camp does not consider it to be dictum or, apparently, a problem and instead contends it is a part of a majority opinion that finally “settles” the nbC issue.
However – and here is the point of clarification for P&E readers – Justice Gray may not have been the first Justice of the Supreme Court to have made that error. Indeed, the error may have actually originated earlier, in the Minor unanimous decision authored by then-Chief Justice Morrison Waite. To be clear, while Justice Gray may have only repeated and perpetuated Chief Justice Waite’s “mistake,” this does not alter the fact that we now know of at least two Supreme Court Justices who have articulated the same incorrect claim.
In Chief Justice Waite’s Minor opinion, after reciting and partially paraphrasing the language of the 1790 Act – which included a reference to children born “beyond sea” to U.S. citizen “parents” as being “considered as natural-born citizens…,” – he states: “These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since.” (Emphasis added). Respectfully…, wrong: the 1795 Act did not retain the “same” or “in substance” language, but did just the opposite.
Only five years after enacting 1 Stat. 103, the 1790 Naturalization Act, in 1795, Congress repealed the “considered as natural born citizens” language of the 1790 act, reenacting only the word “citizens” in 1 Stat. 414. Stated otherwise, after the enactment of the 1795 Act, children of U.S. citizens born to U.S. citizen parents outside of the United States, while recognized as “citizens,” were no longer to be recognized as “natural-born citizens.”
This action was far more than a mere “stylistic” change, as speculated by the Congressional Research Service. Instead, it constituted a substantive repeal following congressional realization that it could not, via 1 Stat. 103, alter the meaning of the Eligibility Clause – requiring birth here in this nation rather than “beyond sea” – by way of a statute. If that meaning was to be changed, a constitutional amendment would be needed.
In composing his majority opinion in WKA, Justice Gray had cited the Minor decision in support of his theory that principles of the “common law” controlled analyses of the nbC issue. On the assumption, however, that he – or one of his Ivy League law clerks – had actually read the Minor opinion but, without further researching what Congress actually did, simply regurgitated the concept if not the exact words of Chief Justice Waite regarding a purported congressional “reenactment” of statutory language it had instead repealed, that would still not change the resulting conclusion: both Chief Justice Waite in Minor and Associate Justice Gray in WKA were wrong. That is the “minor” point sought to be clarified here.
Whether or not and to what extent these anomalies have any direct impact on the nbC analysis today remains a point of contention, at least in your humble servant’s view. Since a Supreme Court opinion directly on point remains elusive – the Court continuing to “evade” the issue and a constitutional amendment being an extremely remote possibility – the likelihood of the “status quo” persisting is high. The WKA decision will be defended as “settling” the nbC issue and anyone born here, regardless of parental citizenship, will be deemed eligible to the presidency.
Ask yourself this: is that what the Founders intended when they took John Jay’s hinted advice to George Washington that it would be “wise & seasonable” in the new Constitution to “declare expressly that the Command in chief of the [A]merican army shall not be given to, nor devolve on, any but a natural born Citizen.” (Emphasis and capitalization Jay’s). And if you answered “yes” and subscribe to the WKA camp’s theory that a “citizen at birth” or a “citizen by birth” is the same as an nbC, why did the Founders also need to include a “citizen grandfather” clause in Art. 2, § 1, Cl. 5?
Still a WKA camp member? Seriously?
Mr. DeMaio, “until the first true nbC appeared: Martin van Buren”
John Adams to Thomas Jefferson, July 24th, 1785
“The Britons Alliens Duty is a very burthensome Thing, and they may carry it hereafter as far upon Tobacco, Rice Indigo and twenty other Things, as they do now upon oil. To obviate this, I think of substituting the words “natural born Citizens of the United States,” and “natural born subjects of Great Britain,” instead of “the most favoured Nation.””
Who were the natural born Citizens of the United States in July, 1785?
Only 12 years after July 4th, 1776, according to you, he can’t be referring to anyone over the age of 12. Unless he assumed the natural born subjects became natural born citizens on July 4th, 1776. Then his statement makes sense.
For anyone who might be interested here is the agreement with Great Britain that Adams was writing about. It was written in April, 1786.
The American Commissioners to the Marquis of Carmarthen
“ Grosvenor Square April the fourth 1786
My Lord
Agreably to your Lordships request expressed to one of Us in Conversation, and again communicated to Us through Mr Fraser, We have drawn up the enclosed Project of a Treaty of Commerce, which We do ourselves the Honour to propose to the Consideration of his Majestys Ministers.”
“ We have the Honour to be My lord / your Lordships most obedient and / most humble servants
John Adams
Th: Jefferson
Enclosure
Article 1
“The Subjects of His Britannic Majesty may frequent all the Coasts and Countries Bay’s, Harbours, Creeks, Rivers and Ports of the United States of America, and reside and trade there, in all Sorts of Produce, Manufactures, and Merchandize, and Shall pay within the said United States, no other or greater Duties, Charges, or fees whatsoever than the natural born Citizens of the United States themselves are or shall be obliged to pay; and they shall enjoy all the Rights, Priviledges, and Exemptions in trade Navigation and Commerce which the natural born Citizens of the said United States do or shall enjoy.“
Article 3
“…shall be paid by the natural-born subjects of Great Britain, in the Dominions of His Britannic Majesty, and the natural born Citizens of the said United States within their Dominions. …”
https://www.masshist.org/publications/adams-papers/index.php/view/ADMS-06-18-02-0119
Pretty clear there were “natural born Citizens of the United States” in 1785 and 1786.
Can DeMaio explain who these natural born Citizens were and when they became natural born Citizens?
Excellent, Bob68. CAN ANYONE REFUTE WHAT HE (Bob68) IS SAYING? I’m thinking that no one can and that if they could, they wouldn’t anyway! Treason and other crimes against the PEOPLE can be a b_tch! So, Amen to that!
Author’s response to Ray Fremick’s 11//29/2022, 4:35 p.m. comment below:
————————
“The Framers allowed naturalized citizens to be president at least initial [sic: initially?] so why not?”
The reason for the “citizen grandfather” clause was to allow persons who were not “natural born Citizens” (“nbC”) to serve as president until the first true nbC appeared: Martin van Buren. Without that time-limited exception to the original (and still in force) nbC eligibility requirement, the nation would have been without a constitutionally-eligible president until it elected Van Buren in 1837.
After that, the citizen grandfather exception expired and only the restrictions of Art. 2, § 1, Cl. 5 remained in force. And because of questions persisting as to the nbC status of Presidents Chester A. Arthur and Barack Hussein Obama, Jr., they too may have been ineligible to the office. The fact that they were elected and sworn in, however, does not retroactively bestow nbC status upon them if they did not possess that status at birth: mistakes can, and do, happen.
Finally, it is clear that a “naturalized citizen” cannot serve as president (Schneider v. Rusk, 377 U.S. 162 (1964)) because such a person does not satisfy the criteria of an nbC under the principles articulated in § 212 of de Vattel’s “The Law of Nations.” If that is to change, it must come either by a binding decision of the Supreme Court or by a ratified constitutional amendment. The decision in Wong Kim Ark is not such a decision and the likelihood of a ratified constitutional amendment appearing any time soon is…, remote.
Move along…, nothing to see here.
No court “questions” whether President Arthur or Obama were eligible during their tenures, as they were both natural born citizens due to their birth in the United States.
No one is arguing that naturalized citizens are natural born citizens.
Oh contraire, mon frère, you have been doing just that in this forum for months using your psych-ops and language manipulation tactics. You have been equating basic Citizenship obtained via man-made laws, acts, and amendments with being a “natural born Citizen”, which can only be gained by the Natural Law circumstances of one’s birth, exactly at the time of birth. For example, you are doing this when you past or present here argue that anyone simply born in the USA without regard to the status of the parents while here, is a “natural born Citizen”. Such persons make an unjustified claim to U.S. Citizenship solely by them and their advocates citing man-made laws and/or man-made amendments to our Constitution and ignoring that their parents were not under the full political jurisdiction of the USA when she was born. Your position would argue that a child born of an illegal alien terrorist couple from Iran who sneaked into the USA across the Mexican border and birthed a child here, that that child is a “natural born Citizen”. Nothing is farther from the truth. How is such a child free from “foreign influence” at birth, which is what John Jay wrote in his letter to George Washington. Such a child is at most a person who is a Naturalized Citizen at birth by man-made laws or acts. Man-made laws such as 8 U.S. Code § 1401 – Nationals and citizens of United States at birth, which is a man-made naturalization law https://www.law.cornell.edu/uscode/text/8/1401. No where in that man-made law or in the 14th Amendment is the phrase “natural born Citizen”.
There is nothing “natural” about gaining Citizenship from man-made laws, acts, amendments, or other actions created by Congress. Congress cannot create “natural” anything when it comes to Citizenship and in their only attempt to do so in 1790 it was shortly repealed and corrected in 1795. And the same mistake has never been made again by Congress because they learned a lesson from that first error, as to the limit of their power. They cannot create a “natural born Citizen”. Only the Laws of Nature and Natural Law can create “natural” anything, i.e. in this case, natural born Citizens. Adjectives mean something. Natural used as an adjective means something. Look up the meaning of “natural” in a few good dictionaries. Don’t continue here to engage in use the Antonio Gramsci trained linguists tactics of manipulating language to achieve political objectives and manipulate public opinion. Errors in the status quo do not make things correct per original understanding and intent either. The U.S. Supreme Court has often corrected errors in the status quo, when they finally get the courage to do so. They did so recently for a major constitutional error committed by a prior court. Hopefully at some future time they will stop avoiding the question as Justice Thomas stated in a hearing, and fully address and decide the original intent meaning of the term “natural born Citizen” in the direct context of who is a “natural born Citizen” per the presidential eligibility clause, Article II Section 1, Clause 5. We are in the mess we are in today because they have been cowards and avoiding the question, as stated in public by Justice Thomas.
