Replies

Wow, this piece is a legal mess. This falls under the category of "if you can't dazzle them with your brilliance, then baffle them with bull manure." The author makes several critical errors and unsupported assumptions. I'll point out a few:

The Supreme Court in Wong Kim Ark thus concluded that the Fourteenth Amendment “affirms”the common law rule of “citizenship by birth within the territory,” even if one is born of alien parents in this country, and approved of the characterization of the children of such resident aliens as “natural born” citizens of the United States.63

There's nothing in the Wong Kim Ark decision that "approved" a characterization of children of resident aliens as natural born citizens. This is an outright fabrication. It's footnoted to page 693, which is the part where Gray quotes Binney saying the child of an alien "if born in the country, is as much a citizen as the natural-born child of a citizen." This passage doesn't approve of a characterization, nor does anything else on this page. It's making an analogy in which it still distinguishes children of aliens from natural-born citizenship. It only says their level of citizenship is the same by virtue of the 14th amendment, which no one disagrees with. If the president requirement was only basic citizenship, then this would be true. But it requires the specific characterization of "natural-born" which is neither expressly stated nor implied. Secondly, this is the same kind of dicta that Maskell downplays from Minor. He also ignores that this passage requires domicile (Obama's father was not domiciled in the U.S.): "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction ..." Under this requirement, Obama fails to be a 14th amendment citizen.

Maskell, for unknown reasons, wants to downplay the influence of Vattel. He says he was only cited once by the Federal Convention of 1787. This ignores that Vattel was cited frequently by the Journals of the Continental Congress between at least 1780 and 1787. The Law of Nations is cited even more frequently.

This next passage is another work of fiction. It says that Minor v Happersett:

... discussed the question in dicta as to whether one would be a “natural born” citizen if born to only one citizen-parent or to no citizen-parents, noting specifically that“some authorities” hold so.

This is NOT what it says. Some authorities include as citizens those born "without reference to the citizenship of their parents." This doesn't say anything about a question of whether such children would be a "natural born" citizen. It's questioning whether they are citizens. It also does NOT say that some authorities hold such persons to be NBCs.

The Court, however, expressly declined to rule on that subject in this particular case.

... because it established an exclusive set of criteria for defining natural-born. Maskell claims the discussion quoted here is dicta and not relevant to the holding in the case, which is false. This was the basis for establishing Virginia Minor's citizenship in rejecting an argument that it was derived through the 14th amendment. Wong Kim Ark noted this fact and affirmed it, which Maskell fails to understand.

The majority opinion of the Court [in WKA] clearly found, by any fair reading of its reasoning, discussion, and holding, that every person born in the United States and subject to its jurisdiction (that is, not the child of foreign diplomats or of troops in hostile occupation),regardless of the citizenship of one’s parents, is a “natural born” citizen

The conclusion above is based on the same dicta using the Binney "as much a citizen" citation. It's a faulty conclusion and poor reading.

By footnote, Maskell claims this about Minor:

Any analysis of the distinction between “holding” and dicta is simplified in Minor v. Happersett, as the Supreme Court expressly explained that “For the purposes of this case it is not necessary to solve” the issue of parental citizenship, thus clearly stating that its discussion was not part of, and theresolution of the issue not necessary to, the underlying holding or ruling of that case.

Waite did NOT say it is not necessary to solve the issue of "parental citizenship." He solved it quite clearly. All persons born in the country to citizen parents are natural-born citizens. It is a type of citizenship without doubt. What Waite did NOT solve is the issue of territorial-birth citizenship. "Parental citizenship" was directly applicable to the holding in Minor because it was used to reject the 14th amendment citizenship argument proposed by Virginia Minor.

There are plenty of other errors. What needs to be understood is that Minor was a unanimous decision that defined natural-born citizen. The Supreme Court affirmed that definition in Wong Kim Ark. There was no way Horace Gray was going to overturn a unanimous decision. There's no other higher judicial or legal authority. Not 20th century "legal scholars." Not circuit court decisions. Not state appeals court decisions. And not the CRS.