Introduction
In 1758, Swiss philosopher and jurist Emmerich de Vattel published an influential work titled Le Droit des Gens. ou Principés de la Loi Naturelle, Appliqués à la conduite & aux affaires des Nations & des Souverains or translated into English, The Law of Nations or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns.
The long title is important because it tells us what the book is about. It is not a codification of international law, or a dictionary of legal terms. It is a book about natural law and how it applies to governments. In his book de Vattel tells us: The Law of Nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.
The Law of Nations (as we will call the book going forward) is a wide-ranging book, looking at such topics as sovereignty (an intrinsic property of nations), international relations, making war and making peace.
[De Vattel] applied a theory of natural law to international relations. His treatise was especially influential in the United States because his principles of liberty and equality coincided with the ideals expressed in the Declaration of Independence. In particular, his defense of neutrality and his rules for commerce between neutral and belligerent states were considered authoritative in the U.S.
Encyclopedia Britannica 2005
Natural Law
Natural Law is a philosophical principle that posits universal principles, valid everywhere, and superior to man-made law. A good example of an appeal to natural law is in the United States Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
This is not an appeal to the law of any government but to “self-evident” and universal principles. Of course the United States would, less than a hundred years after these words were written, fight a bloody Civil War over the “self-evident” principle of the equality of all men against the “self-evident” principle that some men may enslave others. I call up this example to demonstrate that while there may well be universal principles innately understood by humankind, there are also accidents of culture which some consider universal principles.
On Citizenship
Emer de Vattel
De Vattel talks about the relationship between individuals and government in Book 1 of The Law of Nations. He describes two types of citizen. In § 212. Citizens and natives. He says: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” When de Vattel’s translator uses the phrase “natural-born citizens” (this phrase is not literally in the French language original) he is invoking a principle of natural law, as he shows when saying: “As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.” And finally, to emphasize what was said before, de Vattel concludes: “I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
This last sentence, that discounts place of birth entirely is somewhat in contradiction to the first which asserts “born in the country” in addition to citizen parents. Note that parents (plural) does not imply two citizen parents, since clearly it is only the father who is considered. Parents is in parallel to citizens (also plural).
The second type of citizenship is discussed in § 214. Naturalization. Of Naturalized citizens de Vattel says: “A nation, or the sovereign who represents it, may grant to a foreigner the quality of citizen, by admitting him into the body of the political society.” These are made citizen by the law of the country or the grant of the sovereign. De Vattel makes it clear that even citizens at birth who are not born of citizen fathers are “naturalized”. He said:
Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.
Note that de Vattel’s wording is contrary to English law, which describes such a person a “natural born subject”, not a naturalized subject.
How would de Vattel look at the issue of citizenship in the new country of the United States in the case of children born to foreigners there? We have an answer from § 215. Children of citizens born in a foreign country.
It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say “of itself,” for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.
De Vattel appears to be flexible about citizenship for situations outside his “preferred scenario” where parents, birth place and law all coincide.
We have seen in these other articles:
that the laws in Colonial America, following those of England, considered natural born citizenship based on the country where one was born, without regard for whether ones parents were citizens or not. De Vattel would say that “their regulations must be followed” even though it went against his view of natural law.
Historical aside:Â de Vattel would have considered President Chester A. Arthur a natural born US Citizen according to his view of natural law because the President’s father, albeit a British Citizen when Chester was born, was clearly a permanent resident of the United States (who was naturalized later).
Conclusion
We see that Emmerich de Vattel wrote that according to his understanding of universal natural law, that a person’s allegiance follows that of his father, not the place of his birth. We see that de Vattel admitted only two kinds of citizen, natural born and naturalized. He also understood that not every society agreed with him and that the laws of particular countries may be different, and they must be followed.
It’s worth noting that apparently the phrase “natural born citizen” comes from a translation of De Vattel that took place after the drafting of the Constitution — so his work cannot have influenced an interpretation of the exact meaning of that phrase. In the earlier translations, the word had been translated as indegenes – significant because we now would use the word indigenous to refer to Native Americans.
Given that De Vattel was European, he very well may have had a strongly ethnocentric view of “citizenship” — a view that would have been out of place in the US, given our history. De Vattel’s “natural law” would have made Native Americans the birthright citizens — something I don’t think the founding fathers had in mind.
