John Chyrostom's Questionable Christmas Quote

What we're looking at today is a quote attributed to John Chrysostom, which goes: 

"On this day also the Birthday of Christ was lately fixed at Rome in order that while the heathen were busied with their profane ceremonies, the Christians might perform their holy rites undisturbed."

This comes from Charles King's work "The Gnostics and Their Remains" where he quotes the above as the words of Chrysostom. A slightly different version of this quote goes:

"On this day, also, the birth of Christ was lately fixed at Rome, in order that whilst the heathen were busy with their profane ceremonies, the Christians might perform their holy rites undisturbed."

This one, however, comes from another writer quoting King (and as one will notice by some differences, they're quoting King accurately as "birthday"is turned into "birth" and "busied" is turned into "busy"). Ultimately, everyone I have seen who has offered either quote gives no source, has King as a source, or their source ends up tracing back to King.

You've likely heard the allegation that December 25 was chosen as the date of Christmas to coincide with a pagan holiday on that date. The above quote is normally used to argue in favor of that idea, given its statement that because the heathen were doing their own profane ceremonies, Christians would be undisturbed. But of course we come to the question: Did John Chrysostom actually say this?

If one wants the quick version, this quote appears to be made up. If you want the much longer version, that's what the rest of this post is for.  

Before talking about the quote, a few comments should be made on the whole "Christmas's date is taken from a pagan holiday" claim in general. The only pagan holiday that Christmas's date could plausibly have been taken from is Dies Natalis Solis Invicti (Birthday of the Invincible Sun (Sol)), a celebration of the birth of Sol, the Roman god of the Sun (some have conflated this with the birthday of Mithras, but there is no indication that Mithras ever had any birthday on such a date; Mithras scholar Roger Beck refers to that idea as "that hoariest of "facts" about Mithras", see footnote on page 299). Saturnalia sometimes gets posited as the source of the date of Christmas, but it didn't occur on December 25, but a little earlier in the month. And any other winter solstice festivals people try to point to were celebrated outside of the Roman Empire and therefore too far away to have been any plausible influence on the date of Christmas. That leaves us with Dies Natalis Solis Invicti. The problem with this idea is, it is not clear which one came first. The Chronography of 354 contains the first undisputed reference to Christmas (although the Chronograph itself is from 354 AD, hence the name, this specific portion is usually dated to the 330's). However, we have no clear record of Dies Natalis Solis Invicti being celebrated prior to this (some point to Aurelian dedicating a temple to Sol in 274 AD on December 25, but this is not evidence it was an actual celebration, or that one was created as a result). The first apparent record of the Dies Natalis Solis Invicti celebration is ironically also in the Chronograph of 354, when it says "N·INVICTI" which is shorthand for "Natalis Invicti", or "Birthday of the Invincible." However, whether this is actually a reference to Dies Natalis Solis Invicti is disputed, as it makes no mention of Sol (Sol is both the name of a Sun god and also the name of the Sun), so it may be this holiday is of even later origin. Even if we accept it is a reference to this holiday, it means we have no attestation that Dies Natalis Solis Invicti was celebrated before Christmas, raising the possibility of it coming after, perhaps in response. There are some points of evidence people can point to for either predating this period (on the Christmas side, see for example this article here which points to some possible evidences of Christmas prior to the fourth century) but all are less clear than the Chronograph of 354.

The bottom line here is that despite the popular idea that Christmas's date was chosen in response to Dies Natalis Solis Invicti, we are without definite evidence that Dies Natalis Solis Invicti even predates Christmas; it could easily be the other way around and its date was chosen in imitation of Christmas.

This then brings us to the quote attributed to Chrysostom. If this quote is legitimate, then it would indeed be strong evidence that Christmas's date was chosen due to overlapping with an unspecified "heathen" holiday, given Chrysostom lived in the fourth century. This would be far better evidence than, say, the "Scriptor Syrus" who made a similar claim that is sometimes cited... but this "Scriptor Syrus" was an unknown Syrian writer from the 12th century and is therefore worthless as any kind of primary source (see here and here).

But this is our first sign that this Chrysostom quote is false: Why isn't this Chrysostom quote used more? There is various scholarly writings about the date of Christmas, including those that discuss what John Chrysostom said about Christmas, and none of them I have seen make mention of this quote. Why is it therefore only relegated to an old 19th century work with an ambiguous citation and some people copying from it? So already we have reason to be skeptical of this quote. But let's see if we can see if it's true or not.

As noted, the earliest instance I have been able to find of this quote is from King. Here is the larger context of it from Charles King's book The Gnostics and Their Remains, page 49 of the 1864 printing:

"Similarly, the ancient festival held on the 25th day of December in honour of the "Birthday of hte Invincible One," and celebrated by the "Great Games" of the Circus (as marked in the ancient Kalendar VIII. KAL. IAN. N. INVICTI. C.M.XXIV.), was afterwards transferred to the commemoration of the Birth of Christ, the precise day of which many of the Fathers confess was then unknown. Thus Chrysostom (Hom. 31) quotes the above direction of the Kalendar, and rightly understands it as referring to the Birthday of the Invincible Mithras, adding, "On this day also the Birthday of Christ was lately fixed at Rome in order that whilst the heathen were busied with their profane ceremonies, the Christians might perform their holy rites undisturbed." Again he exclaims, "But they call this day the Birthday of the Invincible One: who is so invincible as the Lord that overthrew and vanquished Death? Or because they style it the Birthday of the Sun? He is the Sun of Righteousness of whom Malachi saith, 'Upon you, fearful ones, the Sun of Righteousness shall arise with healing in his wings.'"" 

The "Kalendar" he refers to is the Chronography of 354. The problem is, as my discussion above notes, this provides no evidence of this occurring prior to Christmas, and it makes no reference to Mithras. 

King does give this quote to Chrysostom, attributing it to the vague "Hom. 31". He then offers another quote from Chrysostom, apparently from the same source, which is "But they call this day the Birthday of the Invincible One: who so invincible as the Lord that overthrew and vanquished Death? Or because they style it the Birthday of the Sun? He is the Sun of Righteousness of whom Malachi saith, 'Upon you, fearful ones, the Sun of Righteousness shall arise with healing in his wings.'" For the record, King, in an article published a few years prior, makes it clear that the two quotes are both supposed to be from this "Hom. 31". In Volume 26 (1869) of The Archaeological Journal, on page 234 he says:

"And the origin of our festival of Christmas Day is best stated in the words of S. Chrysostom himself (Hom. xxxi.), "On this day the birthday of Christ was lately fixed at Rome, in order that whilst the heathens were occupied in their profane ceremonies the Christians might perform their holy rites undisturbed . . . . But they call this day 'The Birthday of the Invincible One:' who is so invincible as the Lord that overthrew and vanquished Death? Or, because they style it the 'Birthday of hte Sun.' He is the Sun of Righteousness, of whom Malachi saith, 'Upon you, fearful ones, the Sun of Righteousness shall arise with healing in his wings.'""

Oddly, he provides yet another variant, this time saying "occupied" rather than "busied". Granted, Chrysostom did not write in English so one could say it might be an alternate translation... but it's still odd for King to offer different versions of the quote in different works. Regardless, this shows that he is citing both of these quotes to the same work by Chrysostom, this "Hom. 31" ("Hom. xxxi" in the other source)

Now, the citation given by King is vague indeed. "Hom. 31" obviously stands for "Homily 31", but Homily 31 of what? Chrysostom has hundreds of homilies; this number is of little help if King does not specify what collection of homilies this comes from.

I decided to try to search around on Google Books to see if I could find other people referring to "Homily 31". There actually were a number who referred to a "Homily 31" by Chrysostom that apparently had something to do with Christmas, although they did not repeat the quote given by King. Unfortunately, most did little to aid me in actually finding this mysterious homily due to them being unclear themselves about the source and where to find it. But they do at least show there was a homily numbered 31 that had something to do with Christmas.

Eventually, however, I found a few that were slightly more clear, even if still not very much. William Cave's work "Primitive Christianity" (page 125 in Volume 1 of the 1728 printing), refers to a homily about Christmas by Chrysostom that is cited to "Serm. 31. to.5.p.417" (Sermon 31 of tome (volume) page 417). Cave does not offer either quote that King gives, but does mention that Chrysostom discusses how the December 25 date of Christmas was recently introduced to Antioch, but had been celebrated in the West for a longer period. 

The sermon number matches with King's citation, though. Unfortunately, while it tells us that this is found on page 417 of volume 5, it does not tell us what this volume 5 is of. Still, it helps enough, and I was able to eventually determine that the work in question was the 1702 lengthily-titled work "Sancti Patris Nostri Joannis Chrysostomi Archiepiscopi Constantinopolitani Sermonum de Diversis Novi Testamenti Locis" which was a collection of various sermons Chrysostom wrote. Here is where we run into a bit of an oddity, though. Column 417 of volume 5, which is what was cited, does have a Christmas-related homily, but it is listed as Sermon 33. The one actually listed as Sermon 31 several pages earlier has nothing to do with Christmas. But this 33rd sermon has to be the "Sermon 31" that Cave was referring to given the way the pages and volumes match up perfectly.

