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Re: Mr. Nussbaum

The tug of war continues between the denialists of President Obama’s eligibility for office and their opponents over the  role of Emmerich de Vattel, Swiss jurist and author of The Law of Nations (short English title of the French work) — one side attempting to drag him into obscurity and the other literally making him a god.

Vattel was an influential writer on international law, and his work highly respected at the time the United States came into being. The debate should, in my opinion, be focused on the narrow question of how influential Vattel was on the subject of citizenship, and what he said on that topic. Evidence of such influence is generally lacking.

The denialists have of late cited the work of Arthur Nussbaum, A Concise History of the Law of Nations, making a claim:

Vattel was by far the most quoted legal source in pleadings in American cases, by almost a factor of 4, between 1790 and 1820. (Nussbaums Concise History of the Law of Nations, 1962).

I was able to obtain a copy of the 1954 edition and used it to research the claim and to look more broadly on the question of Vattel’s influence on our topic of interest.

I hit the index and found that in this 362 page book, Vattel is mentioned only on pages 156-164. I got rather a chuckle as I read one quote (p 158) from Vattel in particular:

by my birth I am a friend of all nations

something one could almost hear the internationally-minded Barack Obama say.

Nussbaum is not all that enamored by Vattel, writing:

The weakness of Vattel’s reasoning was aggravated by his lack of legal training. His diplomatic experience, not very extensive when he wrote the book [The Law of Nations], nevertheless furnished one of its more valuable features, but was inadequate for the task undertaken. This task required a familiarity with juristic methods and literature which he did not possess. It is probable that the defects of Vattel’s training are primarily responsible for the striking ambiguity of his formulas and for the inconsistency of many of his conclusions. [p 159]

In a matter closer at hand, Nussbaum wrote:

In a case involving the confiscation of enemy property, decided in 1814 by the Supreme Court of the United States, Vattel’s position was relied upon in the majority opinion written by Chief Justice Marshall, as well as in the minority opinion written by Mr. Justice Story. Interestingly enough the latter — well known as an eminent legal scholar — questioned the existence of the custom alleged by Vattel, as well as Vattel’s qualification as a jurist.

Among the legal learned Vattel has never met with much praise….

Nussbaum, however, admits that  “in the English-speaking countries, and especially in the United States, Vattel acquired an even higher authority” perhaps based on Vattel’s admiration for the English Constitution. Vattel was unknown in the United States until Charles Dumas sent Benjamin Franklin 3 copies in 1775, almost a decade after the writer’s death. Franklin is quoted as saying that the book “came to us in good season where the circumstances of a rising state make it necessary frequently to consult the law of nations [lower case].”

Then follows on page 162, the fateful chart of citations referenced by the denialist claim, which I reproduce here with some of the context:

from A Concise History of the Law of Nations p 162

The claim fails to disclose that the comparison is only against three other writers on international law, and not law in general. Indeed courts cited Vattel only 38 times in 31 years, barely more than once a year. Nussbaum himself discounts the validity of this compilation saying: “It should be mentioned, however, that such citations or quotations … do not always indicate real influence on the part of the cited author.”

Summing up his section on Vattel, Nussbaum concludes: “Outside the United States and England one finds very little evidence that Vattel’s status was one of authority in the the courts or in the legal profession; in the former countries, too, such evidence vanished in the twentieth century.”

The other question I hoped to explore was to what extent citizenship was a topic of the law of nations (international law). “Citizenship” does not appear in Nussbaum’s index, but “jus soli” appears once in Appendix II where it is part of an arcane discussion about the superiority of Grotius to the Spanish Scholastics. (Vattel is not mentioned in this discussion.) The point relates to the citizenship of Spaniards born in Indian territory. Nussbaum interjects: “As far as the United States is concerned, it did not occur to [James Brown] Scott to look at the English tradition which is at the root of the American jus soli“.

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18 Responses to Re: Mr. Nussbaum

  1. avatar
    Whatever4 February 17, 2011 at 12:24 am #

    Nice find — once again, the source of a birther talking point turns out to provide more evidence against birther theories.

  2. avatar
    Greg February 17, 2011 at 12:51 am #

    Google scholar shows “Blackstone commentaries” comes up 118 times in the same period. That’s just cases, not pleadings. So, it’s safe to say that COURTS cited Blackstone AT LEAST five times as often as Vattel!

  3. avatar
    Lupin February 17, 2011 at 2:05 am #

    May I say for the millionth time that even if somehow Vattel were found to be determining, as Paul and I have stated all too many times before, “parens” means relatives, the translation of “indigenes” by “natural born citizen” is highly debatable, one such “parens” is enough (not two, group plural), and although the first edition singles out the father, the second edition includes the mother. None of this actually helps the birthers’ cause.

