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Apuzzo wakes!

Apparently I wasn’t the only one to notice the Harvard Law Review Forum article by two former US Solicitor Generals who write, in agreement with Senator Bayard’s book on the Constitution from 1833, that “natural born citizens” are those who are born citizens, in contrast to those who are naturalized. Mario Apuzzo, vocal advocate for the “two-citizen parent born in the country” definition, has a new copyrighted article at Birther Report™ taking issue with Neal Katyal and Paul Clement.

The title of my article stems from the long period of silence at Apuzzo’s blog and reflects the fact that I didn’t know that he had written something last month regarding the eligibility of Ted Cruz, a person born a US citizen in Canada.

To quote Apuzzo as he criticizes Katyal and Clement:

The author’s argument suffers from the fallacy of bald assertion.

Apuzzo’s main criticism is that the authors don’t follow Apuzzo’s sources or agree with him on what is important. Since there is nothing new in Apuzzo’s argument in general, there is nothing new to say about it.

I think that because the subject article appeared at the Harvard Law Review Forum, it’s intended readers are expected to be able to fill in from their own knowledge parts of the argument necessarily skipped to keep the article from being too long. Apuzzo’s papers on the topic run many pages.


New NBC commentary appears at Harvard Law Review

Image result for harvard law reviewNeal Katyal, former acting solicitor general for President Obama and Paul D. Clement, former solicitor general for President George W. Bush, agree on one thing, Ted Cruz has what it takes to be president, at least Constitutionally speaking. What is a “natural born citizen” is the question they address in an article titled, “On the Meaning of ‘Natural Born Citizen’” published yesterday (11 March, 2015) at the Harvard Law Review Forum.


They call “spurious” recent arguments that someone born a US citizen abroad, like Cruz, is ineligible. In their view:

…the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings.

Their argument is based on the emphasis that the courts have given the English Common Low and those statutes enacted by the First Congress. They point to various English statutes from the 1700s that refer to the children of English subjects born overseas as “natural born” and to the phrasing of the US Naturalization Act of 1790 that states that those children born to US parents (under most conditions) are natural born citizens.

I might quibble with some of the emphasis in this short piece, but I wholeheartedly agree with this:

The less time spent dealing with specious objections to candidate eligibility, the better.

Donofrio’s early views on “natural born citizen”

I’m not breaking any new ground here because I am sure others have noticed this before me; however, I think it should be mentioned because those people who believe that only persons born in the United States to two US citizen parents claim that this view is not novel.

A commenter at Birther Report named “BornTexas” said recently that objections to Obama’s eligibility based on his non-citizen father were made before Barack Obama was nominated as the Democratic Party’s candidate in 2008.


I challenged that assertion, and now 4 weeks later there has still been no response.1 It certainly seems that if there were any widespread belief in the two-citizen-parent theory, that someone would have raised the objection the moment Obama announced as a candidate.

In my reply to BornTexas, I noted that Leo C. Donofrio had written on his blog, NaturalBornCitizen, about the two-citizen-parent theory in December of 2008, the month the blog started.

When Donofrio wrote of it on December 19, 2008, he talked about Minor v. Happersett, and said that the Court “punted the issue.” Donofrio wrote:

For the purposes of Minor and Wong Kim Ark, the Supreme Court didn’t need to reach the “natural born citizen” issue as neither person was running for President, so they rightfully punted by limiting their holdings to the issue of  whether each person was a “citizen”….

Those “doubts” mentioned in Minor needed to be discussed and adjudicated by the current supreme court.

Shortly after, as we know, Donofrio was to assert that the Minor decision definitively defined natural born citizen, and even developed a conspiracy theory surround the first US President with a non-citizen father, Chester A. Arthur.

Continue Reading →

Birther boomerang

I consider this a very important article because without this article and the information following, the “Mailbox 11/7/2014” article would just stay at the top of the blog and I don’t think anybody wants that. I would really rather flip the page to something else.

The boomerang is the birther theory of the meaning of “natural born citizen,” a theory consistently rejected by legal scholars and the courts. The idea that a US President must be born in the United States of two US citizen parents was cooked up to try to make Barack Obama seem ineligible, and the boomerang returning is the effect this may have on certain conservative presidential hopefuls. In a poll this past May, a fairly significant number of potential voters believe it, and I wonder whether any Republican candidate can receive the presidential nomination who was born outside the United States, or has a non-US-citizen parent.

The occasion is a new article at Gerbil Report™ by Paul Hollrah titled “No, Ted Cruz is Not Eligible to be President.” Hollrah singles out more potential candidates than just Cruz—here’s his take on things:

Ted Cruz Born in Canada, foreign father
Bobby Jindal Born in US, two foreign national parents
Marco Rubio Born in US, two foreign national parents
Rick Santorum Born in US, foreign father

I don’t know whether Santorum’s father, who was born in Italy, was a naturalized citizen or not when Rick Santorum was born, but for the purpose of this discussion it doesn’t matter because we’re not really talking about facts but rumors. Have the birthers poisoned the well for these 4 potential presidential candidates? In a remotely close primary race, the birther nonsense seems to be something that would decide it against them. The disinformation factor was well-stated by the polling company, YouGov, who wrote:

That means more than half of Republicans (53%) would disqualify Texas Senator Ted Cruz from the Presidency on principle.  Cruz was born in Canada to a mother who was an American citizen, while his father was not.   But fewer than one in four Republicans think Cruz was born outside the country; only 10% know his mother was a citizen and his father was not.

imageSome suggest that my Senator, Lindsey Graham of South Carolina, will be a candidate for President in 2016. I can just see him running against Hillary Clinton. The whole race would be about Benghazi. Ugh!

Why is Clinton smiling?

