The Term Of Art Test (Or, The ABCs of NBC)

Sometimes, Chats Can Make You Question Things

A new Birther reader of The Birther Think Tank, Art Telles, left this test in the comments. I call it the Term of Art Test, because the words natural born citizen are a term of art (see Note 2. below) and Birther Art Telles put the test together. Hey, as an INTP, I like puns and word-plays. Anyway, to make it easier for people to follow, I am making a post out of it along with my answers. Down below, in the notes is a txt copy of just the questions in case readers want to cut and paste their own answers:

The Term Of Art Test

Question 1: Does an Article 2, Section 1, Clause 5 “natural born Citizen” refer to a child born on U.S. soil to TWO U.S. “Citizen” parents?

Yes?
No?

Answer 1: Yes.

Question 2: Does an Article 2, Section 1, Clause 5 “natural born Citizen” refer to a child born on U.S. soil to ONE U.S. “Citizen” parent and ONE non-U.S. “Citizen” parent?

Yes?
No?

Answer 2: Yes.

2a:   What if the papa is NOT known as the result of rape?

2b:   What if the papa is NOT known as the result of rape and the child is adopted?

2c:   What if the papa is NOT known and the adoptive parents are heterosexual male and female?

2d:  What if the papa is NOT known and the adoptive parents are homosexual female and female?

2e:   What if the papa is NOT known and the adoptive parents are homosexual male and male?

2f:     What if… in vitro fertilization is successful and unknown donor citizenship documents are not available?

2g:    What if… in vitro fertilization is successful and the surrogate mother is not a U.S. “Citizen?”

Answers to 2a to 2g: Yes, if the birth took place inside the United States.

Question 3: Does an Article 2, Section 1, Clause 5 “natural born Citizen” refer to a child born on U.S. soil to ZERO U.S. “Citizen” parents?

Yes?
No?

2… 1… 0… bingo.

If the answer is not obvious with the first 3 questions, here’s more.

Answer 3: Yes. 

Question 4: Does an 1787 Article 2, Section 1, Clause 5 “natural born Citizen” mean the same thing as an 1787 Article 2, Section 1, Clause 5 “Citizen?”

Yes?
No?

Answer 4:  No. assuming the reference is to : 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.

Question 5: Does an 1787 Article 2, Section 1, Clause 5 “natural born Citizen” mean the same thing as an 1868 14th Amendment “Citizen?”

Yes?
No?

Answer 5. Yes, for people born inside the United States. As was stated in the Wong Kim Ark decision:

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory. . . 

Question 6: Does an 1787 Article 2, Section 1, Clause 5 “Citizen” mean the same thing as an 1868 14th Amendment “Citizen?”

Yes?
No?

Answer 6:  No, IF citizen in the Constitution refers to people born outside the United States, and the citizen referred to in the 14th Amendment refers to someone born inside the United States.

Question 7:    Does a child born on U.S. soil to TWO U.S. “Citizen” parents qualify to be POTUS?

Yes?
No?

Answer 7. Yes.

Question 8:   Does a child born on U.S. soil to ONE U.S. “Citizen” parent and ONE non-U.S. “Citizen” parent qualify to be POTUS?

Yes?
No?

Answer 8. Yes.

Question 9:   Does a child born on U.S. soil to ZERO U.S. “Citizen” parents qualify to be POTUS?

Yes?
No?

2 more questions for extra credit –

Answer 9: Yes, as long as his parents are not foreign diplomats or invading soldiers.

Question 10:  Does an Article 2, Section 1, Clause 5 “natural born Citizen” mean the same thing as an 1790 Naturalization Act “natural born Citizen?”

Yes?
No?

Answer 10. Yes and no. U.S. born natural born citizens born at that time were such by operation of common law, regardless of the citizenship of the parents, and subject only to the two exemptions mentioned above.  The 1790 Naturalization Act extended this characterization as a matter of statutory law, to those born overseas to American parents. Both at that time would have been eligible for the presidency

Question 11:  Does an Article 2, Section 1, Clause 5 “natural born Citizen” mean the same thing as an 1795 Naturalization Act “Citizen?”