Read these essays to learn more about your logical fallacy type arguments: https://cdrkerchner.wordpress.com/2011/07/07/trees-are-plants-but-not-all-plants-are-trees-natural-born-citizens-nbc-are-citizens-at-birth-cab-but-not-all-cab-are-nbc-2/ … and … https://cdrkerchner.wordpress.com/2016/02/14/euler-logic-diagram-shows-logical-relationship-of-constitutional-article-ii-natural-born-citizens-to-other-type-citizens-of-the-united-states/
You will never allow yourself grasp the original intent meaning and understanding of being born a “natural born Citizen” because you choose with fallacy logic not to do so. That is your job here, as I see it. That is why you hang out here. To manipulate language and confuse newbies. You should watch the recent movie “The Hater” (2020). You would likely recognize an analog to yourself and your associates and/or organization in it.
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
I have said or done no such thing.
I never said naturalized citizens are natural born citizens or eligible to serve as president.
I never said all citizens are natural born citizens, or that citizen and natural born citizen are synonymous.
Rather, the courts have explained what natural born citizen actually means, and they’ve explained their rationale for their conclusions. Rationales and conclusion that actual experts agree with.
Stating these basic realities is neither pysch-ops nor “language manipulation tactics” (whatever that means).
No court or expert has adopted any these beliefs about natural law, Vattel, or any meaning ascribed to Jay (who was not a Framer).
There is no indication the U.S. Supreme Court believes the status quo about natural born citizen is in error, nor is there any indication that will “correct” it any time in the future.
Justice Thomas’ decade-old joke only is evidence that he sometimes makes jokes.
I have no idea who you believe are my associates and organization.
Just to be clear: the U.S. Constitution also is “man-made”; it isn’t natural and doesn’t exist in nature.
The United States (and all nations) also are “man-made.”
Mr. DeMaio – “The reason for the “citizen grandfather” clause was to allow persons who were not “natural born Citizens” (“nbC”) to serve as president until the first true nbC appeared:”
This assumes the Founders did not consider themselves to be natural born citizens.
Just to clarify, do you agree that the Founders were subjects before July 4th, 1776 and became citizens on that date? And you also do not believe the natural born subjects before July 4th, 1776 become the natural born citizens on that date?
The states had natural born citizens before 1787.
And your position appears to be:
The natural born citizens of the states were not natural born citizens of the United States.
Is that your position?
Can you explain who were the natural born citizens of Massachusetts mentioned in this February 1785 legislative act?
AN ACT FOR NATURALIZING NICHOLAS ROUSSELET AND GEORGE SMITH.
Whereas Nicholas Rousselet, resident in Boston, auctioneer, and George Smith, resident in Andover, labourer, …shall be deemed, adjudged, and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.
https://books.google.com/books?id=1y2xAAAAMAAJ&pg=PA124&dq=an+act+for+naturalizing+nicholas+rousselet+and+george+smith&hl=en&newbks=1&newbks_redir=0&source=gb_mobile_search&sa=X&ved=2ahUKEwjKk9752Nf7AhXwpIkEHQs2BAIQuwV6BAgHEAc#v=onepage&q=an%20act%20for%20naturalizing%20nicholas%20rousselet%20and%20george%20smith&f=false
“To be clear, while Justice Gray may have only repeated and perpetuated Chief Justice Waite’s “mistake,” this does not alter the fact that we now know of at least two Supreme Court Justices who have articulated the same incorrect claim.”
Just to be clear, Wong Kim Ark and Minor do not involved individuals who were born outside the US to US citizen parents and therefore were not necessary to either ruling?
Maybe Justice Wait and Justice Gray didn’t do a lot of research on a subject that was not germane to the issue before the case.
So why is this a big deal?
The scammer authors of Senate Resolution (SR) 511, also conveniently alluded to the fully repealed Naturalization Act of 1790 by including these words: [“Whereas such limitations would be inconsistent with the purpose and intent of the “natural born Citizen” clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term “natural born Citizen”;”] in an effort to hoodwink the citizens of the U.S.A. in regards to illegally foisting U.S. Senator John S. McCain, Jr., as the 2008 Republican presidential candidate, while at the same time ignoring the Kenyan Kandidate’s own eligibility criteria.
https://www.congress.gov/bill/110th-congress/senate-resolution/511/text
Is it morally and legally right to cite a document that, in-essence, does not exist?
