Katyal and Clement are Wrong

On March 11, 2015, Neal Katyal and Paul Clement, two of Washington’s most prominent attorneys, published a monograph in the Harvard Law Review, titled, “On the Meaning of ‘Natural Born Citizen.’ “ Given that a current high profile candidate for the 2020 Democratic presidential nomination, Senator Kamala Harris (D-CA), is a US citizen, but not a “natural born” citizen, it is imperative that we now reestablish the definition of the term “natural born Citizen” as the Framers intended in Article II, Section 1, Clause V of the US Constitution.

In outlining the principal qualifications required of those who would seek to serve as president or vice president, the Constitution states, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”

Since all those individuals who were US citizens, but not “natural born” citizens, on the day the Constitution was ratified have been deceased for well over 200 years, the current requirements for the offices of president and vice president are as follows: they must be natural born citizens, at least 35 years of age, who have been US residents for at least 14 years. The age and residency requirements are clear and unambiguous. However, the question of who is, and who is not, a “natural born” citizen has been widely debated since 2008 when Barack Hussein Obama won the Democratic presidential nomination.

Obama, a native Hawaiian, held dual US-British citizenship from August 4, 1961, his date of birth (see Part 2, Section 5(1) of the British Nationality Act of 1948), until December 12, 1963, the date upon which Kenya gained its independence from Great Britain (see Chapter VI, Section 87[3], Subsections 1 and 2, of the 1963 Kenyan Constitution). Obama’s Kenyan citizenship expired automatically under provisions of the 1963 Kenyan constitution on or about August 4, 1984 (see Chapter VI, Section 97[1] of the 1963 Kenyan Constitution). However, his dual US-Kenyan citizenship was restored under Chapter 3, Section 14 of a revised Kenyan Constitution adopted on August 5, 2010, making Obama a lifelong citizen of Kenya “by birth.”

The Katyal-Clement monograph was intended to be a definitive piece on the meaning of the term “natural born Citizen. However, their joint opinion on that subject is far from adequate, far from scholarly.

Katyal is a graduate of Yale Law School where he was an editor of the Yale Law Journal. He subsequently served as Acting Solicitor General of the United States under Barack Obama from May 2010 until June 2011. Clement is a graduate of Harvard Law School where he served as Supreme Court Editor of the Harvard Law Review. He later served as Solicitor General of the United States in the George W. Bush administration from July 2004 until June 2008.

With credentials such as those, one would expect that their analysis of a principal qualification for the US presidency would be far more probative. For example, while Katyal and Clement express themselves adequately on the definition of the term “citizen,” they totally miss the mark in their stated purpose of defining the term “natural born Citizen.” Instead, like so many who believe the Constitution to be a “living” document, subject only to the political whims of the day, they conflate the terms “citizen” and “natural born Citizen” as if they were synonymous, totally ignoring the fact that the Framers drew a clear distinction between the two terms, vis-à-vis “… natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution…”

In other words, they fail to examine why the Framers found it necessary to include what is, in effect, a “grandfather clause,” conferring presidential eligibility on those who were otherwise unable to meet the “natural born” standard at the time the Constitution was ratified in June 1788. And since the age and residency requirements were never at issue, it is abundantly clear that the Framers were concerned that there were no 35-year-old “natural born” citizens available to serve as president or vice president during the earliest years of our republic.

On June 21, 1788, the oldest “natural born” citizens in the United States were less than twelve years old, having been born in the 24-hour period following the signing of the Declaration of Independence, when their parents became American citizens. The first US president who was at least 35 years of age, who had been a resident of the United States for at least 14 years, and whose natural born status was clear and unencumbered, was Martin Van Buren, born on December 5, 1782, six years and five months after the Declaration of Independence, when both of his parents became US citizens.

Clearly, the one presidential eligibility factor that separates presidents who were “natural born” citizens from those who were merely “citizens,” made eligible under the grandfather clause .following the word “or” in Article II, Section 1, Clause V, is a question of parental citizenship.

In the entire 243-year history of the United States, 36 of our 45 presidents had parents, both of whom were US citizens when the future presidents were born, while nine… Washington, Adams, Jefferson, Madison, Monroe, J.Q. Adams, Jackson, Arthur, and Obama… had parents, one or both of whom were non-US citizens when the future presidents were born. Of these, the first seven presidents were made eligible under the “grandfather clause” cited above, while presidents Arthur and Obama fall outside the required presidential eligibility standard.

