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De Vattel appears in 1884 law review article

In ARE PERSONS BORN WITHIN THE UNITED STATES IPSO FACTO CITIZENS THEROF? The American Law Review (Sep/Oct 1884) George D. Collins argues that only those born in the United States whose fathers are citizens, are themselves citizens.

This find by Leo C. Donofrio should provide some some discomfit to Mario Apuzzo who has been doggedly pursuing the two-citizen-parent rule.

Mr. Collins jumps right into the topic by attacking Lynch v. Clarke (New York 1844) denying that there is a common law of the United States (although he is quite ready to adopt the Swiss philosopher Vattel in lieu of a common law). Collins seems to think de Vattel’s “The Law of Nations” represents international law rather than de Vattel’s philosophy of international law, but the facts are that de Vattel’s view of citizenship did not represent a consensus of national laws on citizenship; quite the contrary.

Finally Collins launches into racist screed against the Chinese:

Now it is evident that such persons [the Chinese] are utterly unfit, wholly incompetent, to exercise the privileges of an American citizen….

…yet under the common law rule the children of all persons, irrespective of race, who were born within the United States would be citizens.

We already know that Collins argument was rejected by the US Supreme Court in United States v. Wong Kim Ark. I think the flaw in Collins lies in confusion of common law as a principle under which the Constitution is to be understood, and whether one might rely on the common law in contravention to actual laws.

For a detailed analysis of the controversy between state citizenship and national citizenship, I refer the reader to Kettner’s book The Development of American Citizenship, 1608-1870, Chapter 9. For a  view of what the contemporary federal courts thought about Collin’s argument, see Another Look. (It may well be that Collins was writing in response to the Look Tin Sing case given its publication just a month after the decision.)

Are Persons Born Within the United States Ipso Facto Citizens Thereof – George D. Collins by kices

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8 Responses to De Vattel appears in 1884 law review article

  1. avatar
    dunstvangeet September 22, 2009 at 12:52 pm #

    It’s 1884, Dr. C, not 1994…

    Makes a big difference…

  2. avatar
    nbc September 22, 2009 at 1:29 pm #

    Yes, especially since the Court in Wong Kim Ark explicitly rejected these kind of ‘arguments’ in favor of a common law interpretation.

  3. avatar
    Dr. Conspiracy September 22, 2009 at 1:32 pm #

    Thanks. No respectable law journal would have printed trash like that in 1994.

  4. avatar
    Rickey September 22, 2009 at 1:43 pm #

    Here’s the lowdown on George D. Collins. You couldn’t make this stuff up.

    http://ohforgoodnesssake.com/?p=2410

  5. avatar
    brygenon September 22, 2009 at 5:17 pm #

    Much of the argument, including the racism, appears in Chief Justice Fuller’s 1898 dissenting option on United States v. Wong Kim Ark. The majority opinion and ruling on Ark seen to have settled that matter, and that’s how things stood for a century or so until Barack Obama became a contender for the Presidency.

    Now Leo Donofrio and Mario Apuzzo say the rule so widely accepted for so long is incorrect. If Leo and Mario are right, then law dictionaries have been wrong about “natural born citizen” for over 100 years (as Dr. C’s diligent research found http://books.google.com/books?id=cJENAAAAYAAJ ).

    What’s more, Leo and Mario pitch the matter as a serious threat to national security. It just didn’t occur to anyone to mention it until they needed reasons why Barack Obama can’t be President.

  6. avatar
    Greg September 22, 2009 at 11:31 pm #

    He reprised his article in 1895, bemoaning the fact that Justice Field’s decision in In re Look Ting Sing had become the de facto rule of the US Executive branch for the 10 years between his two articles. (29 Am L Rev 385).

    His article drew two rebuttals. The first from Henry C. Ide, then Chief Justice of American Samoa (30 Am L. Rev. 249, 1896). He gave much of the international law aspects that made it into Wong’s brief. The second was by Marshall Woodworth (30 Am L Rev 535, 1896).

  7. avatar
    Lupin September 23, 2009 at 1:54 am #

    “…Mario Apuzzo who has been doggedly pursuing the two-citizen-parent rule.”

    I have been doggedly pursuing the Earth-is-flat rule but that doesn’t make it right either.

    Any attorney who continues to state as true something he knows to be false ought to be sanctioned.

  8. avatar
    Mario Apuzzo September 23, 2009 at 1:59 am #

    Lupin,

    You have really wore out that flat earth thing. By the way, don’t forget about the landings on the moon.