Judges and juries are different. Juries are lay people like you and me, who make decisions like you and me. Juries decide what the true facts are when there is doubt, but they are never asked to decide what the law is. Judges have special training in the law. They decide based on rules, laws and precedents. Judges decide what the law means.
Just as judges and juries are different, arguments on the meaning of “natural born citizen” are different. There are arguments addressed to lay people and there are arguments addressed to judges. Lawyers make both kinds of arguments.
In one case we have a retired lawyer, Leo C. Donofrio, running the Natural Born Citizen blog. Natural Born Citizen is a web site geared to the non-specialist mass consumer. Sometimes this site is very much trying to sway the layperson using the same skills that a defense attorney uses to get his guilty client off — misstatement, misdirection, confusion and appeals to prejudice. Further, it is an advocacy site dedicated to one particular view, making no claim to present all sides with equal vigor.
Contrasting Natural Born Citizen are law review articles, and scholarly journals, written to examine all sides of an issue in a rigorous manner. There are some very pertinent scholarly articles on “natural born citizen” including:
- The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty – Jill Pryor Yale Law Journal 1988
- ‘Natural Born’ in the USA: The striking unfairness and dangerous ambiguity of the Constitution’s presidential qualifications clause and why we need need to fix it – Boston University Law Review 2005
- The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution: Why Did the Founding Fathers Want the President To Be a “Natural Born Citizen” and What Does this Clause Mean for Foreign-Born Adoptees? – 2000
- Defining “American” Birthright Citizenship and the Original Understanding of the 14th Amendment – 2006
Mr. Donofrio dismisses such articles by saying:
But most of the published arguments on the natural born Citizen issue are recently published law review articles which haven’t done a very good job of presenting the whole truth and nothing but the truth. This is lawyer misdirection meaning “don’t go read these articles because they disagree with what I’m saying.” Unlike Donofrio’s one-sided advocacy web site, these articles (written from 1988 to 2006) are not tainted by the current candidates and controversy of 2008 election cycle. And further, there are no such articles known to this writer that take Donofrio’s side.
One thing the articles have in common are titles suggesting confusion over interpretations of the “natural born citizen” clause, and this might lead the reader to the mistaken belief that the concept is up for grabs. However, the articles agree on one basic thing: all persons born in the United States and under its jurisdiction are “natural born citizens.” Here are the relevant quotes:
It is well settled that “native-born” citizens, those born in the United States, qualify as natural born.
United States citizens born to parents subject to United States jurisdiction in one of the fifty states are unquestionably natural born citizens…[subject to United States jurisdiction] excludes the children of foreign diplomats and enemy combatants from United State citizenship…The Constitution does not bar dual nationals from becoming President
The ambiguity arises for children not born in the United States.
Another source of argument are things written by judges for lawyers and other judges, and these include court rulings. The United States Supreme Court has never ruled on a natural born citizen case; however, they have touched it in other contexts. One of the most important citizenship cases is United States v. Wong Kim Ark, decided by the US Supreme Court. This case is foundational for any discussion of the natural born citizen question. In some cases, little snips are taken out of it to prove some point or another. Here, let me do a snip for you. Wong was decided with a strong reliance on common law, where British common law was the basis for American common law. The Supreme Court said:
…therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born…”Subject”and “citizen”‘ are, in a degree, convertible terms as applied to natives; and though the term “citizen” seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, “subjects,” for we are equally bound by allegiance and subjection to the government and law of the land.
It was never the intent of this article to persuade anyone what natural born citizen is. It is the intent of this article to inform the reader where to go to the the best information to help him or her make up their own minds.