The National Society of Natural-Born Citizens of the United States

The Lawyers: Legal Argument or Legal Theory

 

     This page is dedicated to what lawyers have written over the years concerning the topic, "Who is a 'natural born citizen' as intended by the delegates at the Convention of 1787?"

   

     If you know of an article that is related to that topic, please send the source where the article can be obtained.  If you are a lawyer or law student, please submit your argument or theory for inclusion on this page.

 

     Currently available to download in PDF form:

 

Mr. Laurence Tribe and Mr. Theodore Olson, Senate Resolution 511, Congressional Record--Senate, April 2008.

 

Mr. Isidor Blum, Is Gov. George Romney Eligible to be President Part 1, New York Law Journal, October 16, 1967.

 

Mr. Maximillian Koessler, "Subjects," "Citizens," "National," and "Permanent Allegiance", Yale Law Journal, 1946.

 

Mr. Isidor Blum, Is Gov. George Romney Eligible to be President Part 2, New York Law Journal, October 17, 1967.

 

Representative Emanuel Celler, Celler Urges Action Soon On Presidential Eligibility, New York Law Journal, November 13, 1967.

 

Mr. Eustace Seligman, A Brief for Gov. Romney's Eligibility for Presidency, New York Law Journal, November, 1967.

 

Mr. Alexander Porter Morse, "Natural-Born Citizens of the United States",The Albany Law Journal, March 1904.

 

Mr. Warren Freedman, "Presidential Timber: Foreign Born Children of American Parents", Cornell Law Quarterly, 1950.

 

Mr. Cyril C. Means, Jr., "Is Presidency Barred to Americans Born Abroad?",   U. S. News and World Report, December 23, 1955.

 

Mr. Pinckney G. McElwee, "Natural Born Citizens", Congressional Record--House, June 14, 1967.

 

Mr. Jack Maskell, Qualifications for President and the "Natural Born" Citizenship Eligibility Requirement", Congressional Research Service, November 14, 2011.

 

Mr. Lester B. Orfield, "The Legal Effects of Dual Nationality", The George Washington Law Review, June 1949.

 

Mr. Durward V. Sandifer, "The Elg Case: Election of Citizenship at Majority by Minors, from the Cincinnati Law Review, 1940.

 

Mr. Horace Binney, February 1854, "The Alienigenea of the United States", from the American Law Register

 

Mr. Frederic R. Coudert, Jr., in 1903 in the Columbia Law Review, "Our New Peoples: Citizens, Subjects, Nationals, or Aliens." 

 

                                                Legal Argument

 

     The Guinness Book of World Records for five years listed Marilyn vos Savant as the "Highest IQ" for both childhood and adult scores.  When asked the question to define "the truth, the whole truth, and nothing but the truth" she responded with these words: 

          In court, these truth are stated explicitly so people cannot escape the consequences of lying.

          When you promise to tell "the truth," you must not lie in response to a question.

          Telling "the whole truth" goes further.  You must not state the truth so narrowly that the effect is a lie.  Say that your mother asks you if you kicked your brother, and you reply, "I didn't touch him."  That may be true because it was your shoe--not your bare toe--that contacted his shin.  But the effect is a lie.

          Telling "nothing but the truth" covers still more territory.  For instance, if you answer a question with the truth, then add a lie, you haven't told "nothing but the truth."

          None of this will stop dishonest people, but it does give us ammunition to charge them with perjury.

 

     Article V, of the Articles of Confederation, contains these words:

     Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisionments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.

 

     Article I, section 6, of the Constitution contains these words regarding the members of both Houses:

     They shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

 

     This clause of the Constitution, and as it had been in the Articles of Confederation, permits any member to speak freely, which could include not telling the truth, and do whatever they deem their privilege and proper, as long as they do not break the law.

 

     Article VI, section 2, states:

     This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State, shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

 

     Article VI, section 3, set this requirement:

     The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

 

     President Abraham Lincoln, in a letter dated February 8, 1865, "to the honorable Senate and House of Representatives" stated that "In his own view, however, the two houses of Congress, convened under the twelfth article of the constitution, have complete power to exclude from counting all electoral votes deemed by them to be illegal,". 

