Bing AI Claims “Consensus” on “natural born Citizen” Definition

by Sharon Rondeau

(Nov. 30, 2023) — On Sunday, legal scholar and frequent P&E contributor Joseph DeMaio queried Bing Artificial Intelligence (AI) about the meaning of the U.S. Constitution’s “natural born Citizen” clause, one of three requirements the Founders placed in Article II for the President and Commander-in-chief of the new nation’s military forces.

The Founders’ intent when including the term, which they left undefined, is a topic on which DeMaio has spent considerable time and effort over the last 14 years as questions of eligibility have arisen surrounding various presidential candidates from across the political spectrum.

His question put to AI was, precisely, “What is the definition of a ‘natural born Citizen’ under the U.S. Constitution?”

Bing AI’s response was:

The term “natural born Citizen” is one of the eligibility requirements established in the United States Constitution for holding the office of president or vice president.  The U.S. Constitution uses but does not define the phrase “natural born Citizen” and various opinions have been offered over time regarding its exact meaning…” (Footnote omitted)

AI then expounded, citing recent alleged “emerging” “consensus”:

However, the consensus of early 21st-century constitutional and legal scholars, together with relevant case law, is that natural-born citizens include, subject to exceptions, those born in the United States. As to those born elsewhere who meet the legal requirements for birthright citizenship, the consensus emerging as of 2016 was that they also are natural-born citizens…”

The third footnote AI provided as a source referenced a March 2015 article titled, “On the Meaning of ‘Natural Born Citizen’” by former Acting Solicitor General Neal Katyal and former Solicitor General Paul Clement published in the Harvard Law Review Forum.

Katyal served in the position under Barack Obama for 13 months (2010-2011), while Clement, following Senate confirmation, served during the last three years of the George W. Bush administration (2005-2008).

Since the article’s publication, DeMaio has frequently pointed out Clement and Katyal’s misrepresentation of the 1790 Naturalization Act’s natural born citizen reference to children born abroad as remaining in effect today when in fact, Congress repealed it in 1795, particularly as it pertained to the definition of “natural born Citizen.”  The authors, DeMaio has emphasized, claim “natural born Citizen” applies to a variety of situations in which a presidential candidate may or may not have been born in the U.S.; may or may not have had U.S.-citizen parents; and would qualify if his non-U.S. citizen father, such as in the case of U.S. Sen. Ted Cruz, was “resident” in the U.S. for an unspecified period of time (p. 3).

Cruz was born on December 22, 1970 in Calgary, Alberta, Canada, reportedly to a U.S.-citizen mother. In 2016, The Post & Email was informed by a highly reliable source that Eleanor Darragh Cruz, who was born in Delaware, likely became a Canadian citizen while living and operating a business with her husband, Rafael Cruz, in the province during the late 1960s.

As The Post & Email reported at the time, the U.S. State Department has deemed his citizenship documents, if they exist, to be “private” despite his long career in public service.

Within days of the publication of the editorial, Cruz declared his candidacy for the Republican presidential nomination. His campaign website, now offline, contained a page with similar wording intended to convince the public that despite his birth outside the U.S., Cruz was eligible to serve as president.

In 2013, The Dallas Morning News published an image of Cruz’s Canadian birth certificate and reported he was born a “dual citizen” of Canada and the United States. The article has since been removed or archived.

Cruz confirmed the image to represent his authentic Canadian birth certificate. Almost immediately after the publication of the article, Cruz commenced the process of formally renouncing his Canadian citizenship, of which he claimed he had been unaware until The Morning News’s initial report.

Any challenge to the eligibility of the late Arizona Senator John McCain, who was born to U.S.-citizen parents in the Panama Canal Zone in 1936, Katyal and Clement claimed in their article, was “spurious” (p. 4).

Continuing its response to DeMaio, AI invoked the 14th Amendment, ratified in 1868, and the oft-referenced 1898 federal case of U.S. v. Wong Kim Ark in which the U.S. Supreme Court ruled Ark, who was born in San Francisco to two Chinese-citizen parents legally present in the country, to be a U.S. citizen, overturning previous precedent.

In its decision, the court did not reach the meaning of “natural born Citizen,” although many “legal scholars” and the media often conflate the term with “U.S. citizen.”

As to Bing’s response, DeMaio wrote:

At least the Bing response concedes that the USSC has not yet directly addressed the definition in a case properly before it, but raises the specter of a refusal to do so on the “political question” ground.  That is absurd: there is nothing “political” about a definition establishing who the Founders believed could be eligible to the presidency.

DeMaio found that virtually the same question posed to AI at different times yields a different result.  On Monday, he reported, “The references have changed from yesterday, omitting reference to the Harvard Law Review Forum article by Clement & Katyal, but the theme is unchanged: ‘citizen at/by birth’ = nbC.”

DeMaio then made the following new observation:

One of the statements in particular from the Clement-Katyal Harvard article is demonstrably wrong. Specifically, the Clement-Katyal article claims that “[t]he proviso in the Naturalization Act of 1790 underscores that while the concept of natural born citizen has remained constant, and plainly includes someone who is a citizen from birth by descent, without the need to undergo naturalization proceedings, the details of which individuals born abroad to a citizen parent qualify as citizens from birth have changed.” (Emphasis added) 

First, by stating that the concept “plainly includes someone who is a citizen from birth through descent…,” (emphasis added), the article eviscerates the Congressional Research Service position that the principles of citizenship via place of birth alone under the protocols of jus soli — rather than under the principles of bloodline (jus sangunis) — were solely what motivated the Founders.  In fact, the § 212 de Vattel definition incorporates both jus soli and jus sanguinis principles to form the highest impediment against the insinuation of foreign influence into the presidency.  With that known barrier in existence, one must ask: does it make sense that the Founders would have consciously adopted an inferior, lower barrier?

Second, in reality, the fact is that the concept of natural born Citizen from the Naturalization Act of 1790 has NOT remained constant, and in fact, was specifically repealed by Congress in 1795 by 1 Stat. 414. The misrepresentation in the Clement-Katyal article that the natural born citizen “concept” of the 1790 act has remained “constant” is plainly wrong.  

§ 1 Stat. 103 lasted for only five years until Congress repealed the provision, likely because James Madison realized in 1795 that 1 Stat. 103 inadvertently, but improperly, tried to amend the nbC clause of Art. 2, 1, Cl. 5 of the Constitution, as discussed here.  The passage of 1 Stat. 414 by Congress in 1795 corrected that prior error, one which the Clement-Katyal article not only ignores, but purports to claim “has remained constant” since 1790.

DeMaio concluded the exercise with:

Against this backdrop, the notion that the Founders intended to perpetuate the idea that a child born to U.S. citizen parents outside the geographic boundaries of the nation was a natural born Citizen — when that idea was seemingly recognized as an error by the Congress and corrected through the repeal of the 1790 Act and enactment of the 1795 Act, collapses.   

The claim by Bing AI that “the consensus of early 21st-century constitutional and legal scholars…” that nbC status can be achieved anywhere in the world if one is merely a “citizen at/by birth” is a poor substitute for what historical empirical evidence — not to mention reasoned thought — suggests the Founders actually intended and meant.  At this point in the Republic’s history, ipse dixit — “it is so because I say it is so” — masquerading as logic should not control.

The Supreme Court, as even Bing AI has conceded, has not yet settled this issue.   The “political question” excuse aside, SCOTUS should accept jurisdiction over a live “case or controversy” now, before the 2024 general election, and put the question to rest.