Yes?
No?

Answer 11: No. The 1795 Act called those born overseas to Americans, only citizens, and not natural born citizens. There were no court tests at that time to determine if such persons born overseas were eligible for the presidency, but I think they would not have been. The reason is, natural born citizens as a matter of common law, applied to those born inside the country, whereas naturalization acts did not affect the citizenship of those born inside the United states. Again, from Wong Kim Ark, section IV:

So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371.

Sooo, that was a fun test. I think I passed it, and maybe even have some extra credit coming for explaining some of the answers. I am not sure what the point was, but sometimes when you have a hangover, you just look for anything to kind of distract you.

Here is a link to Mr. Telles’ website where you can find his answers:

http://originalbirtherdocument.blogspot.com/

Squeeky Fromm
Girl Reporter

Note 1. The Image. I don’t know who the artist is, but I found the image here:

http://radio-weblogs.com/0123486/2004/12/16.html#a1847

The Root Cellar seemed to be a pretty kewl blog if you check out the archives. And, chats is French for cats. And American for brief talks.

Note 2. Term Of Art. From here:

http://legal-dictionary.thefreedictionary.com/Term+of+Art

A word or phrase that has special meaning in a particular context.

A term of art is a word or phrase that has a particular meaning. Terms of art abound in the law. For example, the phrasedouble jeopardy can be used in common parlance to describe any situation that poses two risks. In the law, Double Jeopardy refers specifically to an impermissible second trial of a defendant for the same offense that gave rise to the first trial.

The classification of a word or phrase as a term of art can have legal consequences. In Molzof v. United States, 502 U.S. 301, 112 S. Ct. 711, 116 L. Ed. 2d 731 (1992), Shirley M. Molzof brought suit against the federal government after her husband, Robert E. Molzof, suffered irreversible brain damage while under the care of government hospital workers. The federal government conceded liability, and the parties tried the issue of damages before the U.S. District Court for the Western District of Wisconsin. Molzof had brought the claim as executor of her husband’s estate under the Federal Tort Claims Act (FTCA) (28 U.S.C.A. §§ 1346(b), 2671–2680 [1988]), which prohibits the assessment of  Punitive Damages against the federal government. The court granted recovery to Molzof for her husband’s injuries that resulted from the Negligence of federal employees, but it denied recovery for future medical expenses and for loss of enjoyment of life. According to the court, such damages were punitive damages, which could not be recovered against the federal government.

The U.S. Court of Appeals for the Seventh Circuit agreed with the trial court, but the U.S. Supreme Court disagreed. According to the Court, punitive damages is a legal term of art that has a widely accepted common-law meaning under state law. Congress was aware of this meaning at the time it passed the FTCA. Under traditional common-law principles, punitive damages are designed to punish a party. Since damages for future medical expenses and for loss of enjoyment of life were meant to compensate Molzof rather than punish the government, the Court reversed the decision and remanded the case to the Seventh Circuit.
West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

Natural born citizen is such a term of art.  See for example, from Solum’s Originalism and the Natural Born Citizen Clause, at the Michigan Law Review:

The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law-a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory.

Note 3. The Term of Art Test. Here are just the questions in case somebody wants to cut and paste their own answers.

The Term of Art Test

Question 1: Does an Article 2, Section 1, Clause 5 “natural born Citizen” refer to a child born on U.S. soil to TWO U.S. “Citizen” parents?

Yes?
No?

Question 2: Does an Article 2, Section 1, Clause 5 “natural born Citizen” refer to a child born on U.S. soil to ONE U.S. “Citizen” parent and ONE non-U.S. “Citizen” parent?

Yes?
No?

2a:   What if the papa is NOT known as the result of rape?

