The LoC Kissing Cousin to the Heritage Guide

by Joseph DeMaio, ©2023

(May 8, 2023) — Introduction

In addition to the Heritage Foundation’s digital “Guide to the Constitution,” recently discussed by your humble servant here, a “kissing cousin” to that think tank’s explanation exists.  Specifically, the U.S. Library of Congress (“LoC”) maintains a similar website purporting to “explain” what the Eligibility Clause of Art. 2, § 1, Cl. 5 of the Constitution means and how the term “natural born Citizen” (“nbC”) equates – purportedly – to a “citizen at birth” or a “citizen by birth.”

Interestingly, just yesterday, the intrepid Editor of The P&E posted this article regarding the announced candidacy of Mr. Vivek Ramaswamy for the presidency and noting the role of the LoC in framing the debate over his supposed nbC status.  As discussed here, unless Mr. Ramaswamy’s nbC status can be empirically proven and established, there is more than a small likelihood that he is ineligible to serve as president under a proper interpretation of the nbC term under the Eligibility Clause.  

The fact of his likely constitutional ineligibility, of course, would not prevent his election, assuming he were to be nominated, if enough officials allowed him on their states’ ballot; enough voters nonetheless elected him; and the Electoral College later confirmed it.  After all, that has happened before and, barring any intervening clarification by the United States Supreme Court, may happen again.

Lamentably, the LoC “explanation” of the meaning of the “natural born Citizen” clause of the Constitution suffers from the same confused rationale characterizing the Heritage document.  A future offering will address the various versions and evolution of the Heritage “explanation” over the years…, additional research is being conducted.  But for now, your servant will address the LoC online version.  With apologies, the following offering is lengthy and may be a bit convoluted, but the topic is at times complex.

The Library of Congress Annotated Explanation  

As an initial matter, unlike the Heritage article, the LoC “explanation” of the meaning of “natural born Citizen” as set out in the Constitution includes 16 footnote references in support of its assertions.  And while the Heritage “explanation” reveals as its author one “James C. Ho,” formerly at the D.C.-based law firm Gibson, Dunn & Crutcher (he is now a federal Court of Appeals Judge), there is no similar author attribution for the LoC article. 

On the other hand, recalling that the LoC is the parent agency of the Congressional Research Service (“CRS”) and that one Jack Maskell is (or at one time was) a lawyer there pontificating on these matters, it is not beyond the realm of possibilities to suggest that he may have had a hand in the LoC text…,  just sayin’.

Executive summary: the LoC presentation arrives at the same flawed conclusion as the Heritage digital document.  Simply stated, it posits that if one is a U.S. “citizen at birth” or a “citizen by birth” with no need for a subsequent “naturalization” proceeding, regardless of unity of citizenship of one’s parents in the country of birth and without regard to where the birth takes place, then ipso facto, that is “good enough” to qualify one as a “natural born Citizen” under the Constitution’s presidential Eligibility Clause.  Moreover, the LoC work arrogantly hypothesizes that the Framers likely “would have agreed” with that conclusion.

Really?  Respectfully, there exists a wide spectrum of counterarguments.

The Founders’ Main Concern and the Clement/Katyal View

Chief among the sources relied upon by the LoC document is the 2015 Harvard Law Review Forum (the magazine, not the law school journal) article by former U.S. Solicitors General Paul Clement and Neal Katyal, “On the Meaning of Natural Born Citizen.” This magazine article is addressed and, respectfully, dismantled here and here.  Messrs. Clement and Katyal are well-credentialed attorneys and scholars, but on the nbC issue – respectfully – your servant believes they are plainly wrong.

Their article continues to be widely cited and relied upon by those rejecting the definition of “natural born citizen” acknowledged as being understood by the Founders in the Supreme Court’s Minor v. Happersett decision, including the LoC.  That camp favors the far less restrictive “citizen by birth” and “citizen at birth” concept, formulated seemingly to “reverse engineer” the presidential eligibility of persons who do not meet the Minor “understood” definition of a natural born citizen. 