I did find another source (Joseph Bingham's "Orignes Ecclesiasticae") that refers to what is obviously the same homily, but cites it to a separate collection of Chrysostom's sermons/homilies. This is on page 59 of Volume 7 of the 1844 printing of "Origines Ecclesiasticae" (if consulting a different printing that divides things differently, note this is in Book 10 Chapter 4 Section 2). Bingham again discusses a Christmas homily by Chrysostom, and while not noting King's quote, does offer the quote "That ten years were not yet past since they came to the true knowledge of the day of Christ's birth, which they kept on Epiphany, till the Western Church gave them better information." We can tell by his description this is the same one as Cave offered. And he offers a citation of "Chrysost. Hom. xxxi. de Natali Christi. (Bened. 1718. vol. ii. p. 355, A 2.)" Note he refers to this as Homily 31 (xxxi), and he cannot be simply copying Cave's citation because he offers a different one.

The work in view here is "Joannis Chrysostomi archiepiscopi Constantinopolitani Opera omnia" and as the citation notifies us, is found on page 354 of Volume 2 (the above citation is for page 355 because that was the specific page the quote it was offering was from). However, we again run into a numbering question. It does not say the number on the homily itself, but if you turn back to the table of contents, you see that it is numbered 36. So I do not know where the number "31" is supposed to come from. Perhaps these homilies were numbered as 31 in some earlier collection but had their numbering updated in the later ones, and Cave and Bingham simply kept the older numbering even while citing the later collections that used a different numbering?

Regardless of how they ended up with 31 for these, this same sermon or homily has been cited as homily 31 by multiple writers, and writers who were in fact citing separate collections. Thus I think we can assume that this was the Homily 31 in view, given we have multiple authors refer to it as such, even while appealing to different collections. Here is where we run into an immediate problem. Neither quote that King offers is found here. 

The ones we looked at were in Latin, but someone did offer an English translation, which can be found on pages 180-201 here. I do not see the quote there. In fact, the claim that the date of Christmas was only recently set by Rome appears to be actually denied by Chrysostom, who says (pages 180-181):

"Although it is not yet the tenth year, from when this day has become clear and well known to us, but nevertheless it has flourished through your zeal, as if delivered to us from the beginning and many years ago. Whence one would not be in error to call the day both new and old: new because it was recently made known to us; at the same time, old and time-honored because it quickly became of like stature as the older days, and reached the same measure in stature with them. For just as with hardy and good trees (for the latter, as soon as they are put down into the earth, immediately shoot up to a great height and are heavy with fruit), so too this day being well known among those dwelling in the West from the beginning, and now having been brought us, and not many years ago, thus shot up at once and bore so much fruit, as is possible to see now--our sacred court filled, and the whole Church crowded by the multitude of those gathering together."

When Christians began celebrating Christmas on December 25 is a disputed subject; as noted at the start, we know for certain it was by the mid-fourth century by the latest, though there are some indications that it celebration started earlier. But whenever it started in the West, it appears this custom came to the East later on in the 4th century, which is why Chrysostom says it has not been ten years since they (Constantinople) were using that date, and before using this they used another date. Thus "This day being well known among those dwelling in the West from the beginning, and now having been brought to us, and not many years ago." Chrysostom's claim it was known to the West from the beginning is probably a stretch, but it is true the West had the tradition of December 25 prior to the East, which celebrated Christmas in early January. However, important for our purposes is the fact he makes the claim of it being celebrated from the beginning in the West. Whether or not Chrysostom was right about December 25 being celebrated from the beginning in the West (which includes Rome), it doesn't make sense for him to say that if he also claimed, as the quote attributed to him says, that it was only recently set to December 25 by Rome. In fact, the only mention of Rome is to say "And it is possible for the one who desires to know exactly to read the original codices publicly stored at Rome and learn the time of the census" which he uses to defend the date.

So while referred to as "Homily 31" by several other writers, this one does not have either of the quotes King offers, and in fact seems to contradict them.

I was originally going to close this there, but I did do a little more digging to try to see if I could find anything about King's second quote (the one mentioning "Sun of Righteousness") he claimed was from this Chrysostom homily, as I did recall finding someone before King using that quote, although a different translation. So I set off to look for that, and did have somewhat better success.

I'll skip past the lengthy process that I underwent to find it, but long story short, the second quote is found in a Latin sermon/homily attributed to John Chrysostom, but not by him. This sermon has several names it goes by, with the most common appearing to be some variant of "De natiuitate sancti Ioannis Baptistae Sermo" (there are alternate renderings by doing things like putting sermo at the start, replacing U's with V, or I's with J, abbreviating Sancti as S, so you can get things like "Sermo de nativitate sancti S. Joannis Baptistae" or various things in between). Another possible name, which comes from the first words of it, is "De solstitiis et aequinoctiis". The author and date are unknown, but it is apparently considered to probably be from sometime in the fourth century.

This can be found in several locations, such as the place I originally found it due to it being cited by something else, which is column 1107 of the 1570 work "Tomus Secundus Operum Divi Ioannis Chrysostomi, Archiepiscopi Constanantinopolitiani" (listed as "Tomus primus (-quintus) omnium operum Diui Ioannis Chrysostomi" on Google Books). Although this quote was attributed to a "Homiily 31" by King, it says nothing about it being the 31st in this work. At the end of the sermon is where the "invincible one" quote comes from.

Some information about this work can be found here, and an English translation here. The English translation renders the applicable passage as:

"They also call it ‘Birthday of the Invictus’. But who is invictus [unconquered] if not our Lord, who suffered death and then conquered it? Or when they call it ‘Birthday of the Sun’ – well, Christ is the sun of righteousness that the prophet Malachi spoke of: The sun of righteousness shall arise for all you who fear his name; salvation is in his wings."

This matches it well enough. This, however, does little to give any indication that the date of Christmas was taken from Dies Natalis Solis Invicti, as this comes after both celebrations were done, and it says nothing of Dies Natalis Solis Invicti as being celebrated before Christmas (again, it could very well have been an imitation of Christmas). This means the quote fits with either the idea of Christmas coming after Dies Natalis Solis Invicti as well as the idea of Dies Natalis Solis Invicti coming after Christmas and being the one doing the imitating. Thus it provides no evidence for Christmas being an imitation of Dies Natalis Solis Invicti (if anything it implies the opposite).

There is one final wrinkle that should be noted. I have focused on the 1862 edition of The Gnostics and Their Remains, but King later published a second edition in 1887. On page 120, he makes a very similar claim, and says:

"Chrysostom, for example, declares (Hom. xxxi.) that the Birthday of Christ had then lately been fixed at Rome upon that day, in order that whilst the heathen were busied with their profane ceremonies, the Christians might perform their holy rites without molestation."

He gives the same citation of Homily 31, but this time does not present it as a quote, and omits the other quote. However, even as a summary, this doesn’t fit with what Chrysostom actually said in what seems to be the "Homily 31". 

There are other homilies about Christmas spuriously attributed to Chrysostom, so it's possible maybe one of those is the source. Of course, even if that is the case, then it means it wasn't said by Chrysostom. But when we consider the citation of "Homily 31" and the other part of the quote King offers, we end up with only two plausible homilies in view, and in neither of the two homilies that might be plausibly what King has in mind--one of which is not even by Chrysostom--is this said. So where did it come from?

This is where the trail ends, because everything goes back to King. But where did King get this quote from? Was he copying some earlier source unavailable to us (a lot of works are not available online!) which claimed the quotes were from "Homily 31"? Did he get some separate things mixed up, such as perhaps taking what someone else said, perhaps a 19th century writer, and that person happened to mention Chrysostom and King mistook it as an actual Chrysostom quote? Something else entirely? We don't know.

But whatever caused King to give this alleged quote by Chrysostom that Christmas was "lately fixed at Rome" and was done to coincide with the festivals of the "heathen", the quote appears false. King gave what by all appearances is an inaccurate quote and others simply repeated his error due to not verifying the quote. So the final conclusion, as I noted early on, is that this quote by all appearances is simply a false one.

More Citation Examinations

This post can perhaps be considered an expansion of a previous one. A while ago, I made a post that examined a quote I had seen people copy/paste online a bunch (that they clearly had not bothered verifying due to errors in it). However, as is often the case with copy/pasted quotes, it's often accompanied by various other copy/pasted quotes that they appear to have not bothered to verify either. Now, depending on the person doing the copy/pasting, the quotes found with it can vary, but there are some that frequently accompany it, and I thought it would be worth checking those out also.