Courts occasionally look to the First Congress’ acts as circumstantial evidence of the Framers’ intent, as several Framers served in the First Congress.
Regardless, SR 511 was a nonbinding resolution about McCain, who, unlike President Obama, was not born in the United States.
After many failed tries by Congress (never got out of the committees) to legislatively redefine the term “natural born Citizen” … http://www.kerchner.com/protectourliberty/Article2SuperPACeligibilityfacts-issuespage.pdf … the two major political parties made a backroom deal on the judiciary committee to just abrogate it. They gave the devious John McCain his resolution and they gave Obama who sat on the committee, a free pass. And thus, the Fix Was In for the 2008 Election and The Cover Up is Still Going Strong! The Perfect Storm for a Constitutional Crisis! https://cdrkerchner.wordpress.com/2010/01/24/i-believe-the-fix-was-in-for-the-2008-election-and-the-cover-up-is-still-going-strong-the-perfect-storm-for-a-constitutional-crisis/
See the list of politicians in both political parties who have or are considering a run for President or Vice President who are not a “natural born Citizen” to constitutional standard and thus are not constitutionally eligible: https://www.scribd.com/user/52640192/protectourliberty/lists
It’s been a case of ambition and raw political grabbing for power of certain powerful politicians and by both political parties who wanted the “natural born Citizen” clause to be ignored so that they could run the candidate solely of their political favor and needs rather that considering whether the person is constitutionally eligible per the founders original intent, and Article II Section 1 Clause 5 of the U.S. Constitution. It was party politics over the Constitution. Both parties trumpet the Constitution when it helps them and ignore it and disparage it when it does not.
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
A Senate resolution isn’t binding: it has no legal force; it cannot be a legislative redefinition, and cannot abrogate anything.
It is simply an expression of the Senate’s beliefs about McCain’s eligibility.
“to legislatively redefine the term “natural born Citizen” ”
Weren’t they all designed as Constitutional amendments not simple legislation?
The goal of those attempts appears to be to allow naturalized citizens to become president.
The Framers allowed naturalized citizens to be president at least initial so why not?
Thanks for running interference and explaining to those on this website who get their jollies from political judicial actions that are contrary to the U.S. Constitution and not yet filtered through a U.S. Supreme Court review. They’re evading those reviews that will cause 85% of the D.C. dwellers their own day in court for acting ‘stupidly’.
I have a nephew on my wife’s side that was born in England to my wife’s sister and my first shop chief in the USAF. Both of my nephew’s parents are now deceased but both were U.S. citizens at the time of my nephew’s birth. This nephew somehow made it back to the CONUS as a toddler without the required Consular Report of Birth Abroad (CRBA) documentation. Hello, Cruz.
https://ec.usembassy.gov/u-s-citizen-services/child-family-matters/consular-report-birth-abroad-crba/
It wasn’t until his late 20’s or early 30’s that the immigration and naturalization caught up with him in Michigan and said to come to our office and fill out this form so that you can be a valid STATUTORY US citizen. After personally hearing about this from my nephew, I reminded him that he is not eligible for the presidency of the USA because he is not a natural born Citizen. He understood that and replied that he would not want to run for that office, anyhow.
E. P. Rein MSgt USAF (Retired)
Response from the author:
———————–
“John Jay in his 1787 letter to George Washington also mentioned his ‘hint’ was meant to preclude anyone born with “foreign influence” on them from ever gaining command of our military forces.”
Commander Kerchner is correct. The issue of what “foreign influence” actually is and how it bears on the question of the Founders’ intent when enacting the “natural born Citizen” eligibility restriction is plainly seen in Jay’s July 25, 1787 letter. There, he states specifically that it would be “wise & seasonable” to “provide a strong check to the admission of Foreigners into the administration of our national Government….” The wisdom of such a barrier was also “hinted” at by Alexander Hamilton in Federalist 68.
There, Hamilton warned of the “desire in foreign powers to gain an improper ascendant in our councils…” and asked rhetorically: “How could they better gratify this [goal], than by raising a creature of their own to the chief magistracy of the union?” In factual reality, these are matters not involving soil, but are matters involving ephemeral ideas, concepts and principles. These characteristics, in turn, arise not from soil, seas or mountains. Instead, they arise from the education of the person by the person’s parents or, later in life as the person matures, educators.
