by Joseph DeMaio, ©2022

David Brearley, 1745-1790 (public domain)

(Dec. 17, 2022) — It has come to your humble servant’s attention that some additional information may be helpful in putting into perspective the “What if?” letter posted here.  As the penultimate paragraph of the post confirms, the letter is hypothesized: it is not a real document. 

It is posited, however, that it is a not-unreasonable interpolation based on several empirical facts easily extracted from the public domain. Although the “What if?” letter purported to summarize a hypothetical dinner at Ben Franklin’s house among various participants in the Philadelphia Convention, John Jay was selected as the “author” of the letter only because he was the author of the original “hint” letter to Washington.

First, a name not heretofore frequently mentioned in all of the nbC debates – David Brearley – plays a significant role.  At the time of the Constitutional Convention, Brearley was serving as the Chief Justice of the New Jersey Supreme Court.  When the Constitutional Convention in Philadelphia convened, he was in attendance as a delegate from his home state of New Jersey.  While there is some clouding on the precise date, it is widely recognized that on or about August 31, 1787,  New Jersey Delegate Judge David Brearley was elected Chairman of the “Committee on Postponed Matters.”

As the name suggests, that committee was charged with tackling some of the more difficult questions facing the convention delegates.  One of those questions involved what qualifications, if any, were to be put in place regarding the Commander-in-Chief, ultimately to be labeled the “President.”  Whereas originally it had been proposed that the president need only be a “citizen” subject to an age and residency requirement, in its Second Report to the Convention, delivered on September 4, 1787 by Chairman Brearley, the “natural born Citizen” (“nbC”) restriction and “citizen grandfather clause” exception was recommended by the Committee for insertion into the final draft of the Constitution. 

A download of page 1 of the U.S. Constitution as displayed at the National Archives website

As all can now see, that suggested “nbC” restriction was adopted by the Convention on September 17, 1787 and now appears in Art. 2, § 1, Cl. 5 of that document.  One can even go see it today in Washington, D.C. at the National Archives.

Second, but wait: what about the “citizen grandfather” clause exception?  Where did that come from?  More importantly, why did it appear at all?  None will disagree that the July 25, 1787 “hint” letter sent by John Jay to George Washington did not include such a time-limited exception from the strict “nbC” criteria being otherwise “hinted” to Washington.  Could it have been an intentional omission by Jay when he made his hint?  Not likely, but a couple of theories exist. 

One, it was a mere oversight, with Jay failing to take into consideration the fact that, even under a “common law” viewpoint espoused by some as meaning a previously-existing British-American “subject” somehow magically became a U.S. natural born “Citizen” from and after July 4, 1776 – hint: didn’t happen – if you were not already a U.S. citizen on September 17, 1787 when the Constitution was “adopted” – not to be confused with “ratified,” which did not occur until June 21, 1788 – you would be ineligible to the presidency.

So goes the theory, this would be unfair to those persons who were of foreign nationalities during the Revolutionary War, yet who fought valiantly in favor of the American Revolution and break with Great Britain.  To deny those brave people eligibility to the presidency would be an affront to their valor.

On the other hand, the prevailing argument was that the Founders wanted to exclude “foreign” influence from the halls of governmental power, including, in particular, the presidency – whether the foreigner was a “good guy,” a “bad guy” or a “neutral guy” – and the nbC barrier was intended to serve the purpose of excluding such persons from the office.  And if rewarding foreigners for their prior valor was a concern, then allowing them into governmental positions other than the presidency, including the military, should suffice.

The other possibility was that the oversight involved the more serious problem: under a de Vattel § 212 analysis, who would qualify as a genuine “natural born Citizen” to be eligible to serve as President when the Constitution was signed on September 17, 1787?  While all of the Founders became on July 4, 1776 – through the naturalization power of the Declaration of Independence – a “U.S. Citizen” from that date forward, they did not magically become “natural born Citizens” as a consequence.  Each and all of their parents were either British subjects or foreign citizens.    