These are often preceded with some kind of comment like claiming the Catholic Church admits its beliefs or practices come from paganism (which is odd when that happens, given that a bunch of these quotes aren't even from Catholics). However, some of these can be used as an attack on Christianity in general, making them an odd choice to try to attack Catholicism with. As is often the case with these sorts of things, exactly who originally came up with these citations is unclear.

In any event, I'll first give the various quotes accompanied with a short description of what my examination of them turned up, then go through them again in far more depth.

"In order to attach to Christianity great attraction in the eyes of the nobility, the priests adopted the outer garments and adornments which were used in pagan cults." -Life of Constantine, Eusabius, cited in Altai-Nimalaya, p. 94 This is the one that was looked at in the original post. This is not a quote by Eusebius.

"It is interesting to note how often our Church has availed herself of practices which were in common use among pagans...Thus it is true, in a certain sense, that some Catholic rites and ceremonies are a reproduction of those of pagan creeds...." (The Externals of the Catholic Church, Her Government, Ceremonies, Festivals, Sacramentals and Devotions, by John F. Sullivan, p 156, published by P.J. Kennedy, NY, 1942) Taken out of context. This is talking about holy water and notes that while pagans made use of the concept, it ascribes the origin of Christian usage to Jewish practices.

"The retention of the old pagan name of Dies Solis, for Sunday is, in a great measure, owing to the union of pagan and Christian sentiment with which the first day of the week was recommended by Constantine to his subjects - pagan and Christian alike - as the 'venerable' day of the sun." -Arthur P. Stanley, History of the Eastern Church, p. 184 This cuts out part of the actual quote, and (depending on how one interprets the source) it either offers nothing to claims of pagan origins or is making an argument that doesn't make sense. 

"It has often been charged... that Catholicism is overlaid with many pagan incrustations. Catholicism is ready to accept that accusation - and even to make it her boast... the great god Pan is not really dead, he is baptized" -The Story of Catholicism p 37 An important qualifying portion is cut out ("Only it would change the terms to some extent; it regards the process as a willingness to absorb the true, the good and the beautiful, wherever they may be found, and to indulge all harmless human propensities"), and it gives no indication as to what the supposed "pagan incrustations" are.

Cardinal Newman admits in his book that; the "The use of temples, and these dedicated to particular saints, and ornamented on occasions with branches of trees; incense, lamps, and candles; votive offerings on recovery from illness; holy water; asylums; holydays and seasons, use of calendars, processions, blessings on the fields; sacerdotal vestments, the tonsure, the ring in marriage, turning to the East, images at a later date, perhaps the ecclesiastical chant, and the Kyrie Eleison, are all of pagan origin, and sanctified by their adoption into the Church." -An Essay on The Development of the Christian Doctrine John Henry "Cardinal Newman" p.359 If Newman is actually saying all these things came to Christianity specifically from paganism, he seems incorrect; however, he may be simply saying that these were things pagans did, but were not necessarily taken specifically from pagans when used in Christianity.

The penetration of the religion of Babylon became so general and well known that Rome was called the "New Babylon." -Faith of our fathers 1917 ed. Cardinal Gibbons, p. 106 The source does not say this.

"The Church did everything it could to stamp out such 'pagan' rites, but had to capitulate and allow the rites to continue with only the name of the local deity changed to some Christian saint's name." -Religious Tradition and Myth. Dr. Edwin Goodenough, Professor of Religion, Harvard University. p. 56, 57 Evidence is not given, and the only example he offers is speculative and concerns only a local custom.

"The popes filled the place of the vacant emperors at Rome, inheriting their power, their prestige, and their titles from PAGANISM." (Stanley's History, page 40) This is misquoted; most importantly, it does not say "from paganism" but "which they [Roman emperors] had themselves derived from the days of their paganism." In context, it says the Roman emperors moved from Rome to Constantinople, which caused the popes to gain the prestige and power that the emperors had which had lasted from pagan days. It is not saying that these things came to the pope from actual pagan religion.

The above is done so people can get quick results of the examination; for those who want something in more depth, we'll now begin with that. 

"In order to attach to Christianity great attraction in the eyes of the nobility, the priests adopted the outer garments and adornments which were used in pagan cults." -Life of Constantine, Eusabius, cited in Altai-Nimalaya, p. 94 

This was already discussed in the prior post, so if someone wants more detail go there. Still, as a summary, this quote by all appearances is false. First, you can be confident people who share the quote with the above citation have never bothered to take even the slightest steps to verify it; if they had, they would have discovered there is no work called "Altai-Himalaya". The work is actually Altai-Nimalaya (also, Life of Constantine was by Eusebius, not Eusabius). But as to the quote itself, while Altai-Himalaya makes reference to it, it does not tell us where in the work it is, and it appears to repeat a false quote of Pope Leo X next to it, further raising suspicion it's inaccurate. It ultimately appears to all date back to another writer (John Henry Newman) making a similar statement to the above, not as a quote of Eusebius, but as a summary of what he thought Eusebius said, although Newman's citations of Eusebius don't seem to back his summary up. Roerich then presented a paraphrase of Newman's summary as the actual words of Eusebius.


"It is interesting to note how often our Church has availed herself of practices which were in common use among pagans...Thus it is true, in a certain sense, that some Catholic rites and ceremonies are a reproduction of those of pagan creeds...." (The Externals of the Catholic Church, Her Government, Ceremonies, Festivals, Sacramentals and Devotions, by John F. Sullivan, p 156, published by P.J. Kennedy, NY, 1942) 

I did not find a 1942 edition, but did find one from 1918 which had the quote on the applicable page. The context, however, indicates that it is not saying these practices--at least not the one it was discussing--actually came from paganism, but rather it was just something that the pagans also did. The above quote comes from the discussion on holy water, and it goes on to say:

"Water is the natural element for cleansing, and hence its usage was common in almost every ancient faith, to denote interior purification. Among the Greeks and Romans the sprinkling of water, or "lustration," was an important feature of religious ceremonies. Cities were purified by its use, in solemn processions. Fields were prepared for planting by being blessed with water. Armies setting out for war were put under the protection of the gods by being sprinkled in a similar manner. Among the Egyptians the use of holy water was even more common, the priests being required to bathe in it twice every day and twice every night, that they might thereby be sanctified for their religious duties. The Brahmins and others of the far Orient, and even the Indians of our own continent have always attached great importance to ceremonial purification by means of water."

So it mentions the usage of holy water by pagans. However, it then adds:

"Among the Jews the sparkling of the people, the sacrifices, the sacred vessels, etc., was enjoined by the regulations laid down by Moses in the books of Exodus and Leviticus; and it was undoubtedly from these practices of the Mosaic law that our Church took many of the details of her rituals in regard to holy water."

Thus it clearly ascribes the origin of the usage of holy water in Catholicism not to pagans, but to Jewish practices that predated Christianity and originated from the Old Testament. Its point is simply say to that the usage of holy water is shared by pagan religions, but never says it actually came from them (it is possible for separate groups to come to the same idea independently). It instead asserts that it came from the Jews. Thus, the quote has been misrepresented by ignoring context.


"The retention of the old pagan name of Dies Solis, for Sunday is, in a great measure, owing to the union of pagan and Christian sentiment with which the first day of the week was recommended by Constantine to his subjects - pagan and Christian alike - as the 'venerable' day of the sun." -Arthur P. Stanley, History of the Eastern Church, p. 184 

The full title of the work is actually "Lectures on the History of the Eastern Church". First, the above quote is not quite what it says in the book. Here is what it actually says:

"The retention of the old Pagan name of 'Dies Solis,' or 'Sunday,' for the weekly Christian festival is, in great measure, owing to the union of Pagan and Christian sentiment with which the first day of the week was recommended by Constantine to his subjects Pagan and Christian alike, as the 'venerable day of the Sun.'"

The changes in capitalization and punctuation are not particularly important, but the alleged quote replaces "or" with "for" and cuts out "for the weekly Christian festival."

As the quote (along with the rest) is normally presented without commentary outside of sometimes a generic heading of claiming the Catholic Church admits to be taking things from paganism (even though this author appears to have been an Anglican), it is difficult to determine exactly what we are supposed to take from this. In fact, it's a bit confusing as to what the original text is even trying to say. "Dies Solis" is not retained as the name of the day. As far as I can tell, all the Romance languages (those descended from Latin) derive their name of the first day of the week from the Latin word dominus, meaning lord. Thus domingo in Spanish, domenica in Italian, or dimanche in French. Latin itself later switched from Dies Solis to Dominica. So if this is the assertion, this doesn't make sense.

Or perhaps it is talking about English having the word Sun in Sunday, but this can hardly be ascribed to anything about Constantine; as noted, Latin and the Romance languages dropped any reference to the Sun, as did Greek, the other major language of the Roman Empire (originally it was "ἡμέρα Ἡλίου" (day of the sun or day of Helios), but now it is called Κυριακή (Kyriaki or Kyriake), which derives from κύριος (kyrios), meaning "lord"). It was the Germanic languages like English, spoken by those outside of the Roman Empire, which retained reference to the Sun in the name. So if this is the assertion, this doesn't make sense.