The Founders were clearly fearful of foreign powers and foreign influence “infecting” the new nation. And those concerns existed whether the foreign influences arose from nations adopting a strict “jus soli” (“soil”) citizenship standard or from nations adopting a “jus sanguinis” (“bloodline”) standard. The “Chief Magistrate” – later to become in the Constitution the “President” – had to be someone free of any and all indicia of a “dual” or “split allegiance” and whether arising from either a jus sanguinis or a “jus soli” source. Moreover, the repeal of the “natural born” modifier in the 1790 Naturalization Act by the 1795 Act supports this conclusion.
Section 212 of de Vattel’s treatise provides precisely the barrier and solution to the Founders’ concerns. The “WKA-anyone-born-here-regardless-of-parental-citizenship-is-a-natural-born-citizen” camp does not. Indeed, it does the opposite of what Hamilton and Jay cautioned about.
Specifically, Hamilton’s term “foreign “powers” from Federalist 68 implies far more than mere birthplace or soil. In addition, it bespeaks of cultural mores, educational policies and, yes, political and religious beliefs, whether inculcated by parents or others. These matters are the province of people, not soil. “People” invent nations and wield “power;” soil does not.
Thus, to deny the relevance of parental citizenship to the issues of “sole and undivided allegiance” as opposed to “dual and divided allegiance” in a president is to ignore reality. The place of birth alone does not and should not “influence” the child. The food that the child consumes as he matures at his birthplace does not influence how he thinks. The air that he breathes does not inform his political beliefs. Instead, it is the parents who through education and cultural norms ultimately determine how he is to be influenced…, at least before the NEA was founded. These are the concepts which more persuasively than not compel the conclusion that the Founders looked to the reasoning of § 212 in de Vattel’s treatise than to anything else.
Stating the basic reality that a Senate resolution has no legal force isn’t running interfere for anyone.
A dissenter’s belief that a court’s ruling violates the U.S. Constitution does not make it so.
The U.S. Supreme Court doesn’t review the overwhelming majority of cases that seek its review.
An anecdote about a person born outside of the United States isn’t particularly relevant as, Founding era aside, every president and vice president has been born in a state or territory of the United States.
There’s no evidence the Framers relied on Vattel when drafting the natural born citizen clause. The Framers certainly didn’t rely on Federalist No. 68, which wasn’t written until 1788.
“why did the Founders also need to include a “citizen grandfather” clause in Art. 2, § 1, Cl. 5?”
The foundations of the grandfather clause.
August 13, 1787
Mr. GERRY wished that in future the eligibility might be confined to Natives. Foreign powers will intermeddle in our affairs, and spare no expence to influence them. Persons having foreign attachments will be sent among us & insinuated into our councils, in order to be made instruments for their purposes. Every one knows the vast sums laid out in Europe for secret services. He was not singular in these ideas. A great many of the most influencial men in Massts. reasoned in the same manner.
Col. HAMILTON was in general agst. embarrassing the Govt. with minute restrictions. There was on one side the possible danger that had been suggested. On the other side, the advantage of encouraging foreigners was obvious & admitted. Persons in Europe of moderate fortunes will be fond of coming here where they will be on a level with the first Citizens. He moved that the section be so altered as to require merely citizenship & inhabitancy. The right of determining the rule of naturalization will then leave a discretion to the Legislature on this subject which will answer every purpose.
Mr. WILSON, cited Pennsylva. as a proof of the advantage of encouraging emigrations. It was perhaps the youngest [except Georgia] settlemt. on the Atlantic; yet it was at least among the foremost in population & prosperity. He remarked that almost all the Genl. officers of the Pena. line of the late army were foreigners. And no complaint had ever been made against their fidelity or merit. Three of her deputies to the Convention [Mr. R. Morris, Mr. Fitzimmons & himself] were also not natives. He had no objection to Col. Hamiltons motion & would withdraw the one made by himself.
Mr. BUTLER was strenuous agst. admitting foreigners into our public Councils.
https://avalon.law.yale.edu/18th_century/debates_813.asp
A suggested grandfather clause by Gouverneur Morris:
Mr. Govr. MORRIS moved to add to the end of the section [art IV. S. 2] a proviso that the limitation of seven years should not affect the rights of any person now a Citizen.
Mr. MERCER 2ded. the motion. It was necessary he said to prevent a disfranchisement of persons who had become Citizens under and on [FN8] the faith & according to the laws & Constitution from being on a [FN9] level in all respects with natives.
Mr. RUTLIDGE. It might as well be said that all qualifications are disfranchisemts. and that to require the age of 25 years was a disfranchisement. The policy of the precaution was as great with regard to foreigners now Citizens; as to those who are to be naturalized in future.
Mr. SHERMAN. The U. States have not invited foreigners nor pledged their faith that they should enjoy equal privileges with native Citizens. The Individual States alone have done this. The former therefore are at liberty to make any discriminations they may judge requisite.