2b:   What if the papa is NOT known as the result of rape and the child is adopted?

2c:   What if the papa is NOT known and the adoptive parents are heterosexual male and female?

2d:  What if the papa is NOT known and the adoptive parents are homosexual female and female?

2e:   What if the papa is NOT known and the adoptive parents are homosexual male and male?

2f:     What if… in vitro fertilization is successful and unknown donor citizenship documents are not available?

2g:    What if… in vitro fertilization is successful and the surrogate mother is not a U.S. “Citizen?”

Question 3: Does an Article 2, Section 1, Clause 5 “natural born Citizen” refer to a child born on U.S. soil to ZERO U.S. “Citizen” parents?

Yes?
No?

2… 1… 0… bingo.

If the answer is not obvious with the first 3 questions, here’s more.

Question 4: Does an 1787 Article 2, Section 1, Clause 5 “natural born Citizen” mean the same thing as an 1787 Article 2, Section 1, Clause 5 “Citizen?”

Yes?
No?

Question 5: Does an 1787 Article 2, Section 1, Clause 5 “natural born Citizen” mean the same thing as an 1868 14th Amendment “Citizen?”

Yes?
No?

Question 6: Does an 1787 Article 2, Section 1, Clause 5 “Citizen” mean the same thing as an 1868 14th Amendment “Citizen?”

Yes?
No?

Question 7:    Does a child born on U.S. soil to TWO U.S. “Citizen” parents qualify to be POTUS?

Yes?
No?

Question 8:   Does a child born on U.S. soil to ONE U.S. “Citizen” parent and ONE non-U.S. “Citizen” parent qualify to be POTUS?

Yes?
No?

Question 9:   Does a child born on U.S. soil to ZERO U.S. “Citizen” parents qualify to be POTUS?

Yes?
No?

2 more questions for extra credit –

Question 10:  Does an Article 2, Section 1, Clause 5 “natural born Citizen” mean the same thing as an 1790 Naturalization Act “natural born Citizen?”

Yes?
No?

Question 11:  Does an Article 2, Section 1, Clause 5 “natural born Citizen” mean the same thing as an 1795 Naturalization Act “Citizen?”

Yes?
No?

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About Squeeky Fromm, Girl Reporter

Hi!!! I am a Girl Reporter on the Internet. I am 31. Plus I am a INTP. I have a Major in Human Kinetics, and a Minor in English. I have 2 cats, and a new kitten! I write poetry, and plus I am trying to learn how to play guitar. I think that is all??? Squeeky Fromm, Girl Reporter View all posts by Squeeky Fromm, Girl Reporter

5 responses to “The Term Of Art Test (Or, The ABCs of NBC)

  • Art Telles

    Squeeky…

    As I said elsewhere, you are a very good writer…
    … but you can do better.

    Think it through.

    Starting with your intro line, “A new Birther reader of The Birther Think Tank, Art Telles, left this test in the comments.”

    While it is accurate to write that a ‘new birther reader ‘ posted a comment, maybe, for accuracy and clarity, you might want to consider changing your blog name to ‘The Anti-Birther Think Tank’ instead.

    Hmmm… on second thought, keep the ‘Birther’ appellation, yes.

    Ok, now to the substance…
    … but very briefly, because the ORIGINAL intent of the ORIGINAL words of the ORIGINAL ‘Birther’ document, the U.S. Constitution, specifically Articled 2 Section 1 Clause 5 are not included in your comments.

    Here is only one example.

    Your answers is ‘yes’ to questions 1, 2, and 3.

    ALL of your comments after this are irrelevant if you ignore the ORIGINAL intent of the ORIGINAL words in Clause 5.

    Also, your 1790 and 1795 Naturalization Act ‘clarification’ is confusing.

    The emendation of the 3 words ‘natural born Citizen’ in the 1790 Naturalization Act and the repeal of ‘natural born Citizen’ by the Washington administration in the 1795 Naturalization Act with the 1 word ‘Citizen’ reveals that the words did NOT mean the same thing in the 1787 Clause 5 and they do NOT mean the same thing today in 2012.