 

     His opinion that the Twelfth Amendment requires Congress to exclude illegal votes was again disregarded when Congress accepted illegal Electoral votes.  Congress has accepted incorrect legal theory prepared by the staff of the Congressional Reasearch Service and has counted as legal votes for a person who did not meet the qualification requirements. 

 

     Until the Supreme Court hears a case directly bearing on the issue of determining the requirements for a natural born citizen, any Act of Congress has no bearing on the term natural born citizen's meaning, including the Act of March 26, 1790 because any Act attempting to define, limit, or be controlling legislation, is not within the power of Congress. 

 

     Ultimate sovereignty is held by the people of the United States, and the people alone have the power to change the Constitution by the Amendment process described in Article V of the Constitution.  

  

     Articles submitted to legal journals are of two varieties.  One group of articles is of an informative nature the interprets opinions of Supreme Court cases.  A second group of legal articles presents legal theory as to how those Supreme Court opinions can be used to subvert and circumvent the Constitution. 

 

     The informative articles of the first group include "The Legal Effects of Dual Nationality" by Mr. Lester B. Orfield, "The Elg Case: Election of Citizenship at Majority by Minors" by Mr. Durward V. Sandifer, "Our New Peoples: Citizens, Subjects, Nationals, or Aliens" by Mr. Frederic R. Coudert, Jr., and "Dual Nationaity and Election" by Mr. Richard W. Flournoy, Jr.  Mr. Flournoy also wrote "Naturalization and Expatriation."  And not to be overlooked, Mr. Maximillian Koessler's article, "Subjects," "Citizens," "National," and "Permanent Allegiance."   

 

     Articles of legal theory include Mr. Isidor Blum for his article "Is Gov. George Romney Eligible to be President," Mr. Pinckney G. McElwee, "Natural Born Citizens," and articles from Mr. Jack Maskell of the Congressional Reaserch Service.  They include "Qualifications for President and the "Natural Born" Citizenship Eligibility Requirement" in 2011 and "Qualifications for the Office of President of the United States and Legal Challenges to the Eligibility of a Candidate" in 2009.   

 

     The best method of understanding the principle of legal theory is a sample question in a study guide for passing the Bar Exam.  In the Constitutional Law question section of Blond's Multistate Bar Exam fifth edition a question is posed.  Question:

     A devoutee maintains a religious belief that the firstborn daughter of every woman should be sacrificed to God.  Her belief is that the baby should be sacrificed by tossing it off a high suspension bridge.  May the devoutee be successfully prosecuted?  The correct answer for this question is "The Free Exercise Clause prevents the government from unduly burdening a person's religious beliefs.  "One has an absolute privilege to maintain any religoius beliefs, and hence the devoutee will not be successfully prosecuted..."

 

     

     In the primaries for the 2008 elections, Senator Barack Obama, Senator Hillary Clinton and others, introduced a Resolution in the Senate that was intended to confuse the public by implying that Senator John Sidney McCain, III, was not a natural born citizen and would be ineligible to hold the Office of President if he was elected.  This Resolution was introduced to show that Senator McCain was and is a natural born citizen but also to justify the eligibility of Barack Obama, even though the fact was clearly known that he is not a natural born citizen.

 

     The Resolution was introduced April 10, 2008, and referred to the Committee on the Judiciary.  The Resolution cleared the Committee on April 24, 2008 with no objections and with an independent report from Harvard Law Professor Laurence Tribe and former Solicitor General Theodore Olson.

 

     On April 30, 2008, the Senate, in unanimous agreement and no objections, agreed that John Sidney McCain, III, is a natural born citizen because both his father and mother were United States citizens.  This Resolution report then went on to incorrectly imply that Barack Obama was also eligible, even though neither his father nor his mother were United States citizens at the time of his birth.  Under United States law, Mrs. Ann Dunham (Stanley) Obama expatriated herself when she married a foreign national, Mr. Barack Hussein Obama, Sr.

 

     Based on Senate Resolution 511, the Congress, when they met in joint session to count the electoral votes in January 2009, incorrectly accepted the electoral votes cast for an ineligible candidate in violation of the Constitutional oath to uphold the Constitution and as required by the Twelfth Amendment. 

