The Goebbels Corollary

by Joseph DeMaio, ©2023

(Mar. 27, 2023) — Introduction

Paraphrasing Third Reich Minister of Propaganda Joseph Goebbels: “If you are going to tell a lie, make it a big one, as no one will believe a small one, and repeat it over and over, because eventually people will come to accept it as the truth.”

For purposes of this offering, however, let us label the careless but “presumptively” non-malicious use of words leading to false or erroneous conclusions and the intentional omission of facts and words to be similar to, but something short of actual “lies.”  The current analogous term would be “misinformation.”  For now, let us call it the “Goebbels Corollary.”

Turning to the thrust of this post, in the continuing saga of the meaning of the term “natural born Citizen” (“nbC”) in Art. 2, § 1, Cl. 5 of the Constitution – the presidential “Eligibility Clause” – the battle continues to rage over what, exactly, the Founders meant when they carefully selected that restriction.  At bottom, the clause requires that a President (and via the 12^th Amendment, a Vice-President) must be a “natural born Citizen” owing sole and exclusive fidelity and allegiance to the United States, subject only to a “Citizen of the United States at the time of the Adoption of this Constitution” time-restricted (and now long-expired) exception.

Without going over in burdensome detail, and for the umpteenth time, the positions of those who believe – with solid justification – that the term was based on § 212 of Emmerich de Vattel’s The Law of Nations or those who, on the other hand, contend either that a “citizen at birth” or a “citizen by birth” under the 14^th Amendment or that the “common law” of Great Britain – which nation George Washington had decisively “whupped” a few years earlier – control the meaning, one discrete aspect of the issue has come to your humble servant’s attention.

Specifically, your servant, prompted by The P&E’s intrepid Editor acting on a reader’s alert, now addresses how that paragon of principle and Internet search engine protocols – Google – treats the issue of what, purportedly, it “informs” billions of people what it wants them collectively to believe constitutes a “natural born Citizen.”  The treatment by others will also be addressed.

Whether or not Google’s efforts constitute true propaganda or, instead, are only an example of the Goebbels Corollary in action will be left for readers to decide.  Moreover, the rest of this post is long and may get a bit convoluted – and as to most nbC analyses, what isn’t? – so readers are advised to keep a supply of their favorite caffeinated beverages nearby.

Ready?  Let us proceed.

The Google Search Engine

To begin with, when one types into the Google search box the words “natural born citizen,” this is what pops up (at least today):

“The Supreme Court has stated that, properly understood, the definition of ‘natural-born’ covers anybody who was a US citizen at birth, meaning they did not have to go through naturalization at a later time.  Apr 12, 2021.” 

That answer, of course, fails to disclose, specifically, the USSC decision purportedly articulating that proposition, which constitutes, in effect, misleading by omission.  Fear not, faithful readers: the Google claim is accompanied by a link to another website where, presumably, additional information can be gleaned on the issue.  That other website, characterized by Google as offering a “featured snippet” of the underlying topic, leads to the “media center” page for …, wait for it…, wait for it: Congressman Ted Lieu (D-CA), the Democrat representative of California’s 36^th Congressional District.

Parenthetically, Lieu’s Democrat “rabidity index” can be measured from the fact that, with only two years’ “experience” under his belt as a freshman congressman, in 2017, former Speaker of the House Pelosi – pause just a moment while your servant savors the term “former” – appointed him Assistant Whip of the 115^th Congress and in 2021, named him as one of the impeachment managers in the Democrats’ second Trump Star Chamber witch hunt. Those facts should telegraph something more than zero about his rabidity “index” rating.

But I digress.

The “media center” page to which inquiries are redirected contains an article posted by a writer for “Vox,” one Jesus A. Rodriguez and dated the same day as the Google search result, April 12, 2021.  That article, entitled, “The ‘natural-born citizen’ ceiling,” first launches into a diatribe about the January 6, 2021 events, and eventually begins to address the nbC issue, tangentially related to Congressman Lieu, who is acknowledged to be ineligible to the presidency, as he is not a natural born Citizen.