Why the disconnect on “natural born citizen”?

There are polar opposite views on what the phrase “natural born citizen” in the Constitution means. One pole is the legal community and the other the birthers. How can reasonable people come to such different opinions?

Obviously one answer is that the birther side isn’t being reasonable; however, there is a little more to it. The fact of the matter is that our country has not always been of one mind on citizenship, and that there have been periodic bouts of anti-immigration sentiment in the population, sentiment reflected in the statements of politicians and sometimes in the courts and occasionally in statutes (like the Chinese Exclusion Act). Like it or not, the Dred Scott decision was the law of the land until it was supplanted by the 14th Amendment, no matter how bizarre and racist its conclusions sound today.

I was digging through some bookmarks last week and re-discovered a 2006 Congressional Research Service report, “U.S. Citizenship of Persons Born in the United States to Alien Parents.” I found the report valuable in understanding the historical context. They wrote on page 4 (footnotes omitted):

Although the English common law at the time of the adoption of the Constitution considered a person born in the English dominions to alien parents to be an English citizen unless those alien parents fit into the exceptions described above, and although American law apparently generally accepted this position, there nevertheless appeared to be some uncertainty as to whether persons born in the United States to alien parents were, in fact, citizens of the United States. Some scholars ascribe this uncertainty to the desire of Americans to embrace both a “consensualist” doctrine of citizenship, by which a person and a government consent to be mutually obligated, and an “ascriptive” doctrine by which a person is ascribed citizenship by virtue of circumstances beyond his control, such as birth within a particular territory or birth to parents with a particular citizenship.

It is the general view of the legal community that this issue was put to rest by the US Supreme Court in the 1898 case of US v. Wong. But even the Wong decision was split 6-2.

Given that confirmation bias leads us to select those authorities and citations that confirm what we already believe, it should be no surprise that in the midst of a wealth of conflicted history, each side could find things to make the case that suits them. The fact that the birthers always lose in court should inform us on which side has the stronger argument.

Rawle’s “therefore”

The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths accompanied them in the formation of the great compound commonwealth which ensued. They became citizens of the latter without ceasing to be citizens of the former and he who was subsequently born a citizen of a state became at the moment of his birth a citizen of the United States. Therefore every person born within the United States its territories or districts whether the parents are citizens or aliens is a natural born citizen in the sense of the Constitution and entitled to all the rights and privileges appertaining to that capacity. … [the balance of this paragraph is discussed below]

–William Rawle – A View of the Constitution (1829)

William Rawle, a confidant of Washington and Franklin, has impressive credentials.  The preceding citation has appeared on this site a number of times in support of the eligibility of Barack Obama to be President of the United States, and the eligibility of anyone else born a US citizen within the country.

Rawle was a US Attorney and a noted jurist, and we may assume that he forms his arguments like a lawyer, and this looks like a logical argument because of the use of the word “therefore.” The most common argument form ending in “therefore” is like this:

1) All (a) are (b)
2) All (b) are (c)
Therefore: All (a) are (c)

Rawle doesn’t provide a second premise, but I think he intended one to be understood, because otherwise the argument doesn’t work. His conclusion doesn’t follow solely from his explicit premise.

In a formal argument, the first premise and the conclusion are sufficient to derive the second premise. Here’s Rawle’s argument substituted into the standard argument form:

1) All persons born in the United States are citizens at birth
2) All (b) are (c)
Therefore: All persons born in the United States are natural born citizens.

In the preceding (b) is “citizens at birth” and (c) is “natural born citizens.”

Therefore: the missing second premise, all (b) are (c), by substitution must be:

“All citizens at birth are natural born citizens.”

If Rawle’s statement is a logical argument in the standard form and there is a missing 2nd premise, then we have undoubtedly derived it. It is reasonable to assume that “natural born citizen” was a term generally understood in 1787, given the paucity of discussion about it, and if it was generally understood, the omission of an explicit second premise is justified and the assumption that Rawle’s argument follows the standard form is very likely. Indeed Rawle tells us as much, writing:

It cannot escape notice that no definition of the nature and rights of citizens appears in the Constitution. The descriptive term is used, with a plain indication that its meaning is understood by all, and this indeed is the general character of the whole instrument. …

Now let’s consider the balance of the paragraph opening of this article from Rawle:

… It is an error to suppose as some (and even so great a mind as Locke) have done, that a child is born a citizen of no country and subject of no government, and that he so continues till the age of discretion, when he is at liberty to put himself under what government he pleases. How far the adult possesses this power will hereafter be considered, but surely it would be unjust both to the state and to the infant, to withhold the quality of the citizen until those years of discretion were attained. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality1 is established as to us.

Rawle’s initial argument left a hole. What if being born in the country just makes one a citizen upon majority? Rawle says that this question is settled by the Constitution’s “express language.” How would it be settled if the phrase “natural born citizen” in the Constitution is defined by place of birth? By that definition, the Constitution says nothing more than that there exists citizens born in the country who at age 35, when they become eligible to run for President, are citizens. The only way the Constitution could settle the question of citizenship with its “express language” is for “natural born citizen” to be generally understood as “citizen from birth” thereby proving that people born in the country are citizens from birth.

Rawle says that the “relative quality” (which I take to be “citizenship from birth”) is established by place of birth (as he says clearly in the opening of the paragraph). Under the Constitution, the only way to be a citizen at birth is to be born in the country, but that is sufficient for his argument. However, under statute, there are other ways (as we saw in the Naturalization Act of 1790) to become a citizen at birth, but Rawle’s book is about the Constitution, not statutory law.

I believe that it was Rawle’s opinion that “all citizens at birth are natural born citizens” based on his writing in A View of the Constitution.