Most likely, the book is referring specifically to how the phrase "Dies Solis" was retained in Constantine's declaration rather than using the more specifically Christian term of referring to it. If that is the case, though, any issue seems to disappear, as would merely be saying Constantine used neutral language (Day of the Sun rather than the way Christians said Day of the Lord or Lord's Day). Therefore the "union of Pagan and Christian sentiment" would refer to the day being esteemed by Christians but being referred to in this instance by Constantine using the older and pre-Christian name of Dies Solis, even if the decree itself was presumably based on having the day off being more useful to Christians as they held their assemblies on that date. The "union" is therefore in nothing more than using a more neutral term for the day.

So it seems either the claim Arthur Stanley makes is wrong or it isn't really talking about anything being based on or taken from paganism. Either way, it offers nothing to prove pagan origin of anything.


"It has often been charged... that Catholicism is overlaid with many pagan incrustations. Catholicism is ready to accept that accusation - and even to make it her boast... the great god Pan is not really dead, he is baptized" -The Story of Catholicism p 37 

One will try in vain to try to find any work called "Story of Catholicism". The work is actually called "The Story of American Catholicism". Again we see how those who copy/paste these quotes do not bother to check them.

The above quote takes out an important statement, though. Here is what it says in full, and I have underlined the portions that were left out:

"It has often been charged–usually by the narrower sort of Protestant controversialist–that Catholicism is overlaid with many pagan incrustations. Catholicism, it must be added, is ready to accept the accusation–and even to make it her boast. Only it would change the terms to some extent; it regards the process as a willingness to absorb the true, the good and the beautiful, wherever they may be found, and to indulge all harmless human propensities. The great god Pan is not really dead; he is baptized."

The dropping out of the phrase "usually by the narrower sort of Protestant controversialist" is not particularly important, even if it's short enough I see no reason to not retain it. The removal of "it must be added" is also not particularly important, but it is notable that it does not acknowledge anything was removed, as there is no ellipsis in the quote. However, the last one cut is far more problematic, as it provides considerable qualification for its statement: Its assertion is that the "pagan incrustations" are only "the true, the good, and the beautiful" or "to indulge all harmless human propensities."

Given this qualification, it seems to be saying that Catholicism is willing to tolerate things that come from pagans so long as it is not intrinsically tied to their pagan religion and does not go against Christian belief. This seems to me to be a rather different thing than the edited quote suggested. Regardless, as no examples are given of these "pagan incrustations" in the work (this was a side remark), it is difficult to determine what is being referred to. But the qualification makes it sound more like it is saying that Catholicism is willing to utilize things from pagan societies that are true/good/beautiful, or to "indulge all harmless human propensities", none of which sound like an accepting of things in pagan religion itself.

So ultimately, this quote seems too vague to be able to ascertain anything from, given its lack of examples of what it is talking about, and it is misrepresented due to cutting things out of it.

Cardinal Newman admits in his book that; the "The use of temples, and these dedicated to particular saints, and ornamented on occasions with branches of trees; incense, lamps, and candles; votive offerings on recovery from illness; holy water; asylums; holydays and seasons, use of calendars, processions, blessings on the fields; sacerdotal vestments, the tonsure, the ring in marriage, turning to the East, images at a later date, perhaps the ecclesiastical chant, and the Kyrie Eleison, are all of pagan origin, and sanctified by their adoption into the Church." -An Essay on The Development of the Christian Doctrine John Henry "Cardinal Newman" p.359

This is a quote that gets thrown around quite a bit in different forms. The quote is indeed found in Newman's work. At first glance this seems quite powerful given that we have a Catholic making such a statement that all these things are of pagan origin. The problem is that if Newman is saying these things were taken from paganism, he simply seems wrong in a lot of this.

The simple fact is, a lot make no sense to say that for. As I saw someone else notice when they were discussing this quote, one can find a lot of these things in the Bible itself; for some examples, "holy water" is mentioned in Numbers 5:17, the usage of "candles" and "incense" is in Exodus 30:27, "holidays" are explicitly referred to on various occasions (e.g. Passover) and they obviously had a "calendar" given that's how they knew when they would be done, "processions" occur in 2 Samuel 6:15, "blessings on the fields" are in Genesis 49:26, and "sacerdotal vestments" are in Exodus 28:4, etc. "Kyrie Eleison" is an especially odd one given it's found word-for-word in the Greek of Matthew 17:15.

What is confusing to me is what exactly Newman means by "of pagan origin." Having read through the chapter of his work this quote comes from, at some points it seems he's saying these were adopted specifically from paganism, but in other points it seems he's saying these were things pagans did that the Church also did, but didn't specifically taken them from paganism, and that the pagan practices being similar were just them having some level of truth in them.

Prior to the above quote, Newman says "We are told in various ways by Eusebius, that Constantine, in order to recommend the new religion to the heathen, transferred into it the outward ornaments to which they had been accustomed in their own. It is not necessary to go into a subject which the diligence of Protestant writers has made familiar to most of us." The first sentence, which appears to be the origin of the false Eusebius quote discussed earlier, makes it look like they actually did take things from paganism, though as observed in the examination of that quote, Newman's citations to Eusebius do not seem to bear him out on this. The second sentence indicates he is getting his information from Protestant writers. 

It should be noted immediately that he published this in 1845, so whoever these Protestant writers are, they clearly are out of date in regards to scholarship and thus their information could be in error from being outdated. It is understandable for him to be out of date compared to more than a century and a half later, but it's not so understandable for someone nowadays to be appealing to a source from this far back. Given that Newman's claim about Eusebius and Constantine he made immediately prior was really not backed up by the citations, one should be cautious about further claims on the subject made without citations. And none of the above, except for the mention of Kyrie Eleison, is offered with any kind of citation. 

In regards to that footnote, it says "According to Dr. E. D. Clarke, Travels, vol. i. p. 352." If one looks that up, it is talking about Russian churches, and mentions that they say in Russian "Lord have mercy on us" which is what Kyrie Eleison means (it is Greek for "lord have mercy"). It then adds in a footnote itself "It is an antient [sic] Heathen prayer. Vossius says that Κυριε ελιησον was a usual form of prayer among the Gentiles as well as the Jews. So Arrian, [difficult to make out Greek text, but ending with Κυριε ελιησον] "Calling upon God, we pray, Lord have mercy upon us!" Arrian. Epict. lib. ii. c. 7."

The Greek text Κυριε ελιησον is Kyrie eleison. It is not clear who this Vossius is (I can see several candidates) or where he said it, but we can look into the citation of Arrian, namely "Discourses of Epictetus". That is found here, and we do indeed see this phrase. However, as noted above, the phrase is found in the Bible itself. I can hardly imagine that Newman would be unaware of the fact the phrase is found in the Bible. Is he saying the Bible took it from paganism? Or is perhaps throwing it in there to demonstrate how taking things from paganism isn't inherently bad, if such a phrase is used in the New Testament, with the phrase perhaps inspired by pagan usage?

It could also be what he is saying with the rest is not that these things in Christianity or Catholicism were taken specifically from pagans, but rather that they were things that pagans also did that Christians started doing at some point independent of the pagans. In other words, pagans would use the phrase "Kyrie Eleison" and so would Christians, but Christians didn't specifically taken it from pagan religion (Arrian's works were, for the record, written and published several decades after the Gospels). After all, the New Testament is filled with words or phrases one can find used by pagans, given they were both using Greek.

If this is his intent, it means the list makes more sense; some certainly are things from the Old Testament, but were also things pagans did. And Newman subsequently says the following, as if to argue against those who use his above list to argue for Christianity/Catholicism just taking things from pagan religions:

