I was following a Google alert and ended up on the “low immigration” activism web site, the Center for Immigration Studies. Their article takes the Washington Post to task for one of its articles about Cruz eligibility, and its suggestion that one option to resolve the controversy over the meaning of “natural born citizen” is to just pass a constitutional amendment removing the words “natural born.”
My article, despite it’s irrelevant opening paragraph, is not about what the CIS or WaPo said, but rather about a comment on that article left by Charles Kerchner:
pointing to a 2014 article at the Liberty Born blog: NEW EVIDENCE: Intent of 1790 Naturalization Act by T. J. McCann. There are two things that I would take issue with in that article, summarized in the words “NEW” and “EVIDENCE.”
Something from 1969 related to the abbreviated candidacy of George Romney for president hardly classifies as “new.” It’s also not new to readers of this blog who followed the discussion over Bob Gard’s 1722-page eBook on presidential eligibility the year before, or my own presentation of the information back in 2010, or when it appeared on NBC’s blog in 2009. The “NEW EVIDENCE” is from an unpublished paper by an otherwise unknown DC attorney Pinckney McElwee, read into the Congressional record for the purpose of raising doubts over George Romney’s eligibility in 1969. One commenter here in 2010 described it as a “political hit piece” and I have compared its author to Mario Apuzzo because of their similarity of position, not the quality of their work. Here is the paper, from the Web Archive version of NBC’s Native and Natural Born Citizenship Explored blog.
T. J. McCann at Liberty Born says that the McElwee paper provides insight into the thinking of Congress when they passed the Naturalization Act of 1790 and subsequently repealed it. The question at issue is whether the 1795 Act says the same thing as the 1790 Act just in different words, or that the concept of “natural born” was intentionally deleted for cause. Those who would argue against Cruz or Romney’s eligibility would find comfort in the latter. Here’s the relevant material:
Although it is not within the power of Congress to change or amend the Constitution by means of definitions of languages used in the Constitution so as to mean something different than intended by the framers (amendments being governed by Article V) an argument might be advanced to the effect that the use of identical language by Congress substantially contemporaneously might be considered in later years by a court to reflect the same meaning of the same words by the framers of the Constitution; and under this argument to attach importance to the Act of Congress of March 26, 1790 (1 stat 103).
This argument fades away when it is found that this act used the term “natural-born” through inadvertence which resulted from the use of the English Naturalization Act (13 Geo. III, Cap 21 (1773) ) as a pattern when it was deemed necessary (as stated by Van Dyne) to enact a similar law in the United Skates to extend citizenship to foreign-born children of American parents. In the discussion on the floor of the House of Representatives in respect to the proposed naturalization bill of a committee composed of Thomas Hartley of Pennsylvania, Thomas Tudor Tucker of South Carolina and Andrew Moore of Virginia, Mr. Edamus Burke of South Carolina stated, “The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of William III.” (See pp 1121, Vol 1 (Feb. 4, 1790) of Annals of Congress.) The proposed bill was then recommitted to the Committee of Hartley, Tucker and Moore, and a new bill containing the provision in respect to foreign-born children of American parentage was included, using the Anglican phrase “shall be considered as natural born citizens.” Manifestly, Mr. Burke had given the wrong reference to the Act of Parliament of the 12th year of William III which was an inheritance law. But, it was a naturalization bill and the reference to the English acts shows the origin of the inadvertent error in using the term natural-born citizen instead of plain “citizen” came from copying the English Naturalization Act.
Mr. James Madison, who had been a member of the Constitutional Convention and had participated in the drafting of the terms of eligibility for the President, was a member of the Committee of the House, together with Samuel Dexter of Massachusetts and Thomas A. Carnes of Georgia when the matter of the uniform naturalization act was considered in 1795. Here the false inference which such language might suggest with regard to the President was noted, and the Committee sponsored a new naturalization bill which deleted the term “natural-born” from the Act of 1795. (1 Stat 414) The same error was never repeated in any subsequent naturalization act.
McElwee says “Here the false inference which such language might suggest with regard to the President was noted,” but no citation is provided, and hence no evidence is presented, and we find the additional misdirection stating Mr. James Madison was a member of the Committee of the House in 1795, while omitting the fact that the same Madison was a member of the House in 1790 as well. To buy McElwee’s argument, we must assume that the majority of Congress, many lawyers and some Framers of the Constitution would unthinkingly copy and paste something from an English statute, and we must take his word about the proceeding of a committee, without citation, asserting something no one else has found.
If they were not intending to make them natural born citizens, as McElwee’s evidence from the 1795 House Commitee (sic) notes indicates, THEN the founders were using the reference to NBC in the original 1790 Naturalization Act in some other way than to actually confer NBC status.
There is nothing in the McElwee paper citing anything from the 1795 House Committee notes. He gives no EVIDENCE.
Just for reference, I wanted to point out an obvious error in McElwee’s paper, where he says:
In 1802, when Congress repealed entirely the law of 1790, it enacted that “the children of persons who now are, or have been citizens of the United States, shall, although born outside the limits and jurisdiction of the United States, be considered as citizens of the United States” (2 stat 153).
It would be difficult for Congress to have repealed the 1790 Act in 1802, when it had already repealed the act in its entirety in 1795.
Mr. McElwee provides little comfort to the Obama birthers, quoting Blackstone who said:
“Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligence, or, as it Is generally called, the allegiance of the king; and aliens, such as are born out of it.”
That quotation also appeared at Birther Report yesterday in a comment quoting Mary Brigid McManamon. It was not well received.