This is the French:
I didn’t know who Vattel was until I went to the blog site Team Sarah. They started as a Conservative site to promote Sarah Palin, and have devolved into group of whiny, wingnut birthers. One persistent poster brings up Vattel all the time, as if what he wrote were Scripture.
The E Publius Goat character that posts on Apuzzo’s blog and his own is an advanced Vattel theologian.
De Vattel was an important thinker and influence. It’s just that one cannot assume that the framers agreed with him on citizenship, since their legal tradition was completely at odds with de Vattel’s view. Lacking ANY support from the 18th century that fatherhood outweighs all else, I think that there is no basis for concluding that Vattel’s understanding is the same as the intent of the Constitution.
So, perhaps we should err on the side of caution. What could it hurt to verify and put to rest this issue?
It’s like the more the birthers push to have their day in court, Obama’s followers resist even harder. It’s hard to comprehend how having the issue settled would be a bad thing, but apparently his followers see it that way.
Excellent discussion…thanks!
I suppose if one were to follow even the stricter interpretation of Vattell, a child born of a citizen mother would qualify. Because his argument re the citizen father seems to revolve around the idea of the parent having certain rights as a citizen…and of course in modern America the rights of the mother as a citizen are equal to those of the father.
The issue IS settled. All legal experts agree and the entire body of relevant American decisional law and treatises accept the definition of “natural born” as being co-extensive with the language of the 14th Amendment, as detailed in the Wong Kim Ark case.
That’s the problem with the argument: it is a fringe argument that goes against the well-settled and commonly understood meaning of the phrase “natural born Citizen”– and argument that has been popularized by bloggers, but has not been embraced by any legal scholars or reputable lawyers.
Even if someone who had legal standing had brought the issue to the courts in a timely fashion…. it would have been a losing issue.
You say the issue IS settled, then you go on to say it has NOT been embraced by ANY Legal scholars OR reputable lawyers. SO, is it A or is it B?
It is settled in all the things you have read which you agreed with at least. Anything you do not agree with is gibberish in your opinion.
It has NOT been settled, because no court wanted to take the chance they would be the ones to turn the election results around. Maybe they would, maybe they would NOT, PROBABLY NOT even in your opinion, but they did not DARE take that chance, so they ALL instituted “No Standing”….hence, No Decision.
Dr. Conspiracy,
I have had several run-in with Mountain Publius Goat AKA E. Publius Goat. You’re right he is the Pope of Vattelism. The last time I confronted this jackass about the fact there was no way he could prove that the Constitution was based on Vattel.
I am not philosophy major(Just a lowly Comp Sci grad) so I have no background in natural law study, but to think that “Law of Nation” was some sort of constitutional cookbook is insane. From what little research I have read about “Law of Nation” Vattel was really reworking another philosopher work(Christian Wolffe) and at the same time he add his own thoughts.
By the way Christian Wolffe’s book was titled “Law of Nation” I wonder why Vattel kept the same name?
Mountain Publius Goat can be found at http://countryfirst.bravehost.com/phpBB3/viewtopic.php?f=105&t=3186. One thing I can say for the guy he is consisted.
Sally, I can understand that your suggestion makes sense in one way. However, I see some problems.
1) The courts wouldn’t hear these cases even if Obama did nothing, because the plaintiff’s lack standing or the court lacks jurisdiction.
2) Obama didn’t file any motions in opposition to any of the cases brought before the Supreme Court.
3) Read this quote from birther attorney Philip Berg:
Do you think George Bush should go on trial for murder over 9/11 just because a few nut cases want their day in court? Shall we litigate evolution again, the Moon landing hoax, flat earth? Shall we use the courts to find out if statues really bleed and if Uri Geller can bend spoons with his mind? How about the existence of ghosts.
We don’t try cases without some kind of a good reason, and people’s delusions are not a good reason. If there were any credible evidence of criminal wrongdoing, then sure, let the FBI investigate, or a special prosecutor. But there isn’t. I’ve been over this stuff over and over again. There’s nothing there!
I wanted to focus on what de Vattel said about fathers to get across how foreign his ideas are to our present sensibilities, and by analogy how his foreign ideas might not have fully meshed with the founders.
