Emer de Vattel
One of the more vexing nObama arguments is their redefinition of Natural Born Citizen. The primary way they attempt to do this is to assert that the definition of “natural born citizen” in the Constitution should be determined by a book by a Swiss philosopher and jurist from the 18th century name Emmerich de Vattel writing in a book loosely called “The Law of Nations”. The approach inflates de Vattel’s influence.
A mindless literalism appears among the nObama when they say that an 18th century Swiss jurist de Vattel’s work, Le Droit des Gens. ou Principes de la Loi Naturelle, appliques a la conduite & aux affaires des Nations & des Souverains, is written into the US Constitution because the phrase “the Law of Nations” appears therein (and that is a translation of a bit of Vattel’s French title).
Some assert that the word “natural” in “natural born citizen” is a reference to “natural law”. That is, they assert that a natural born citizen is some who is born a citizen by natural law. Let’s run with that.
De Vattel describes exactly two kinds of citizen in his book, natural born citizens (or natives) who are citizens by natural law (this is described in Book 1, Chapter 212), and naturalized citizens who are citizens made so by statute (described in Book 1, Chapter 214).
The essential problem in any discussion is determining what “natural law” is. For de Vattel, natural law makes one a citizen based on who one’s parents are. For him, loyalty and national allegiance are inherited. The problem with arguments based on natural law is that there is no source to which an appeal can be made to determine what natural law is. One cannot question nature directly. Natural law is at one time a consensus view of what is “right” and at another an excuse for inflating one’s own prejudices and biases to superhuman levels.
If natural law is a window on prejudice, then we might consider the conditions of the United States as compared to Switzerland.
Particularly in the southeastern colonies of British North America, disease was so severe that only immigration kept the population from declining. Naturalization standards were lenient (one year’s residence with good conduct). Americans who had just asserted that they were no longer British citizens seemed ready to deny their blood and swear allegiance to the place. It makes no sense for a nation of immigrants to consider “natural allegiance” to be determined by where their father’s came from.
For more information on citizenship issues, look at our Citizenship category.
How often does the phrase “Common Law” appear.
I ask because some of the anti-Obama Natural Born theorists say that the US Constitution was an attempt to get away from British common law.
Emmerich de Vattel was certainly a respected jurist, but he had nothing to do with U.S. law or the constitution. There have been plenty of books with the title of “Law of Nations”. Vattel was influenced by Christian Wolff’s book which is usually, in English translation, titled “Law of Nations”. The de Vattel quote commonly lifted out of context by birfers has the heading, “regarding the laws of our nation”. For some reason they always omit this heading. De Vattel in that section explains ius sanguinis, “law of ancestry”, which is the law of “our nation”, i.e. Switzerland. You are a citizen-at-birth of Switzerland if, and only if, your parents are Swiss, and it makes no difference where you are born. De Vattel in other sections explains ius solis, “law of the soil”, which is the law in other countries. Note also that naturalized Swiss citizens are eligible for all their federal offices.
Doc and company,
You’ll be disappointed to learn that Mr Greschak, after a detailed explication of the “NBC” sources, bordering on parody, concludes a “natural born citizen” must be at a minimum (1) a citizen at the time, (2) a citizen at birth, (3) born on US soil, AND (4) born to parents themselves both citizens at the time of their child’s birth.
http://www.greschak.com/essays/natborn/index.htm
Hitandrun
No disappointment:
Greschak says “It should be noted that I do not consider this to be a definition of the phrase natural born Citizen. What I have listed here are just what I believe are some necessary conditions for one to be a natural born Citizen”
None of his coments include the US Constitution, do they? It’s what he believes, I believe something else!
HR, thanks for the reference. Yes, I am disappointed. I am impressed by the material he collected. I just wish that he had relied on his material and not so much on the dictionary. One cannot derive the meaning of a phrase solely from the meaning of its constituent words, hyphen or no. There are several excellent examples from citations from which I will pick one, the Private Act No. 101:
This is a good example showing the equivalence of natural Subject with being Born within the state. Other citations have variations on the wording, but all convey the same result and parents are never mentioned.
