What If ... ?

The Post & Email ^ | 15 Jul 2022 | Joseph DeMaio

[CDR Kerchner]

(Dec. 15, 2022) — What if your humble servant were to reveal something here at The P&E which could, once and for all, put an end to “natural born Citizen” (“nbC”) debate raging in the comments sections of numerous posts here? What if recently-discovered “hard” evidence – in the form of a letter from John Jay to David Brearley, Chairman of the “Committee on Postponed Matters” at the Constitutional Convention in 1787 – was produced? And what if that letter confirmed the intent of the Founders to rely on § 212 of Emmerich de Vattel’s treatise The Law of Nations for its definition of an nbC, requiring birth in the nation to parents who were already U.S. Citizens? Would that change any of the minds of those who believe that the only criterion for an nbC is to be born here as a “citizen at birth” or a “citizen by birth?” Curious? Read on. ...

[smileyface]

not offended

[CDR Kerchner]

And the common understanding of “natural born Citizen” at the time to John Jay and George Washington is clear in the letter from Jay to Washington in Aug 1787 that a “natural born Citizen” was one who born free of “foreign influence”. And that requirement would apply to anyone who would be eligible to be the Commander in Chief of our military forces after the founding generation was gone, per Article II Section 1 Clause 5 of the Constitution, the presidential eligibility clause. And that would exclude people born as dual-Citizens for sure. It would obviously be a person born with unity of citizenship and sole allegiance to the United States. Jay and Washington understood this. The term would preclude anyone born with foreign influence via their circumstances at birth or by birth. And likewise most of the framers fully understood it too. For if they didn’t understand the “nbC” intent and purpose, Washington would have explained it to them as to why it was necessary to be added into the Constitution for presidential eligibility once the founding generation was gone since Washington was the President of the Constitutional Convention. That point, in addition to the fact that many of the framers such as Franklin and others having read Vattel for many years would have known what the naturel nés Citoyens were in his 1774 French version of The Law of Nations or Principles of Natural Law — per his Vol.1, Chapter 19, Section 212, since most were fluent in French, the diplomatic language of the time. And Jay and Washington are responsible for the “natural born Citizen” term to the presidential eligibility clause. It is thus clear that Washington and the framers new and understood what it meant to them in 1787 when they put it into the Constitution, a person born in the country to parents who were both citizens of the country when their child was born.

[CDR Kerchner]

One would clearly have to be sure said DNA source was legally abandoned by Obama and thus fair game in the eyes of the law in the source location state and any federal laws, etc.

Hair can only be used for familial type atDNA tests if one has hair samples with the root attached. And that would require extraction of that atDNA via a forensic lab. And of course a chain of custody would be essential, even if anonymous. Such forensic analysis is much more costly than the everyday retail atDNA tests offered by 23andMe and AncestryDNA which require cheek cell swabbing or a good amount of saliva in a tube. And then the data could be uploaded to GEDMATCH.com say using just initials and see what showed up, just like the police now do at GEDMATCH to see what they can find from a DNA sample as to close cousins or family. But it would certainly be helpful and maybe definitive if samples could be obtained from Barack and any of his alleged half brothers to compare.

Now hair could be used for a mitochondria mtDNA test like offered by FamilyTreeDNA and that could be compared to another person willing to provide a sample who is proven to be in the direct maternal line of Stanley Ann Dunham. But an atDNA type of test would be much better and get access to a larger database for comparison. I have been active in the use of genetic genealogy since early 2021 to help others as part of my genealogy hobby.

[CDR Kerchner]

Barry, if one believes his early life narrative, was born a subject of Queen of England:

[4Zoltan]

Between 1785 and 1790 Massachusetts passed a number of naturalization acts. In those acts they used the terms natural born citizen or natural born subject.

For example:

1786 - natural born citizen
https://archives.lib.state.ma.us/bitstream/handle/2452/104291/1786acts0019.pdf?sequence=4&isAllowed=y

1787 - natural born subject
https://archives.lib.state.ma.us/bitstream/handle/2452/104360/1786acts0088.pdf?sequence=4&isAllowed=y

[CDR Kerchner]

I’ve seen postings long ago by a fellow named Zoltan who was a highly educated, trained, and expert political scientist and sociologist, aka social engineer, that used to hangout a lot at TheFogBow with the Hammer & Sickle emblazoned ball-cap wearing fellow named Foggy, aka Grumpy, to some of the other members in that site. Is that you Mr. 4Zoltan, the political scientist from TheFogBow group? If so, long time no chat. Is Foggy still wearing his red Hammer & Sickle ball-cap?

[4Zoltan]

No. I have never been on the on the fogbow site.

But it is interesting how you tried to change the subject.

I understand that you “two citizen parents” folks have no explanation for the early use of the term natural born citizen by the Founders. Or the fact that the Framers left no record that they changed the meaning of the term that they grew up with.

