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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.

Dicta on natural born citizenship

The previous article, “Cranking natural born citizenship” exceeded the limit of 500 comments, and this is primarily an article to hold the overflow.

I did want to make one comment in general about the topic. To my knowledge few cases have ever been heard in court about the presidential eligibility of a person born US citizens outside of the United States. The closest we have is the complicated case of John McCain, in which Judge Alsup said in his decision that he thought McCain likely to be eligible.

In the case of US. v. Wong, the court used reasoning that concluded that Mr. Wong was born a citizen under the principles of the common law of England, and pretty much all legal authorities consider the question of persons born US citizens in the US settled as to people like Wong (they are eligible).

The problem with Supreme Court case citations and authorities with regard to the foreign born, is that no case to my knowledge ever needed to distinguish between “born citizen” and “natural born citizen” in order to reach a decision. This is because the only distinction at law in the United States is in regard to eligibility of the President. So when, for example, a court says that there are only two sources of citizenship, birth and naturalization, they are not necessarily analyzing that formula for potential US Presidents. It may well be that someone is, as one commenter here put it, both natural born and naturalized.

Dicta is generally considered less authoritative than the argument that leads to the decision, and the decision itself. These side remarks and observations are not, so it is thought, so carefully reasoned or precisely crafted as the essential parts of the decision. In any discussion of the subject, one should consider how carefully the authority cited might have been speaking in the context in which we cite them.

Cranking natural born citizen

When someone comes along with a theory they think is obvious, but that hardly anyone else thinks is right, and the one holding the theory has no special expertise in the field, I’m apt to label the theorist a “crank.” I’ve done it on this blog. Today, however, I’m swapping roles and being the crank.

Most legal scholars believe that anyone who is born a US Citizen is a natural born citizen, and meets that piece of the eligibility requirement to become President of the United States. I fully agree. Where I fit my own definition of a crank is the way that I arrive that conclusion.

One mark of a crank is making legal arguments out of a dictionary instead of law and precedent. So I start cranking with the dictionary definition of “natural born” which is “having a quality at birth.” The Constitution doesn’t define “natural born citizen" but I have never found any document from our Founders that says “natural born citizen” has a special technical definition. Why does it have to be a “term of art?”

The U.S Supreme Court in the case of United States v. Wong Kim Ark cited approvingly Mr. Dicey in Digest of the Law of England with reference to the Conflict of Laws, where Dicey explains the difference between a British Subject, and a natural-born British Subject:

“British subject” means any person who owes permanent allegiance to the Crown. … “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.

He did not say “a subject who was born on the soil of England,” but one who became a subject at birth. And of course as we all know, the Court asserted the convertibility of “subject” and “citizen.”

If you think about it, the lack of a definition in the Constitution makes sense because in 1789, citizenship was defined by the States and not the Federal Government. Congress only had the power of naturalization under the Constitution and therefore they couldn’t define the citizenship of persons already born that way. That is, if natural born citizen means “citizen at birth” then the Constitution couldn’t have defined it because states had different definitions. My theory explains a puzzle: why the Constitution uses this term it doesn’t define, and whose common law derivation is controversial.

Now, the legal experts are going to look to the English Common Law for undefined terms in the Constitution (see Smith v. Alabama and Ex parte Grossman).  That’s what lawyers are trained to do, but I say they are overthinking the problem, and as proof I keep coming back to the Naturalization Act of 1790. In that act, the Congress said explicitly that the children born of US fathers overseas were citizens. In the debate on that act, the argument was made that the United States should make provision for the children of its citizens born overseas, just has had the English centuries before. If it provides for someone, that means that the Act made people citizens at birth who were not citizens at birth before the Act. It means that these persons were not eligible to run for President when the Constitution was ratified. Nevertheless, that act called these new citizens “natural born citizens.” James Madison, principal author of the Constitution, was in that Congress, and George Washington, President of the Convention that produced the Constitution, signed it into law. Surely they understood that they were adding a new class of potential candidates for President.

If one applies the common law concept to the 1790 Act, all sorts of constitutional questions arise. If one applies the dictionary, there is no problem at all.