"Since it has been represented as if the power of assimilation, spoken of in this Chapter, is in my meaning nothing more than a mere accretion of doctrines or rites from without, I am led to quote the following passage in further illustration of it from my "Essays," vol. ii. p. 231:—
"The phenomenon, admitted on all hands, is this:—That great portion of what is generally received as Christian truth is, in its rudiments or in its separate parts, to be found in heathen philosophies and religions. For instance, the doctrine of a Trinity is found both in the East and in the West; so is the ceremony of washing; so is the rite of sacrifice. The doctrine of the Divine Word is Platonic; the doctrine of the Incarnation is Indian; of a divine kingdom is Judaic; of Angels and demons is Magian; the connexion of sin with the body is Gnostic; celibacy is known to Bonze and Talapoin; a sacerdotal order is Egyptian; the idea of a new birth is Chinese and Eleusinian; belief in sacramental virtue is Pythagorean; and honours to the dead are a polytheism. Such is the general nature of the fact before us; Mr. Milman argues from it,—'These things are in heathenism, therefore they are not Christian:' we, on the contrary, prefer to say, 'these things are in Christianity, therefore they are not heathen.' That is, we prefer to say, and we think that Scripture bears us out in saying, that from the beginning the Moral Governor of the world has scattered the seeds of truth far and wide over its extent; that these have variously taken root, and grown as in the wilderness, wild plants indeed but living; and hence that, as the inferior animals have tokens of an immaterial principle in them, yet have not souls, so the philosophies and religions of men have their life in certain true ideas, though they are not directly divine. What man is amid the brute creation, such is the Church among the schools of the world; and as Adam gave names to the animals about him, so has the Church from the first looked round upon the earth, noting and visiting the doctrines she found there. She began in Chaldea, and then sojourned among the Canannites, and went down into Egypt, and thence passed into Arabia, till she rested in her own land. Next she encountered the merchants of Tyre, and the wisdom of the East country, and the luxury of Sheba. Then she was carried away to Babylon, and wandered to the schools of Greece. And wherever she went, in trouble or in triumph, still she was a living spirit, the mind and voice of the Most High; 'sitting in the midst of the doctors, both hearing them and asking them questions;' claiming to herself what they said rightly, correcting their errors, supplying their defects, completing their beginnings, expanding their surmises, and thus gradually by means of them enlarging the range and refining the sense of her own teaching. So far then from her creed being of doubtful credit because it resembles foreign theologies, we even hold that one special way in which Providence has imparted divine knowledge to us has been by enabling her to draw and collect it together out of the world, and, in this sense, as in others, to 'suck the milk of the Gentiles and to suck the breast of kings.""

Some of these examples seem questionable to me, such as "the doctrine of a Trinity is found both in the East and the West." This sometimes get brought up by those who try to claim Christianity is just copying pagan religions, but in my experience the alleged "trinities" that get brought up ultimately have little resemblance to that of Christianity or actually appear to only have been developed after the Trinity doctrine was explicitly established in Christendom.

At any rate, Newman's position, as articulated above, appears to be less that Catholicism/Christianity took the things in his list from paganism, but rather that paganism, due to having some truth in their religions, happened to also have these things. If so, the quote is of no use in claiming that Christianity/Catholicism deliberately took these things from paganism.

On the other hand, we cannot overlook the earlier statements indicating that things were taken from pagans. Thus it is unclear to me what Newman thought on this subject, given at some points he seems to be saying they were taken from paganism but at other points seems to reject that idea. Still, if Newman was in fact saying these things came to Catholicism and/or Christianity through paganism, for reasons given above, this assertion seems inaccurate (and evidence is not provided by Newman for it). It looks to me like Newman, living in the 19th century, could have been relying on some incorrect information, with his questionable Eusebius invocation perhaps being an example. And if he was saying that while the list of things was like what some pagans did, they did not specifically come to Christianity from paganism, then it obviously is of no benefit to claiming they did come from paganism.

So whichever way one interprets Newman, it doesn't really provide evidence for all these things in the list being brought into Christianity from paganism.


The penetration of the religion of Babylon became so general and well known that Rome was called the "New Babylon." -Faith of our fathers 1917 ed. Cardinal Gibbons, p. 106 

Regarding the work Faith of our Fathers, the phrase "The penetration of the religion of Babylon became so general and well known that Rome was called the "New Babylon"" is not found on page 106 or as far as I can tell anywhere else in the work. Now, unlike the other quotes, one notices above that it is not put in quotation marks outside of "New Babylon". This may indicate that it was not supposed to be an explicit quote (though some of those who copy/paste it do put the whole thing in quotes, so who knows which version came first). However, even if we grant that only "New Babylon" was supposed to be a quote and the rest was just a summary, it still doesn't work. Here is all that is said on page 106 that relates to the above quote (note that some 1917 editions instead have this on page 87): 

""Babylon," from which Peter addresses his first Epistle, is understood by learned annotators, Protestant and Catholic, to refer to Rome–the word Babylon being symbolical of the corruption then prevailing in the city of the Caesars."

And that's all it says in regards to Babylon. It asserts that when in 1 Peter 5:13 the writers says he is in Babylon, he's using the term metaphorically to describe Rome. However, the above says nothing about the religion of Babylon penetrating Rome, nor does it ever use the phrase "New Babylon". So even if we suppose it isn't supposed to be offering an exact quote, it fails completely even as a summary. Furthermore, trying to use it as any kind of argument of pagan syncretism with Christianity fails because the actual quote is talking about Rome only in the earliest days of Christianity (as it is referring to Peter's epistle), not Rome after Christianity had gained hold of it.

So this one is simply a false citation. Even if we want to take "The penetration of the religion of Babylon became so general and well known that Rome was called the "New Babylon"" as a summary rather than an exact quote, it's still a false summary of what the work says.

"The Church did everything it could to stamp out such 'pagan' rites, but had to capitulate and allow the rites to continue with only the name of the local deity changed to some Christian saint's name." -Religious Tradition and Myth. Dr. Edwin Goodenough, Professor of Religion, Harvard University. p. 56, 57

Oddly, sometimes this get posted in this form with some obvious typos, namely capitulate and deity being misspelled:

""The Church did everything it could to stamp out such 'pagan' rites, but had to capitualet and allow the rites to continue with only the name of the local diety changed to some Christian saint's name." -Religious Tradition and Myth. Dr. Edwin Goodenough, Professor of Religion, Harvard University. p. 56, 57"

But regardless of the spelling, what of the actual quote? The quote is indeed found there, though Goodenough does not really offer anything in the way of evidence for it. This means that one must essentially rely on Goodenough's authority by itself to make use of this. Now, Goodenough does seem to have been a legitimate scholar, even if he was from nearly a century ago, so his opinion does carry some weight. Unfortunately, even if we were to grant it credence simply based on the author, he is very vague about what "rites" he is actually referring to. I do not expect him to go into detail about a lot of examples, but surely he could at least give one or two with some clear evidence of how far the practice goes back.

The closest thing to an actual example of such a rite is when he claims, saying it came even to other countries from immigrants, "On a flat land near New Haven there is a settlement of a thousand or more Italians who do excellent market gardening. Each year, at the Feast of the Assumption, a gaudy image of the Virgin is taken out of the little local church and carried about through the fields to bless them. It would seem to represent an early fertility rite of the Italy of a thousand years before Christ which after whatever devious history is still devoutly practiced by the people. Such is the surviving power of this religion." However, he offers no evidence of it dating to anything from any early fertility rite, and merely claims "it would seem to represent" one. And this is the only thing resembling an example he offers!

As a result, I have to conclude that Goodenough has not really offered evidence for his claims, and it is not even entirely clear what the examples are supposed to be. It ultimately therefore seems to hinge entirely on how much trust one puts into Goodenough himself. Even if we conclude he is absolutely right, his claim is so frustratingly vague it's hard to parse much out of it. Also, as the one (speculative) example he offers indicates, it appears he is only talking about local customs rather than the more formal beliefs or practices of Catholicism or Christianity.

"The popes filled the place of the vacant emperors at Rome, inheriting their power, their prestige, and their titles from PAGANISM."  (Stanley's History, page 40) 

The capitalization of paganism is not found in the source, for the record. Anyway, this refers to Arthur Stanley's "Lectures on the History of the Eastern Church" which was cited in one of the other quotes. However, this quote is not found on page 40. What appears to be in mind is instead on pages 38-39. It is talking about the effect of the seat of government being moved from Rome to Constantinople, and how this ended up causing the Bishop of Rome to gain more power, whereas the Bishop of Constantinople lost power as a result. It then says the following, which is presumably the origin of the quote:

"As the Pope filled the place of the absent Emperors at Rome, inheriting their power, their prestige, the titles which they had themselves derived from the days of their paganism, so the Emperors controlled, guided, personified, the Church at Constantinople." 

The problem is, we can immediately see how it has been edited and misquoted. Some of the adjustments are not important for the meaning of it (such as replacing "absent" with "vacant") though it is still problematic they are there. However, in terms of changes that are very important, a key point is the fact it says "from the days of their paganism" and not "from paganism." The point it is making is that the (by that time Christian) emperors had power/prestige/titles at the time which went back to even when the emperors were pagan, and then when the emperors moved the pope gained those. It is not saying that the pope inherited power, prestige, or titles from paganism.

One thing I notice is its vagueness as to what these "titles" were, as it says nothing. Power and prestige are general concept, but a title is more specific. What are the titles that were inherited? I know some claim Pontifex Maximus came from the emperors after they discarded it, but it appears Pontifex Maximus was not applied to popes until the 15th century. It is possible that Stanley was under the incorrect impression that it was adopted in the fourth or fifth century--but as he doesn't give any examples, we have no idea what he had in mind. Regardless of what he was referring to, the actual text shows he was not saying these titles, whatever ones he had in mind, came from any pagan religion.

So once one views what was actually said rather than the misleadingly edited quote, this ends up not meaning much of anything.


