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

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.

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?