I have sent him an email asking if he’s willing to discuss the matter.
[Added: That’s probably a waste of time, now that we know that he’s been talking with Leo Donofrio.
Since the Constitution nowhere defines “natural born citizen”, one must look elsewhere. Mr. Greschak has taken an essentially linguistic approach. I feel that a better argument can be made that citizen parents are not required (that part was rather a leap).
This is certainly the most sophisticated thing to come out of the citizenship denial side to date. It bears careful analysis.
The more I think about it, the more this essay looks fishy. First off, it is very long. Some of the repeated copies of alternate translations of Latin texts seems irrelevant to the conclusion. One wonders whether their inclusion is either to make the essay appear erudite or even if the attempt is to tire the reader so that they will give up and and click the Synopsis link rather than finishing the essay.
Skipping the end of the essay is a bad thing because the entire argument is at the end. The Synopsis is nothing more than the conclusion without the intervening argument. If the reader reads half the essay and then skips to the Synopsis, they will not have read anything that supports the conclusion.
In any case as I said, this is a sophisticated challenge and it will require some careful thought to unravel.
HR, would you flesh out what you mean by “bordering on parody?” I am intrigued.
That idea — that there was some attempt to “get away” from British Common Law — just demonstrates total ignorance of law and US history. Any American law student knows otherwise, because we learn from the outset that American jurisprudence is laid on top of British common law, and so much of the early American case law goes back to British common law as a determinant of various questions. It’s common to see British holding cited as authorities in 19th century US Supreme Court holdings. I never heard of Vattel in law school — but I sure as hell knew Blackstone!
Google tells me that John Greshak might have very useful opinions to share in the fields of music and mathematics — he seems quite gifted in those arenas.
But a quick scan of his essay tells me that, unfortunately, the man does not know the first thing about Constitutional law or American jurisprudence.
I disagree – the essay betrays naivite rather than sophistication in terms of legal analysis. It has a false aura of sophistication because of the type of argument advanced — but you could probably find examples of equally complex reasoning and citation to authorities in writings in support of creationism, yet none would be given a second look by a modern scientist.
I appreciate your views. Sometimes I’m a little slower in reaching clarity.
Pingback: Native and Natural Born Citizenship Explored
Doc,
The parody, I’m sure, is unintended on Mr Greschak’s part, who has done yeoman’s work in assembling the “NBC” sources. Nonetheless, sophisticated readers like Expelliarmus might find Mr Greschak’s convoluted interpretations and conclusions bordering on parody. To my mind’s eye they do.
Hitandrun
richCares,
You are misinterpreting Mr Greschak’s main point, which is that the requirements for “natural born citizen” status in the Constitution or elsewhere during the period of the Framers must include AT A MINIMUM all those he lists, and perhaps more.
Incdentally, as Doc has already learned, Amb. Keyes in his personal essays does not lend credence to such Donofrio arguments. Dr Keyes, time and again, emphasizes that a foreign birth remains the major possibility which might vitiate Mr Obama’s eligibility — hence his demand for public disclosure of the vault document.
Hitandrun
Strangely enough, we do agree on that point.
I don’t agree that his convoluted interpretations lead to the conclusions he has drawn, either. He made a rather odd logical leap, based entirely on an unsupported assumption which seems to defy history, when he got to the point of deciding which sort of citizen would be “most numerous”.
Here’s a link to Congressional hearings that go into the history of the “National Born Citizen” requirements in some depth:
http://tinyurl.com/dlk55s
The information there paints a very different picture than the claims of Greschak’s essay or Donofrio’s theorizing. There’s a lot to read there, but its interesting stuff.
These hearings took place about 4 years ago, and the Senate Judiciary was considering a possible Constitutional Amendment to allow naturalized citizens to run for President, or a statute clarifying that children of citizens who were born abroad (like McCain) should be considered natural born. They all agreed consistently throughout that “natural born” did include all children born in the US, regardless of parentage, and they used the phrase “natural born” interchangeably with “native born”.
Plus they pretty much discredit the theories about fears of foreign influence due to parentage.
(Thank to mimi for providing me the link)
The PDF version is now hosted here and added to the Bookmarks page under “S. Hrg. 108-694 — Maximizing Voter Choice: Opening the Presidency to Naturalized Americans, October 5, 2004 – TEXT 115K | PDF 3.3M”
As to “natural born citizen” I would suggest reading US v Wong Kim Ark 169 US 649 (1898). If you do read it get a very large cup of coffee, it is very long. I came to the conclusion that the court assumed this underlying principal: Within the class “Citizens” there are two and only two subclasses (1) “Natural Born Citizens”, and (2) “Naturalized Citizens”. In short the finding of the Court was that if you are born on US soil you are a natural and/or native born citizen (natural and native are used interchangeablyby the Court). THe nationality of the parents is irrelevant.
If you notice the birthers never mention the Wong case.
The other day I saw a birther blog that cited the Dred Scott case. I cannot believe someone could have been so idiotic.
Mr. Donofrio drones on about Wong.
Doc,
What happened to the Federalist Papers ‘common law’ references and the Apuzzo blog excerpt in your original article?
Have they been moved to another thread?
Hitandrun
The previous version was “under construction”. The final version hacked a lot of stuff I was accumulating that I didn’t have any use for. Following is what the article used to say:
The Law of Nations and the Law of the United States
Original Content
One of the more vexing nObama arguments is their redefinition of Natural Born Citizen. The primary way they attempt to do this is to assert that the definition of “natural born citizen” in the Constitution should be determined by a book by a Swiss philosopher and jurist from the 18th century name Emmerich de Vattel writing in a book loosely called “The Law of Nations”. The approach inflates de Vattel’s influence. A mindless literalism appears among the nObama when they say that an 18th century Swiss jurist de Vattel’s work, Le Droit des Gens. ou Principes de la Loi Naturelle, appliques a la conduite & aux affaires des Nations & des Souverains, is written into the US Constitution because the phrase “The Law of Nations” appears therein (and that is a translation of a bit of Vattel’s French title). I found the following comment posted on Apuzzo’s blog.
Reference to common law in the Federalist Papers:
Here common law that the law of nations (lower case) are used in the came context:
On the courts:
Many citations here. Take the link to 81 preceding. Keep in mind the distinction between “common law” and British common law.
Wong Kim Ark case?
Okay. I’ll state a fact about it.
In only ONE place does it use the phrase/term “natural born citizen”.
Justice Grey [sic, Dr. C] :
“Justice Grey [sic, Dr. C], in US v Wong Kim Ark (1898)
http:// caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the fourteenth amendment now in question, said: ‘The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.’ And he proceeded to resort to the common law as an aid in the construction of this provision.”
And as Grey [sic, Dr. C] was quoting the earlier case Minor vs Happersett… here is that portion,
Chief Justice Waite in Minor v. Happersett (1875)
http:/ / www. law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZO.html
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.”
” Letters of Delegates to Congress
1774-1789
Edited by Paul H. Smith, et al. (1976-93) ”
http://etext.lib.virginia.edu/toc/modeng/public/DelVol02.html , in “Volume 02” is Benjamin Franklin’s letter dated December 9, 1775 to Charles William Frederic Dumas.
“I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author. Your manuscript “Idee sur le Gouvernement et la Royaute” is also well relished, and may, in time, have its effect. I thank you, likewise, for the other smaller pieces, which accompanied Vattel.”
Read Robert Trout’s piece.
http://east_west_dialogue.tripod.com/vattel/index.html
Read John Greschack’s piece.
http://www.greschak.com/essays/natborn/index.htm
———
And also… Thomas Jefferson said that, a person is either British or an alien (not British). “no middle character”
http://etext.lib.virginia.edu/toc/modeng/public/DelVol21.html , in “Volume 21” as “Letter 151 Jefferson Notes”
Obama was British at birth.
http://fightthesmears.com/articles/5/birthcertificate
However, Mr. Greschak in the very citation you give us demonstrates the fact that the phrase “natural born citizen” was not contained in the copies of de Vattel which Franklin might have had in 1775. All this commentary that de Vattel was the “only definition” of natural born citizen has been refuted by the evidence that the phrase was not even in the book.
If we follow Jefferson, then we may do away with all this divided loyalty rhetoric. Obama is American by place of birth, and not British parentage, since he clearly has chosen to be American.
As research progresses, we find that citizenship as defined by colonial and early American laws is universally granted to those born in the colony or state, without any requirement of citizenship for the parents. This includes Jefferson’s own state of Virginia.
Ken, you need to check your math. I count 7 instances of “natural born citizen” and 25 instances of “natural born subject” and 14 instances of “native born citizen. There is language in the decision which suggests the equivalence of these terms.
Your own citation from Minor v. Happersett establishes the equivalence between natives and natural-born citizens. If we accept the equivalence between natives and natural born citizens from your own citations, then we are clearly done with the argument:
Indeed the native born citizenship was decided by the Supreme Court in McCREERY’S lessee v. SOMERVILLE in 1824.
The terms used in the French were “naturels ou Indigenes”
It shouldn’t take much to see the cognates of these words.
As for follwing jeffeerson, if we do follow him, then we see that to be aa “citizen”, of any kind, shape or form, one cannot be a dual citizen. It didn;t exist. “There is no middle character.”
As a “citizen” of this country, cannot also be British, per Jefferson.. how then could a “natural born citizen” be a dual citizen back then?
And look at Revised Statute of 1868 sec 1992
““All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
http://famguardian.org/TaxFreedom/CitesByTopic/expatriation-RS1999-1868.pdf
Let me put it this way. If Obama was born in 1869, and the law is clear that a “citizen” cannot be “subject to a foreign power”, then Obama could not a “citizen”. He was subject to a foreign power: Great Britain through hi dad. And further, in 1868, could a woman marry a man, and retain her original citizenship, or would she not automatically obtain her husband’s?
Yes, NOW there are anchor babies, in which NO parent need to be an American, the baby will be granted American citizenship per the soil alone.
But in 1868, with th Revised Statute a “citizen” cannot be subject to a foreign power. How then could a “natural born citizen” be allowed to be subject to a foreign power?
as our US citizenship requirements have changed THROUGH laws… the definition of “natural born citizen” has NOT changed through law.
So what was a “citizen” to the framers? what eas a “citizen” per Jefferson? What was a ccitizen even into 1868? And whatever a “citizen was by those requirements.. what then was, and has never been changed by law, a “natural born citizen”?
This is why once reaching the age of majority the child renounces the other citizenships and retains its natural born status.
It’s really that simple. A child cannot be ‘punished’ for his parents’ citizenship status.
Which is why a natural born citizen is any child born on US soil except for children to foreign dignitaries and invading military.
Hope that clarifies. Subject to a foreign power means that the person is not subject to US law which only applies to the two categories mentioned above.
Ken Dunbar: “The terms used in the French were ‘naturels ou Indigenes’. It shouldn’t take much to see the cognates of these words.”
Which of those is the cognate for “citizen”? The answer is: none of them.
Your fundamental error is in misreading the phrase “not subject to any foreign power”, reading it incorrectly to say “not subject of any foreign power.” While “to” and “of” are small words, the difference in meaning is crucial. Say the UK had a law that required that every Citizen of the UK and colonies to return to England to be registered at birth, could they enforce this law on Someone born in the United States? No they could not because while in the United States everyone is completely under the jurisdiction and allegiance of the United States.
Any in any case, President Obama was not born between 1866 and 1868 when the 14th amendment replaced the 1866 Civil Rights Act.
It was clear from the debate in 1866 that there was no attempt to remove citizenship from anyone, and that the act was simply declarative of what was the practice before (except as the status of the slaves), and it is abundantly clear from colonial legislation and English common law that citizenship under the Constitution (i.e., natural born citizenship) was determined solely by place of birth and without regard for the status of the parents.
“…and it is abundantly clear from colonial legislation and English common law that citizenship under the Constitution (i.e., natural born citizenship) was determined solely by place of birth and without regard for the status of the parents.”
Show me the quotations through the years of the definition of “natural born citizen”, which says nothing of the status of the parents.
And as for 1868, my POINT is this: as a citizen could not be subject to a foreign power.. how nthen could a “natural born citizen””?
Because Obama WAS subject to a foreign power, so in 1868, he would not have been a citizen, and thus he could not then have been a natural born citizen.
See this link for more detail
Subject to means under jurisdiction of, or in plainer words, held to the laws of the country. Obama, living in the US was subject to the US, not the UK.
A misunderstanding of the term ‘subject to a foreign power’. This only refers to children of foreign dignitaries and invading military who are subject to their native country, not the country in which they reside. You must have heard of the term diplomatic immunity?
There are several articles on this web site citing colonial legislation which shows that parentage was consistently absent as a requirement. You might start with the Georgia Charter (1732). http://www.obamaconspiracy.org/2009/03/natural-born-in-georgia/
You have not shown, and it would be contrary to what the courts have said, that Obama was “subject to a foreign power” just because his father was British. This is particularly evident in Senate comments about the 1866 (not 68) Civil Rights act. Senator Cowan said:
Assistant Attorney General Dellinger said in 1995:
And the US Supreme Court said:
Therefore it is incorrect to say that Barack Obama, had he been born in 1866, would not have been a citizen of the United States.
Doc Conspiracy said, “Ken Dunbar: “The terms used in the French were naturels ou Indigenes’. It shouldn’t take much to see the cognates of these words.”
Which of those is the cognate for “citizen”? The answer is: none of them.”
let me point it out to you. The words “natureles or indigenes” are translated as “natives or natural born citizens.
But if you do a simple translation from French to english, you will find that “naturels”-> natural (adj)
and “indigneses”-> indigenous(adj), native
So whoever these “naturals or “indigenous natives” are.. their parents were citizens at their birth in the country.
Who would English (British) translatee from the French into Englis “natives, or natural born citizens”.. if they disagreed with Vatell? why wpuld American publishers also translate those French words into “natives, or natural born citizens”, if those Americans disagreed with Vatell’s naturles ou indigenes being translated into natives or natural born citizens?
And when we -you, Doc and I, Ken- mention Yinger’s article…. what do you make of the following from it?
http://faculty.maxwell.syr.edu/jyinger/Citizenship/history.htm
” This history suggests that the Founding Fathers used the term “natural born” as an expansive definition of citizenship, that is, as a way to make certain that people born overseas to American citizens would have the full rights of other American citizens.(41)
A particularly compelling version of this interpretation, with language that applies, inadvertently, no doubt, to foreign-born adoptees, can be found in an article written almost 100 years ago by Alexander Porter Morse.(42) He writes that by drawing on the term so well known from English law, the Founders were recognizing “the law of hereditary, rather than territorial allegiance.”(43) In other words, they were drawing on the English legal tradition, which protected allegiance to the king by conferring citizenship on all children “whose fathers were natural-born subjects,” regardless of where the children were born.(44) Thus, according to Morse, “the framers thought it wise, in view of the probable influx of European immigration, to provide that the President should at least be the child of citizens owing allegiance to the United States at the time of his birth.”(45) He goes on to say that the presidential eligibility clause “was scarcely intended to bar the children of American parentage, whether born at sea or in foreign territory…. A natural-born citizen has been defined as one whose citizenship is established by the jurisdiction which the United States already has over the parents of the child, not what is thereafter acquired by choice of residence in this country.”(46) ”
Doc posted: Senate comments about the 1866 (not 68) Civil Rights act. Senator Cowan said:”
And nowhere did he say that three-word term “natural born citizen”.
The child’s birth status can never change.
The child, when becoming an adult, may renounce any citizenship he/she chooses.
But the birth status can never change: born with dual nationality, for example. Obama will always have been born of a British father and subject to British Law (British nationality Act of 1948) as he himself admits on his campaaign website FightTheSmears.