  4. avatar
    Rickey February 17, 2011 at 11:06 am #

    Out of curiosity, do we know anything about the people who translated the English versions? The 1797 edition contains a note which is signed “The Editor,” but I don’t see the editor’s name anywhere.

  5. avatar
    Daniel February 17, 2011 at 11:16 am #

    Rickey:
    Out of curiosity, do we know anything about the people who translated the English versions? The 1797 edition contains a note which is signed “The Editor,” but I don’t see the editor’s name anywhere.

    Well we do know they had quite the sense of humor

  6. avatar
    Dr Kenneth Noisewater (Bob Ross) February 17, 2011 at 3:52 pm #

    Does anyone have that link to that list from a while back of most influential writers cited in the founding father’s own writings? It was done by some historian. I can’t seem to find it in my links

  7. avatar
    Jules February 17, 2011 at 5:05 pm #

    Lupin:
    May I say for the millionth time that even if somehow Vattel were found to be determining, as Paul and I have stated all too many times before, “parens” means relatives, the translation of “indigenes” by “natural born citizen” is highly debatable, one such “parens” is enough (not two, group plural), and although the first edition singles out the father, the second edition includes the mother. None of this actually helps the birthers’ cause.

    The birthers misinterpret Vattel countless times.

    Vattel’s commentaries were respected as a useful view on what would now be described as customary international law. His commentary on nationality and use of the term “indigenes” was certainly not a statement of customary international law on citizenship applicable to the United States because:
    1. Nationality law differed counsiderably from one country to another in Vattel’s time and this situation continues to the present day;
    2. Vattel specifically noted that British nationality law and its reliance on jus soli were rather different than the system with which he was most familiar; and
    3. Nearly all legal authorities in the US have indicated that US nationality law followed the original British tradition first and foremost.

    Additionally, there is no question that Vattel had views on the proper exercise of power within a country that are completely incompatible with the US Constitution and so demonstrate that Vattel was not a key authority on how the state and federal governments of the US may interact with private individuals within their jurisdiction.

    If we were to suppose that Vattel’s commentaries on the rules of nationality with which he was most familiar were the basis for US nationality law, then there would be a question as to whether he would regard “indigenes” as applying only to individual states’ citizenship. Vattel, being from Switzerland, did specifically note the possibility that states would form federations. As he considers states within a federation to be sovereign entities and a nation to be a sovereign state, one could say that an attempt to impose Vattel’s formulation on the US before the 14th Amendment would make foreigners of those born to parents who were from different states. (Of course, such an inerpretation of Vattel could well be reasonably disputed, but my point stands that trying to apply Vattel’s formulation of nationality to the US is academic because the US had a very different system of nationality law.)

  8. avatar
    Welsh Dragon February 17, 2011 at 5:12 pm #

    Rickey: Out of curiosity, do we know anything about the people who translated the English versions? The 1797 edition contains a note which is signed “The Editor,” but I don’t see the editor’s name anywhere.

    I’ve tried hard to find out and so far failed miserably.

  9. avatar
    E. Glenn harcsar February 17, 2011 at 8:35 pm #

    Good writing dr c. Scholarship trumps irony. Forgive my recent blatherings.

    Still waiting with you for a ruling, somewhere, someday. You have contributed.

  10. avatar
    misha February 17, 2011 at 9:24 pm #

    E. Glenn harcsar: Still waiting with you for a ruling, somewhere, someday.

    Wong Kim Ark, and affirmed by Ankeny v Gov of Indiana – Natural Born Defined – Born on US Soil regardless of citizenship parents.

    http://nativeborncitizen.wordpress.com/2009/11/12/ankeny-v-gov-of-indiana-natural-born-defined-born-on-us-soil-regardless-of-citizenship-parents/

    What do you people want?

  11. avatar
    Sef February 18, 2011 at 12:41 pm #

    misha: Wong Kim Ark, and affirmed by Ankeny v Gov of Indiana – Natural Born Defined – Born on US Soil regardless of citizenship parents.

    http://nativeborncitizen.wordpress.com/2009/11/12/ankeny-v-gov-of-indiana-natural-born-defined-born-on-us-soil-regardless-of-citizenship-parents/

    What do you people want?

    But Mario & his ilk would say that all these decisions were wrong. He even thinks the 14th is legislation. Idjuts.