There is, however, a more logical and, accordingly, compelling interpretation of the nbC clause. Specifically, the mere existence and inclusion of the “citizen grandfather” clause – inserted by the Founders as a time-limited exception to the strict jus soli/jus sanguinis requirements of a de Vattel § 212 “nbC” analysis – confirms that it is the protocol intended and selected by the Founders.  Without it, none of the first seven Presidents of the Republic could have constitutionally served. 

Reduced to its essence, if a mere ”citizen at birth” or “citizen by birth” protocol were to prevail, or if, as others have claimed, from and after July 4, 1776, everyone born here who had been a British “subject” metamorphosed, like caterpillars into butterflies, into a “natural born “Citizen” … there… would… have… been… no… need… for… the… citizen… grandfather… exception… in… the… first… place. 

And when faced with this problem, David Brearley and the Committee on Postponed Matters could have easily reported to the Convention delegates a recommendation that, John Jay’s “hint” to George Washington aside, the nbC eligibility requirement be deleted.  After all, it was clear that the convention was drawing to a close, so the removal of the nbC qualification might have been seen as merely a “stylistic” modification.  Instead, the Brearley recommendation was to keep the restriction for future generations, as recommended by Jay, but create a brief “carve-out” for those patriots who might serve as president, but only by virtue of being a “Citizen of the United States at the time of the Adoption of this Constitution.”

Accordingly, it is because the “citizen-grandfather” clause does exist – even though it is no longer operative and its intended purpose has been met – that the conclusion is inescapable that, without regard to whoever determined that it was needed, or whoever drafted it and/or whether Jay’s “hint” letter simply “overlooked” the problem, the Founders intended that an nbC as defined by § 212 of the de Vattel treatise was to be adopted into Art. 2, § 1, Cl. 5 of the Constitution. 

So we should be grateful not only for de Vattel, John Jay and the members of the Committee on Postponed Matters, but also for David Brearley.

It is that simple. 

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  1. 1. July 25, 1787: https://dlc.library.columbia.edu/jay/ldpd:68356

    2. July 25, 1788: http://legalhistoryblog.blogspot.com/2016/05/john-jay-on-natural-born-citizenship.html

    3. https://walterstahr.com/books/john-jay/

    4. https://www.scribd.com/doc/48856102/All-U-S-Presidents-Eligibility-Grandfather-Clause-Natural-Born-Citizen-Clause-or-Seated-by-Fraud#

    5. https://www.youtube.com/watch?v=rXFwqUi3zR0&feature=youtu.be

    From 1787 to 08-28-08, the understanding and precedent of John Jay’s legal invention of “natural born Citizen” was, as a natural observation of reality: all U.S. Presidents and Vice Presidents are born within sole USA jurisdiction, as a sole-U.S. natural-citizen, to natural-U.S.-citizen-parents or naturalized-U.S.-citizen-parents at time of birth. Real precedent, therefore, has defined “natural born Citizen” for us to follow today.

    Nancy Pelosi should be brought to account for her complete disrespect of John Jay’s noble intentions of restricting foreign influence inside the Oval Office. Political whore Nancy Pelosi then went rogue on 08-28-08 to define “natural born Citizen” as “undocumented and fraudulent birth citizenship infiltraitor to narrative biological foreign-citizen father, as well as a narrative adopted foreign-citizen father, and teen-aged mother, with each narrative parent having little to no allegiance to The United States of America”.

    Today’s Ongoing Lost U.S. Leadership: https://www.youtube.com/watch?v=pVIRCM73RDM

    STREET LOOTERS [BLM = BurnLootMurder] tear down statues while ELITE LOOTERS [Nancy Pelosi] tear down statutes! – JD Mooers

    DEFUND CIA [CoupsIntriguesAnarchy], The Enemy Within USA

  2. Assuming the MAGA coalition holds and McCarthy will not win the first House Speaker roll call vote Jan 3. The art of the deal Trump will be elected house speaker for the first 100 days of the 118 congress using the karma leverage of the natural born citizen clause to force Pelosi to ceremoniously hand the speaker gavel the Trump.

    https://vivabarneslaw.locals.com/upost/3225591/robertbarnes-i-trust-enough-maga-congressmen-will-deny-mccarthy-on-the-first-roll-call-and-art-of

  3. “…there… would… have… been… no… need… for… the… citizen… grandfather… exception… in… the… first… place.”

