CDR Kerchner created a new handout a few months ago with a Venn Diagram in it. Kerchner seem to very proud of it, and particularly the Venn Diagram. I have been seeing this idiotic flyer all over the Internet, and figured it was time to discuss it. First, what is a Venn Diagram? Wiki says:
Venn diagrams normally comprise overlapping circles. The interior of the circle symbolically represents the elements of the set, while the exterior represents elements that are not members of the set. For instance, in a two-set Venn diagram, one circle may represent the group of all wooden objects, while another circle may represent the set of all tables. The overlapping area or intersection would then represent the set of all wooden tables. Shapes other than circles can be employed as shown below by Venn’s own higher set diagrams. Venn diagrams do not generally contain information on the relative or absolute sizes (cardinality) of sets; i.e. they are schematic diagrams.
Sooo, Venn Diagrams are more about the relationship between groups of things. Luckily, there is not any hard type math involved and this stuff is pretty much just about logic. Venn Diagrams are not necessarily proof of anything. If you had two circles, and one circle represented houses and the other circle represented cows, and they were drawn to where the two circles intersected, then somebody needs to call a veterinarian real quick. So, with that being said, let’s look at Kerchner’s Venn Diagram from this better copy I found:
Kerchner, and his attorney, Mario Apuzzo, Esq., believe that natural born citizenship is the intersection of the red circle representing the two citizen parents, and the green circle representing the place of birth. Those born to two citizen parents and within the United States are the blue natural born citizens.
This is a very accurate representation of the two citizen-parents Birthers‘ theory, but is it an accurate representation of legal reality as found in the laws, records, and Constitution of the United States of America??? Of course not.
In Wong Kim Ark (1898) and in Ankeny v. Governor (2009), which cites WKA, we find:
All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
And, born in the allegiance meant:
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.13
Thus, Kerchner’s red circle is an imaginary circle. Two citizen-parents are simply not required for those born within the United States. The only parental requirement is that the parents be neither diplomats nor invading soldiers. The parentage red circle is a figment of Kerchner’s imagination. This is why the Birthers keep losing in court. Venn will they ever learn???
There are other problems with Kerchner’s Diagram which relate to children born overseas of American citizens. As the Ankeny Court noted:
We reiterate that we do not address the question of natural born citizen status for persons who became United States citizens at birth by virtue of being born of United States citizen parents, despite the fact that they were born abroad. That question was not properly presented to this court. Without addressing the question, however, we note that nothing in our opinion today should be understood to hold that being born within the fifty United States is the only way one can receive natural born citizen status.
Generally, Congress has the constitutional power to define who shall be a citizen at birth for those born overseas. But, since Obama, Rubio, and Jindal were all born within the United States, there is no urgent need to address that issue. But a question that does arise is, what would a realistic Venn Diagram look like??? Here is my submission, with the area inside the box consisting of all citizens. A and B are citizens at birth, or natural born citizens:
You know, this stuff is kind of fun! Let me try one more:
Note 1. The Image. This is Bond of Union (1956) by M.C. Escher.
Note 2. Kerchner’s Masterpiece. The entire flyer maybe found here: