A Response to Neal
Katyal and Paul Clement on the Meaning of a Natural Born Citizen
By Mario Apuzzo,
Esq.
March 13, 2015
I read the March 11, 2015 article entitled, “On the
Meaning of a ‘Natural Born Citizen,” written by Neal Katyal and Paul Clement,
found at 128 Harv.L.Rev.F 161, and accessed at http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/
. The first sentence of the article
says: “We have both had the privilege of
heading the Office of the Solicitor General.”
The article repeats the existing talking points offered in support of
the constitutional eligibility of Senator Ted Cruz (all born citizens are
natural born citizens) and offers nothing new.
Mr. Cruz was born in Canada to a U.S. citizen mother and a non-U.S.
citizen (Cuban) father. I have written a
recent article in which I conclude that Mr. Cruz is not a natural born citizen
and therefore not eligible to be President because he does not satisfy the one
and only common law definition of a natural born citizen confirmed by the unanimous
U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162 (1875), which is a child
born in a country to parents who were its citizens at the time of the child’s
birth. The article is entitled, “What Do
President Obama and Senator Cruz Have In Common? They Are Both Not Natural Born
Citizens," accessed at http://puzo1.blogspot.com/2015/02/what-do-president-obama-and-senator.html
. Katyal and Clement maintain that any
child who becomes a citizen at birth, regardless of where born or by what
means, is a natural born citizen. They
add that since Mr. Cruz became a citizen from the moment of birth and did not
need any naturalization after birth he is a natural born citizen. But there is no historical and legal evidence
which demonstrates that this is how the Framers defined a natural born citizen
and the authors surely have not presented that evidence even if it did
exist.
The authors’ argument suffers from the fallacy of bald
assertion. They provide no convincing evidence
for their position on who is included as an Article II natural born
citizen. They do not examine what was
the source of the Framers' definition of an Article II natural born citizen,
let alone what was the definition of a natural born citizen when the Framers
drafted and adopted the Constitution and when it was eventually ratified. They ignore so much of the historical and
legal record in coming to their bald conclusions. For a discussion of this
historical and legal evidence, see the numerous articles that I have written and
posted at my blog, http://puzo1.blogspot.com
.
They gloss over what the Framers' purpose was for
requiring the President and Commander in Chief of the Military to be a natural
born citizen. They do not engage in any real
discussion on what the Framers were trying to achieve through the clause. They
dismiss all debate on the subject of foreign influence by flatly stating
without any evidence: "The Framers
did not fear such machinations from those who were U.S. citizens from birth
just because of the happenstance of a foreign birthplace."
The authors cite to the Naturalization Act of 1790 and
ignore the fact that the Naturalization Act of 1795, with the lead of then-Rep.
James Madison and with the approval of President George Washington, repealed it
and specifically changed "shall be considered as natural born
citizens" to "shall be considered as citizens of the United
States." This is even more a
blatant omission given that they argue that the English naturalization statutes
referred to persons born out of the King's dominion to British subject parents as
"natural born subjects." They
fail to address this critical change made by our early Congress, critical
because Article II, Section 1, Clause 5 provides that a “Citizen” of the United
States was eligible to be President only if born before the adoption of the Constitution
and that thereafter only a “natural born Citizen” was so eligible. Hence, Congress referring to one as a citizen
rather than a natural born citizen, given the presidential eligibility requirements
of Article II, was a serious thing. They
do not discuss what the language of the 1790 Act, "shall be considered
as," meant. They fail to address
the issue that this was naturalization language and nothing more. They fail to discuss whether Congress even
had the constitutional power to make anyone born out of the United States a
natural born citizen, if that was Congress’s intent in the first place.
They assert without demonstrating that the English
common law supports their position. But
they totally ignore that under the English common law, only persons born in the
King's dominion and under his jurisdiction were natural born subjects and that
those born out of the dominion and therefore out of his jurisdiction became
subjects only through a naturalization Act of Parliament.
They cite to Blackstone's Commentaries on the Laws of
England, but they do not cite to Emer de Vattel and his The Laws of Nations (1758)
(1797) or Minor, two leading sources that inform on U.S. citizenship. Both Vattel and Minor defined a natural born
citizen as a child born in a country to parents who were its citizens. What is incredible is that they cite U.S. v. Wong
Kim Ark, 169 U.S. 649 (1898) to demonstrate that British statutes called
children born out of the King's dominion to subject parents "natural
born." But they fail to tell the
reader that Wong Kim Ark considered children born out of the United States to
U.S. citizen parents to be naturalized by acts of Congress. In fact, they give
virtually no discussion of the Wong Kim Ark case because they know that the
case said that under the English common law, only children born in the King’s dominion
and under his jurisdiction were natural born subjects and that any child
born out of that dominion needed an act
of Parliament to naturalize him or her. They
also fail to discuss the U.S. Supreme Court case of Rogers v. Bellei, 401 U.S.
815 (1971), in which both majority and dissent said the same as Wong Kim Ark
which was that children born out of the United States to U.S. citizen parents
become citizens of the United States only through the grace of Congress who
made them citizens through a naturalization Act without which those children
would be aliens. It simply defies logic
and good reason to conclude that a person who would not be a citizen at all
without a naturalization act of Congress is a natural born citizen.
Katyal and Clement argue that John Jay had children
born out of the United States while he was on diplomatic assignment and that he
would not have disqualified his own children from being natural born
citizens. This is a really baseless
point since Jay's children would have been born out of the United States to
parents who were serving the national defense of the United States and
therefore reputed born in the United States. Likewise, they present the John McCain
situation as proof for their position.
But they fail to realize that John McCain was born in Panama to U.S.
citizen parents who were serving the national defense of the United States which
makes him reputed born in the United States to U.S. citizen parents and
therefore a natural born citizen under the one and only common law definition
of a natural born citizen as confirmed by unanimous U.S. Supreme Court in Minor. See Vattel, Section 217 (children born out of
the country to citizen parents serving in the armies of the state are reputed
born in the country). They give the
examples of Senator Barry Goldwater and Governor George Romney who they say
were eligible to serve as President although neither was born within a state.
The argument is meritless, for they were both born to U.S. citizen parents in
U.S. sovereign territory subject to no foreign power and hence were born in
part of the country known as the United States, all of which made them natural
born citizens under the common law definition of a natural born citizen.
The authors conclude without demonstrating: "Despite the happenstance of a birth
across the border, there is no question that Senator Cruz has been a citizen
from birth and is thus a “natural born Citizen” within the meaning of the
Constitution." They simply make
this conclusion without having shown how their position is valid given the
historical and legal record.
The authors also show contempt to the constitutional
requirement that the President has to be a natural born citizen and for any
person who dare raise any such issue.
For example, they say: "simply because he was delivered at a
hospital abroad," rather than saying that he was born in a foreign nation;
"born in a Canadian hospital," rather than saying that he was born in
Canada; "[d]espite the happenstance
of a birth across the border;" they
call arguments with which they do not agree "spurious;" and they
consider objections to candidate's eligibility as "specious objections to
candidates eligibility," as if no one ever made any valid argument.
In short, Katyal
and Clement’s article lacks any critical research and reasoning and is nothing
more than an attempt to convince the reader that Senator Cruz is a natural born
citizen because they said so and the reader has to believe that because they
were former heads of the Office of Solicitor General of the United States.
Mario
Apuzzo, Esq.
March
13, 2015
####
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Mario
Apuzzo, Esq.
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