Mr. GHORUM. When foreigners are naturalized it wd. seem as if they stand on an equal footing with natives. He doubted then the propriety of giving a retrospective force to the restriction.
Mr. MADISON animadverted on the peculiarity of the doctrine of Mr. Sharman. It was a subtilty by which every national engagement might be evaded. By parity of reason, wherever our public debts, or foreign treaties become inconvenient nothing more would be necessary to relieve us from them, than to new [FN10] model the Constitution. It was said that the U. S. as such have not pledged their faith to the naturalized foreigners, & therefore are not bound. Be it so, & that the States alone are bound. Who are to form the New Constitution by which the condition of that class of citizens is to be made worse than the other class? Are not the States ye. Agents? will they not be the members of it? Did they not appoint this Convention? Are not they to ratify its proceedings? Will not the new Constitution be their Act? If the new Constitution then violates the faith pledged to any description of people will not the makers of it, will not the States, be the violators. To justify the doctrine it must be said that the States can get rid of their [FN11] obligation by revising the Constitution, though they could not do it by repealing the law under which foreigners held their privileges. He considered this a matter of real importance. It woud expose us to the reproaches of all those who should be affected by it, reproaches which wd. soon be ecchoed from the other side of the Atlantic; and would unnecessarily enlist among the Adversaries of the reform a very considerable body of Citizens: We should moreover reduce every State to the dilemma of rejecting it or of violating the faith pledged to a part of its Citizens.
Mr. Govr. MORRIS considered the case of persons under 25 years, [FN12] as very different from that of foreigners. No faith could be pleaded by the former in bar of the regulation. No assurance had ever been given that persons under that age should be in all cases on a level with those above it. But with regard to foreigners among us, the faith had been pledged that they should enjoy the privileges of Citizens. If the restriction as to age had been confined to natives, & had left foreigners under 25 years, [FN12] eligible in this case, the discrimination wd. have been an equal injustice on the other side.
Mr. PINKNEY remarked that the laws of the States had varied much the terms of naturalization in different parts of America; and contended that the U. S. could not be bound to respect them on such an occasion as the present. It was a sort of recurrence to first principles.
Col. MASON was struck not like [Mr. Madison] with the peculiarity, but the propriety of the doctrine of Mr. Sharman. The States have formed different qualifications themselves, for enjoying different rights of citizenship. Greater caution wd. be necessary in the ouset of the Govt. than afterwards. All the great objects wd. be then [FN13] provided for. Everything would be then set in Motion. If persons among us attached to G. B. should work themselves into our Councils, a turn might be given to our affairs & particularly to our Commercial regulations which might have pernicious consequences. The great Houses of British Merchants will spare no pains to insinuate the instruments of their views into the Govt.
Mr. WILSON read the clause in the Constitution of Pena. giving to foreigners after two years residence all the rights whatsoever of citizens, combined it with the article of Confederation making the Citizens of one State Citizens of all, inferred the obligation Pena. was under to maintain the faith thus pledged to her citizens of foreign birth, and the just complaints which her failure would authorize: He observed likewise that the Princes & States of Europe would avail themselves of such breach of faith to deter their subjects from emigrating to the U. S.
Mr. MERCER enforced the same idea of a breach of faith.
Mr. BALDWIN could not enter into the force of the arguments agst. extending the disqualification to foreigners now Citizens. The discrimination of the place of birth, was not more objectionable than that of age which all had concurred in the propriety of.
Source?
Madison notes on the Federal Convention.
August 13, 1787
https://avalon.law.yale.edu/18th_century/debates_813.asp
The significance of the August 13th debate on the eligibility for members of the House is that it’s a precursor for a similar debate the Committee of Eleven may have about presidential eligibility a few weeks later.
The August debate had the same elements and they used similar arguments.
What’s interesting is Gouverneur Morris‘ suggestion that certain restrictions “should not affect the rights of any person now a Citizen.” Morris was a member of the Committee of Eleven who developed the presidential “grandfather clause”.
It is clear from the 8/13 debate that the Framers considered themselves to be native citizens. And that they differentiated between native citizens (born in Colonial America) from “citizens of foreign birth” (which include those born in Great Britain). The distinction is based solely on place of birth not parentage.
Why is it so hard to believe that the Founders who were subjects that became citizens on July 4th, 1776 would not also believe that the natural born subjects became the natural born citizens on that date?
Natives, native citizens, natural born citizens how are they different?