Conclusion

Much like the false Eusebius quote that started this whole thing, there are a lot of problems with these quotes that are offered, with a good number of misrepresentations or misquotes. The Gibbons one is particularly bad; while it (possibly) might not have been presenting itself as a quote, even as a summary it fails. The most credible one is from Goodenough. However, to accept his claims is entirely on his person rather than any evidence, because he doesn't offer anything in the way of evidence. But even his is rather vague given his lack of examples, and the one speculative example he does give indicates his concern is more on local customs than anything in Catholicism or Christianity itself.

Thus, these quotes do not end up proving much of anything. Whatever pagan influence there might have been on Catholicism, these quotes aren't useful for determining. And the errors in the citations, yet again, show that the people who have been spreading these quotes around have not actually bothered to verify them (or even worse, might be spreading information they know is false!).

A Belated and Possibly Needless Examination of an Amicus Brief

Recently, the Supreme Court decided the case Trump v. CASA. This is a case that was about birthright citizenship without actually being about birthright citizenship. Essentially, after Trump's executive order declaring that children born in the United States of illegal or temporary immigrants are not entitled to automatic citizenship of the United States, various people or organizations or even states sued over it, and various universal injunctions were granted (a universal injunction is a ruling stating that the law in question could not be enforced not only against the parties involved, but everyone). Universal injunctions have been controversial given it effectively allows one judge to block a law for the entire country, and the case that went to the Supreme Court was about whether lower courts could grant such universal injunctions. 

This post is not about that, however, but the underlying birthright citizenship issue. For those curious on the question of universal injunctions, though, I would say I am inclined towards the decision the Supreme Court gave (which was not quite a strict "no" but certainly curtailed the practice). However, the question of the constitutionality of the Executive Order was not ruled upon by the Court in that case, though most likely it will at some point in the future.

For a recap on that issue: The Citizenship Clause of the Fourteenth Amendment declares "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." In the case United States v. Wong Kim Ark, a question came about whether a man born in the United States to non-American-citizen Chinese was a citizen of the United States under this, and they ruled he was. Some have asserted that this decision only applies to children of lawful permanent residents, however, hence the recent Executive Order that declared children of illegal or temporary immigrants were not citizens under this (a few go even farther and claim that the decision was outright wrong and children of non-citizens, even if they are permanent legal immigrants, do not gain citizenship under the Citizenship Clause--but the Executive Order did not go that far).

This more limited idea of birthright citizenship has been criticized by various legal scholars of both conservative and liberal persuasions, who say that the Fourteenth Amendment grants citizenship to everyone born in the United States outside of children of Native Americans, those with diplomatic immunity, or foreign occupying armies. Some articles arguing this can be found here, here, and here. I myself have written some past posts on the subject here and here.

As Trump v. Casa was ultimately not about birthright citizenship, the decision didn't really touch on that at all. However, some of the amicus briefs did. An amicus brief, if you are unaware, are filings in a court case by people other than the parties involved. They are common in Supreme Court cases where a group or individual wants to make an argument to the court without being the plaintiff/prosecutor or respondent/defendant. SCOTUSBlog is a convenient place to find amicus briefs for a case; if you go to their page on the case and scroll down, you can find them all listed. In the case of Trump v. CASA, the amicus briefs for the case can be found conveniently here.

As noted, most of the amicus briefs were about the question presented in the case, that of the universal injunctions. However some filed amicus briefs either partially or entirely treating on the question of birthright citizenship, arguing for or against the constitutionality of the executive order. So, for example, the Scholars of Constitutional Law of Immigration filed one arguing the executive order was unconstitutional, and the Claremont Institute's Center for Constitutional Jurispudence filed one arguing it was (there were others who filed on either side, I'm just giving examples). It is the one of the Claremont Institute's Center for Constitutional Jurispudence, however, that interests me, as John Eastman is listed as the counsel in it, so he obviously had a strong, and perhaps exclusive, hand in its writing. I will therefore be referring to Eastman as the writer.

Before he was disbarred for his conduct regarding the 2020 election and largely considered disgraced, John Eastman well known for being a major advocate of a narrow interpretation of the Citizenship Clause, and he's been filing amicus briefs for this for decades at this point (going back to at least the 2004 Hamdi v. Rumsfeld decision), even before it became a political flashpoint. However, there have been plenty of people who have criticized him or his ideas, as one can see in the essays linked to several paragraphs ago. I was therefore curious: Had he improved the arguments his arguments in order to respond to the various criticisms? I had read some of his earlier writings and was unimpressed, but thought I should see the most up to date writing of his on the topic, which would be this amicus brief, and see if he had improved his arguments by addressing criticisms of them.

Now, at this point someone might be asking why I'm posting this at all. Trump v. CASA was decided several months ago. The Supreme Court will almost certainly get around to deciding the birthright citizenship question eventually anyway--at the time of this posting, they are considering an appeal to decide the issue--so what does an examination of this one particular amicus brief accomplish? Well, the truth is I wrote most of this back when it was somewhat more relevant, but then it kind of fell aside. I decided that since I did put some work into this and would prefer to not see it go to waste, and it might be of use to someone, I might as well post it. So I went through the remainder of the brief I hadn't yet covered (I'll mention when we switch over to that), albeit more in brief, and am now posting it. 

So, after that probably too lengthy opening, we'll take a look at the amicus brief. The opening of his amicus brief asserts that the Supreme Court "never held that the Fourteenth Amendment compels the grant of citizenship to children born in the United States to parents who are merely temporary visitors or unlawfully present." This is a common assertion among those who wish to restrict birthright citizenship, who claim that while the dicta in the decision may indicate such a thing, the actual decision itself did not.

The problem here is that normally when something is regarded as mere "dicta", it is regarding things that were not particularly important to the case, such as some kind of aside note. But the "dicta" in this case essentially was the whole reasoning for the decision. We are not talking about a side paragraph, but the rationale. Thus Eastman's repeated appeals to the decision's rationale as simply being "non-binding dicta" are rather weak. Eastman does attempt to argue that the question of "domicile" was foundational to the decision, but all he is really able to come up with is the fact it was mentioned in the question presented and the word being frequently used.

The mention of domicile, which is interpreted by Eastman as legal permanent residence, is indeed found in the question that Wong Kim Ark said it is deciding. From the opinion:

"The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.""

However, if we were to restrict the decision's conclusion to simply to this question and nothing else, then we would come to the illogical conclusion that while children of such Chinese parents would be citizens, the Court did not decide the issue for those whose parents were Japanese, Canadian, Mexican, Spanish, German, or any other country on Earth beyond China, and they might be disqualified. In fact, the mention of the Chinese Emperor would mean it stopped being effective after the Chinese Emperor was overthrown. This does not make any sense.

Perhaps realizing this, Eastman tries to claim the decision really focused on the mention of domicile. Thus he tries the following claim:

The terms “domicile,” “domiciled,” “permanent domicile,” and “domiciled residents” appear nearly thirty times throughout the majority and dissenting opinions, underscoring the centrality of lawful, permanent residence for the court's reasoning.

The simple number of times a word is used means little by itself. If domicile was actually that critical to the decision, Eastman would be presumably quoting to more specific points where it was actually stressed as important instead of trying to play a numbers game. I should note that the word "Chinese" is used more than forty times in the decision and dissent, even more times than Eastman's reference to domicile, but it would be absurd to claim that this does not mean it cannot apply to those of descents other than Chinese.

Next Eastman offers the following claim:

Respondents attempt to bolster their theory of automatic birthright citizenship by citing a patchwork of historical sources ranging from early Supreme Court cases to fragments of congressional debates and isolated comments from later decisions.

I find this ironic, for critics would say this is exactly what Eastman does.

Following this, Eastman does try to take issue with some of the cases that the respondent (CASA) uses. I actually would agree that some of the cases cited by CASA are a bit weak. Murray v. The Schooner Charming Betsy is a particularly weak appeal. Lynch v. Clark is more valuable, but by itself does not mean much.

Eastman then brings up a common appeal to discussions on the 1866 Civil Rights Act. The 1866 Civil Rights Act stated:

"...all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."

The Citizenship Clause of the 14th Amendment substituted this with, as noted:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

As we see, "not subject to any foreign power, excluding Indians not taxed" was changed to "subject to the jurisdiction thereof." Various statements by those involved with the Amendment indicated that despite the different wording, the Citizenship Clause was intended to put into the Constitution what was in the 1866 Civil Rights Act. Therefore, quotes are offered allegedly showing that the 1866 Civil Rights Act was to be read narrowly, and therefore also the Citizenship Clause. So, Eastman offers the following quote:

Representative John Bingham, explaining the 1866 Act’s language, clarified that it applied to those “born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty.” Cong. Globe, 39th Cong., 1st Sess. at 1291 (statement of Rep. Bingham). Senator Lyman Trumbull, the Act’s sponsor, repeatedly echoed this, stating the goal was “to make citizens of everybody born in the United States who owe allegiance to the United States.” Cong. Globe, 39th Cong., 1st Sess. at 572 (statement of Sen. Trumbull); see also id. at 527.

At first glance, this looks powerful, but we run into problems.