[Bruce Campbells Chin]

And the common understanding of “natural born Citizen” at the time to John Jay and George Washington is clear in the letter from Jay to Washington in Aug 1787 that a “natural born Citizen” was one who born free of “foreign influence”. And that requirement would apply to anyone who would be eligible to be the Commander in Chief of our military forces after the founding generation was gone, per Article II Section 1 Clause 5 of the Constitution, the presidential eligibility clause. And that would exclude people born as dual-Citizens for sure. It would obviously be a person born with unity of citizenship and sole allegiance to the United States.

Sorry, but I don't agree. You've got a lot of things in there are just assumed without any evidence. Saying that something is "clear", "for sure", or "obvious" doesn't make it so.

You cannot generalize from what John Jay said in a private letter to Washington or anyone else what the common understanding of "natural born citizen" was throughout the colonies as whole. I think the far more convincing argument is that citizenship would have been understood by the people with respect to their own status as citizens or subjects under the law of the Colonies themselves, which was uniformly English Common law. And England, unlike the rest of Europe, used jus solis. That meant they would have understood citizenship to flow by place of birth rather than by blood.

I've never thought the "dual citizenship" argument in particular was very convincing because delegates to foreign countries the determination of who is eligible to be President. If some other country decides on a ridiculously broad definition, then they'll disqualify from the Presidency people who may have no substantive relationship to that country. Doesn't make sense we'd outsource our definition of who is eligible for our highest office.

Finally, I'd admit that isn't 100% clarity as to exactly what was meant by "natural born citizen" as that phrase is used in the Constitution at the time it was ratified. However, as I mentioned in my first post, I agree with Scalia's use of textualism rather than divination of subjective intent in terms of Constitutional interpretation. So, purely as a matter of textualism rather as attempt to divine "intent", "natural born citizen" squarely fits within "citizen at birth". Just in terms of pure linguistics, those two things are almost identical.

So, the 14th Amendment is a debate-ender. I can't imagine you could -- or should -- get a majority of the Supreme Court to ever agree that someone who is a citizen at birth isn't a natural born citizen.

[DiogenesLamp]

Wasn’t New York City the Capitol in 1787? Congress met there and Washington was inaugurated there in 1789.

"The Constitutional Convention[1] took place in Philadelphia from May 25 to September 17, 1787. "

https://en.wikipedia.org/wiki/Constitutional_Convention_(United_States)

[4Zoltan]

I know the Convention was in Philadelphia but Philadelphia may not have been the Capitol. New York City was where the Congress met and where in 1789 President Washington was inaugurated.

New York was the Capitol starting in 1785 until 1790.

“The history of New York City (1784–1854) started with the creation of the city as the capital of the United States under the Congress of the Confederation from January 11, 1785, to Autumn 1788, and then under the United States Constitution from its ratification in 1789 until moving to Philadelphia in 1790.”

https://en.m.wikipedia.org/wiki/History_of_New_York_City_(1784%E2%80%931854)

[4Zoltan]

It is unlikely that the Supreme Court would over US v Wong Kim Ark (1898).

[CDR Kerchner]

Bruce Chin wrote: "So, purely as a matter of textualism rather as attempt to divine "intent", "natural born citizen" squarely fits within "citizen at birth"."

You are correct when you say "natural born citizen" squarely fits with "citizen at birth. This Euler Diagram explains how "natural born Citizen" kind of citizen "fits within" and is a subset of "citizen at birth". But the two terms are not identical:

[DiogenesLamp]

I know the Convention was in Philadelphia but Philadelphia may not have been the Capitol.

Where the convention was held is good enough for the purpose of my argument. This is where all the delegates met, and this is the city in which the discussions of the meanings of these terms would have taken place.

The understanding of the delegates would have imprinted on the lawyers/legislators of Philadelphia more so than anywhere else.

[Bruce Campbells Chin]

You may argue they are not identical, but I'd say that the common understanding of those terms is identical.

[DiogenesLamp]

I don't agree. There was no internet, or any national newspapers to spread that kind of word from state to state. And if there were, there should have been a record of it somewhere, and yet we've never seen it.

I have an alternate theory. They did not consider the meaning of that particular term of art so controversial as to need specific explanation.

This is true of many such terms used in the Constitution, so "natural born citizen" is not an outlier in that they did not explain it.

James Madison himself wrote in a letter, had they tried to explain everything, they would have written a "digest of laws" rather than a constitution.

The one commonality when it came to understanding legal terms across all the colonies was the prevalence of the English common law system.

But which we deliberately and decisively veered away from on issues revolving around creating a democratic Republic as opposed to a Monarchy. We threw out corruption of blood, debtor's prison, National Church, and several other English law concepts that were inimical to a Republic, and I believe we threw out their notion of allegiance to the King if born on his soil.

