NFRA on the Natural Born Citizen Issue

by Joseph DeMaio, ©2024

(Aug. 27, 2024) — Well, whatta ya know.  Yet another source – this time an established, tax-exempt IRS “527 Organization” rather than an individual human being – raises the issue of the likely compromised “natural born Citizen” (“nbC”) bona fides of Kamala Devi Harris.  The National Federation of Republican Assemblies (“NFRA”) has brought the issue back into the public square with its 39-page “Platform and Policy Document” directly questioning Harris’s constitutional eligibility.

As a preliminary matter, the story of the NFRA Platform and Policy Document appears in the online version of “The Independent,” a left-leaning media outlet based in London…., hardly a “go-to” resource for gaining accurate information about the nbC issue under the U.S. Constitution. For example, The Independent article erroneously claims that, under the NFRA policy document, U.S. presidents Washington, Adams, Jefferson and Madison would be disqualified.  Not so: the “Citizen-Grandfather” exception that the Framers included took care of that.

That said, the internet posting by the outlet “across the pond” of the NFRA document is timely. Specifically, the NFRA document asserts – at p. 37 by way of a “Resolution” included within the document – that at least three persons seeking the presidency were not nbC’s.  Two were Republicans – Nikki Haley and Vivek Ramaswamy – and one is now the Democrat Party’s official nominee, Kamala Harris.  

Interestingly, however, the document Resolution includes, rather than excludes, another person likely ineligible under the Constitution: Senator Ted Cruz, bad form and fundamentally inconsistent to boot, as discussed here and here.  It is intellectually flawed as well, since Senator Cruz is a NFRA member.

The foregoing aside, the NFRA document states – correctly – that an nbC “is defined as a person born on American soil of parents who are both citizens of the United States at the time of the child’s birth.”  However, instead of sourcing that definition to § 212 of Book 1, Ch. 19 of The Law of Nations, by Emer de Vattel (“§ 212”) – the most likely origin of the definition – and corroborating that fact by citing only the U.S. Supreme Court’s decision in Minor v. Happersett, the NFRA document wanders.

That circumstance requires some detailed analysis, so grab your favorite caffeinated beverage and find a comfortable chair.

Ready?  Excellent.

The frolic and detour the NFRA document pursues takes the form of citing five Supreme Court cases other than the Minor case, some properly, others …, not so much.   The first one cited (properly) is The Venus, 12 U.S. 253 (1814). There, Chief Justice John Marshall, concurring in the opinion of Associate Justice Bushrod Washington, quoted Emer de Vattel regarding the status of the subjects of one nation when present in another (Id. at 289):

“Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says:

‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’” (Emphasis added)

The significance of this reference lies in its direct quotation of § 212 and that the citation to de Vattel and the § 212 definition comes in relatively close proximity to the execution of the Constitution.  His biographer, Joel Richard Paul, notes that Marshall worked closely with James Madison to support ratification of the Constitution in Virginia at 35-38. 

That cooperation, by definition, must have included concurrence on Art. 2, § 1, Cl. 5, the “Eligibility Clause.”  It is not rocket science to surmise that Marshall was fully aware of de Vattel and § 212 in both 1788, when the Constitution was ratified by Virginia, and 1814, when he concurred and cited both in The Venus.  Thus, even if Chief Justice Marshall’s statement were to be characterized as dictum in The Venus ­– the case involved maritime law and a seizure of cargo claimed by both citizens of the United States and subjects of Great Britain – it confirms that Justice Marshall was entirely conversant with de Vattel’s treatise and, in particular, § 212 therein.

The next case cited (oddly) in the NFRA document is Shanks v. DuPont, 28 U.S. 3 (1830).  The case is of only marginal assistance in determining the definition of an nbC under the Eligibility Clause.  It does not cite de Vattel, as did Chief Justice Marshall in The Venus, but describes the “natural born citizen” in the case – Ann Shanks – as being a generic “natural born citizen” on the basis of her allegiance to the state of South Carolina, not the United States, on July 4, 1776.

Of greater significance, the discussion of a “natural born citizen” contains no analysis of the definition of the term and, problematically in any event, is made by Associate Justice William Johnson in his dissenting opinion.  Normally, if one is intent on supporting an argument with binding Supreme Court precedent, the better practice is to cite to a precedential majority opinion rather than a non-binding dissenting opinion.  The NFRA document ignores this error.

The fact that the phrase “natural born citizen” (generic, lower-case “c”) appears in a reported Supreme Court decision does not, without further explanation, mean that it has any relevance or materiality to the analysis of the definition of a “natural born Citizen” (uppercase “C”) as it appears in Art. 2, § 1, Cl. 5 of the Constitution, particularly when cited in a dissenting opinion.    

The third case cited in the NFRA document is Scott v. Sandford, 60 U.S. 393 (1856).  As arguably the worst case ever decided by the Supreme Court, like the decision in Shanks, the discussion of a generic “natural born citizen” (lower-case “c”) in the case has no bearing on the definition of the term “natural born Citizen” (upper-case “C”) as intended by the Founders in Art. 2, § 1, Cl. 5.  Indeed, the discussion of the phrase “natural born citizen” doesn’t even occur in Justice Taney’s majority opinion.  Instead, it appears in the flawed concurring opinion of Associate Justice Peter Vivian Daniel.  