    Three weeks (August 13th) before the Breardley committee report the Framers debated the issue of requiring members of Congress to be natives/natural born. The idea being this would “exclude “foreign” influence from the halls of governmental power”.

    At one point in the debate, Gouverneur Morris proposed a “grandfather clause” (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.). “[A]ny person now a Citizen”

    Roger Sherman said the US did not promise foreigners that “they should enjoy equal privileges with native Citizens”

    The native/natural born citizen requirement was rejected because it was unfair to citizens not born in the American colonies or states.

    https://avalon.law.yale.edu/18th_century/debates_813.asp

    This was the same debate that should have occurred in the Breardley committee.

    Gouverneur Morris, Roger Sherman, James Madison and Pierce Butler were on the Breardley committee.

    Butler was not a native (he was born in Ireland).

    Madison said the “all those persons who are natives of America” are “citizens of the United States.”

    https://founders.archives.gov/documents/Madison/01-12-02-0115

    1. Ray: Do you feel it is appropriate for a person born with foreign influence and foreign allegiance claims on them via being born a dual-Citizen or tri-Citizen, and thus holding citizenship and thus innate allegiance obligations and requirements since birth to more than one country, to serve as Commander-in-Chief of our military?

      No, I do not is my answer. Ray, what is your answer to the question, yes or no?

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

  4. Thanks for your analysis. I hope this is a reasonable question: When the Constitution was enacted did everyone here who met the qualifications to be a citizen of the United States automatically become one….or did they have to request to be a U. S. Citizen, and if they did not they remained only, for example, a British “subject”?

    1. Response from the author:
      —————————
      It would seem that all fitting that description (i.e., a citizen of state comprising one of the original 13 colonial states that coalesced into the United States) became U.S. citizens (but not “natural born Citizens”) by the operation of law, rather than by individual volitional acts, under the Declaration of Independence on July 4, 1776. The final ratification of that status came on June 21, 1788, when the Constitution was finally ratified and became, from that date forward, the supreme law of the land.  

      There should have been no need to request or seek status as a “U.S. Citizen” for such people, as it occurred by operation of law — on July 4, 1776, ratified on June 21, 1788. Persons who were not U.S. Citizens on those dates (e.g., foreigners on holiday here or, of course, foreign diplomatic personnel) would have retained their original foreign citizenship status.  

  5. It seems that most U.S. citizens do not know, or even care to know, the full history and purpose of “natural born Citizen”.

    The premier Post and Email website has been harping away since 08-28-09 on the true meaning of “natural born Citizen”; IS THERE ANY DEEPER OR MORE DISCUSSED AND DEBATED AND DISCOVERIES CENTER ON THE ORIGINAL MEANING OF “natural born Citizen” THAN The Post and Email IN ALL USA; THE WORLD?

    In all those daily discussions over the past 13 years on “natural born Citizen” has there been any discovery of any of the Founding Fathers allowing dual-citizen-parents or foreign-citizen parents to be the allowed parents who raise a “natural born Citizen”-President?

    Virtually all PRECEDENTIAL PRESIDENTS are “from the tribe” as grandfathered U.S. citizens or born in the USA of U.S. citizen-parents.
    https://www.scribd.com/doc/48856102/All-U-S-Presidents-Eligibility-Grandfather-Clause-Natural-Born-Citizen-Clause-or-Seated-by-Fraud#

    If the U.S. Constitution does not specifically allow “foreign citizen parents” for presidential parents, how could such a thing be justified for multi-citizens Obama, Cruz, Kamala, et al? ANSWER: nationally syndicated judicial COUP
    https://www.youtube.com/watch?v=rXFwqUi3zR0&feature=youtu.be

    Only U.S.-citizen-parents “from the tribe” remain the logical uncontested precedential presidential parents and only attorney-criminals acting as paid liars for hire and pimps of Lady Justice would promote “world citizen” presidents of “world citizen” parents!

  6. Excellent analysis as usual by Joseph DeMaio.

    For anyone new to this forum may I suggest you also — read, download, and print a PDF copy of this White Paper by your truly, CDR Charles Kerchner (Ret), about 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