My title refers to an article on Leo Donofrio’s blog from January 27, titled: The Dirty “little” Secret Of The Natural Born Citizen Clause Revealed.
It’s one of those condescending “I’m a lawyer and you’re not” things that Donofrio is fond of. In this case, Donofrio talks about the “code of statutory construction.” I’m a mathematician by training, not a lawyer, but we mathematicians are trained in logical argument and even I can see where Donofrio runs off the road and into the trees.
You can read his article, but I’ll include an excerpt here:
The code of statutory construction is learned by every student in law school, and every practicing attorney has confronted it. Every judge is required to apply the rule equally to all statutes, and the Constitution. There is no wiggle room at all. The rule states that when a court examines two clauses, unless Congress has made it clear that one clause repeals the other, the court must observe a separate legal effect for each. More specifically, regardless of the chronology of enactment, the general clause can never govern the specific.
That makes sense (whether it’s accurate or not I can’t say). However, Donofrio then gives two examples from the Constitution, the Article II qualifications of the President (he calls Clause A) and the 14th Amendment clause that those born in and under the jurisdiction of the United States are born citizens (Clause B). Even though these two are about different things, Donofrio labels the first “specific” and the second “general”. I’m not sure I want to jump on the bandwagon with that, but for the moment it can slide. What I can’t sign onto is when Donofrio comes up with the following non sequitur, like a magician pulling a rabbit out of a hat:
According to the rule of statutory construction, the court must determine that Clause A requires something more than Clause B.
Following on the magical theme, talk of smoke and mirrors is appropriate because by using placeholders “Clause A” and “Clause B” without their actual meaning, Donofrio obscures what he is actually saying. Let me show what’s behind the smoke by lowering the level of abstraction. This is what Donofrio would have us believe:
According to the rule of statutory construction, the court must determine that Clause A requires something more [of a natural born citizen] than Clause B [requires of a natural born citizen].
Put like that, Donofrio’s argument is exposed as absurd because Clause B (the 14th Amendment) says nothing at all about natural born citizens.
A more reasonable application Donofrio’s general/specific duality is to label the general class “citizens” (the actual subject of the 14th Amendment), those born or naturalized in the United States, and assign to the “specific” class natural born citizens, who must be born in the United States (not naturalized). That would be consistent with judicial history and the true subjects of the two clauses. Something more is required of a natural born citizen than just a citizen (i.e. birth).
Donofrio says that this is not rocket science. If it’s not, why did a federal district judge in Virginia just last month say that it is well settled that those born in the United States are “natural born citizens” in direct contradiction to Donofrio’s claim? Did Judge Gibney skip class when they talked about statutory construction? I think not.
And thereby the “dirty little secret” is revealed: Donofrio didn’t make a logical argument at all.
A number of attorneys have weighed in leaving comments on this article, and I recommend the reader look at those. They criticize Donofrio’s description of statutory construction being an inflexible requirement. That said, one needs no wiggle room in statutory construction in order to refute Donofrio’s argument (again).
Donofrio says “regardless of the chronology of enactment, the general clause can never govern the specific” and if we accept that statement, the general description of citizenship in the 14 Amendment cannot erase the meaning of “natural born citizen” that existed before, and the meaning that existed before doesn’t require that a natural born citizen have citizen parents. As Vice-Chancellor Sandford wrote in 1844:
The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.
One commenter seems to think that lawyers should go over to Leo’s heavily-censored blog to debate him. The problem with that is that when you prove Leo is wrong, he won’t publish your comment.
This comment, proving Leo misrepresented his sources, has never appeared.