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1) The United States did not exist when Elldred wa born.

You may or may not be familiar with James Madison's defense of William Loughton Smith, but it has been argued quite a lot in these threads. To sum it up, Madison's argument was that every citizen of every state became upon July 4, 1776, a citizen of the United States. What applied to William Loughton Smith, also applied to Elldred, unless he chose to be a British loyalists.

This is a point which some of the "born on the soil" supporters simply don't comprehend. There were THOUSANDS of people born in the United States that were not considered citizens of the United States by either themselves, The British Government, or Our government as well. They chose to remain loyal to the British Government, and therefore were British Citizens, and where they were born had nothing to do with that fact. The issue is, and always was about Allegiance, and that is not imparted by dirt, it is imparted by Parents who convey it to their children.

2) A man born of Anericann slaves could not have tried to run for President until after the 14th amendment was ratified (not old enough). My question is: would that have been illegal in, say,1920, on the grounds that our hypothetical candidate would not have been an NBC?

It would be a legal technicality, just as it is today. One of the reasons I think the "natural born citizen" issue is pretty much ignored by most people is because they see it as nothing but a bunch of hair splitting about some rules. Other people, such as us "birthers" argue that it is not just some frivolous rule, it is a necessary safeguard which was bypassed, and the lack of this safeguard has now caused disastrous results.

In Any case, the examples of Mr. Elldred and Mr. McClure reinforce the point that just getting born on our soil did not make you a citizen in the eyes of our Government back then. Again, the examples of all those many thousands of British Loyalists ought to be a no-brainer for people to figure this out, but some people really want to believe crap they've heard.

You may or may not be familiar with James Madison's defense of William Loughton Smith, but it has been argued quite a lot in these threads. [...]

I am familiar with these cases and the uses to which they are put in Article II discussions; however, I haven't gone over many of the older threads here, and while I still believe what I was taught 40 years ago (nbc = born in the US with a few specific exceptions [I also believe Obama was born in Hawaii, FWIW]), I generally don’t bother to engage these arguments unless I have something to say that I believe is new to those I’m addressing. I can’t judge what might be novel here until I’ve read more, so I shouldn’t have commented on the Eldred argument at all [Frankly, on bread-and-butter Vattelist positions I doubt that I have anything to say that contributors here haven’t seen many times before, but I’ll explain my views if anyone asks.]. Also, I was being a bit of a pendant - I know that the particular point that DiogenesLamp was making logically only relies on Eldred et al being born in the 13 colonies and being citizens thereof in 1776 (and in the case of McClure, “Publius” of the McClure comment being Madison or “the Madison administration”) – so carping about when the US came into existence was irrelevant anyway.

Anyway, it was the slavery stuff that made me post in the first place – for me, there is something new there. I have never seen a discussion of the obvious, logical consequence of the Vattelist position: that men, born of at least one slave (or ex-slave before the 14th Amendment*) were not (and shouldn’t have been) legally treated as NBC’s. Meaning that, for example, George Washington Carver would not have been eligible to serve if nominated (I know he was a scientist & not a politician. I’m only picking him because he was famous & respected & born in 1864). BTW – I understand the “technicality” point : the details of the constitution absolutely matter. If the Vattelists are right*, and if I had been around in 1868, I would have advocated modifying Article II to allow ex-slaves etc to be eligible for President. If I failed to get that amendment, then my position would have been: if you want Carver to run, you better amend the constitution, and if you don’t, and he’s elected, then Congress should do its duty, call him unqualified, and pick someone else.

Anyway, since I posted earlier I discovered that there exists at least one ex-slave who was nominated for VP, albeit, under weird circumstances. Fredrick Douglass, in 1872, was nominated by the “Loyalty Party” even though he wasn’t a member of the party and he was not at the convention. He refused to campaign, or even acknowledge the nomination. He also got a vote for the VP slot in 4th round at the national Republican convention of 1888. And the ex-slave Blanche Bruce got votes for the VP slot at the Republican conventions of 1880 & 1888. Both of Douglass’s parents were slaves; Bruce was fathered (and raised) by his mother's owner.

So my view is: if it was generally believed by the legal community in the era during & immediately after Reconstruction, that ex-slaves, and children of at least one slave (or ex-slave etc) were ineligible for the Presidency, then I would expect to be able to find, in the public record or the historical literature, at least some debate or comment on the topic. I’m not saying there isn’t any – I’m not really sure how to look for it. Google won’t be enough, anyway. But there is a real prediction here: hypothesis & implications to test. I consider that new, but maybe this suggestion has already been discussed somewhere on this site.

Two other points:

*First, by “Vattelist” I don’t mean merely the two-citizen parent claim, but the stronger claim that Article II was generally understand this way for some longish period of time after 1789 (until Wong Kim Ark, perhaps – maybe longer. Maybe until 2008!). Obviously, if the founders were Vattelists, but their views were lost or distorted before the Civil War, say, that would change things – though I’m not sure I’ve ever seen anyone take that view.

*Second, I know that we all learned in school that the 14th Amendment overturned Dred Scott, and, in practical terms that’s true. But the Republican framers of the 13th Amendment believed that ex-slaves became citizens as soon as it was ratified – which means it killed Dred Scott all by itself (The Civil Rights Act of 1866 didn’t create new citizens – it protected their rights as citizens.). The citizenship clause of the 14th Amendment was put there so that a future congress couldn’t repeal the one in the Civil Rights Act – and as a backstop against a future court taking a narrower view of the 13th Amendment than the framers did. Obviously, the Democrats at the time didn’t buy into this view. I’m guessing that Vattelists didn’t (and don’t) either.