We agree that de Vattel writes eloquently espousing his view of natural law. And we agree that de Vattel was known to and likely influential in the minds of the framers of the Constitution.

That said, it would not be at all reasonable that to conclude that de Vattel’s views based on the stable Swiss society would closely fit in every respect the ideas from a fledgling frontier immigrant-driven democracy like the United States. Switzerland and the United States in the late 18th century were not the same kind of place. One had a stable population. The other needed immigrants just to keep the population from declining because of disease (at least this was the case in the southern colonies).

It would be an error to jump from the statement that de Vattel was influential to the statement that de Vattel was influential on issues of citizenship. One needs some additional evidence to make that connection and I do know where you would find that evidence.

You might mention the John Jay letter, but it communicates nothing more than “natural born citizens are not foreigners”. And again, the copy of de Vattel that John Jay might have had, did not contain those words, so the phrase itself did not come from the English translation of de Vattel, nor did it come from a literal translation of the French. John Jay of New York, it would seem to me, would be much more inclined to base natural born citizen on the language in his own colony’s legislation mentioning natural born subject, legislation which indicates that natural born subjecthood is based on location of birth alone such as this from 1770:

BE IT THEREFORE ENACTED by his Honor the Lieutenant Governor the Council and the General Assembly and it is hereby enacted by the authority of the same that the before mentioned several Persons and each and every of them shall be and hereby are declared to be naturalized to all Intents Constructions and purposes whatsoever and from henceforth and at all Times hereafter shall be entitled to have and enjoy all the Rights Liberties Privileges and Advantages which his Majesty’s Natural born Subjects in this Colony have and enjoy or ought to have and enjoy as fully to all Intents and purposes whatsoever as if all and every of them had been born within this Colony.

Further, I hope your reading of de Vattel extends to the few chapters following 212. What one learns is that according to de Vattel, the bottom line for allegiance in ambiguous cases is fatherhood. The mother doesn’t really matter; the place doesn’t really matter. Only the father matters. This is the exact opposite to what President Madison, whom some call “The father of the Constitution” said when he was in Congress:

It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.

And I also hope that you also read in de Vattel his admission that citizenship at birth in England without regard to parentage was an exception to his own view. So which is the Constitution based on Swiss common or English common law? I will give you a hint. The Supreme Court has spoken on that issue in the case of Smith v. Alabama. The answer is that the Constitution is written in the language of English Common Law.

So I say again, where is your link between de Vattel and American views of citizenship?

Colonial legislation in New York, Massachusetts, South Carolina, Virginia and Georgia all refer to natural born citizen or subject with terms that do not require parentage; I know of not one that does. If you do, enlighten me (with the FULL context).

You make a few misstatements that I must object to.

First, I am not cherry picking my sources. I don’t know of any source except the aside in Minor v Happersett that lead any credibility to your views, and this is a post 14th amendment case anyway. You might bring up some comments that were part of the debate on the 14th amendment, but there are comments on the other side that were not refuted and such debates are commentary, not authority. I don’t know what sources you could have (at least no sources that are represented honestly and in context). You don’t strike me a cheat.

My second objection is when you say that my dubious sources all surround the 14th Amendment. The colonial legislation I mentioned, and the citation from President Madison precede the 14th amendment, as does this from Vice Chancellor Sandford of the Supreme Court of New York in Lynch v. Clarke (1844):

The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President,” … The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.

Reading Lynch v. Clarke might do you some good. There’s a link on my Bookmarks page.

Parentage, yes or no? I will give you the answer in the words of Senator Lyndsey Graham (R-SC):

Every child born in the United States is a natural-born United States citizen except for the children of diplomats.

Doctor C.

In 1898, in the Wong Kim Ark case, the Supreme Court reexamined the “citizenship-by-birthplace-alone” theory, but did not decide whether it applied to natural born citizenship. The Court ruled that Mr. Ark was a citizen, but did not rule that he was a natural born citizen (SCOTUS in ‘Wong Kim Ark’).

This is a major gloss over one of the most sweeping surveys of citizenship ever appearing in US jurisprudence. The question before the court was whether Wong Kim Ark, born in California of Chinese subjects at a time when racist legislation (the Chinese Exclusion Act) prohibited the Chinese from becoming naturalized citizens, was a citizen. The Court said that he was. But in the majority opinion, the Court said a great many things of importance, specifically:

1. Citing Smith v. Alabama, the court said that the Constitution is framed in the language of English Common Law
2. The Court cited English Common law, saying that those born in England are natural born subjects of England, without regard for the citizenship of their parents
3. The Court asserted the equivalence of “citizen” and “subject”.