The much-made-of statement by Bingham of "born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty" has several issues. First, if by "owing allegiance to any foreign sovereignty" he is referring to more specifically diplomats, who most assuredly owe allegiance in a manner that an immigrant does not (hence why they are exempt from laws), then any issue disappears.

Even if we were to suppose there is still an allegiance owed to the foreign sovereignty by immigrants while they are in the United States, to say this was Bingham "clarifying" the matter is an odd one. He was not asked about it, and in fact only mentions it briefly; his main discussion is other matters (he is talking about the importance of safeguarding the rights of citizens), and in regards to the issue of birth citizenship, he simply says he does not have any disagreement with that part of it, and gives the above statement. This was a brief comment that was not his point, and thus may have been stated imprecisely.

As for Trumbull, he was indeed the act's sponsor, so his statements are of more weight than Bingham's. The problem is that Trumbull explicitly states, in a statement that was a clarification, that children born of foreigners would be citizens:

"Mr. COWAN. I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?

Mr. TRUMBULL. Undoubtedly."

This is found on page 498 of the 39th Congress, First Session (January 30, 1866) of the Congressional Globe. Unlike Bingham's brief comment that was not stated as a clarification, this was a direct clarification to the question, and says that it will naturalize children of foreigners like Chinese or Gypsies (and before anyone tries to claim maybe they're talking about Chinese/Gypsies who were citizens, Chinese were not even able to naturalize as citizens until much later on).

Now, the argument that could be raised is that such people were permanent residents and that changes it, but then that means these citations are useless. If the claim is that because someone is still a citizen of a foreign country and not the United States, they therefore owe allegiance to a foreign sovereignty, this would still be the case even whether they were  permanent resident or not, and whether they were in the US legally or not. What, precisely, is the "allegiance" to their home country that a temporary or illegal resident has or owes but a permanent resident does not? This question appears to go unanswered.

Next we come to the issue of the Justice Story citation, which Eastman claims the respondents misread him as "implying that Story meant that the general rule of jus soli, rather than the exception for temporary sojourners, was what was nearly universally established." I personally would not cite Story's statement as evidence of birthright citizenship, but Eastman appears to mischaracterize CASA's idea. The ones arguing for Trump's position were the one who brought up Story to begin with, trying to assert that it went against birthright citizenship, and CASA simply responded that that's not what Story was saying.

Let's review how the exchange went. First, in the initial appeal to the Supreme Court, Trump (or rather, the lawyers representing him) claims:

"And Justice Story recognized a “reasonable qualification” to birthright citizenship for “the children of parents, who were in itinere in the country, or abiding there for temporary purposes, as for health, or occasional business.” Joseph Story, Commentaries on the Conflict of Laws § 48, at 48 (1834)."

This is a quotation I discussed in an earlier post on the subject. To briefly summarize, Story was not making a formal statement in a court opinion, he was not even clearly referring to the Constitution, his "reasonable qualification" is a statement of should rather than is, and his very next sentence is "It would be difficult, however, to assert, that in the present state of public law such a qualification is universally established."

CASA then responds to the specific Story citation with:

"The government also invokes Justice Story’s conflict of law treatise, which proposes denying citizenship to the children of temporary visitors. Appl. 8. But in the very next sentence, Justice Story candidly concedes that “[i]t would be difficult, however, to assert, that in the present state of public law such a qualification is universally established.” Joseph Story, Commentaries on the Conflict of Laws § 48, at 48 (1834). No matter what was happening abroad, U.S. law remained firmly rooted in jus soli."

CASA was not trying to use Joseph Story to prove the US was following citizenship based on place of birth; it was simply responding to Trump's characterization of his statements. So Eastman's declaration that "Respondents’ reliance on Story’s remark concerning the contemporary state of public law to support near-automatic jus soli ignores the fundamental direction and principles of his analysis regarding American citizenship" is simply assigning more importance to it than they actually did. (the final sentence of the quoted paragraph might suggest otherwise, but it is more in reference to the things preceding) Eastman claims that Story's statement that such a qualification is not universally established is Story saying that it's the case in the US and it's the rest of the world where it's not universally established--but this is simply speculative on his part. Given its ambiguity, I don't think Story's comment is evidence for or against birthright citizenship in the United States, and in fact is downright irrelevant.

Eastman next turns his attention to the Cowan/Conness exchange from the ratification debate, and ironically his entire argument here--that they were trying to distinguish sojourners from permanent residents--ends up gutting his actual position. First, though, here's the argument:

In an attempt to politically derail the Fourteenth Amendment, Senator Cowan asked whether it would extend citizenship to the children of Chinese immigrants and Gypsies, and he specifically asked whether, under the proposed Citizenship Clause, they were to have “more rights than  sojourners.” See Cong. Globe, 39th Cong., 1st Sess. at 2890-91 (statements of Sens. Cowan and Conness). Senator Cowan’s question, distinguishing children born to Chinese immigrants and Gypsies from “sojourners,” necessarily presumes that the children of mere sojourners would not be entitled to automatic citizenship. Senator Conness’s response, therefore, also necessarily only applies to Chinese immigrants and Gypsies who were not mere sojourners. As this is the only reference to “sojourners” in the entire debate, the distinction drawn by Senator Cowan and apparently embraced by Senator Conness is extremely important, and it fully supports the provision in President Trump’s executive order acknowledging that the Fourteenth Amendment does not confer citizenship on the children born to temporary visitors.

Eastman's position, as he has made clear in other writings and repeated in the amicus brief ("Amicus contends that Justice Fuller’s dissenting opinion in the case accurately reflects the original understanding of the Citizenship Clause"), is that Wong Kim Ark was wrong, and that children of non-citizens born in the United States, even if they are here lawfully and permanently, do not gain birthright citizenship. In other words, he would contend that the executive order doesn't go far enough. But despite having that position, here he apparently has to acknowledge that children of at least some non-citizen immigrants had birthright citizenship given what Cowan and Conness were saying. So the argument he just made, if true, actually seems to disprove the position he holds.

However, if we ignore that and simply focus on whether this provides support for the distinction between permanent residents and temporary or illegal residents, it still doesn't make much sense. Let's look at Cowan's emphasized statement of sojourners:

"Mr. COWAN. The honorable Senator from Michigan has given this subject, I have no doubt, a good deal of his attention, and I am really desirous to have a legal definition of "citizenship of the United States." What does it mean? What is its length and breadth? I would be glad if the honorable Senator, in good earnest would favor us with some such definition. Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they? Have they any more rights than a sojourner in the United States? If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. You cannot murder him with impunity. It is murder to kill him, the same as it is to kill another man. You cannot commit an assault and battery on him, I apprehend. He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word."

Now, it is difficult to know for sure how much of this is a legitimate desire to have answers and how much is him asking rhetorical questions, but it is obvious what Cowan is actually doing with his "Have they any more rights than a sojourner in the United States?" is asking whether these children who are citizens at birth would have more rights than, well, a sojourner. Eastman tries to frame it as Cowan offering a distinction between the children of a Chinese immigrant and the children of a sojourner, but Cowan says nothing of the sort. He is simply asking whether they have more rights than a non-citizen immigrant.

Eastman then offers this claim:

Senators Trumbull and Howard reaffirmed that the phrase “subject to the jurisdiction thereof” imposed a requirement of “complete jurisdiction” and undivided allegiance, thereby excluding children whose parents owed allegiance to a foreign power. See id. at 2893 (statement of Sen. Trumbull); id. at 2895 (statement of Sen. Howard). 

Let's see these statements in better context. 

"Mr. TRUMBULL. Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get control of those people."

The underlined are the statements being appealed to. In the first place, we should note everything under discussion is the Native Americans, not immigrants. The two are rather different. The Native Americans had their reservations which were under their laws, not that of the United States (this changed later when the US started passing laws applying to their territories, but this was after the Fourteenth Amendment was passed). An immigrant, on the other hand, is inherently in the regular portion of the United States, unless they are visiting a reservation.

In regards to Trumbull's statement, the "subject to complete jurisdiction" is of little importance; it would simply mean subject to the complete laws of the United States, which immigrants are (diplomats and Native Americans on their reservations, however, are not). The "not owing allegiance to anybody else" is a better thing for him to point to, but it has issues. Again, if "owing allegiance" to someone else meant an immigrant still owed allegiance to their home country, then the argument raised of a distinction between temporary and permanent residents would seem to have no impact. One could make a slightly more plausible argument about illegal immigrants, but they nevertheless owe loyalty to the United States (even if they do not show it) which is exactly why they can be charged for crimes, unlike an ambassador. Further, as Michael Ramsey notes in his article "Originalism and Brithright Citizenship" (page 449), which is one of the essays I linked to early on, any footnotes omitted:

"Second, in the argument over the Clause’s application to Native Americans, Senator Trumbull stated: “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else.” This language can be read to exclude aliens’ U.S.-born children (who often would also owe allegiance to the country of their parents’ nationality). But Trumbull likely spoke imprecisely, meaning instead (as he also said repeatedly) those over whom the United States did not have “complete” jurisdiction, as the full context of his comment indicates:

"The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin [Doolittle] pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else.