Both sides of the debate would agree that chief among the concerns of the Founders was the potential for the insinuation into their new government of “foreign influence,” and, in particular, into the presidency.  The depth of the Founders’ concerns over this potential is well-summarized in the words of Alexander Hamilton.  He admonished in Federalist 68 that “every practicable obstacle should be opposed to cabal, intrigue and corruption … [and that] “… these most deadly adversaries of republican government … [would come] … chiefly from the desire in foreign powers to gain an improper ascendant in our councils.  How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?” (Emphasis added) 

While Federalist 68 was directed primarily at the creation and wisdom of the Electoral College as the preferred mechanism over the direct “popular” election of a President, its rationale is equally applicable to the issue of restricting presidential eligibility to a “natural born Citizen” as posited by Swiss jurist and legal commentator Emer de Vattel in Book 1, Ch. 19, § 212 of his seminal 1758 treatise, The Law of Nations.

The LoC explanation acknowledges this concern by referencing former Supreme Court Justice Joseph Story’s tome, Commentaries on the Constitution of the United States.  Quoting Justice Story, the LoC notes that the natural born Citizen restriction was intended to erect a high impediment preventing “ambitious foreigners, who might be intriguing for the office” and interposes “a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elected monarchies of Europe.”

Faithful P&E readers, pause for a moment and ask yourself this simple question: if presented with a known higher barrier against the insinuation of foreign influence into the presidency – the restrictive § 212 de Vattel definition of natural born citizen, requiring birth to a mother and father in a country where they were already citizens  – or offered a lower barrier against such influence – the less restrictive “citizen at birth or by birth” alternative, regardless of place of nativity or unitary parental citizenship and with no need to go through naturalization – which option would the Founders more likely have selected? 

Hint: rocket science, this is not.  If, as Justice Story noted, the goal of the Founders was to eliminate all potentials for the presence of foreign influence, that would seem clearly to exclude the possibility for “some” foreign influence based on another nation’s citizenship policies.  Accordingly, the selection by the Founders of the § 212 definition seems far more likely. 

In this regard, there is one inconvenient fact that is continually and consistently ignored by the “de Vattel Deniers” regarding the “foreign influence” issue.  The “citizen-at-birth/citizen- by-birth-is-‘good-enough’” crowd contends that if only one parent is a U.S. citizen, then wherever born, the child will be a “natural born citizen” under the Eligibility Clause.  Even 1 Stat. 103 – the “ghost” of which they resuscitate to patch up their arguments – required two parents possessed of U.S. citizenship.  But that is another inconvenient truth the LoC glosses over and ignores. 

This maneuver overlooks the fact that if the other parent – particularly the father – is not a U.S. citizen, either he or the country of his nationality or citizenship might itself lay claim to the child’s status as a citizen of that country.  The fact that the United States might “recognize” and even “accept” the child as a U.S. citizen does not absolutely preclude the other country from claiming or recognizing the child as its own citizen or, at minimum, its dual citizen.  This potential is fatal to the notion that a child who is a “citizen by/at birth” is the equivalent of a natural born Citizen as intended by the Founders.   

Indeed, evidence exists that the “British East Africa Protectorate of Kenya” – note, faithful P&E readers, that country did not become “Kenya” until after its independence from Great Britain in 1964…, ahem, three years after the 1961 date shown on Barack Obama’s purported original “birth certificate” – made such a claim with regard to Barack Hussein Obama, Jr.  That claim he seemingly ratified when he asserted in a speech in Nairobi, Kenya that he was “the first Kenyan-American president.” No doubt he would claim that the quip was made in jest.  Not funny.  And as court litigators would say: an admission against interest.

Returning to text, in this regard might India lay claim to Vivek Ramaswamy as a dual citizen of India and the United States if his parents were not naturalized U.S. citizens before his birth?  That is unknown.  But the possibility raises doubts as to his nbC status as originally contemplated and intended by the Founders.  Recall that India was once a “British subject” jurisdiction prior to its independence in 1947. Thus, actual or potential conflicting claims of citizen status – and with that conflict, issues of “divided loyalties” impacting the person’s “natural born Citizen” status under Art. 2, § 1, Cl. 5 – would become unavoidable.  On the other hand, unity of parental citizenship in the United States as required under § 212 eliminates this possibility.