While US v. Wong did not decide the natural born citizen question, the majority opinion leads inevitably to the conclusion that those born within the United States (except the children of ambassadors) are our natural born citizens, without regard to the citizenship of their parents.

Next in Tonchen’s article we read some details about Barack Obama’s birth, that his father was a “British Subject” (technically Obama was a Citizen of the UK and Colonies, not a British subject). Tonchen says:

If Barack Obama Jr. was born in the United States but, at the time of his birth, his father was a citizen of a foreign country and not a U.S. citizen, does Barack Obama Jr. meet the Constitutional “natural born citizen” requirement for presidency?

Obama apologists say “Yes”.

Earlier in the piece, Tonchen says that a consensus of the Congress and the media believe that birth in the United States is sufficient, but now he relegates this view to “Obama apologists”.

I note that Tonchen uses the term “birther” differently than the editorial policy of this web site. For Tonchen, a birther  is anyone who doubts Obama’s eligibility to be president, where here we use it for anyone who doubts that Obama was born in the United States. Keep this in mind when comparing the two sources. Tonchen describes the born in Africa story as “unsubstantiated rumors,” so we will agree on this point and move on to his comment:

The U.S. Constitution, and the Naturalization Acts of Massachusetts (1776-1790), use the term “natural born citizen” but do not define it.

The Massachusetts acts, while not defining the term (implying that the term was established already in common law), do present some interesting language suggesting the absence of a parentage requirement (consistent with common law definitions). Here is a sample from the act naturalizing Peter Landais:

Be it enacted…that upon the taking and Subscribing the Oath of Allegiance…the said Peter Landais…shall be deemed and adjudged and taken to be a natural [other acts say "born" in this spot] Subject [other acts say "citizen" in this spot] of this State to all Intents and Purposes as if he the said Peter Landais had been Born within this State and had continued and dwelt therein from the Time of his Birth and having been here abiding on the fourth day of June…[1776].

Here we see that this grant of natural born subject status is equivalent to someone being born in the state and continuing to reside there. Not a word about  natural born subjects having a parental requirement. We see similar language (without any reference to parentage) in the Naturalization Acts of New York. It is quite clear from these acts, as well as from the Charter of Georgia and legislation in South Carolina that the phrase natural born citizen/subject was universally tied to birth within the state/colony without regard to the status of the parents.

Tonchen follows with:

Five years later, Congress repealed the 1790 [Naturalization] Act and replaced it with the Naturalization Act of 1795. The wording of the 1795 Act was essentially the same as the 1790 Act, except that the term “natural born citizens” was deleted and replaced with “citizens”.

I would object to the assertion that the two acts were essentially the same. One is twice as long as the other, and the section specifically about children of citizens born overseas has been rewritten. It is not at all clear whether the drafters of the 1795 act dropped the phrase “natural born” for substantive legal reasons or just because they thought that all children who were citizens at birth are natural born, and therefore the phrase was unnecessary, and the change was made to improve the flow of the text (which it did). Compare the text of the two acts for yourself.

In Section 6, Tonchen relies on the Leo Donofrio’s slander of the late president Chester A. Arthur by saying:

When Chester Arthur ran for Vice President and later President, he told outright lies and burned historical records, to conceal the fact that, although he was born in the United States, his father was a British Subject and not a U.S. citizen at the time of his (President Arthur’s) birth. If “natural born citizen” means anyone born in the United States, regardless of parental citizenship, why did Chester Arthur go through so much trouble to convince the public that his parents were U.S. citizens when he was born? It is inconceivable that Chester Arthur would have taken such extraordinary measures, unless he believed that his birth to non-citizen parents made him ineligible to serve as VP or President (Historical Breakthrough — Chester Arthur).

There are a number of misleading statements and half-truths here. The facts are:

1. While Chester Arthur lied saying he was one year younger than he really was, and he got some family details and dates wrong, he never said his father was a US Citizen when Arthur was born.
2. While he did burn his papers before his death, he did not do so in the context or time of the election.
3. Arthur made no statement implying that his father was a citizen when Arthur was born.
4. Arthur, a lawyer from New York, may well have read the New York Supreme Court opinion that said the children of aliens born in the United States were eligible to be president (Lynch v. Clarke). Therefore, there is no rational explanation for the claim that Arthur thought he was ineligible, since the NY Court had said that the universal public opinion was that children of aliens born in the US are natural born citizens.
5. Finally, through original research, Obama Conspiracy Theories has found evidence that at least one Arthur opponent was aware of Arthur’s father’s naturalization status.