“Mr. Willson expressed himself feelingly on the same side. It might happen, he said, that he who had been thought worthy of being trusted with the framing of the Constitution, might be excluded from it. He had not been born in this country. He considered such exclusing as one of the most galling chains which the human mind could experience. It was wrong to deprive the government of the talents virtue and abilities of such foreigners as might chuse to remove to this country. The corrup[t] of other countries would not come here. Those who were tired in opposing such corruptions would be drawn hither, etc. etc.” August 9th, 1787 from Papers of Dr. James McHenry on the Federal Convention of 1787.
https://avalon.law.yale.edu/18th_century/mchenry.asp
Dr. James McHenry was also not a native citizen
John Jay in his 1787 letter to George Washington also mentioned his “hint” was meant to preclude anyone born with “foreign influence” on them from ever gaining command of our military forces. A person born with dual-Citizenship is born with foreign influence on them since birth. So a key original intent of that term was to preclude foreign influence gained by ones birth status and precluding having one with another country’s citizenship being raised up in the USA and via political maneuvering getting control of our military via attaining the Oval Office. This is made clear in the Federalist Papers when discussing the need to prevent foreign influence gaining the highest office and control of our military, and they wrote therein that this Constitution prevents that. In a general and in the broadest sense the only type of birth that precludes precludes multiple citizenship at birth that is accepted under Natural Law and the Law of Nations is to be born in a country of parents who are both Citizens of that country. That is clearly stated by Vattel in Vol.I Chapter 19, Section 212 with which the vast majority were familiar with and agreed with. And that is what the common sense understanding meaning and original intent of the term “natural born Citizen” was in the presidential eligibility clause … born in the country to parents who were both Citizens of the country when their child was born, i.e., 2nd generation American citizens, the children of citizens born in the country. Here is a Euler Diagram which logically shows the kinds of U.S. Citizens and their set and subset relationships, showing “natural born Citizen” kind of Citizens, which are the largest subset of all Citizens of any country and in general determine the main culture of a country: https://cdrkerchner.wordpress.com/2018/06/16/natural-born-citizen/
Some politicians in both political parties seeking or have sought the presidency who are not a “natural born Citizen” of the USA. They were born with dual or more Citizenship to more than one country. They were not born with unity of citizenship and sole allegiance to the USA by and at birth: https://www.scribd.com/lists/22182725/Some-Politicians-Seeking-High-Office-Who-Are-Not-A-Natural-Born-Citizen-of-U-S
So, any definition of what a “natural born Citizen” is must preclude a person being born with dual-Citizenship and the innate “foreign influence” attained at birth by citizenship and allegiance requirements to another country other than the USA, as recognized by Natural Law and Law of Nations.
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
CDR Kerchner (Ret)
None of that is consistent with the “status quo” that even this article begrudgingly acknowledges.
Correction to one line in my above comment which I misworded regarding who are natural born Citizens — “i.e., 2nd generation American citizens, children born in the country of parents who were both Citizens of the country”. The parents can be either naturalized or born Citizens, but they must be Citizens when their child is born in the country.
Also see this: A chart which lists and explains the five (5) Citizenship terms used in the U.S. Constitution: http://www.scribd.com/doc/11737124/Citizenship-Terms-Used-in-the-US-Constitution-The-5-Terms-Defined-Some-Legal-Reference-to-Same
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
The Who, What, When, Where, Why, and How of the “natural born Citizen” term and presidential eligibility clause in Article II of our U.S. Constitution here: http://www.kerchner.com/protectourliberty/The-Who-What-When-Where-Why-and-How-of-NBC-Term-in-Constitution.pdf
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
“The decision has been interpreted by the Congressional Research Service, lower appellate courts, law professors and others as meaning that if one is a ‘citizen at birth’ or a ‘citizen by birth,’ such would satisfy the Constitution’s nbC requirement.
Your servant disagrees.”
This is the crux of the actual issue: real judges in real courts have issued actual rulings in real cases that had real-world implications. Rulings analyzed and supported by recognized scholars and experts. There is no “point of contention” among them.
A dissenter’s disagreement is not in equipoise. Contrary opinion, while certainly allowed, does not invalidate how the real world actually has operated; nor does such a contrary opinion serve as a good indicator how courts in the future might rule.
While any dissenter may insist upon waiting for a decision from the U.S. Supreme Court, it leaves unanswered innumerable legal questions. Which is why the state of the law is actually usually gleaned from lower courts’ rulings, and not a dissenter’s heckle.
The grandfather clause was created for those who were U.S. citizens at the time of the U.S. Constitution’s adoption but not born in the United States, such as the first eights presidents.
IMO the chances of The Congressional Research Service finding Barack Hussein Obama ineligible after being asked to “clarify” natural born citizen by Pelosi and Reid, after Obama was sworn-in were exactly, zero. The CRS works for Congress and gave Congress what they knew they wanted and needed to respond on this subject to the many calls and letters they were getting from their constituents. It was pointed out to Congress and to the CRS there were errors in their first document, so they revised it, (several times) to get the result leadership of Congress needed…….The CRS eventually provided Pelosi and Reid with the requested information to give to Congress to relate to their constituents. The truth was massaged to get the desired outcome………….
