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
####
Copyright
© 2015
Mario
Apuzzo, Esq.
All
Rights Reserved
205 comments:
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January 13, 2016 at 10:02 AM
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January 13, 2016 at 12:13 PM
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March 12, 2016 at 6:44 PM
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March 12, 2016 at 7:39 PM
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March 13, 2016 at 12:40 PM
«Oldest ‹Older 201 – 205 of 205 Newer› Newest»I do not agree that McCain is a Natural born Citizen based on his parents military service. He has citizenship by Statute but cannot be made a Natural Born Citizen by legislation as determined in the dispute which led to the 1795 repeal of the 1790 provision which "considered" persons born abroad to citizen Parents as NBCs. Being an NBC requires the physical birth IN the USA to Parents who are both Americans. McCain was born outside the USA in Colon,Panama. Bases in foreign lands are NOT US Soil. In any event, the PCZ was never an incorporated territory of the USA and Colon was specifically excluded from the parameters of the PCZ by treaty as was Panama City,Panama.
Robert Laity,
John McCain was born in Panama to U.S citizen parents where were serving the armies of the state. He is therefore reputed born in the United States to U.S. citizen parents. That makes him a natural born citizen. See Emer de Vattel, The Law of Nations, Section 217 (1758)("§ 217. Children born in the armies of the state or in the house of its minister at a foreign court. For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.")
George Romney was born in Mexico outside the jurisdiction of the United States.
Obama was born in Hawaii which at the time of his birth was US soil.
Black’s Law Dictionary defines “native” as “a natural-born subject or citizen by birth; one who owes his domicile or citizenship to the fact of his birth within the country referred to.”
How can you naturalize a citizen that was already born on US soil?
Black defines “naturalize” as “to confer citizenship upon an alien; to make a foreigner the same, in regard to rights and privileges, as if he were a native citizen or subject.”
Bancroft’s History of the U.S. (1876) VI, xxvi, 27, states, “Every one who first saw the light on the American soil was a natural-born American citizen.”
"Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States and needs no naturalization." United States v. Wong Kim Ark, 169 U.S. 649 at page 702; 18 S. Ct. 456, 472, 42 L ed 89,
Obama by virtue of his birth on US soil could not be "naturalized".
In Rawie’s view on the Constitution of the United States, page 86, it is stated: “Every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen within the sense of the Constitution, and entitled to all rights and privileges appertaining to that capacity.”
U.S. v. Wong Kim Ark, 169 US 649, l.c. 674 the court stated: “There is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within the sovereignty. So far as we are informed there is no authority, legislative, executive, or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory, or as mere prospective), conferring citizenship on foreign-born children of citizens, have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion.”
A natural-born citizen of the United States, as that term is used in the Constitution of the United States, means a citizen born within the territorial limits of the United States and subject to the laws of the United States at the time of such birth. This does include children born to alien parents who are present within the territorial limits of the United States “in amity” i.e. with the consent of the United States, and subject to its laws at the time of birth. U.S. v. Wong Kim Ark 169 US 649, Luria v. U.S., 231 US 9, Minor v. Happersett 88 US 162.
In the case of Lynch v. Clarke, 1 Sandf. 583, N.Y.), the Vice-Chancellor stated that he entertained no doubt “that every person born within the dominion and allegiance of the United States, whatever the situation of his parents, was a natural born citizen.”
nxs,
A plain and simple reading of the unanimous U.S. Supreme Court decision of Minor v. Happersett shows that the Court left no question open about what the definition of a natural born citizen is and who is included and excluded from that status, when it held:
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
Minor v. Happersett, 88 U.S. 162, 167-68 (1875).
Minor explained that under the common law the nomenclature with which the Framers were familiar when they drafted and adopted the Constitution all children born in a country to parents who were its citizens at the time of their children’s birth were “natives, or natural born citizens,” and that all the rest of the people were “aliens or foreigners,” who could be naturalized to be citizens of the United States. Congress, in the Naturalization Acts of 1790, 1795, 1802, and 1855, had this common law rule in mind when in those Acts it treated children born in the United States to alien parents as aliens and in need of naturalization.
The only question that Minor left open was whether a child born "within the jurisdiction" to alien parents was a citizen of the United States under the Fourteenth Amendment, an amendment which both Minor and Wong Kim Ark said did not define a natural born citizen. Virginia Minor was born in the U.S. to U.S. citizen parents. Hence, she was without any doubt a citizen of the United States. Since she was a natural born citizen and therefore ipso fact a citizen of the United States, there was no need for Minor to interpret the Fourteenth Amendment as did Wong Kim Ark with respect to Wong, who was not a natural born citizen because, while he was born in the U.S., he was born to alien parents. So, Wong Kim Ark answered the Fourteenth Amendment question left open by Minor. Wong Kim Ark, in interpreting the Fourteenth Amendment citizenship sentence, did not define a natural born citizen any differently than did Minor.
Applying these principles, neither George Romney nor Barack Obama are natural born citizens. Minor, a unanimous decision of the U.S. Supreme Court, trumps the "authorities" you cited, Black’s Law Dictionary, Bancroft’s History of the U.S. (1876), William Rawle, and Lynch v. Clarke. When we want to know the meaning of a “citizen” of the United States “at birth” under the Fourteenth Amendment, we look to Wong Kim Ark. But when we want to know the meaning of an Article II “natural born citizen” of the United States, we look to Minor.
Got it. Thank you for taking the time to explain this.
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