In that letter from Madison I mentioned earlier, the entire message of the letter was that English common law no longer applied in the colonies except for mundane aspects of it.

That was The legal system that was the foundation of law in every single colony, and something with which voters and representatives in every colony would have been familiar.

They were not familiar with the word "citizen", because it was rarely used in English law during that period. Blackstone only mentions it four times in his works, and in all four occasions it is used in the context of a member of a city. The word did not mean "citizen" in the modern meaning of the term. It meant "city denizen." One who dwells in a city.

Therefore, the meaning of any legal terms under the English common law system would have been far more likely to be reflective of common understanding than where idiosyncratic definitions used by some particular people within a particular colony.

Your idea would make sens *IF* the term being discussed was "subject", because *THAT* is the normal and proper English common law term used to describe allegiance to a nation.

This "citizen" thing does not make any sense in the context of English law because it's origins do not lie in the common law of England. There is only one place on earth at the time where the word "Citizen" had the modern meaning it has now, and that place is Switzerland... the only other Republic in the world at that time.

We know the founders deliberately chose the word "citizen" to replace the word "subject", and this change only makes sense in the context of the Swiss usage of the word. It makes no sense in the context of the English usage of that word during that time period.

I have looked up the word "citizen" in many English dictionaries from the 1760-1780 time frame, and I have yet to find one that defines the word "citizen" as a member of a nation state. They invariably define "citizen" as a dweller in a city. I can provide you at least a couple of examples if the links have not deteriorated.

[DiogenesLamp]

Between 1785 and 1790 Massachusetts passed a number of naturalization acts. In those acts they used the terms natural born citizen or natural born subject.

Got anything prior to 1776? Once the government started using the term, it is not remarkable that states would follow suit.

[4Zoltan]

The members of Philadelphia’s Society for Political Inquiries (founded in February of 1787 by Ben Franklin) met in Franklin’s house in March and April 1787.

Members of the Society include all of the Pennsylvania delegates to the Constitutional Convention. Another member of the Society was prominent Philadelphia lawyer, William Rawle.

Rawle later became President Washington’s choice to be the US Attorney for Pennsylvania.

Rawle wrote in 1826

“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.”

https://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships23.html

[DiogenesLamp]

I understand that you “two citizen parents” folks have no explanation for the early use of the term natural born citizen by the Founders.

You must be reading people other than me. I explain the origins of the term whenever the topic is brought up.

I do wish to make a quibble here. A lot of people that say "two parents" have no grasp of the reality of the 1787 time period. When a woman got married, she automatically acquired the allegiance of her husband. What I mean by this is only the father of children mattered. If he was a citizen of the US or a Subject of England, his children were automatically citizens or subjects regardless of where his wife was from.

Or the fact that the Framers left no record that they changed the meaning of the term that they grew up with.

You mean other than the fact that they deliberately stopped using the word "subject" (the normal English law based term) and started using the word "Citizen"? (The meaning of which came from Switzerland)

Look up Jefferson's draft of the Declaration of Independence. Researchers show that he originally wrote the word "subject", but then erased it and wrote "citizen" over the top of it.

[DiogenesLamp]

which was uniformly English Common law. And England, unlike the rest of Europe, used jus solis. That meant they would have understood citizenship to flow by place of birth rather than by blood.

Except the part that requires the monarchy, such as the notion that if you are born on the King's soil, you owe automatic allegiance to him. I have read essays from this era in which they denounce this practice of forcing people into allegiance they do not want simply by being born on the King's land.

You toss out the Monarchy, you toss out the Monarchy law too.

So, purely as a matter of textualism rather as attempt to divine "intent", "natural born citizen" squarely fits within "citizen at birth". Just in terms of pure linguistics, those two things are almost identical.

So, the 14th Amendment is a debate-ender.

This idea does not stand up to scrutiny. The 14th amendment specifically does not use the term "natural born" and a moment's thought would reveal to you that it does not use it because the notion that you can confer what constitutes a naturalization on someone and make them "natural born" is ridiculous.

Natural born citizens existed prior to and without any need of the 14th amendment. Therefore any citizen which requires the 14th amendment to be a citizen, cannot be a "natural born" citizen.

If the congress intended for former slaves to be recognized as "natural born", they would have put it into the amendment.

I can't imagine you could -- or should -- get a majority of the Supreme Court to ever agree that someone who is a citizen at birth isn't a natural born citizen.

Not true. Wong Kim Ark even mentions this.

Also look up Rogers vs Bellei.

Natural born citizens cannot lose their citizenship for failing to do something. Only artificial citizens can lose their citizenship for failing to do something.

And Bellei was a "citizen at birth." Not the same thing as a "natural citizen."

[DiogenesLamp]

It is unlikely that the Supreme Court would over US v Wong Kim Ark (1898).

Does this make it correct, or just the position that those in power insist on forcing on everyone?