The plain English meaning of “natural born citizen” is anyone who is a citizen from birth. At different times in our history, the laws on who was a citizen from birth changed. The states originally defined it in various ways, the Congress defined it through various laws, and the Constitution nailed some of it down in the 14th Amendment. Whoever the law, statutory or common, says is born a citizen, that person is a natural born citizen.

One other mark of a crank is that they very stubbornly hold on to their theories, expecting other people to prove them wrong. Well?

International law and citizenship in the United States

The consensus view today is that everyone born in the United States (with a few exceptions) is a natural born citizen, following the historical survey of the Supreme Court of New York in Lynch vs. Clarke and many subsequent court decisions, US Attorney general decisions, and books on the subject. Their view is that the common law of Britain is the source of this stream of history, and the place to turn to when defining terms used in the Constitution (as affirmed by the Supreme Court in Smith vs. Alabama).

In recent times a move is afoot to argue that citizenship at birth in the United States is only acquired by birth in the United States of citizen parents(s), following the philosophy of Emerich de Vattel in his book, The Law of Nations. They say that this is the view of the founders of the United States, who understood such concepts according to “international law” rather than “common law”. While de Vattel is just one commentator on international law, they say that his views control.

So to further the discussion, I offer the following text from the book INTERNATIONAL LAW, Chiefly as Interpreted and Applied in the United States by Charles Cheney Hide, professor of law at Northwestern University (1922). Please refer to the original for important footnotes.



By Right of Place. Jure Soli


§ 343. The Common Law.

According to the common law every child born “within the ligeance and jurisdiction” of the King of England was regarded as his subject. It is not true that all persons born within the King’s domain were within his ” ligeance and jurisdiction.” Thus, the child of an alien enemy born in British territory within hostile military occupation was regarded as outside thereof; likewise the child born within the realm whose father was an alien, and at the time of the birth of the child, a diplomatic officer accredited to the Crown by a foreign sovereign. As these were, however, the only instances where persons born within the royal domain failed to acquire English nationality, it became natural to assert as a rule of law, commonly known as the jus soli, that, subject to these exceptions, a person became a natural-born subject by reason of his birth within the King’s domain. Continue Reading →

Another Look

We believe in recycling here at Obama Conspiracy Theories. It was last April when my article  In re LOOK TIN SING appeared. Here, I cite more extensively from the decision of the Circuit Court in California in 1884. This case is a precursor to United States v. Wonk Kim Ark, with a similar Chinese citizen barred from re-entry into the United States. This case was decided in the same month as the law review article by George D. Collins was published, claiming that Chinese should never be citizens, that they must always be foreigners. These are the facts of the case as stated by the Court:

The petitioner belongs to the Chinese race, but he was born in Mendocino, in the state of California, in 1870. In 1879 he went to China, and returned to the port of San Francisco during the present month, (September, 1884,) and now seeks to land, claiming the right to do so as a natural-born citizen of the United States. It is admitted by an agreed statement of facts that his parents are now residing in Mendocino, in California, and have resided there for the last 20 years; that they are of the Chinese race, and have always been subjects of the emperor of China; that his father sent the petitioner to China, but with the intention that he should return to this country; that the father is a merchant at Mendocino, and is not here in Any diplomatic or other official capacity under the emperor of China.

In response to these facts, the Court said: Continue Reading →

Wong Kim Ark in the news!

US Supreme Court

Not a photo of Orly Taitz

Riding home today, listening as always to All Things Considered on National Public Radio, I heard an interview with this Ted Hilton, a real estate developer, who is trying to get an initiative on the ballot in California that would deny benefits to the children of illegal aliens.

The way this would work is that they would disallow illegal immigrants from applying for benefits, and further say that children cannot apply themselves, resulting in the children being denied as well. The interviewer suggested that this would deny equal protection to the children who are U. S. citizens under the Fourteenth Amendment.

The Mr. Hilton then said, that no court or law has declared that they were citizens, and that Wonk Kim Ark only applies to alien parents who are “permanently domiciled” in the U. S. While he was not arguing that President Obama was ineligible, he did sound like a birther to the practiced ear.

Certainly the dicta in Wong contradicts the idea that permanent residence was considered a requirement.