    There is soooo much more that I could add, but it’s already said on my blog with yellow highlights on the pertinent words, so this is sufficient here.

    2, 1, 0… bingo…

    … the ORIGINAL ‘Birther’ document, the U.S. Constitution, the ONLY place in the founding documents,

    – Declaration of Independence
    – Articles of Confederation
    – U.S. Constitution

    contrasts the 3 words ‘natural born Citizen’ and the 1 word ‘Citizen’, separated by a comma and the word ‘or’ with ORIGINAL intent.

    1- The 1787 ORIGINAL intent of the ORIGINAL words is NOT that both ‘natural born Citizen’ and ‘Citizen’ mean the same thing, which means that your ‘yes’ to question #1 and #2 is not a correct answer.

    Think it through.

    2- The 1787 ORIGINAL intent of the ORIGINAL words that were written to defend the new Republic from a foreigner who wanted to be POTUS definitely does NOT mean that just any child will be eligible to occupy the Oval Office as POTUS.

    Think it through.

    A child by a ‘break-and-enter’ couple, aka an illegal alien couple from, well, pick a country, any country will do, who happen to have a child on U.S. soil was NOT the ORIGINAL intent of the ORIGINAL words.

    Think it through.

    But, hey, Squeeky, you got # 4 correct…
    …that was very easy, wasn’t it, ’cause you simply quoted Clause 5, and I also agree with ORIGINAL intent of the ORIGINAL words of Clause 5.

    And, ‘The Conversation’ continues…
    … cause ridicule is nowhere present in your counterpoint to my point.

    Art

    • Squeeky Fromm, Girl Reporter

      ArtT:

      I added a link to your website in this Internet Article, and also put it in the blogroll links.

      There is nothing particularly wrong with your SUPPOSITIONS about what the Founders intended, and whether they would feel particularly comfortable with Mexican anchor babies. I mean, they’re dead and gone sooo who can say???

      It is just that in the course of litigation, the courts did not make those same suppositions. They defined “natural born citizen” in accordance with English common law, and that equates to people who are born here being NBC.

      I ask you the same question that I have posed to Mario Apuzzo, Esq:

      What keeps you from maintaining the position that jus soli NBC is either wrong, or less intelligent than jus sanguinis, and should be changed as opposed to the current Birther stance of maintaining the law is something that it clearly isn’t???

      Plus, I named this The Birther Think Tank because I was originally a Birther before the long form came out.

      Squeeky Fromm
      Girl Reporter

      • Art Telles

        Sooo who can say???…

        Yes, Squeeky, it is accurate to say about my suppositions,

        “There is nothing particularly wrong with your SUPPOSITIONS about what the Founders intended … .”

        However, the issue is not my suppositions or your suppositions, but the ORIGINAL intent of ORIGINAL words of the Founders, right?

        Does the ORIGINAL intent of the ORIGINAL words that the Founders used in Article 2 Section 1 Clause 5 determine what our suppositions are?

        Yes?
        No?

        Yes.

        The Founders either allowed for immigrants, illegal or legal, to become POTUS or they did not, right?

        So, Squeeky, either my suppositions are wrong or your suppositions are wrong, right?

        Also, your answers to questions 1, 2 and 3 can not all be ‘yes’ if you start out with the correct supposition, right?

        What is the ‘correct’ supposition?

        Either immigrants were intended to be eligible to be POTUS or they were not, right?

        Either the anchor babies of immigrants, illegal OR legal, were intended to be eligible to be POTUS or they were not, right?

        The Founders just finished a war with England, right?

        So, either ALL immigrants, including British ‘subjects’, were intended to be eligible to be POTUS or they were not, right?

        Clarity is the goal, and we’re getting there.

        – – – – – – – – – –

        The ‘long form’ did it?