Accordingly, in the absence of adopting the de Vattel definition of a natural born citizen – where both the mother and father are citizens of the same country where the child is born – the potential for competing claims of allegiance, dual nationalities and divided loyalties looms large.  This potential is ignored in the LoC explanation. 

Moreover, while this is precisely the problem sought to be avoided by the Founders in adopting the de Vattel definition in the Eligibility Clause, it is precisely the problem sought to be adopted and superimposed on the analysis by the “citizen at birth/citizen by birth” crowd.  That crowd includes, apparently, Heritage and the Library of Congress, both of which seem to advocate that “up” means “down” and “citizen” means “nbC.”  Move along, rubes…, nothing to see here.

The LoC and the “Citizen-Grandfather” Clause

The LoC next proceeds to “explain” the “citizen grandfather clause” within Art. 2, § 1, Cl. 5, contending that “Article II, however, provided an exception for foreign-born persons who had immigrated to the colonies prior to the adoption of the Constitution.” (Emphasis added)   Justice Story explained that this was done “out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honors in their adopted country.” 

To begin with, the Story quote makes no sense when applied to the first seven presidents.  All were born here and none considered themselves to have been “adopted” by the United States.  Moreover, none had “immigrated” to the Colonies prior to the adoption of the Constitution.  Instead, they created the nation upon independence from Great Britain. 

Yet because when they were born, their parents were still British “subjects,” or citizens of other foreign nations, none could have satisfied the highly restrictive de Vattel “natural born citizen” provision in Art. 2, § 1, Cl. 5 of the Constitution.  Instead of discarding the restriction, the Founders “doubled down” by retaining it while adding the “citizen-grandfather” exception.  Because that exception was added to the “hint” criterion of Jay’s letter to George Washington between July 25, 1787 and the final executed original of the Constitution on September 17, 1787, the conclusion is all but compelled that the Founders intended to adopt the de Vattel definition of a “natural born Citizen” to the exclusion of a “citizen at/by birth” definition. 

Furthermore, while providing an exception for “distinguished revolutionary patriots who were born in a foreign land,” unless they had been born in that foreign land to parents who were already citizens of one of the original “states” of British America, they would not have become “citizens” of the United States in 1776 as did others who possessed that “state citizenship” status.  Stated otherwise, if born, for example, to French parents in Paris, and not having undergone naturalization in this country after 1776, they would still be a French citizen.

The more plausible reason for the “citizen grandfather” clause – likely added by the Committee on Postponed Matters following receipt of John Jay’s July 25, 1787 “hint” letter to George Washington as discussed here – is that the Founders realized that under a strict “natural born Citizen” definition such as proposed by de Vattel, none of them would be eligible upon adoption of the Constitution.  

This is because none of their parents – let alone themselves – were “citizens” of the United States when they were born.  Instead, they were either British “subjects” or citizens of other nations, again raising questions of split or divided loyalties. 

If they were naturalized citizens under the laws of their respective colonial states while still part of “British America” prior to July 4, 1776, upon independence from Great Britain, they became naturalized citizens of the United States of America via the Declaration of Independence, itself a naturalization law.  But they were not “natural born Citizens,” which under § 212 of the de Vattel treatise can arise only by being born in a country to a mother and father who are already its citizens.  It is that simple.

Stated otherwise, had the Founders determined that a “citizen by birth” or a “citizen at birth” or even a less restrictive “citizen” definition for the president – as Hamilton had originally suggested – sufficed for presidential eligibility purposes, there would have been no need at all for the citizen-grandfather exception.  Yet there it is.

Accordingly, the “citizen-grandfather” time-limited exception to the rigorous barrier to foreign influence presented by the “natural born Citizen” restriction properly allowed a “Citizen of the United States” at the time of the Constitution’s adoption to be eligible to the presidency.  Again, the first “true” natural born Citizen president was Martin Van Buren, in 1837. Indeed, the mere existence of the citizen-grandfather exception underscores the recognition by the Founders that a “citizen” was not the same thing as a “natural born Citizen.”  This is why the exception appears in the Eligibility Clause in the first place.

Finally, the Story quote included in the LoC document explaining the citizen-grandfather clause as being adopted “out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honors in their adopted country” makes no sense when applied to the first seven presidents.  All were born here and none considered themselves to have been “adopted” by the United States. 

Instead, they created the nation upon independence from Great Britain.  Yet because when they were born, their parents were still British “subjects,” none could have satisfied the restrictive de Vattel “natural born Citizen” provision in Art. 2, § 1, Cl. 5 of the Constitution.  Again, because the “citizen-grandfather” exception was added to the “hint” criterion of Jay’s letter between July 25, 1787 and the final executed original of the Constitution strongly suggests the conclusion that the Founders had adopted the de Vattel definition.  To reiterate, had the Founders determined that a “citizen by birth” or a “citizen at birth” definition of natural born citizen sufficed for the presidency, there would have been no need at all for the citizen-grandfather exception.  Its mere existence ratifies this conclusion.

The LoC Goes Rogue on 1 Stat. 103

The LoC explanation then “goes rogue” by quoting from the Clement/Katyal article regarding the 1790 enactment of 1 Stat. 103 – but neglecting to acknowledge its repeal in 1795 – and the operation of British common law in the United States after the Revolutionary War.  The failure of the LoC to acknowledge – and disclose to readers – that 1 Stat. 103 was repealed only five years after its enactment is akin to journalistic malpractice, if not an outright violation of the federal False Statements Act, 18 U.S.C. § 1001.

Indeed, the omission comes close to replicating the propagation of “misinformation” seen in Justice Horace Gray’s “in the same words” statement found in the holy grail of the “de Vattel Deniers,” United States v. Wong Kim Ark.  As discussed here, Justice  Gray claimed in his opinion (169 U.S. 649 at 673, ¶ 42) that Congress perpetuated and “reenacted” the “natural born citizens” language of 1 Stat. 103 “in the same words” when enacting 1 Stat. 414.  In fact, Congress did just the opposite.  And Congress has never since included that modifier to describe “citizens” subject to its legislative naturalization powers. 

Worse, the Supreme Court has itself done nothing to correct the statement, leaving the impression that it just does not care. Supreme Court insouciance in a matter of this gravity is not conducive to transparency in pursuit of “equal justice under law.”  But given Justice Clarence Thomas’s observation that the Court is “evading” the eligibility issue, this should come as no surprise.

The LoC asserts: “[I]n the Naturalization Act of 1790, 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 . . . . [footnote omitted]  Consequently, under the principle that British common law and enactments of the First Congress are two particularly useful sources in understanding constitutional terms, [footnote 12 citation to the Clement/Katyal article and two Supreme Court decisions],  it would appear likely that the Framers would have understood natural born citizen to encompass the children of United States citizens born overseas.” (Emphasis added)

While that may have been true for the five-year lifespan of 1 Stat. 103, after its repeal in 1795, that “likely understanding” conclusion evaporated.   This, of course, calls into question reliance on the “ghost” of 1 Stat. 103 by anyone, including Messrs. Clement and Katyal as well as the U.S. Senate with respect to its 2008 S.Res. 511 purporting to “confirm” the eligibility of Sen. John McCain, discussed and dismantled here. 

The conscious and intentional action of Congress in repealing, by 1 Stat. 414, the “natural born” modifier of the word “citizens” appearing in 1 Stat. 103 – both acts being laws restricted to naturalization rather than re-defining the term “natural born Citizen” as intended in the Constitution – equally supports the “likely understanding” that the Framers would have realized that, as noted by de Vattel, a natural born citizen encompassed only children born to citizen parents here in this country. 

