Sunday, March 15, 2015

A Response to Neil Katyal and Paul Clement 
on the Meaning of a Natural Born Citizen
By Mario Apuzzo, Esq.

I read the March 11, 2015 article entitled, “On the Meaning of a ‘Natural Born Citizen,” written by Neal Katyal and Paul Clement, found at 128 Harv.L.Rev.F 161, and accessed at .  The first sentence of the article says:  “We have both had the privilege of heading the Office of the Solicitor General.”  The article repeats the existing talking points offered in support of the constitutional eligibility of Senator Ted Cruz (all born citizens are natural born citizens) and offers nothing new.  Mr. Cruz was born in Canada to a U.S. citizen mother and a non-U.S. citizen (Cuban) father.  I have written a recent article in which I conclude that Mr. Cruz is not a natural born citizen and therefore not eligible to be President because he does not satisfy the one and only common law definition of a natural born citizen confirmed by the unanimous U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162 (1875), which is a child born in a country to parents who were its citizens at the time of the child’s birth.  The article is entitled, “What Do President Obama and Senator Cruz Have In Common? They Are Both Not Natural Born Citizens," accessed at .  Katyal and Clement maintain that any child who becomes a citizen at birth, regardless of where born or by what means, is a natural born citizen.  They add that since Mr. Cruz became a citizen from the moment of birth and did not need any naturalization after birth he is a natural born citizen.  But there is no historical and legal evidence which demonstrates that this is how the Framers defined a natural born citizen and the authors surely have not presented that evidence even if it did exist.

The authors’ argument suffers from the fallacy of bald assertion.  They provide no convincing evidence for their position on who is included as an Article II natural born citizen.  They do not examine what was the source of the Framers' definition of an Article II natural born citizen, let alone what was the definition of a natural born citizen when the Framers drafted and adopted the Constitution and when it was eventually ratified.  They ignore so much of the historical and legal record in coming to their bald conclusions. For a discussion of this historical and legal evidence, see the numerous articles that I have written and posted at my blog, .

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