What the proponents of Vattel probably got wrong was the number of parents required. I discovered the error when trying to make sense of the Immigration Act (1790) which also says citizens (plural) but then follow up with a comment about fathers. I finally realized that citizens (plural) referred to citizen fathers (plural), not fathers and mothers.
Well if you know of any legal scholar who supports the double blood and dirt view of natural born citizenship, let me know. I’ll put a link to it somewhere.
Also Mountain Goat is also a big believer in the Cloward-Piven Strategy. Of course his definition of Cloward-Piven is that it’s a commie plot to overload the economy with manufactured crisises. The problem is that it was a strategy to have all the poor that qualfied for assistance apply to show that that system was inadequate for the job. This was before the War on Poverty was started
Maybe you should re-read E’s comment. He said the argument put forth by the bloggers has not been embraced by legals scholars or reputable lawyers.
There are a number of lawyers and legal scholars that have commented on the issue of natural born citizenship, and while no court has actually ruled on the question of a president’s eligibility, may have commented either on this question or on “natural born citizenship”. Some of these comments are collected in my Great Mother of All Natural Born Citizenship Quotation Pages.
When I read through the 200 cases I downloaded from Westlaw to get the quotations, I didn’t use the search criteria “natural born citizen”, “agrees with me”.
What has “not been embraced” is the view that citizen parents are required to be a natural born citizen.
if thats the case, then BO father’s Kenyan citizenship would have disqualified BO as a NBC.
Expelliarmus, you say this is settled. That is interesting because last April, 2008, the U.S. Senate quoted Vattel and concurred with him that a natural born citizen was one born of two citizen parents, when they passed Senate Resolution 511 that stated that John McCain was indeed a citizen by Vattel’s definition. http://www.govtrack.us/congress/billtext.xpd?bill=sr110-511
The Senate did not say that a natural born citizen (or a citizen) must have two citizen parents. I challenge you to show otherwise. Note this from FindLaw for Legal Professionals:
http://www.obamaconspiracy.org/2009/01/the-great-mother-of-all-natural-born-citizen-quotation-pages/
But they stated that they did concur with Vattel, who did state that the “natural law” definition was understood to be with two citizen parents, and then he leaned in favor of the status resting with the citizenship of the father, stating that “those children naturally follow the condition of their fathers, and succeed to all their rights.”
Senate Resolution 511 made no reference to the 14th amendment.
Nor did it reference de Vattel. I’m still looking for the debate text.
In the mean time, check this one out:
http://www.scribd.com/doc/9655858/NBC-Natural-Born-Citizenship-McCain
Ok, you’re right, the exact resolution at govtrack.us didn’t reference de Vattel. It was the author of the page (and I can’t find it now) that mentions it and then lists the resolution. I have read the above referenced article, who does not reference de Vattel at all, and there are plenty who do reference de Vattel in determining what natural born is as well as making a distinction between a 14th amendment citizen vs. natural born. To me, there’s a better case to be made for someone born of 2 citizens as being “natural born”, even if it was out of the country (which this article wants to dispute) and de Vattel concurs with that.
There has not been one word recorded from any contemporary of the ratification of the Constitution mentioning de Vattel in relation to citizenship, nor is there one word recorded suggesting that citizens of any kind must have two citizen parents. Lacking any evidence at all for (and there being a fair amount to the contrary), I cannot see how one can reasonably holds de Vattel’s interpretation of the law of nature in terms of citizenship controls.
The article I mentioned doesn’t mention de Vattel because it’s not an anti-Obama article. Let’s set the clock back a dozen years. I only know of two times before that where de Vattel was ever mentioned in relationship to Citizenship both supporting racist positions: one was the dissenting opinion in United States v. Wong Kim Ark and the other was in support of slavery in the Dred Scott decision.
So then…according to this line of thinking…anyone who cites de Vattel is anti-Obama?
What I have observed is that those who cite de Vattel on citizenship are racists (e.g. white supremacists), supporters of slavery (SCOTUS in Dred Scott v Sanford), xenophobes, those who want to crack down on illegal aliens and deny citizenship to their children born in the US (e.g. William Ty Mayton of Emory), and those who don’t want Obama to be president (Apuzzo).
This is what I have seen, but would be a mistake to jump to the conclusion that someone citing de Vattel fits any of these classes. Generally one who cites de Vattel on citizenship is trying to narrow the definition of who is a citizen, i.e., to deny citizenship to some group.