Moreover, the 2011 Congressional Research Service Report No. R4209732 at p. 20, n. 94 offers up the absurd reason for the deletion of the modifier in 1 Stat. 414 as likely being “merely a stylistic/grammatical decision.” 

Seriously?  More intellectual goo from the CRS. 

The deletion of the modifier in 1 Stat. 103 by 1 Stat. 414 is certainly a “grammatical” decision in the sense that Congress made a deliberate choice to correct the substantive language of its 1790 mistake in purporting to amend the Constitution’s presidential eligibility criteria by a statute. The CRS suggestion that it was only a “stylistic” alteration is itself nonsense masquerading as logic.

In fact, the repeal of the modifier is entirely consistent with the conclusion articulated by the Supreme Court in its Minor v. Happersett decision, as it “removes doubt” as to who is, and who is not, to be considered a natural born Citizen under the Constitution, whether or not born “beyond sea.”  Even more telling of the biased and misinformed nature of the LoC explanation, along with the Clement/Katyal article, is the fact that neither of the two explanations mention – much less discuss or attempt to distinguish – the Supreme Court’s unanimous decision in Minor.  That omission speaks volumes about the intellectual gravitas and objectivity of the explanations.

Moreover, the two Supreme Court cases cited in the Clement/Katyal article – and picked up by the LoC – are Smith v. Alabama and Wisconsin v. Pelican Ins. Co. Smith is cited for the Court’s statement that British common law applied to the interpretation and construction of terms in the Constitution, while Pelican was cited for the claim that enactments of the First Congress were especially useful in ascertaining the Founders’ intent under the Constitution. 

Concededly, Smith says what it says.  But as for the statement in Pelican that in interpreting the Constitution, reference to the enactments of the First Congress as providing “contemporaneous and weighty evidence of its true meaning” and being a “useful guide” to interpreting the Constitution, the source of that theory comes from a different case:  Ames v. Kansas.

In Ames, the Court noted that in applying that principle on the facts of the case, “[i]t thus appears that the first Congress … did not understand that the original jurisdiction vested in the Supreme Court was necessarily exclusive.” (Emphasis added)  Apparently, even the Supreme Court recognizes that Congress is not infallible.  Duh.  When one is attempting to cite a case to ratify or support a legal principle, it is usually the better practice to reference one which actually supports the principle instead of undercutting it.

Conclusion

Given the continuing “evasion” by the Supreme Court of its obligation to address, much less resolve, the nbC issue under the Constitution, these debates over nbC presidential eligibility will continue unabated.  The resolution of what the natural born Citizen clause – and the “citizen grandfather” exception thereto – meant to the Founders is not an issue which should be left to the pontifications of lawyers at the Library of Congress or the Congressional Research Service, or for that matter, anyone else other than a majority of Justices of the Supreme Court as announced in a formal opinion of the Court.

Yet – forgive the non-woke vernacular – “fat, dumb and happy,” the vast majority of Americans simply do not care.  They are content to “go with the flow” as announced by the LoC and the Heritage Foundation by accepting the pontifications of law professors, media talking heads and candidates who purport to have a “bone deep” understanding of the Constitution.  They have bigger problems staring them in the face, including, to name but a few, four-decade-high inflation; crime; the cost of gasoline; the forfeiture of billions in military equipment to the Taliban; and the eradication of the nation’s southern border.  But that myopic attitude could lead to the realization of Benjamin Franklin’s dark admonition here.  Not good.  Bad.

Faithful P&E readers, recall that Brandon was brought to you as your current chief executive in major part as a consequence of a prior usurper’s decision to make him his Vice-President.  And after that, we now have an addled, incompetent Goofball in the Oval Office and a likely ineligible “word salad” queen residing at Number One Observatory Circle.  And they still want you to give them another term in office to “finish the job” of “fundamentally transforming” the nation…, a task initiated by a usurper.  Seriously?

The LoC explanation of what it takes to be a natural born Citizen is not exactly helpful in preventing that from happening again, and an argument can be made that the Founders would concur, perhaps even unanimously.