The Post & Email by Joseph DeMaio 7/19/2021
What did the Framers mean by the term "natural born Citizen?"
Faithful P&E readers, as we wait patiently for the ruling from the Supreme Court on the Petition for Rehearing in Laity v. Harris, USSC Doc. No. 20-1503 (don’t hold your breath for an order granting the petition…), perhaps it makes sense to take a few moments to once again revisit the foundations of the theory that if a person is a “citizen at birth” or a “citizen from birth” under the 14th Amendment, this means that the person is also a “natural born Citizen” as intended by the Founders in Art. 2, § 1, Cl. 5 of the Constitution, the presidential “Eligibility Clause.”
While some might deem this theory to be “misinformation” worthy of being purged from existence, it still persists in the minds of those who believe that Kamala Devi Harris is a “natural born Citizen” eligible to serve as vice-president. Although there are more colorful, colloquial terms to describe this “citizen-at-birth-equals-natural-born-citizen” intellectual anomaly, let us borrow from the Goofball-in-Chief’s “No Malarkey” campaign bus: the purported equivalence of a 14th Amendment “citizen” and an Art. 2, § 1, Cl. 5 “natural born Citizen” is not “No Malarkey,” but instead is “Pure Malarkey.”
Accordingly, faithful P&E readers, consider the following discussion to be a brief “refresher” course in what is – and more importantly, what is not – the “fact-checked” truth underlying the issue because, apart from the question of “standing” in the Laity v. Harris case, this concept lies at the core of the substantive question presented in the dispute. Some of the content may seem repetitive, so feel free to skip ahead as necessary.
Caffeinated beverage nearby? Thinking cap in place? Excellent… let us begin.Malarkey at Work
To begin with, “malarkey” is defined as “insincere or foolish talk.” It is not infrequently used to mislead or deceive. And that, faithful P&E readers, is exactly what has occurred with regard to searching for the original intent of the Founders when they crafted the “natural born Citizen” eligibility restriction in the Constitution.
The tsunami of misinformation stretches from the 1898 decision in United States v. Wong Kim Ark, 169 U.S. 649 (1898) (hereinafter “WKA”); to the various “products” of the Congressional Research Service (“CRS”) found here and here; to a more recent article published by two former Solicitors General of the United States captioned “On the Meaning of ‘Natural Born Citizen.’” The 2006 Federalist Blog Post
First, the U.S. Supreme Court majority opinion in WKA has been described as perhaps “one of the most incompetent and feeble rulings ever handed down by the Supreme Court….” Not exactly high praise for the decision. The just-cited Federalist Blog article – titled “Was U.S. v. Wong Kim Ark Wrongly Decided?” – posits that WKA was, as a matter of fact and law, wrongly decided for a wide variety of reasons. Chief among those reasons was the fact that Associate Justice Horace Gray ignored his own ruling on the meaning of “and subject to the jurisdiction of the United States” under the 14th Amendment which he had earlier handed down in Elk v. Wilkins, 112 U.S. 94 (1884).
The Elk case addressed the question of whether an American Indian, John Elk, who was born a Winnebago Indian to tribal member parents on the tribe’s reservation, but upon reaching majority, renounced his tribal membership and lived in the Nebraska Territory, was a 14th Amendment U.S. citizen. The Supreme Court, with Justice Gray writing the majority opinion – Justices Harlan and Woods dissenting – held that despite being born in a U.S. territorial area, he was not subject to the “complete jurisdiction” of the United States under the 14th Amendment and remained subject to his tribe’s jurisdiction from birth.
Thus, Justice Gray opined that Elk was not a U.S. citizen and was to be denied the right to vote in a municipal election for members of the Omaha city council. Thank you, Justice Gray. Mercifully, Congress abrogated Gray’s decision in 1924 by enacting the “Indian Citizenship Act,” 43 Stat. 253.
The Federalist Blog post also discusses Gray’s refusal to take into consideration the documented legislative history behind enactment of the 14th Amendment, referencing Justice John Paul Stevens’s later observation that a refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent: both refusals are inexcusable.
Returning to Gray’s opinion in WKA, only by ignoring via a painfully feckless attempt to distinguish his prior Elk holding could Justice Gray “fudge” the conclusion that Wong Kim Ark qualified as a person who was purportedly – despite the status of his parents as non-citizen subjects of the Emperor of China – “completely subject” to the political jurisdiction of the United States and owing to the United States “direct and immediate allegiance.”