  12. avatar
    Atticus Finch February 20, 2011 at 2:25 pm #

    The drafters of the Constitution were learned men who understood the necessity of writing in clear and concise language. “Our Government is founded upon a written Constitution. The draftsmen expressed themselves in careful and measured terms corresponding with the immense importance of the powers delegated to them. The Framers of the Constitution, and the people who adopted it, must be understood to have used words in their natural meaning, and to have intended what they said.” Coolidge v. New Hampshire, 403 US 443, 500(1971)(Black, J concurring and dissenting)

    If the lawyer drafters of the Constitution wanted to incorporate into the Constitution Vattel’s version of “natural born citizen” they would have made their intent clear and specific.
    At the time of the drafting of the Constitution, these lawyer drafters were familiar with Blackstone’s Commentaries and Vattel’s Law of Nations. Through their reading of these treatises they would have found that there were two rules of citizenship, one that was the common law rule as enunciated by Blackstone and the other rule was the Roman or Civil law as enunciated by Vattel.

    We are informed that the Constitution was framed in the English common law language (Smith v. Alabama, 124 U.S. 465, 478 (1888)) and that the lawyer drafters were familiar with common-law concepts (In Re Gannon, 27 F.2d 362, 363 (ED Pa 1928).

    As such, these lawyer drafters would be familiar with statutory construction maxims that included the maxim that a statutory term is generally presumed to have its common-law meaning (Taylor v. United States, 495 U.S. 575, 592 (1990) UNLESS they there is legislative intent to change the common law meaning by specific intent (Midlantic National Bank. v. New Jersey Department of Environmental Protection (474 U.S. 494 (1986).

    It is presumed that the lawyer drafters had knowledge of the existing common law rule of natural born citizen and that ABSENT a clear manifestation of contrary intent, then that the Natural Born Citizen language in the Constitution is presumed to be harmonious with the existing common law rule (Estate of Wood v. CIR 909 F.2d 1155,1160 (8th Cir. 1990)
    The failure of the drafters to indicate a different meaning other than the common law meaning of natural born citizen in the Constitution demonstrated that the drafters intended to incorporate the established common law meaning of natural born citizen.

  13. avatar
    misha February 20, 2011 at 2:39 pm #

    Atticus Finch: If the lawyer drafters of the Constitution wanted to incorporate into the Constitution Vattel’s version of “natural born citizen” they would have made their intent clear and specific.

    Mr. Finch: Very important – I found Obama’s authentic Kenya BC! See for yourself.

  14. avatar
    gorefan February 20, 2011 at 8:14 pm #

    Atticus Finch: As such, these lawyer drafters would be familiar with statutory construction maxims that included the maxim that a statutory term is generally presumed to have its common-law meaning (Taylor v. United States, 495 U.S. 575, 592 (1990) UNLESS they there is legislative intent to change the common law meaning by specific intent

    Alexander Hamilton gave us a guide to determining the meaning of undefined Constitutional terms. In a brief on the Carriage Tax, Hamilton first laments the fact that the Constitution does not define the difference between direct tax and non-direct tax.

    “What is the distinction between direct and indirect taxes? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution. We shall seek in vain for any antecedent settled legal meaning to the respective terms—there is none.”

    After a long discussion of excise taxes, Hamilton ends his brief with instructions on where we should look to define the terms.

    “If the meaning of the word excise is to be sought in the British statutes, it will be found to include the duty on carriages, which is there considered as an excise, and then must necessarily be uniform and liable to apportionment; consequently, not a direct tax.”
    “Some argument results from this, though not perhaps a conclusive one: yet where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”

    The case of Midlantic National Bank. v. New Jersey Department of Environmental Protection, repeats the words of two of the founders:

    James Mason had refused to sign the Constitution. One of the reasons he gave was that the Common Law was not included in the Constitution.

    “There is no declaration of rights: and the laws of the general government being paramount to the laws and constitutions of the several states, the declarations of rights, in the separate states, are no security. Nor are the people secured even in the enjoyment of the benefit of the common law, which stands here upon no other foundation than its having been adopted by the respective acts forming the constitutions of the several states.”

    Then, James Iredell published a response to Mason,

    “As to the common law, it is difficult to know what is meant by that part of the objection. So far as the people are now entitled to the benefit of the common law, they certainly will have a right to enjoy it under the new Constitution until altered by the general legislature, which even in this point has some cardinal limits assigned to it. What are most acts of Assembly but a deviation in some degree from the principles of the common law?”

    And in a letter to George Washington, James Madison said,

    “What can he mean by saying that the Common law is not secured by the new Constitution, though it has been adopted by the State Constitutions. The Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations.”