While referencing de Vattel and his definition of a natural born citizen in § 212, Daniel’s seeming objective in concurrence with Taney’s opinion was to portray African-American slaves as “property” rather than “citizens.”  If they were “property,” by definition they could not be “citizens,” and thus if not a “citizen,” perforce they could also not be a “natural born citizen.”  Recall the Euler Diagram: “All natural-born Citizens are also native-born citizens, but not all native-born citizens are natural-born Citizens.”  Or, stated otherwise: “All Corvettes are Chevrolets, but not all Chevrolets are Corvettes.”

Again, the Dred Scott case had nothing to do with the definition of the nbC term as used in the Constitution.  However, one facet of the concurring opinion of Associate Justice Daniel bears note.  Specifically, while he cites de Vattel and § 212, he substantively alters – without an ellipsis or bracket signal to readers – the actual language of § 212 as originally composed by de Vattel.

Specifically, the original verbiage of § 212 states, in part:

“The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. … The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country. (Emphasis added)

Justice Daniel –again, without alerting readers – alters the original § 212 language to read “condition of their parents …,” and “I say to be of the country, it is necessary to be born of a person who is a citizen.” (Emphasis added)  See 60 U.S. at 477.  While this species of linguistic chicanery is eerily reminiscent of that practiced by the Congressional Research Service (“CRS”) in its ellipsis-enhanced analysis of the Supreme Court’s decision in Perkins v. Elg, discussed here, it is far more disturbing when it originates with a Supreme Court Justice …, and remains uncorrected for decades.

The next case cited in the NFRA document is Minor v. Happersett, 88 U.S. 162 (1875).  This case contains arguably the best definition of the term “natural born citizen” in the nomenclature of the era and intended by the Framers of the Constitution. 

Like Justice Marshall’s quote from de Vattel’s § 212 in The Venus, not only does the Minor case fortify the conclusion that an nbC was seen by the Framers as a person born here to two U.S.-citizen parents, it specifically notes that as to persons born here to foreigners – and whether the foreigner be the father or the mother – there were “doubts” about those persons’ nbC bona fides, but never any similar doubts about the status of those born here to citizen parents.  See 88 U.S. at 167-68.  The relevance and materiality of the Minor decision have been over the years extensively addressed elsewhere at The P&E and accordingly, will not be rehashed here.

The NFRA next cites the Supreme Court’s decision in United States V. Wong Kim Ark, 169 U.S. 649 (1898) (“WKA”).  Much as with regard to the decision in Minor, the decision in the WKA case has already been discussed, debated and dissected ad nauseum here at The P&E and, like the Minor decision, will not again be rehashed here.  The only comment properly made regarding the NFRA citation of the case is that it has zero bearing or relevance to the nbC issue under the Constitution. 

Indeed, all of the discussions by the Court in WKA about “natural born citizen” and later cases parroting that line of thought – the term “natural born Citizen” appearing nowhere in the 14^th Amendment, which was the sole provision under consideration in WKA – constitute irrelevant, non-precedential “dicta, pure and simple….” See C. Gordon, “Who Can Be President of the United States: The Unresolved Enigma,” 28 Md. Law Rev. 1, 19 (1968).  At the time he wrote his article, Charles Gordon was the General Counsel, U.S. Immigration and Naturalization Service, and Adjunct Professor of Law, Georgetown University Law Center. 

Finally, the NFRA cites the decision in Perkins v. Elg, 307 U.S. 325 (1939).  That case, also exhaustively analyzed here at The P&E already, in fact does stand for the proposition that if a person is born here to two U.S. citizen parents, that person will qualify as an nbC under § 212 and almost certainly, therefore, as one under Art. 2, § 1, Cl. 5 as well.

The significance of the Elg decision, faithful P&E readers will recall, lies not in what is actually said, but instead what between 2009 and 2016 the Congressional Research Service claimed (falsely) that it said.  Through the use of a grammatical ellipsis in the CRS memoranda and reports that were disseminated to all 535 members of Congress, the CRS made it appear that the Supreme Court had ruled in 1939 that a person born here to alien or foreign parents – and, at minimum, to a father who was not a U.S. citizen at the moment of birth – was nonetheless eligible to serve as president as a natural born Citizen.  Flat wrong.

After issuing such a conclusion in 2009, in 2016 – with a flair drawn from a reverse “memory-holing” of data taken from Orwell’s “1984” – the CRS “erased” the prior ellipses.  The result made it appear that, from a historical perspective, the CRS ellipsis-altered versions of the Elg decision … never … even … happened.  All of this after Congress had in effect been misled and bamboozled for seven years while a fellow named Barack Hussein Obama occupied the White House.

Slick, no?

The bottom line here is that the NFRA document articulates the correct analysis: it is highly likely that the Framers of the Constitution intended to adopt – and in fact did adopt – the § 212 definition of an nbC.  However, whoever drafted the NFRA “Platform and Policy Document” commits, in closing, the cardinal sin in its first “Resolved” paragraph.  There, it refers to the nbC clause restriction of the Constitution as the “‘natural born-citizenship’ standard.” 

As explained here and here, there is no such thing as “natural born citizenship.”  It is a neologism, a concocted, synthetic term improperly seeking to conflate the “citizenship” concepts of unrelated principles (such as “citizenship” acquired under the 14^th Amendment or naturalization statutes) with the “natural born Citizen” restriction found in Art. 2, § 1, Cl. 5 of the Constitution.  It is clear that the NFRA authors of the Platform and Policy Document do not read The P&E.

Until someone with a backbone and legal “standing” steps up to the plate – perhaps Speaker Mike Johnson or now Trump-supporter Robert F. Kennedy, Jr. – the vast majority of the electorate will remain indifferent and simply…, move along…, since there’s “nothing to see here.”

The Founders would disagree.  There is plenty to see, if only one’s eyes are opened.