. . .

. . . It is only those persons who come completely within our jurisdiction, who
are subject to our laws, that we think of making citizens . . . .""

Moving on, Eastman complains about the respondents relying on dicta from some cases. He is not without a point that the statements appealed to appear to have been passing statements by the Supreme Court, rather than the actual reasoning for the decision. Still, even if not precedent, dicta at least shows what the Supreme Court thought, and is not worthless. Though it strikes me as inconsistent that despite his dismissal of such things as dicta, he will later in the Slaughter-House Cases appeal to what he acknowledges is dicta!

The initial discussion of common law is not of great importance to us. It is true that the American Revolution did reject some elements of the idea of the common law, including natural-born subjectship, but this does not mean they wholesale abandoned every idea of Britain. 

Indeed, James Madison rather notably said that location, not parentage, was what primarily controlled in the United States. While this isn't necessarily of much relevance to the Citizenship Clause, as he said it long before its passage, this specific idea of common law, of citizenship by location rather than parentage, was clearly not abandoned wholesale.

Now, this was the point where I originally stopped the examination and put it aside, but I don't want to leave the rest of it completely unremarked on, so I'll make some brief comments on the rest.

He appeals, as people of his position often do, to the claim that the Civil Rights Act of 1866 disqualified children of non-citizens and that the Citizenship Clause, which was supposed to do the same thing as the Civil Rights Act in this area, would therefore follow that. Eastman does not, however, mention these rather important quotes. Again from Ramsey's article, going into further detail on a point I myself brought up earlier in this blog post:

"Third, even if one accepts a need to align the Act and the Amendment, it is not clear that it should be done by reading the Amendment narrowly. To the contrary, it appears that the Act’s drafters understood it, like the Amendment, to include U.S.-born children of aliens. Senator Trumbull introduced what became the Act’s Citizenship Clause (with the “not subject to any foreign power” language), leading to the following exchange:

"Mr. COWAN. I will ask whether [Trumbull’s proposal] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?

Mr. TRUMBULL. Undoubtedly.231

Cowan then argued at length (in expressly racist terms) against adopting Trumbull’s proposed language.232 Trumbull repeated his understanding later in the debate:

I have already said that in my opinion birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States, and that the bill now under consideration is but declaratory of what the law now is; but, inasmuch as some persons deny this, I thought it advisable to declare it in terms in the statute itself.233

No one was recorded disputing the effect of Trumbull’s proposal; the question the Senators debated was whether it was a good idea.234 Thus it appears that when Senators said that the Amendment had the same effect as the Act, they took a broad view of the Act (rather than a narrow view of the Amendment)."

One can look at his article if you want to see the footnotes. Anyway, next Eastman tries to offer some quotes from Senators Trumbull, Howard, and Johnson that he claims "leave no room for doubt" that subject to the jurisdiction thereof is different from the jurisdiction that requires aliens and visitors to obey laws. I would say there is plenty of room for doubt. Ramsey discusses these quotes on pages 449-451 of his article and there is little for me to add. I considered repeating his statements here as I did above, but it was a lot and I didn't want to be copying too much.

After that Eastman moves to The Slaughter-House Cases, where the Supreme Court said in the majority opinion that "The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States." Eastman admits this is dicta (it really had no relevance to the actual case), but appeals to it on the basis that it is the "this Court's earliest interpretations of the Citizenship Clause". The problem is that The Slaughter-House Cases was a close 5-4 decision. That means a sizable portion of the Court never joined this statement. I know that for the purposes of precedent it doesn't matter whether a decision was 5-4 or 9-0, but as precedent this statement was dismissed by United States v. Wong Kim Ark (which correctly noted that the statement "was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities"). So its precedential value at this point is zero. If, however, the argument is to try to use it to show what people understood it to mean at the time, it does not work well either because again only 55% of the Court signed onto the majority opinion--and this is not getting into the fact that the majority in The Slaughterhouse Cases has come under various criticisms from both liberals and conservatives.

Eastman's appeal to Elk v. Wilkins is completely inadequate, consisting if only one paragraph. Elk v. Wilkins is one of the most argued-over cases in regards to this. Can he not respond to any of the rebuttals that have been brought up? Indeed, Michael Ramsey cites Elk v. Wilkins as evidence against Eastman's position (see page 455 of his article).

Eastman's appeal to Cooley is answered quite directly by Ramsey on pages 457-458:

"Professor Eastman points in particular to the statement in Thomas Cooley’s constitutional law treatise that “subject to the jurisdiction” in the Fourteenth Amendment “meant that full and complete jurisdiction to which citizens generally are subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.” THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 243 (Boston, Little, Brown & Co. 1880); see Eastman, supra note 7, at 174 (relying on this quote as disproving constitutional citizenship for the U.S.-born children of aliens). Cooley’s statement in context is ambiguous, however; he went on to discuss Native American tribes (and, in the third edition, children of foreign sovereigns and ambassadors, children born on foreign ships, and children born under hostile occupation) as being excluded by the “subject to the jurisdiction” requirement; he did not mention other potentially excluded categories, such as children of aliens. See COOLEY, supra; THOMAS M. COOLEY & ANDREW C. MCLAUGHLIN, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 270 (Boston, Little, Brown, & Co. 3d ed. 1898). The categories Cooley specifically mentioned were not analogous to U.S.-born children of aliens in this respect, so it is not clear what Cooley thought of the latter. In any event, what Cooley—a respected but fallible authority—thought years after ratification is not definitive."

Eastman appeals to statements from the Secretary of States Frelinghuysen (1880's) and Bayard (1890's) as evidence of early understanding agreeing with Eastman's own views... but ignores the fact that, as Ramsey points out on page 420, in the 1870's, closer to ratification than either of those, Secretary of State Hamilton Fish took a more expansive view, which Eastman does not address.

The Indian Citizenship Act mention is of little consequence; those who take the more expansionist view of the Citizenship Clause agree that the Native Americans were not included under the Citizenship Clause anyway. To be fair, Eastman appears to be trying to take issue specifically with remarks from the Respondent.

Eastman does come to a more interesting argument, which is to note how various Mexicans, of which he claims about 1.2 million were born in the United States, were repatriated back to Mexico after the stock market crash in 1929. Eastman declares " Yet to our knowledge, not a single case was ever brought at the time claiming that the children born in the United States to those who had come as temporary workers in the “Roaring Twenties” and who retained their Mexican citizenship could not be removed because they were citizens. Such silence is deafening."

While an interesting argument I have not seen before, there are multiple reasons why this argument of Eastman fails. First, this occurred after Wong Kim Ark. Eastman may disagree with that decision, but it happened. But even under the more narrow interpretation claimed--that it applied only to legal permanent residents--it appears to me the Mexicans in question would count under that. Eastman appears to offer no argument as to why they would not. So Eastman trying to appeal to this to show that people accepted his viewpoint is immediately dubious because we are not talking about temporary or illegal immigrants, but ones who were here on a more permanent basis prior to them being kicked out.

More plausibly, the reason few (or perhaps none) of those born in the US fought the issue in court is the fact that the children were too young to have any desire to. Even if the children had a legal claim, their parents did not, so what were they supposed to do, remain in the United States without any guardians? Of course they would go where their parents went.

I will admit that this is a part of history I'm very far from an expert on. But it still seems to me that in the end, this cannot be considered evidence for Eastman's claim because it appears they would most certainly have qualified under even the "legal permanent residents only" interpretation of Wong Kim Ark. Whatever reasons they may have had for not challenging it (it being far simpler to go with their parents, lack of legal knowledge, etc.), this does not appear to support his claims.

The argument about passports I don't know enough about to really offer an analysis, but requiring a disclosure of more than just place of birth could have simply been a bureaucratic redundancy.

So I don't think Eastman's arguments here are particularly good. Too many fall apart and he ignores counterarguments; he has been trying to make this argument for quite some time, he can hardly be unaware of them. And ironically, while arguing for a restrictive reading of Wong Kim Ark, his own arguments end up refuting his actual position (that Wong Kim Ark was wrong to begin with). In some fairness, as what this case was about more specifically was the question of universal injunctions, so maybe this wasn't the time to get into too much depth on some of these things. Still, as a point of argumentation it fails considerably in my view, and he really does not properly address many of the criticisms that have been aimed at his viewpoint or his arguments.

And that reaches the end. I don't know if anyone got much out of this, given this was all about an amicus brief in a case that's over and I rushed towards the end, but this would become even more irrelevant if I waited longer to post it. Maybe I'll have more to say after the Supreme Court actually ends up taking up the issue (no doubt Eastman will file another amicus brief on it). In the end, hopefully someone got something out of this post. If this is of use to even just one person, then I suppose it will have served its purpose.