  15. avatar
    elid February 21, 2011 at 4:53 pm #

    Atticus Finch:
    The drafters of the Constitution were learned men who understood the necessity of writing in clear and concise language. “Our Government is founded upon a written Constitution. The draftsmen expressed themselves in careful and measured terms corresponding with the immense importance of the powers delegated to them. The Framers of the Constitution, and the people who adopted it, must be understood to have used words in their natural meaning, and to have intended what they said.” Coolidge v. New Hampshire, 403 US 443, 500(1971)(Black, J concurring and dissenting)

    If the lawyer drafters of the Constitution wanted to incorporate into the Constitution Vattel’s version of “natural born citizen” they would have made their intent clear and specific.
    At the time of the drafting of the Constitution, these lawyer drafters were familiar with Blackstone’s Commentaries and Vattel’s Law of Nations.Through their reading of these treatises they would have found that there were two rules of citizenship, one that was the common law rule as enunciated by Blackstone and the other rule was the Roman or Civil law as enunciated by Vattel.

    We are informed that the Constitution was framed in the English common law language (Smith v. Alabama, 124 U.S. 465, 478 (1888)) and that the lawyer drafters were familiar with common-law concepts (In Re Gannon, 27 F.2d 362, 363 (ED Pa 1928).

    As such, these lawyer drafters would be familiar with statutory construction maxims that included the maxim that a statutory term is generally presumed to have its common-law meaning (Taylor v. United States, 495 U.S. 575, 592 (1990) UNLESS they there is legislative intent to change the common law meaning by specific intent (Midlantic National Bank. v. New Jersey Department of Environmental Protection (474 U.S. 494 (1986).

    It is presumed that the lawyer drafters had knowledge of the existing common law rule of natural born citizen and that ABSENT a clear manifestation of contrary intent, then that the Natural Born Citizen language in the Constitution is presumed to be harmonious with the existing common law rule (Estate of Wood v. CIR 909 F.2d 1155,1160 (8th Cir. 1990)
    The failure of the drafters to indicate a different meaning other than the common law meaning of natural born citizen in the Constitution demonstrated that the drafters intended to incorporate the established common law meaning of natural born citizen.

    Who is this “we” you keep referencing? And what is the source of this cut and paste post? I’m curious.

  16. avatar
    Atticus Finch February 21, 2011 at 9:20 pm #

    elid: Who is this “we” you keep referencing? And what is the source of this cut and paste post? I’m curious.

    “We” refers to the fact that those who read Supreme Court opinions would have found the following observations from the Supreme Court and the Constitution was framed or written in the English commonlaw language:

    Chief Justice Taft stated in Ex Parte Grossman, 267 U.S. 76, 108-09 (1925):

    “The language of the Constitution cannot be interpreted safely except by reference to the common law and British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.

    “The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Smith v. Alabama, 124 U. S. 465, 478 (1888).

    “The principles and history of the common law were well known to the framers of the Constitution and the members of the First Congress; it was from that system that their terminology was derived; and the provisions of the Constitution and contemporaneous legislation must be interpreted accordingly. Southern Pacific Co. v. Jensen, 244 US 205, 230 (1917) (Pitney, J. dissenting)

    “The colonists who settled this country, were Englishmen, with the feelings, the attachments, and the prejudices of Englishmen. It became necessary for them to establish or recognize and adhere to some system of law from the moment they landed. That system was of necessity the English, and accordingly, we find the doctrine to have always been that the colonists were subject to, and, as it were, brought with them, the great principles of the common law of the mother country, with such modifications as the legislative enactments of Parliament had at that time introduced into it, or the particular situation of the colonists in their new condition required. It is to be understood, then, as a general principle,—that the basis, the fundamental element, the starting point, of the jurisprudence of the States of the Union, is the common law of England, so far as the same is not actually repugnant to our system.” Theodore Sedgwick, “A Treatise On the Rules Which Govern the Interpretation and Construction of Statutory and Constitutional Law” (1874 ) page 8

    :

  17. avatar
    Dr Kenneth Noisewater (Bob Ross) February 22, 2011 at 11:16 am #

    elid: The drafters of the Constitution were learned men who understood the necessity of writing in clear and concise language. “Our Government is founded upon a written Constitution. The draftsmen expressed themselves in careful and measured terms corresponding with the immense importance of the powers delegated to them.

    Its a copy and paste from the worldnetdaily forums

  18. avatar
    Dr Kenneth Noisewater (Bob Ross) February 22, 2011 at 11:19 am #

    Dr Kenneth Noisewater (Bob Ross): Its a copy and paste from the worldnetdaily forums

    Sorry elid didn’t mean to quote you as saying that… Had the previous section highlighted while i did the search and then clicked the quote button.