So doc, you don’t agree with “Cracking down” on illegal aliens?
The current law is that children of illegal immigrants born in the US are US citizens. I don’t advocate changing that. I think that having laws with widespread violations (e.g. illegal immigration and hiring of illegals immigrants) is bad for the society and I support enforcing the law. However, I also think a more rational immigration policy (one that didn’t encourage illegal activity) would be to our advantage.
Again, a voice of reason. No wonder Heavy is so obsessed… I bet you, deep down he admires them ‘liberals’ for their abilities to reason, apply logic and compassion.
I agree. Enforce the laws that are on the books. Crack down on employers and make it hard for illegals to stay.
Thank you for your explanation. I am particularly interested in what the definition of a “natural born” citizen is as it relates to the qualifications for presidential office. I find de Vattel’s thoughts on “natural born” compelling in the rationale behind them.
It’s not surprising that you might find that de Vattel’s thoughts on citizenship resonate with your own, since after all, de Vattel was appealing to an innate universal and intuitive approach to law, rather than a common law or legislative approach.
The problem in the application of de Vattel to the Constitution Article II is that de Vattel was not a delegate to the Constitutional Convention, and we have no evidence that his views on citizenship where shared by the delegates that were there. While the argument could be made that the delegates (some of them at least) were familiar with de Vattel, an argument could also be made that they were familiar with English Common Law (some of them received legal training in London), which takes a wholly different view of natural citizenship. Given the legislation extant in the colonies at the time, I must say that the Common Law approach prevails. This is the conclusion of the Supreme Court as well (US v Wong Kim Ark).
The Wong decision is long and complicated, and you have to be careful to mark whether you are reading the majority opinion or the dissenting opinion (which cites de Vattel!). If you resist the temptation to stick on sound bytes and try to understand it in its entirety, I think you will find it worth the effort. If the definition of natural born citizen is ever debated in court, you can be sure that the Wong precedent will be front and center in the argument.
This is a bit from Wong that supports my statement above:
PS. I like the art.
Thank you very much.
If Obama was born in Hawaii, he was either a citizen, or he was not. I do not believe he was a citizen of the United States “at birth”.
Obama’s Citizenship Status
Amendment XIV of the Constitution states:
Section 1. 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.
US Law States:
TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I > § 1401.
Nationals and citizens of United States at birth:
The following shall be nationals and citizens of the United States at birth:
1 (a) a person born in the United States, and subject to the jurisdiction thereof;
US law § 1401 1(a) is simply a restatement of the Constitution!
What do the words “subject to the jurisdiction thereof,” mean?
In Steel Co. v. Citizens for a Better Environment (1998) the court said “jurisdiction is a word of many, too many, meanings.” Therefore, it is important to discover the operational meaning behind “subject to the jurisdiction” as employed under the Fourteenth Amendment rather then assuming its meaning from other usages of the word jurisdiction alone.
Both Sen. Lyman Trumbull and Sen. Jacob Howard, key figures in the drafting and adoption of the Fourteenth Amendment, responding to questions of the meaning of “subject to the jurisdiction” of the United States declared it to mean “complete” jurisdiction.
Senator Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction, the same jurisdiction in extent and quality as applies to every citizen of the United States now”.
Senator Trumbull, declared:
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.’ What do we mean by complete jurisdiction thereof?’
“Not owing allegiance to anybody else. That is what it means.”
Obama was born in the United States under limited jurisdiction and therefore not a citizen at birth!
The opinion rendered by Chief Justice John Marshal in the landmark case, Marbury v. Madison stated:
“It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible…”
Chief Justice Marshall opinion means that the words of Section 1 of Amendment XIV have effect and any construction that changes the intention of those words is inadmissible!
The interpretation in TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I > § 1401 >1 (a) of the meaning of ” and subject to the jurisdiction thereof” may not override the effect of the words in the Constitution. It would be inadmissible!
Not only are the words clearly stated in Amendment XIV, but the meaning of those words is clearly defined by the framers. Neither Congress NOR ANY court has the power to change the meaning of those words! Only We The People can by an Amendment to the Constitution.
Posted on Obama’s website is this admission:
When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.s children.
By Obama’s own statement, his citizenship was subject to the jurisdiction of the United Kingdom “at birth”. That is limited, not complete, US jurisdiction.