 

     This is the report to support Senate Resolution 511, submitted by Mr. Laurence Tribe and Mr. Theodore Olson as published in the Congressional Record--Senate.

 

 

(Download: This Article )

 

 

 

Society comments:  What is immediately noticeable is the date of the report submitted by Mr. Theodore Olson and Mr. Laurence Tribe.  That date, March 19, 2008, was weeks before the Resolution was introduced to the Senate.  (A lesson taught lawyers is to know the answer to any question before you ask the question.  That way, there are no surprises.)  As with many writers attempting to justify the unacceptable, Mr. Olson and Mr. Tribe bring up the Fourteenth Amendment, ratified July 9, 1868, and try to somehow make it retroactive to September 17, 1787.  Having made the case that Senator McCain is a natural born citizen because both parents were United States citizens, they then theorize that a person born in the territory of the United States of parents, neither of them United States citizens, is also to be considered a natural born citizen.  The reason Mrs. Obama, Sr. expatriated herself is based on ancient law recorded by Henry of Bratton in a collection credited to him titled Bracton on the Laws and Customs of England written between the 1220's and 1230's possibly by others and added to by him in the 1250's.  In a translation from the Latin to English done by Samuel Thorne of the Harvard Law School, this description is found in Volume 2, page 31:  "Who may be called free and who freeborn.  He may be called free and freeborn who immediately at birth is free, whether he is the offspring of two free and freeborn parents, or of a freedman and a freedwoman, that is, persons manumitted from lawful bondage, or of one freeborn parent and one freed, or if he is born of an unfree mother and a free father, provided he was born outside a villain tenement and in a free bed, and provided he was born in wedlock.  So to if he is born of a free mother and an unfree father out of wedlock.  It suffices [for him to be free] that the mother, though she [afterwards] was made a bondswoman [by the marriage], is free either at the time the offspring is conceived or at the time it is born, or at least at some time during the interval, for the misfortune of the mother ought not to injure him who is in the womb."  Do a word substitution as follows: Free=citizen; Freeborn=natural born citizen; Freedman=naturalized male citizen; Freedwoman=naturalized female citizen; Unfree=non-citizen; Manumitted=sent; Lawful Bondage=prior citizenship; Villein tenement=serfs bondage=non citizen.  In the United States, a woman who marries a foreign national expatriates herself based on MacKenzie v. Hare et el., Board of Elections of San Francisco (1915) 239 U. S. 299, based on the Citizenship Act of March 2, 1907, and in Savorgnan v. United States et el. (1950) 338 U. S. 491, supporting the Nationality Act of 1940.

 

 

 

     In 1967, Governor George Romney was in contention for his political party nomination for President.  Because of the vital constitutional implications of the question of eligibility for the Presidency, the New York Law Journal had invited a number of the nation's leading lawyers and legal educators to express their views on the subject for publication.

 

     On Monday, October 16, 1967, Part One of an article titled, "Is Gov. George Romney Eligible to be President?", was published.  The article was written by Mr. Isidor Blum, a contributing editor to the New York Law Journal.  He was formerly professor of constitutional law at New York Law School.

 

(Download: This Article Part #1 )


 

 

Society comments:

 

 

 

 

 

 

     In 1946, a former member of the Vienna Bar, and most recently, Attorney with the War Crimes Branch of the United States Army, Mr. Maximillian Koessler, had this article published in the Yale Law Journal.  It is titled "Subject," "Citizen," "National," and "Permanent Allegiance." 

 

 

 

 (Download: This Article )

 

 

 

 

 

Society Comments:

 

 

 

  

 

     On Tuesday, October 17, 1967, Part Two of the article "Is Gov. George Romney Eligible to be President?, written by Mr. Isidor Blum, was published.

 

(Download: This Article Part #2 )

 

 

 

Society comments:

 

 

 

 

     On Monday, November 13, 1967, Representative Emanuel Celler, Chairman of the House Judiciary Committee, continued with his article written for the New York Law Journal on the discussion of Governor George Romney's eligibility for the presidency.  His article is titled "Celler Urges Action Soon On Presidential Eligibility."