When the Framers met in Philadelphia in September 1787 to approve the final draft of the U.S. Constitution, the physical scars of the War of Independence from Great Britain were still visible all around them and a deep-seated animosity toward all things British colored every aspect of their daily lives. So is it even remotely conceivable that, just five years and eleven months after the British surrendered at Yorktown, the Framers would have sent to the states for ratification a Constitution that would allow an individual with divided loyalties… e.g. an individual with dual US-British citizenshipto serve as president of the United States and commander-in-chief of the Army and the Navy? Not likely. It is a preposterous notion on its face. To believe that they would have done so requires a willing suspension of reason.

The Framers rightly understood that the most influential factor in a child’s upbringing is the parenting he/she receives as a child, and that the cultural, philosophical, political, and religious influence of a child’s parents fundamentally establishes the direction of his/her future conduct and intellectual development. Accordingly, what the Framers feared most and what caused them to limit access to the presidency only to the “natural born” was the fear that a future president… during his formative years and during the years in which he was developing intellectually… would be exposed to an environment or an ideology which might cause him to reject the values and the principles embodied in the U.S. Constitution.

And while Barack Obama has proven to be a living example of what the Framers feared most, another example of “what might have been” is Senator Ted Cruz (R-TX). Born in Canada, his father was a citizen of Cuba who, as a teenager, was a member of the Cuban resistance headed by Fidel Castro. He made his way to the United States in 1957, enrolled at the University of Texas, and graduated with a degree in mathematics in 1961. Later, after being transferred to Calgary, Alberta, Canada, and acquiring Canadian citizenship, he and his American wife became parents of a son, Raphael Edward “Ted” Cruz, the current junior senator from the State of Texas and a leading contender for the Republican presidential nomination in 2016.

During that campaign, the American people were convinced that the Cruzes, father and son, were both solidly anti-Communist patriots. But that’s only what we were told. What if the exact opposite were true? What if the elder Cruz had been a dedicated Communist, a Fidelista in sheep’s clothing? And what if he had spent decades carefully indoctrinating his own son in all the benefits of life in a socialist Utopia? His son, a conservative firebrand in the US Senate, would have become the perfect “Manchurian Candidate.” It is the fear of that eventuality that caused the Framers to exclude all but the “natural born” from access to the US presidency.

But now, less than two years prior to the 2020 presidential election, we find yet another ineligible Democrat, Senator Kamala Harris (D-CA), as a credible candidate… most likely for the vice presidency. As they did in 2008, Democrats are once again sanctioning a candidate who is not eligible to serve as president or vice president, the only two jobs in the entire United States… public sector and private sector combined… that require the incumbents to be “natural born” US citizens..

Harris’s mother, Shyamala Gopalan, emigrated to the US from India in 1960 and her father, Donald Harris, emigrated to the US from Jamaica in 1961.  Under US law, an individual cannot apply for citizenship until they’ve held a “green card” for a minimum of five years.  Kamala Harris was born on October 20, 1964.  At best, her mother was a legal non-citizen resident of the US for just 4 years, 9 months, and 20 days when Sen. Harris was born. Her father was, at best, a legal non-citizen resident for just 3 years, 9 months, and 20 days when she was born. Neither parent could possibly have been a U.S. citizen when Kamala Harris was born.

Why is this important? The American people are understandably concerned that, in the early years of the 21st century, we are fast losing our grasp on the governing principles and institutions that have made us the greatest nation on Earth. We have seen the Democratic Party weaponize the Internal Revenue Service; we have seen Democrats provide arms and ammunition to human traffickers and drug smugglers south of the Mexican border; we have watched helplessly as Democrats at the federal state, and local level create sanctuary cities, so as to import illegal aliens who will become future Democratic voters; we have seen a thoroughly corrupt Democratic administration ignore the repeated violations of the Espionage Act of 1917 by a Democratic Secretary of State; and we have seen Democrats weaponize the entire legal system of the United States, destroying the integrity and the reputation of the world’s foremost law enforcement agency in the process. To date, no one has been called to accept responsibility for those crimes.

We cannot continue down this path; we must return to a time when constitutional principles are once again sacrosanct. But we cannot achieve that end when some of our best legal minds join with those who would degrade our precious Constitution for partisan political advantage. Katyal and Clement are wrong and they should admit their error.

Paul R. Hollrah is a retired government relations executive and a two-time member of the U.S. Electoral College. He currently lives and writes among the hills and lakes of northeast Oklahoma’s Green Country.








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