As for your given definition of “natural born citizen”, I ask you provide quoptations (documents) through the decades of the USA. proving such. And, please accurately have included those sources with that specific three-word term “natural born citizen”.
Doc posted:
and it is abundantly clear from colonial legislation and English common law that citizenship under the Constitution (i.e., natural born citizenship) was determined solely by place of birth and without regard for the status of the parents.
Go argue with Yinger and Alexander Porter Morse.
” This history suggests that the Founding Fathers used the term “natural born” as an expansive definition of citizenship, that is, as a way to make certain that people born overseas to American citizens would have the full rights of other American citizens.(41)
A particularly compelling version of this interpretation, with language that applies, inadvertently, no doubt, to foreign-born adoptees, can be found in an article written almost 100 years ago by Alexander Porter Morse.(42) He writes that by drawing on the term so well known from English law, the Founders were recognizing “the law of hereditary, rather than territorial allegiance.”(43) In other words, they were drawing on the English legal tradition, which protected allegiance to the king by conferring citizenship on all children “whose fathers were natural-born subjects,” regardless of where the children were born.(44) Thus, according to Morse, “the framers thought it wise, in view of the probable influx of European immigration, to provide that the President should at least be the child of citizens owing allegiance to the United States at the time of his birth.”(45) He goes on to say that the presidential eligibility clause “was scarcely intended to bar the children of American parentage, whether born at sea or in foreign territory…. A natural-born citizen has been defined as one whose citizenship is established by the jurisdiction which the United States already has over the parents of the child, not what is thereafter acquired by choice of residence in this country.”(46) ”
http://faculty.maxwell.syr.edu/jyinger/Citizenship/history.htm
Since anyone other than ambassadors and invading military fall under the Jurisdiction of the US when living in the US, it seems self evidence that the citizenship of the parents does not matter, as long as the child is born on US soil and thus under jurisdiction of the United States.
“Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”
How about Yinger and Morse argue with everyone who says otherwise?
(And for those who enjoy appeals to authority, Yinger is a professor at Syracuse who does not have a law degree, and Morse was a lawyer who, among other things, represented Louisana in the infamous Plessy v. Ferguson case.)
Yinger is arguing the view that in addition to those born in the United States, foreign-born adoptees should be natural born citizens too. He goes on to say:
As for Morse, who is the source of your quotation, his work is unavailable on the Internet, and we cannot determine its context and his overall views on the basis of such a short citation. But Morse also (Morse on Citizenship, p. 241 § 203) quoted:
The court in McKay v. Campbell 2 Sawy. 118 said:
Ken, read this web site. If case you don’t know how, type “natural born citizen” site:obamaconspiracy.org in Google.
Your comment was about citizenship, and my reply was responsive.
Ken Dunbar: “let me point it out to you. The words “natureles or indigenes” are translated as “natives or natural born citizens.”
You spoke of “cognates” and my reply was responsive. There are no cognates to “citizen” and, I would point out to you that the original English translations of The Law of Nations (including all those published before and until the US Constitution was written) did not use the phrase “natural born citizens”, nor do the most recent translations. So I cannot explain the aberrant translation of de Vattel that the denialists use, but it is certainly an aberration.
Ken Dunbar asks me what I make of: “” This history suggests that the Founding Fathers used the term “natural born” as an expansive definition of citizenship, that is, as a way to make certain that people born overseas to American citizens would have the full rights of other American citizens.(41)”
I would say that writer wanted to expand the number of people who were natural-born citizens, and not to limit it as you do.
In our history, there are those who want to expand the rights of the foreign born, and there are those who want to restrict the rights of the foreign born. Neither is mainstream, and neither is the Obama denialist position which scrapes up a few quotations from those sources.
Perhaps Ken will look up the New Orleans Comité des Citoyens who brought the suit, just to learn what the French word for “citizens” is.
Ken Dunbar: “Go argue with Yinger and Alexander Porter Morse.”
I never argue with third parties, particularly dead ones. If you can persuade Yinger to come over here, I’d be pleased to discuss the subject with him.