Interestingly, halfway into the article, one finds the source of the Google claim, where Jesus Rodriguez – as opposed to a Supreme Court Justice – asserts:

“The Supreme Court has stated that, properly understood, the definition of ‘natural-born’ covers anybody who was a US citizen at birth, meaning they did not have to go through naturalization at a later time.  In the 1898 case United States v. Wong Kim Ark, [“WKA”] the Court explained that, in British common law, ‘natural-born British subject’ meant ‘a British subject who has become a British subject at the moment of his birth. […] Any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject.’ ”

Astute P&E readers will immediately note that Mr. Rodriguez – with the courteous reader signal of a bracketed ellipsis – omits words from Justice Gray’s quote which he lifted from British jurist and constitutional theorist A.V. Dicey.  The words excised from the WKA quote are these: “Subject to the exceptions hereinafter mentioned…,” But those exceptions related only to children born to parents in the diplomatic service of another country or parents who were members of a hostile, occupying force, and thus irrelevant to further discussion.

Accordingly, if Google believes that the decision in WKA – flawed as it otherwise may be, as discussed here – is the proper source for the broad statement it repeats from Mr. Rodriguez and makes regarding the Supreme Court’s articulation of a rule simply not found in the case…, Google is wrong.  I know…, I know…, heresy.  

Interestingly, the Rodriguez article makes no mention of another law review periodical article on the nbC issue authored by Paul Clement and Neal Katyal, both formerly of the U.S. Solicitor General’s Office.  The Clement-Katyal article appeared six years earlier, roughly corresponding with the date that Senator Ted Cruz announced his candidacy for the presidency: “On the Meaning of Natural Born Citizen.”

This is puzzling because much of the language and conceptual principles of the earlier Clement-Katyal article show up in the Rodriguez article.  No, Virginia, your servant is not intimating plagiarism, but is only noting the anomaly that Mr. Rodriguez failed to reference an article directly on point with the thesis of his. 

To its credit, Google at least includes (listed in third place) the Clement-Katyal article.  On the other hand, out of “about 88,300,000 results,” the first 99 entries stacked on the Google “natural born citizen” search page each advocate – as of the date of this post – the “citizen-by-birth/citizen-at-birth” theory.  One needs to drill down through 99 “narrative-compliant” counter articles before finding a single one voicing a “de Vattel § 212” theory of what the term was intended to mean.  Seriously?  Are not AI and result-attuned algorithms fascinating?

That aside, the Clement-Katyal article contends that if one is merely a “citizen by birth” or a “citizen at birth,” and regardless of parental U.S. citizenship or even birth within the United States, such will be “good enough” to satisfy the nbC mandate of Art. 2, § 1, Cl. 5.  As discussed here and here, your humble servant – most respectfully – disagrees.

The Clement-Katyal Argument

The article “On the Meaning of Natural Born Citizen” by Messrs. Clement and Katyal has been cited and relied upon by the “de Vattel Denier” camp hundreds if not thousands of times.  Recall again the Goebbels Corollary: if you misinform enough people enough times, eventually, they will come to believe the misinformation as being, instead, the truth.

One argument in particular in the Clement-Katyal article is particularly problematic.  The source of concern is the reliance by the authors on the language of one of the first laws passed by the First Congress: 1 Stat. 103.  That statute “deemed” a child born to U.S. citizen parents in a foreign land to be nonetheless a “natural born citizen.”  The Clement-Katyal article adds in support of its reliance on 1 Stat. 103 (1790) this:

“The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress.  That is particularly true in this instance, as eight of the eleven members of the committee that proposed the natural born eligibility requirement [i.e., the “Committee on Postponed Matters” discussed here] to the Convention served in the First Congress and none objected to a definition of ‘natural born citizen’ that included persons born abroad to citizen parents.”