 

(Download: This Article )

 

 

 

Society comments:  Representative Celler would like you to believe that the Supreme Court would not accept any case on this subject because it is considered a political question under Article I, section 6.  That is inaccurate as has been shown by Chief Justice Marshall in both Marbury v. Madison (1803) 5 U. S. 137 and McCulloch v. Maryland (1819) 17 U. S. 316.  The distinction was made between a matter of politics and a matter of law.  This issue is part of the supreme law, the Constitution.  Representative Celler also wants you to believe that a case cannot be brought by anyone other than an injured political candidate, (though Senator McCain or Governor Romney would be ideal parties to show injury), because there are other ways to show injury that would be eligible to bring a case and controversy to the Court for adjudication and definition of the term natural born citizen.

 

 

 

 

     Mr. Eustace Seligman, is a member of the New York Bar since 1914, and a senior partner in the firm of Sullivan & Cromwell.  He is a long-time personal friend of Governor Romney and was a member of the board of directors of American Motors Corporation when Governor Romney was president, and is New York counsel for the company.  His article is titled, "A Brief for Gov. Romney's Eligibility for Presidency." 

 

(Download: This Article )

 

 

 

Society comments:

 

 

 

     The Editor of the New York Law Journal received several letters commenting on the articles that had been published.  These are some of those letters.

 

(Download: This Article )

 

 

 

Society comments:

 

 

 

     In March 1904, The Albany Law Journal published an article by Mr. Alexander Porter Morse, titled "Natural-Born Citizens of the United States".

 

(Download: This Article )

 

 

 

Society comments:

 

 

    

     In 1950, the Cornell Law Quarterly published an article titled "Presidential Timber: Foreign Born Children of American Parents", by Mr. Warren Freedman, Instructor, Rutgers University School of Law.

 

(Download: This Article )

 

 

 

Society comments:

 

 

 

     In the December 23, 1955 issue of U. S. News and World Report, an article was published titled "Is Presidency Barred to Americans Born Abroad?" written by Mr. Cyril C. Means, Jr.  The reason stated by U. S. News and World Report was this:

 

     "Among men mentioned as possible future Presidents are three who were born outside the United States: Christian A. Herter, F. D. Roosevelt Jr., and Herbert Hoover Jr.

 

     The question is now being raised whether these three men--or any other American born abroad--can legally become President.

 

     Reason for doubt is that the Constitution says only "natural born" citizens are eligible for the Presidency.  And no court has ever defined what "natural born" means.

 

     Now, for the first time, a through study of this important question has been made.  The author, Cyril C. Means, Jr., arbitration director of the New York Stock Exchange, is an expert in constitutional law.

 

     Mr. Means tells here what the problem is--and how he thinks a court would decide it."

    

 

(Download: This Article )

 

 

 

Society comments:

      

 

 

 

     On June 14, 1967, the Congressional Record--House, published an article that was titled, "Natural Born Citizens".  It was introduced to the House by Representative Dowdy this way: "I have recently read an unpublished essay or brief on the meaning of the phrase as it may apply to current prominent possible candidate for the office of President, the same having been written by the Honorable Mr. Pinckney G. McElwee, of the bar of the District of Columbia.  As it is not otherwise available, and may be of interest to the Members of this Congress and others, I would incorporate in the Record as a part of my remarks, that it may be easily available for consideration with other dissertations on the subject, to shed whatever light it merits:".

 

Editor's note:  This piece has numerous typographical errors that have been reproduced in this copy.  It is unknown if the original manuscript contained the errors or if the proof reader for the Congressional Record--House, was negligent. 

 

 

(Download: This Article )

 

 

Society Comments: The writer uses many of the theories expressed by others, and includes another theory that is incorrect.  His theory wants to imply that the word "inhabitant" means "permanent resident."  He does this, apparently without looking at how "inhabitant" is used in the Constitution. 

     Article I, section 2, states: "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." 

     Also in Article I, section 3, are these words: "No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." 