This is discussed at length in two articles on this web site:

• The Assassination of Chester A. Arthur
• Chester A. Arthur: Rest In Peace

Tonchen then says:

On March 9, 1866, Representative John Bingham of Ohio, considered the father of the 14th Amendment, said the following in a speech before House of Representatives:

[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. (John Bingham, 1866, as quoted in Defining Natural Born Citizen)

The problem with this quotation, is that the reader is not treated to the context of what “allegiance to any foreign sovereignty” meant at the time. Allegiance in the United States (as is jurisdiction and citizenship) is attached to the place of birth as stated by framer of the Constitution, President James Madison:

It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.

Tonchen, continuing to provide true evidence, but misdirecting it says:

In 1797 (a decade after the Constitution was adopted), the English translation of Emmerich de Vattel’s, Law of Nations was revised to include the term “natural born citizen”. The revised English translation helps to clarify the meaning of “natural born citizen”, as English-speaking people generally understood it towards the end of the 18th Century

This is true, but we should emphasize that the English translation of de Vattel available at the time the Constitution was written said indigenes [a transliteration of the 0f the original French] and not “natural born citizen”. The 1779 translation is hardly a clarification, but an inexplicable departure from the original.

Stay tuned for Part 3 coming to a theater near you.

Natural born citizen

While coming tantalizingly close, no US Court  has ever decided the definition of “natural born citizen”. The term was not explained in the debates of the Constitutional Convention, nor the state legislatures when it was ratified, nor by individual framers in their speeches, letters or papers. Where do we go for a definition–to an 18th century Swiss philosopher–to an appeal to our shared prejudices?

The US Constitution is replete with terms that it doesn’t define: citizen, impeachment, felonies, treason, bribery, bankruptcy, warrants, grand jury and attainder. These are, however, familiar terms in the common law. The Supreme Court wrote in the case of Smith v. Alabama (1888) 124 U.S. 465:

There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. 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.

It is clear from the language of colonial laws, from inheritance law in South Carolina in 1711 and the Georgia Charter of 1732 to the naturalization acts of  New York and Massachusetts in 1770-1776, that the colonial legislatures followed the principle of English common law, that all persons born in the colony were natural born subjects.

The state of English common law may be succinctly summed up by this comment from Lord Chief Justice Cockburn, as cited by the United States Supreme Court in United States v. Wong Kim Ark:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

When looking at some comments in the legislative debates over citizenship, we see words like “allegiance” and “sovereignty”. What must be understood is that a nation exercises absolute sovereignty within its borders. Chief Justice Marshall in the case of The Exchange (1812) said:

The jurisdiction of the nation within its own territory is  necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.

(This principle is not honored by anyone who says that the British Nationality Act of 1948 controls who may and who may not be president of the United States.)

Because the internal sovereignty of the United States is absolute, those aliens visiting here are also absolutely under the sovereignty of the United States. This and many other similar principles, dicta and precedent lead Chief Justice Gray, in Wong, to conclude:

Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” [emphasis added]

And there, in most abbreviated form, is the argument that leads inevitably to the conclusion that all those born within one of the United States of America except those whom our country grants exemption from our jurisdiction (such as foreign ambassadors), are natural born citizens of the United States.

For a more lengthy set of citations, see The Great Mother of All Natural Born Citizen Quotation Pages and Natural Born Citizen: Defined!

Orly Taitz

Just moments ago, Mission Viejo dentist and part-time lawyer Orly Taitz notified Obama Conspiracy Theories that she had petitioned Attorney General Eric Holder to test President Obama’s eligibility quo warranto. Following is the complete statement Dr. Taitz provided to Obama Conspiracy Theories:

Attorney General, Eric H. Holder Jr.
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001 USA

March _1__ 2009

Honorable Attorney General Holder
Re: Request a Special Assistant for the United States to relate Quo Warranto on Barack Hussein Obama, II to Test His Title to President before the Supreme Court