Respectfully, apart from the fact that 1 Stat. 103 did not “define” anything but simply used the term “natural born citizens,” the “none objected” qualifier fails to explain why, a mere five years later in 1795, the Congress repealed in toto 1 Stat. 103 and enacted a replacement law, 1 Stat. 414.  The 1795 law removed the language of 1 Stat. 103 “deeming” children born to U.S. citizen parents in a foreign country to be “natural born citizens.”  Thereafter, such offspring were only “citizens,” but not “nbC’s. 

And although the Clement-Katyal article acknowledges the repeal of 1 Stat. 103 (1790) by 1 Stat. 414 (1795), it offers no explanation for why that happened. Indeed, Messrs. Clement and Katyal merely note, by way of a perfunctory and dismissive parenthetical, that it was “(repealed 1795).”  See 128 Harv. L. Rev. F. at 163, n. 8. 

Manifestly, this obvious omission is curious – particularly coming from two highly-credentialed former officials of the Justice Department’s Solicitor General’s Office – because their article also cites approvingly a law review article which specifically posits a logical reason for the repeal.  See 128 Harv. L. Rev. F. at 163, n. 10. 

That reason hypothesizes, quite rationally, that the repeal of the 1790 statute by the 1795 statute could have been because Congress realized, five years after enacting 1 Stat. 103, that it could not amend Art. 2, § 1, Cl. 5 and the underlying intent of the nbC clause by a statute.  Only an amendment of the Constitution could accomplish that.  Having realized its prior error, Congress acted to correct it by the repeal.  In this regard, the review article’s author states:

“… one could certainly posit that the [Congress] recognized a possible constitutional conflict and sought to correct it.  Further, the omission of ‘natural-born’ makes the statute look more like one devolving citizenship by naturalization.” (Emphasis and bolding added)  See Lohman, 38 Gonzaga Law Review at 372-373.

Indeed, because both 1 Stat. 103 and 1 Stat. 414 declared that they constituted “An act to establish an [so in original] uniform Rule of Naturalization,” it is difficult to reconcile those declarations with the Clement-Katyal hypothesis that it was intended by the Congress to alter the definition of a “natural born citizen” under Art. 2, § 1, Cl. 5 or, indeed, “create” a new class of persons purportedly eligible to the presidency by way of a statute which specifically self-limited its application to the protocols of “naturalization.”

Undaunted, the Clement-Katyal article thereafter proceeds on the assumption that, despite the repeal of 1 Stat. 103 in 1795, with 1 Stat. 414 replacing it and declaring children born abroad to U.S. citizens to be merely “citizens” instead of nbC’s, the “logic” of the First Congress as presented in the repealed statute survived unchanged. 

This fallacy is discussed and dismantled here and here, yet the fallacy continues to attract and mesmerize de Vattel Deniers.  This is not conducive to a proper analysis of the Founders’ intent in placing the nbC restriction in the Constitution.  But by repeating the fallacy again and again…, and yet again, it first takes on the patina of believability, then evolves into the counterfeit banner of “truth,” as predicted under the Goebbels Corollary.   

The Library of Congress “Constitution Annotated” Site

That the Goebbels Corollary principle of carrying forward the notion that the “concept” of 1 Stat. 103 has survived despite the repeal of the statute is again confirmed by examination of a web page maintained by the Library of Congress.

There, citing and relying upon the Clement-Katyal article, the Library of Congress assures readers (some would argue instead that it misinforms readers) that:

“British statutes from 1709 and 1731 expressly described children of British subjects who were born outside of Great Britain as natural born citizens [(sic)] and provided that they enjoyed the same rights to inheritance as children born in Great Britain.” (Emphasis added)

This is clearly wrong.  Great Britain recognized children born to British parents outside of the realm as being “natural born subjects” owing allegiance to the king.  The concept of the “natural born citizen,” on the other hand, originated with Emmerich de Vattel and almost certainly was adopted by Founder John Jay, as evidenced by his July 25, 1787 letter to George Washington “hinting” that the presidency be permanently restricted to those “born” (emphasis Jay’s) here to parents who were already U.S. citizens.  