Whatever needed “revising” after Obama usurped America’s presidency was because the crime of giving America’s government and her military to her enemies is treason….and too big to prosecute……
Without the death of common sense there would be no need for endless decisions of natural born citizen. For example, who would believe a child born in America of two illegal alien terrorist from, for example Syria, would be a “natural both citizen” and eligible when the other requirements for president were met to be commander-in-chief of America’s military and president of her government?
To allow something like this to happen is, “surrender without firing shot”, something America was promised by her enemies would happen years ago. It happened and its name is Barack Hussein Obama………
Ask Donald Trump what happens when both political parties fear the truth about Barry may be fully revealed and acted on.
There’s no evidence the CRS wrote about the natural born citizen clause at Pelosi’s and Reid’s direction. Nor is there any evidence that the CRS was directed to arrive at any particular conclusion.
Regardless, the CRS thoroughly examined the issue, including the court cases that already had rejected challenges to President Obama’s eligibility.
It is rather unsurprising that the CRS came to the same conclusion as the courts and actual scholars who had examined the issue and also concluded, minor exceptions aside, birth in the United States is enough to be a natural born citizen.
The first secretly circulated to members of Congress CRS Memo on the subject of natural born Citizen was written about April 2010 at the behest of unnamed members of Congress asking what to tell their constituents in answer to the many, many questions about Obama’s constitutional eligibility for the office he de-facto sat in. This first secret CRS Memo on the subject was provided to members in secrecy for internal use only and was not to be released to the public. This CRIS Memo was provided to members of Congress to provide unified talking point answers to the Many questions they were getting from constituents. This memo explains to us who eventually received replies to our letters, why the letters from many of the members of Congress all seemed to say the same thing using virtually the exact same terminology. In effect, it was the source of their talking points on the subject of Obama’s eligibility question. Many of those questions were being raised by my federal lawsuit Kerchner v Obama & Congress et al lawsuit https://www.scribd.com/document/61221761/Kerchner-v-Obama-Congress-DOC-00-Table-of-Contents-for-2nd-Amended-Complaint that was in process at that time and also the advertising campaign in the Washington Times National Edition http://www.kerchner.com/protectourliberty/archives.htm discussing Obama’s forged identity documents and his lack of “natural born Citizen” status , and thus eligibility for the office he usurped. So my lawsuit suing Congress itself was partly the reason for the memo being written, to provide a unified answer for the members when answering to the public’s questions and why it was leaked to my attorney, Mario Apuzzo. The existence, and copy thereof, of this first secret CRS Memo (internal memorandum) was leaked by a member of Congress to my attorney Mario Apuzzo who immediately published it on his blog and from there it was picked up by WorldNetDaily, after we called it to there attention. See this post for more history about that secret first CRS Memo: https://puzo1.blogspot.com/2010/11/members-of-congress-memo-what-to-tell.html Also, more on that one and subsequent follow-up memos here and writings by Joseph Demaio at these links: https://cdrkerchner.wordpress.com/?s=CRS+Memo and here https://www.google.com/search?client=firefox-b-1-d&q=www.thepostemail.com+crs+memo
Left unsaid is which member of Congress provided Apuzzo with a copy. Presumably not Pelosi or Reid, though.
There’s no evidence the April 2010 CRS memo was written to “provide unified talking points.” As it is function, the CRS Serves to Research questions asked by members of Congress (the C, R, and S in CRS). Questions were asked and answers were received; nothing nefarious about that.
There’s certainly no evidence any CRS memo was written in response to any specific lawsuit.
Regardless, the CRS’s memos are an accurate summary of the law, as shown by them being consistent with the various eligibility challenges heard by the courts.
If CRS documents are not filtered through the US Supreme Court for clarity and accuracy, then these CRS documents are matters of opinions.
Literally no one said the CRS reports carry the force of law. Nor does the U.S. Supreme Court review the CRS’s work.
Regardless, CRS’s reports, through extensive analyses of relevant cases, statutes, and constitutional provisions, accurately describe the state of the law as it actually is.
In reality, extensive flawed analysis and research. Read these: https://www.thepostemail.com/2011/05/29/bombshell-second-crs-memo-covering-for-obamas-ineligibility-not-released-to-the-public-until-now/ … and … https://www.thepostemail.com/2016/04/02/of-neologisms-end-around-runs-and-gorillas-the-congressional-research-service-2016-report-on-presidential-eligibility/ … and … https://puzo1.blogspot.com/2010/11/members-of-congress-memo-what-to-tell.html
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Even assuming some CRS reports may contain minor errors, that does alter that its conclusions are consistent with other experts’ and, of course, courts’ rulings
There is no evidence that the troll Rudy Lee is a real person.