Relators, Major General Carroll Childers, Ret.; Lt. Col Dr. David Earl-Graef; Navy and Police officer Mr. Clinton Grimes; Lt. Scott Easterling, currently serving in Iraq; Major James Cannon, US Marine Corps, Ret; New Hampshire State Representative Mr. Timothy Comerford; Tennessee State Representative Mr. Frank Niceley  State of Alabama 2008 electoral college elector Mr. Robert Cusanelli bring information for Quo Warranto on Barack Hussein Obama, II, testing his title to President per attached relation. Relators include:
Robert Cusanelli, Elector for 7th District, State of Alabama, in the 2008 Electoral College;
Frank Niceley, State Representative of Tennessee in his official capacity;
Timothy Comerford, State Representative of New Hampshire in his official capacity;
Major General Carrol D. Childers, 29th Infantry Div VA retired, lifetime subject to recall; Numerous Decorations
1st Lt. Scott R. Easterling OD LG US Army on active duty in Iraq;
Clint Grimes, Sergeant Long Beach Police Officer & CDR/0-5 US Navy (Active Reserve). Numerous Decorations, including two National defense medals, two Navy commendation medals
Dr. David Earl-Graef, Lieutenant Colonel Air Force MC , Military Surgeon- Active Reserve. Numerous decorations including Air Force outstanding unit with valor
James Cannon Major US Marine Corps, Ret, lifetime subject to recall. Numerous awards, including Bronze Star with combat “V” and two Purple Hearts
Relator’s oath of office grants standing. Relators are affected by actions of Respondent Obama and the outcome of this Quo Warranto, and thus have interest above citizens.
Information on Quo Warranto against a Federal Officer is normally related to the Attorney General to raise on behalf of the United States in U.S. District court of the District of Columbia per DC Code § 16-3502. However, the Attorney General defends the office of President and is appointed by the President. For the Attorney General to bring Quo Warranto on the President raises an intrinsic conflict of interest. USAM 3-2.170 Historically, a Special Prosecutor or Independent Counsel was appointed to eliminate such conflicts of interest. E.g., Attorney General Elliot Richardson appointed Archibald Cox as the Watergate Special Prosecutor over issues touching on President Nixon.
This information on Quo Warranto includes action between the United States ex rel. and the State of Hawaii over original birth records of Barack H. Obama II being withheld per Hawaii’s privacy laws. Hawaii’s action obstructs the constitutional duties of election officers to validate or evaluate President Elect Obama qualifications to become President under U.S. CONST. art. II § 1, and amend. XX § 3.
As President Elect, Respondent Obama failed to submit prima facie evidence of his qualifications before January 20, 2009. Election officers failed to challenge, validate or evaluate his qualifications. Relators submit that as President Elect, Respondent Obama failed qualify per U.S. CONST. amend. XX § 3.
Such negligence and misprision threaten to nullify these essential safeguards. Thus Relators request this Quo Warranto be related to the Supreme Court under its original jurisdiction.
Enclosed is a summary motion for leave to file Quo Warranto on Barack Hussein Obama II a/k/a Barry Soetoro, with the Supreme Court. The list of Questions Presented is attached. A full brief supporting this motion is in preparation.

1)     Relators respectfully pray that the Attorney General recuse himself over bringing this Quo Warranto for the United States on Barack H. Obama II, by reason of intrinsic conflict of interest.
2)     Relators pray the Attorney General appoint a Special Assistant (prosecutor) of Archibald Cox’s reputation and expertise, to relate this Quo Warranto to the Supreme Court per 28 USC 543.
3)     Relators request that their attorney, Orly Taitz, Esq. DDS, assist in relating this Quo Warranto, being recognized at bar before the Supreme Court.
4)     Relators further request the assistance of Patrick Fitzgerald, United States Attorney General for the Northern District of Illinois, as having familiarity with issues involving Barack H. Obama, II while Senator from Illinois and as President Elect.
5)     Relators request guidance from the Attorney General, within one week of receipt of this information, regarding his decision on whether to appoint such a Special Assistant.

With respect, in absence of such guidance, Relators will proceed to request leave from the Supreme Court to relate information for this Quo Warranto on Mr. Obama to test his title.

Yours sincerely

Orly Taitz, ESQ
Attorney for Relators
26302 La Paz
Mission Viejo CA 92691
949-683-5411

Encl. Motion to Supreme Court for leave to relate Quo Warranto on Barack Hussein Obama II, testing his title to the Federal office of President.

Now we know what the military officers and Tennessee state legislators Orly recruited are being used for. Is this what they signed up for on their consent forms? Faustian agreements seldom come off as planned.

It’ll go nowhere, but as a publicity stunt it’s not bad.

Bill Clinton had the Vince Foster “murder.” George W. Bush had 9/11 Truth. And the new administration has brought with it a new culture of conspiracy: The Birthers.

Out of the gaze of the mainstream and even the conservative media is a flourishing culture of advocates, theorists and lawyers, all devoted to proving that Barack Obama isn’t eligible to be president of the United States. Viewed as irrelevant by the White House, and as embarrassing by much of the Republican Party, the subculture still thrives from the conservative website WorldNetDaily, which claims that some 300,000 people have signed a petition demanding more information on Obama’s birth, to Cullman, Alabama, where Sen. Richard Shelby took a question on the subject at a town hall meeting last week.

This is clearly the most important web article on Obama Conspiracy Theories since Salon.Com’s Why the stories about Obama’s birth certificate will never die.

One of the major threats I see to the birther movement is the  revelation in this story that Obama’s lawyers are working pro bono.

Nearly 2000 comments have been posted on this article!