The Framers Used Emer de Vattel, Not William
Blackstone to Define a “Natural Born Citizen”
by: Mario Apuzzo, Esq.
Blackstone to Define a “Natural Born Citizen”
by: Mario Apuzzo, Esq.
The question which has gripped our nation is whether Barack Obama is eligible to be President and Commander in Chief. Article II, Section 1, Clause 5 provides that: “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; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” The proper question under this clause is not whether Obama is a “Citizen of the United States.” Rather, the correct question is whether Obama is a “natural born Citizen” thereunder.
"It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). In other words, the “natural born Citizen” clause of Article II must be given independent effect from the “citizen of the United States” clause of Article II itself and of the Fourteenth Amendment. All Presidents must qualify as Article II “natural born Citizens,” not as Fourteenth Amendment “citizens of the United States.” The two clauses have different and distinct meanings or they would not have their own independent life in the Constitution. Article II says “natural born Citizen” and the Fourteenth Amendment says “citizen of the United States.” If being a “citizen of the United States” had the same exact effect as being a “natural born citizen,” then the “natural born Citizen” clause would have no effect. Such a construction is not admissible. If we were not to give special meaning to the words “natural born” and conclude that “natural born Citizen” and “citizen of the United States” mean the same thing, the words “natural born” in the “natural born Citizen” clause of Article II would be superfluous. Our Supreme Court has consistently expressed "a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment." Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Uaw v. Johnson Controls, Inc, 499 U.S. 187, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991) . Hence, we have to give special meaning to the words “natural born.”
As so many scholars and commentators have asked, what does “natural born Citizen” mean? Why did the Framers distinguish in Article II between a “citizen of the United States” and a “natural born Citizen?” The Founders trusted the occupancy of the Office of President to those born on or inhabiting the soil of or to those who naturalized in the Colonies or new States, all of whom belonged to the original citizen class because, even though they were born subject to a foreign power, they had evidenced their loyalty and attachment to the United States by fighting for the American cause in the Revolution. Also, for those born “natural born subjects” of the British Crown, through the Treaty of Peace of 1783, England absolved its subjects of the natural allegiance that they owed to it. But the Founders knew that there would be other foreigners coming to live in America in the future. The allegiance and loyalty of these future foreigners would not have been tested or even absolved in some manner as had occurred under the Treaty of Peace of 1783. The Founders feared foreign influence infecting the administration of the government. It was the fear of foreign influence invading the Office of Commander in Chief of the military that prompted John Jay, our first U.S. Supreme Court Chief Justice, to write to General George Washington the following letter dated July 25, 1787: “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen” (underlying in the original). Note that Jay wanted a “strong” check that would prevent a foreigner from becoming the Commander in Chief. Hence, any definition of “natural born Citizen” must provide our nation with the strongest check possible on foreign influence invading the Office of President and Commander in Chief of the Military. The Framers found the definition of “natural born Citizen” that would suit their purpose of protecting the future of and preserving the new nation not in the English common law and William Blackstone but in natural law and the law of nations as commented upon by Emer de Vattel, in his treatise, The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 (original French in 1758 and first English in 1759). This law became American common law. See my article entitled, 'The Law of Nations or Principles of Natural Law' as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is, found at http://puzo1.blogspot.com/2009/08/law-of-nations-and-not-english-common.html.
As James Brown Scott has correctly stated: "It is therefore to be expected that, when terms of municipal law are found in the Constitution, they are to be understood in the sense in which they were used in Blackstone's Commentaries; and when the law of nations is referred to, that its principles are to be understood in the sense in which Vattel defined them." James Brown Scott, The United States of America: A Study in International Organizations 439 (1920). There is little doubt that citizenship properly falls under the law of nations which became U.S. national law and not under the rules of municipal law. Citizenship has always been recognized as a topic that affects United States relations with other nations. On the question of national citizenship, Lynch v. Clarke, 1 Sand. Ch. 583, 3 N.Y. Leg. Obs. 236, 244 (1844), http://books.google.com/books?id=ERgvAAAAIAAJ&pg=PA251&dq=%22Natural+born+citizen%22#v=onepage&q=%22Natural%20born%20citizen%22&f=false (whose finding that Julia Lynch, born in New York to “alien parents, during their temporary sojourn” there, was a citizen of the United States, was in effect overruled by a 1860 New York state statute which provided at Sec. 5 that “[t]he citizens of the state are: 1. All persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls”), stated that how we define citizenship "has an essential bearing in our intercourse with other nations and the privileges conceded by them to our citizens; is therefore, not a matter of mere state concern. It is necessarily a national right and character. It appertains to us, not in respect to the State of New York, but in respect of the United States. . . ." Given that citizenship affects "the behavior of nation states with each other," Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Founders would have looked to the law of nations to define it for the needs of the new nation. Clearly, citizenship is both a national and international matter which affects the relations among nations. The Founders and Framers would have looked to the law of nations to define citizenship in the new nation and not the English common law.