        Was the long form the ‘last’ straw that thoughtfully and intellectually convinced you that BHObama is legit, so from a ‘Birther’ you chose to espouse ‘Anti-Birther’ views?

        That’s a good, inquisitive, followup question, isn’t it?

        Was it a voila moment when you as a ‘Birther’ looked one direction and shuddered when you saw the darkness of the ORIGINAL intent of the ORIGINAL words of the ORIGINAL ‘Birther’ document of our Republic, the U.S. Constitution, specifically Article 2 Section 1 Clause 5?

        Is that when you looked in another direction and went joyfully into the light of the Anti-Birther-in-Chief, aka the titular head of the “occupy” movement, aka the OCCUPIER-in-Chief, aka the Lenin wanna-be Transformer-in-Chief BHObama?

        Well, if your SUPPOSITIONS of the long form birth certificate convinced you that BHObama is legit, then that helps explain why the ORIGINAL intent of the ORIGINAL words of the ORIGINAL ‘Birther’ document about ‘natural born Citizen’ and ‘Citizen’ are not persuasive.

        Why?

        ‘Cause, since it does not matter to ‘Anti-Birthers’ if BHObama is a U.S. ‘Citizen’ born on U.S. soil in Hawaii, or was it possibly Washington state, the birth records are, uh, confusing to thoughtful inquisitors, to only one U.S. ‘Citizen’, then it probably will not matter to ‘Anti-Birthers’ if BHObama is a citizen of Kenya or an naturalized citizen of Indonesia.

        As a child under the care of a mother who remarried and who would have to renounce the U.S. citizenship of her child so he could attend a Muslim school in Indonesia, BHObama has a unique and original legacy, doesn’t he?

        So, of course, to ‘Anti-Birthers’ BHObama is legit and should sit in the Oval Office as POTUS.

        Well, clarity being the goal, we’re getting there.

        Art

        • Slartibartfast

          Art’s screed:

          Either immigrants were intended to be eligible to be POTUS or they were not, right?

          Immigrants were not intended to be eligible (hence the ban on naturalized citizens as POTUS).

          Either the anchor babies of immigrants, illegal OR legal, were intended to be eligible to be POTUS or they were not, right?

          The babies of immigrants (all of whom were legal since there was no such thing as illegal immigration at the time) have always been considered natural born and thus eligible for the presidency.

          The Founders just finished a war with England, right?

          The were rebelling against the English government’s policy of taxation without representation, not rejecting everything “English”.

          So, either ALL immigrants, including British ‘subjects’, were intended to be eligible to be POTUS or they were not, right?

          First of all, any immigrant was making the same decision (to try to find a better life in America) that every US citizen (or their forefathers) had made. Secondly, immigrants are not allowed to be president—Jennifer Granholm, for example, would make a fine Democratic presidential candidate if she were not an immigrant (I would love to be able to see Warren/Granholm in 2016, but it wouldn’t be Constitutional). Lastly, (white-skinned) immigrants from any country were welcomed—something along the lines of: “Give us your tired, your hungry, your huddled masses yearning to be free”—you know, the American values that birthers love to spit on…

          Clarity is the goal, and we’re getting there.

          Sorry, but the only thing that is clear from your stream-of-consciousness ramblings is that you are a complete nut job.

    • Slartibartfast

      Art said:

      “A child by a ‘break-and-enter’ couple, aka an illegal alien couple from, well, pick a country, any country will do, who happen to have a child on U.S. soil was NOT the ORIGINAL intent of the ORIGINAL words.
      Think it through.”

      Okay, let’s think this through. The founders, who welcomed immigrants freely, had no concept of an “illegal alien”. Anyone who came to the US could settle here and their children (born in the country) could grow up to be president. There is no available evidence which contradicts this view while your interpretation cannot possibly be the original intent as it uses a concept with which the Founders were unfamiliar. Seems pretty clear you screwed the pooch on this one…

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