     The result of the replacement of "Inhabitant" with "Permanent Resident" would  then be;

 

     No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a citizen of the United States, and who shall not, when elected, be a(n) "Permanent Resident" of that State for which he shall be chosen.

      

     It is unlikely to think that Delegates to the Convention agreed to allowing non residents of their State to represent the State in either the House or Senate.  There is a distinction between a "Permanent Resident" and an "Inhabitant." Any dwelling place, in any State, occupied by a person, is their place of "Inhabitation".  The State, where a person votes, is their "Permanent Residence." 

     When a person is elected to the Congress, that Congressman will normally take a dwelling place in the Washington DC area. That will be their place of "Inhabitation".  They are an "Inhabitant" of the District.  Their "Permanent Residence" is the State for which they were elected.

     The words "Inhabitant" and "Permanent Resident" do not have the same meaning.  They are distinct and different.  "Subject" and "Citizen" are distinct words that have different and separate meaning.    

 

 

 

 

     

     On November 14, 2011, the Congressional Research Service, under the direction of Mr. Jack Maskell, Legislative Attorney, American Law Division, published their report titled "Qualifications for President and the "Natural Born" citizenship Eligibility Requirement".  This report was prepared for Members and Committees of Congress.

 

 

 (Download: This Article )

 
 
Society Comments:
 
 
 
 
     In the June, 1949, issue of The George Washington Law Review, an article authored by Mr. Lester B. Orfield, Professor of Law, Temple University, Philadelphia, Pennsylvania, prepared this paper at the request of the Inter-American Bar Association for its May 1949 meeting in Detroit, Michigan.  It is titled "The Legal Effects of Dual Nationality"

 

 

(Download: This Article )

 

 
 
Society Comments:
 
 
 
 
     The Cincinnati Law Review, in 1940, published a paper titled "The Elg Case: Election of Citizenship at Majority by Minors".  This paper was written by Mr. Durward V. Sandifer, Assistant to Legal Adviser, Department of State.
 
 
 

 (Download: This Article )

 
 
 
Society Comments:
 
 
 
 
     In the American Law Register, with a date of February, 1854, an article written by Mr. Horace Binney, titled, "The Alienigenae of the United States", was published.  Mr. Binney had noticed that children of American parents were without means of attaining citizenship.  His article inspired the Act of February 10, 1855.
 
 
 

 (Download: This Article )

 
 
 
 
Society Comments:
 
 
 
     The Columbia Law Review in 1903 published an article writen by Mr. Frederic R. Coudert, Jr., titled "Our New Peoples: Citizens, Subjects, Nationals, or Aliens".  This article considers the status of people acquired when Spain relinquished control of the Philippine Islands and Porto Rico to United States control. 
 
 

 

(Download: This Article )

 
 
Society Comments:
 
 
Future Articles:
 
     Mr. Dudley O. McGovney wrote a two part article published in the Columbia Law Review in 1911 titied "American Citizenship".  This is part 1.
 
 
 
 
Society Comments:
 
 
 
 
     Part 2 of the article by Mr. Dudley O. McGovney, "American Citizenship", as published in the Columbia Law Review in 1911.
 
 
 
 
Society Comments:
 
 
 
 
     Mr. Richard W. Flournoy, Jr., Assistant Solicitor, Department of State, wrote and published this article titled "Dual Nationality and Election", in 1921.  This is a two part article, this being part 1 as published in the Yale Law Journal.
 
 
 
 
Society Comments:
 
 
 
 
 
     This is part two of Mr. Flournoy's article titled "Dual Nationality and Election",  published in the Yale Law Journal in 1921. 
 
 
 
 
Society Comments:
 
 
 
     In 1922, Mr. Richard W. Flournoy, Jr. published in the Yale Law Journal his article titled "Naturalization and Expatriation".  Mr. Flournoy was at the time, Assistant Solicitor, Department of State.
 
 
 
 
Society Comments:
 
 
 
     Mr. William T. Han, wrote a paper published in Drake Law Review, titled "Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship."
 
 
 
Society Comments:
 
 
 
      The Yale Law Journal published the paper written by Ms. Jill A. Pryor, titled "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty."
 
 
 
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