“Citizenship” vs. “natural born Citizen”

by Joseph DeMaio, ©2023 

(Mar. 26, 2023) — Your humble servant again responds to comments from “Lucius Boggs” made on March 24, 2023 at 11:10 a.m. to the article here. 

Boggs:  Assistant Vice-Chancellor Lewis H. Sanford wrote the Lynch v Clarke opinion not Chancellor Nathan Sanford.

Response: The correction is noted, but a new question arises: does the name “Lewis H. Sanford” appear anywhere in the records of the U.S. Supreme Court as being one of the Court’s Justices?

Boggs: In re Look Tin Sing (1884) came after Minor v. Happersett (1875) not prior to. 

Response:  Some of the confusion here may arise because Justice Stephen J. Field’s opinion in In re Look Tin Sing – with Supreme Court Justice Field apparently sitting by designation on the panel for the Circuit Court of Appeals for the District of California from which he came – is inconsistent with the prior USSC decision in Minor which he joined. 

Curiously, Justice Fields’ opinion in In re Look Tin Sing does not even cite, much less discuss, the decision in Minor or the circumstance that he joined in the unanimous decision. 

Moreover, if he had changed his mind after signing on to the decision in Minor – which opinion emphasizes that “[w]e [in the plural, including Justice Field] have given this case the careful 1:consideration its importance demands…”and, nine years later, thought that the natural born citizen “never any doubts” discussions in Minor, even if considered to be dictum, was no longer correct – one would, at minimum, have expected him to acknowledge that fact in In re Look Tin Sing.  But he did not.  

This may have been because In re Look Tin Sing was a habeas corpus case rather than a 14^th Amendment constitutional case.  But the fact remains that USSC decisions – including Minor – that arise in the context of the 14^th Amendment addressing “citizens” and “citizenship” rather than who may (or may not) qualify as a “natural born Citizen” under  Art. 2, § 1, Cl. 5 of the Constitution, do not directly answer the presidential eligibility question.  All the more reason to try to get a justiciable “POPE” law “case or controversy” before the Court.

Boggs:  I would suggest that “Joseph DeMaio” read Justice Curtis’ dissent in Dred Scott (paying attention to his statement on “natural-born citizen”)

Response:  Justice Curtis said in his dissent (15 L.Ed. at 725): “The first section of the second article of the Constitution uses the language, ‘a natural-born citizen.‘ It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”  (Emphasis added) The focus was on “citizenship,” not on who might or might not be a natural born citizen.

Boggs: then read Justice Field’s dissent in the Slaughterhouse Cases (paying attention to his statement on Justice Curtis’ dissent).

Response: Justice Field said, 83 U.S. at 38: “In the Dred Scott case this subject of citizenship of the United States was fully and elaborately discussed. The exposition in the opinion of Mr. Justice Curtis has been generally accepted by the profession of the country as the one containing the soundest views of constitutional law. And he held that, under the Constitution, citizenship of the United States in reference to natives was dependent upon citizenship in the several States, under their constitutions and laws.”  (Emphasis added)  The focus was on “citizenship,” not on who might or might not be a natural born citizen.

Boggs:  Next read Justice Miller’s opinion in the Slaughterhouse Cases (paying attention to his statement on “subject to the jurisdiction”)

Response:  Justice Miller said, 83 U.S. at 52: “But the fourteenth amendment does define citizenship and the relations of citizens to the State and Federal government. It ordains that ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State where they reside.’ Citizenship in a State is made by residence and without reference to the consent of the State.” (Emphasis added)  Once again, the focus was on “citizenship,” not on who might or might not be a natural born citizen.

Boggs: and then reading Justice Field’s opinion [in] In re Look Tin Sing (paying attention to his statement on “subject to the jurisdiction”).

Response:  Justice Field’s statement on ‘subject to the jurisdiction’ is found at 21 F. 906: “The first section of the fourteenth amendment to the constitution declares that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside…” and “[t]he words … mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country.” (Emphasis added).  Once more, the focus is on “citizens” and “citizenship.,” not on who might or might not be a natural born citizen.

Boggs:  “After finishing those, maybe [DeMaio] could answer whether he thinks Justice Field might be one of the “authorities” who “include as citizens children born within the jurisdiction without reference to the citizenship of their parents.”

Response: After perusal of those opinions, your humble servant accepts the invitation to opine on whether Justice Field “might be one of the ‘authorities’ who ‘include as citizens children born within the jurisdiction without reference to the citizenship of their parents.’ 

Your servant first responds that, whether or not Justice Field might be included in the “de Vattel Denier” group of persons being addressed in Minor, the reality is that such classification is irrelevant.  This is so because each of the suggested opinions, at bottom, focuses on the neologism “natural born citizenship.”

As explained here and here, the term “natural born citizenship” is a neologism, a synthetic, concocted term having meaning only in the mind of the one doing the concocting.

Stated otherwise, “natural born citizenship” is a neologism seeking to blend the concept of a “natural born Citizen” under a de Vattel § 212 definition and as set out in Art. 2, § 1, Cl. 5 of the Constitution with the decidedly different terms “citizen” and “citizenship” addressed in the 14^th Amendment.

By attempting to label concepts of “citizenship” as being merely the plural form of a “natural born citizen” as defined by de Vattel, the neologism “natural born citizenship” is hatched and peddled to the electorate and general public – including the Congress – as the purported justification to equate a “14^th Amendment “citizen” with an nbC: they are, in the Left’s twisted view, synonymous.

This is nonsense elevated to an art form.  Nowhere in the Constitution is the term “natural born citizenship” found.  Moreover, the attempt via semantic gymnastics to manufacture and market a meaningless term intended to “settle” the nbC presidential eligibility conundrum is juvenile and simply underscores the value of the POPE alternative.