By definitions of the requirement, “and subject to the jurisdiction thereof” supplied by Senators Trumbull and Howard of the word “jurisdiction”:
OBAMA WAS NOT A US CITIZEN AT BIRTH!
Obama was a citizen of the UK at birth!
Total jurisdiction at birth precludes dual citizenship and based on the 14th Amendment dual citizenship is unconstitutional. A naturalized citizen takes an oath of allegiance to the US and renounces any foreign citizenship.
Bottom line:
Obama was not a citizen of US at birth (Nor is he a “National”)
Obama was citizen of UK at birth (not a dual citizen)
Obama remains in US with mother until she marries Soetoro.
Soetoro adopts Obama and takes him to Indonesia. (Kenyan or some other passport?)
Obama returns to US ~9 years old. Traveling with citizen mother
How did he get in?
Obama never becomes a naturalized citizen, Obama is an illegal alien.
If (and there is no record of it) Obama returned and was naturalized, then he would be a naturalized citizen, ineligible to be President of the United States.
The Supreme Court in US v Wonk Kim Ark decided that persons born in the United States to non-citizen parents are themselves citizens. So your suggestion that Obama was not a citizen at birth is absurd. You also make the mistake of confusing citizenship with jurisdiction. Foreign nationals while in the United States are under our complete jurisdiction. They may be citizens of another country, but they go to jail just like the rest of us when the commit a crime. The Wong decision has decided this as well.
You are making the convenient, but specious, argument that the Supreme Court in Marbury v. Madison has the power to set principles for interpreting the Constitution, but that a later Supreme Court in US v. Wong Kim Ark does not. Later courts can overrule earlier courts. I say that, even though I do not admit that Marbury bears on the Wong decision. Wong cites an extensive review of cases to show what the law on jurisdiction is.
It was the common law of England, the law in the colonies up until the ratification of the Constitution, the law of the United States thereafter, that all persons born free in the United States (ex ambassadors, Indians…) are natural born citizens of the United States without regard to the status of their parents. Trumbull and Howard are just two senators with an opinion; they had a vote but theirs was not the only voice in the debate, with others stating clearly that the children of aliens WOULD be citizens under the proposed amendment.
Note that at this time, Chinese immigrants could not by law become naturalized citizens.
Under your interpretation of the Constitution I daresay you’d strip citizenship from 50,000,000 citizens or more, because anyone who had a non-citizen ancestor would not be a citizen. Can you prove that all of your ancestors naturalized or were residents of the United States in 1787? I doubt it.
Racists, supporters of slavery, xenophobes, anti-Obama people. That, I observe, is measured language indeed.
Here is another thing I observe:
Benjamin Franklin’s (a signer of our Constitution) letter to Charles W.F. Dumas, December 1775
“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 send 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”?
As for the distinction between “innate universal and intuitive approach to law, rather than a common law or legislative approach,” here is Blackstone relying upon both in his article on citizenship:
Blackstone, Art. 1, Section 8, Clause 4
For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due.… all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception.
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.
You see? No need to advert to US v Wonk Kim Ark for an exposition of the English common law view–that decision, it seems, only confirmed what had already been set forth in the principal law text of that entire period of our history.
However, the American view (in contrast to the English) was that expatriation was a citizen’s right.
Lawyers tell me that they hear nothing of de Vattel in law school, but they surely know Blackstone.
However, the Supreme Court has this ring of authority that I like to use whenever I can. The Wong court references Blackstone itself:
The British interpretation of “natural born subject,” that citizenship was gained to all born within the realm irregardless of parentage, was based on natural law. They held that natural law formed a relationship between king and subject similar to that of father and son. Being born on the soil of the sovereign made one a subject. The deciding case, known as Calvin’s Case, was decided in 1608.
Quote –
“More importantly, Calvin’s Case also established by implication the rule of the jus soli itself as a divine institution, ordained by the laws of God and nature.”
http://www.uniset.ca/naty/maternity/9YJLH73.htm
The birthers claim their definition of citizen is based on natural law. For that to be true, there must have been more than one view a citizenship in natural law.
As we can see by the number of religions in the world, everybody has their own view of what is divinely ordained. I hope that people today are a little more broadminded, and less to invoke natural law, than they were the 18th century, present company excepted.