While a “natural born subject” owed fidelity and allegiance to a king or queen, under the Constitution of the newly-established United States, a “natural born Citizen” owed fidelity and allegiance not to a person or royalty, but instead to the Republic.

Moreover, the Library of Congress then asserts that the Founders would have “likely” understood that the term meant “someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time,” citing as authority for that claim the Clement-Katyal article.  It then adds that “In addition, in the Naturalization Act of 1790 [i.e., 1 Stat. 103], the First Congress provided that children of citizens of the United States, that may be born beyond the sea, . . . shall be considered as natural born citizens . . . .” (Emphasis added)

That assertion is then supplemented by footnote 11, which states in relevant part:

“Act of March 26, 1790, 1 Stat. 103, 104 (emphasis supplied). For additional discussion, see Weedin v. Chin Bow, 274 U.S. 657, 661–66 (1927) and United States v. Wong Kim Ark, 169 U.S. 649, 672–75 (1898). With minor variations, the natural born citizen language remained law in subsequent reenactments of the Naturalization Act until the 1802 Act….” (Emphasis added)

To understate the matter, this assertion by the Library of Congress is flat wrong, and, accordingly, flat misleading.  It is pure misinformation, yet it is being marketed by the Library of Congress, without challenge, as reliable “Analysis and Interpretation of the U.S. Constitution.”  Once again, this constitutes an example of the Goebbels Corollary in action.

Finally, the web page states in support of the “citizen by birth” and “citizen at birth” theories set out by Messrs. Clement and Katyal this, in footnote 9:

“Neal Katyal & Paul Clement, On the Meaning of Natural Born Citizen, 128 Harv. L. Rev. F. 161, 161 (2015). See also C. Herman Pritchett, Constitutional Law of the Federal System 262 (1984) ([P]ersons born abroad to American citizen parents are considered natural-born American citizens) [(Emphasis added)]”

The important point to remember here is that, in support of its “analysis and interpretation” of the Constitution, by citing Professor Herman Pritchett (R.I.P. 1995) and his statement that “persons born abroad to American citizen parents are [note the use of the present tense] considered natural born American citizens…,” the inescapable conclusion is that the Library of Congress believes that the nbC “concept” of a statute repealed by Congress 228 years ago – and never thereafter re-enacted – still applies today.  It does not…, but the Goebbels Corollary does.    

And all of the foregoing does not even address the “in the same words” error committed by Justice Horace Gray in WKA, discussed here and the similar error committed by Justice Morrison Waite in Minor v. Happersett.  The concept of “children-born-to-U.S.-citizen-parents-beyond-sea-are-natural-born-citizens” may have existed between 1790 and 1795, but thereafter, it evaporated and was never revived by Congress.  The only two places where it survives are (1) in the fevered brains of de Vattel Deniers, and (2) in books, periodicals and Internet websites which have either negligently or intentionally not taken into account all the facts surrounding the issue.  Stated otherwise: everywhere.

Conclusion 

The nbC issue is at the same time complicated, yet simple.  Arguments can be fashioned and advanced on both sides of the controversy.  Your humble servant adheres to the “de Vattel § 212” theory while Google, Messrs. Clement, Katyal and the folks in charge at the Library of Congress are just as wedded to the WKA “citizen-at-birth/citizen-by-birth” nbC theory. 

And whether or not a “Goebbels Corollary” actually exists, at the end of the day the foregoing chronology of events simply underscores why the “POPE” option should be given serious consideration. Moreover, where polling would indicate a state’s electorate to be in favor of it, but either that state’s legislature and/or governor lack the will and fortitude to move forward, the people should undertake the task themselves by way of the initiative mechanism under their various constitutions.  Just over half of the states – 26 at present – possess this power. 

There is too much at stake here to just walk away from the POPE alternative…, way too much.