The Founders and Framers relied upon Cicero, Grotius, Pufendorf, Locke, and Emer de Vattel (to name a few) in identifying and describing natural law and the law of nations. But they mostly looked to Emer de Vattel and his treatise, The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 (original French in 1758 and first English in 1759, and other subsequent French and English editions for not only authority on the meaning of natural law and the law of nations but also in constituting the new Constitutional Republic and in writing the new Constitution. The 1759 (aka 1760) edition was published in London in English. An explanation of the various editions is provided by Colonial Society of Massachusetts, Publications of the Colonial Society of Massachusetts, Volume 20 (A. Matthews ed. 1920). http://books.google.com/books?id=svE7AAAAIAAJ&pg=PA5&dq=benjamin+franklin+vattel&ei=W-yPStrRNaf4ygS12bC3Bw#v=onepage&q=benjamin%20franklin%20vattel&f=false
Vattel clearly distinguished between “citizens” (“citoyens” in French) and “naturals” (“naturels” in French). His title for Section 212 is “Des citoyens et naturels” (“Of citizens and naturals” which the English translators called "Of the citizens and natives"). He referred to the “citoyens” who were translated to “citizens” and “naturels” who were later translated to “natural-born citizens.” The “naturels” were the children of the “citoyens.” He therefore saw that there is a difference between the two types of citizens. He explained that difference thus: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country of parents who are citizens”. Id. bk. 1, c. 19, sec. 212. In the 1797 English edition, the translator replaced the word “indigenes” with “natural-born citizens.” Hence, it read: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Hence, while the definition of a “natural born citizen” never changed in Vattel’s texts, the term to express it was changed from “indigenes” to “natural-born citizens.” That the French word "naturels" was understood by the founders and framers to mean "natural born" prior to the writing of the Constitution and prior to the second English translation of Vattel's Law of Nations in 1797 is confirmed by the record of the Journal of the Continental Congress is 1781. Thus in 1787 John Jay clearly knew what the term "natural born Citizen" meant when he wrote his letter to George Washington suggesting it be added to the eligibility clause as to who can be President and Commander of our military since John Jay was an ardent supporter of Vattel's concepts and natural law and was an advocate for the Law of Nations as the new common law of the new U.S. federal government. John Jay became the first Chief Justice of the U.S. Supreme Court.
There exists evidence contemporaneous to the Founding that the Founders relied upon concepts of natural law, the law of nations, and Vattel to define national citizenship in the new republic and not English common law and Blackstone. Founder and highly respected historian, David Ramsay, who in 1789 wrote, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen, defined the original citizens and while not using the term nevertheless provided a Founding period contemporaneous definition of a “natural born Citizen,” as well and in so doing relied upon a definition of an original “citizen” and a “natural born citizen” as given by Vattel and not upon one provided by the English common law or Blackstone (both of which defined a “natural born subject” and not a “natural born Citizen” and did not distinguish between a “subject” and a “natural born subject”). Additionally, Rep. William Smith during the 1789 Congressional hearings on whether he was a “citizen of the United States” of seven years (not to be confused with an Article II “natural born Citizen”) which status he needed under Article I, Section 2, Clause 2 to be eligible to sit as a member of the House of Representatives, cited Vattel and espoused and relied upon his definition of a “citizen” and not upon that provided by the English common law or Blackstone to define citizenship in the United States and as authority to prove that he was a “citizen of the United States” of seven years.
During the Founding, the English common law was selectively adopted only by the states and applied there to resolve local issues such as arising in contracts, inheritance, property, torts, matrimony, criminal procedure, etc. But that common law was not adopted on the national level. National law only included the "Constitution, the Laws of the United States, and Treaties..." Article III, Section 2, Clause 1. We know from Article I, Section 8, Clause 10 that the Framers included "the Law of Nations" as part of "the Laws of the United States." While the Founders and Framers relied heavily upon Emer de Vattel for justification for the revolution and in writing the Constitution, this reference is to the body of law then called the law of nations, not Vattel's treatise called, The Law of Nations," which explains how the law of nations is based on natural law and presented what that law was. The law of nations which was relevant on relations among nations specifically addressed what a "citizen" and "natural born citizen" was. The English common law did selectively make its way into the Constitution by way of the Bill of Rights (the first ten Amendments) which was ratified on December 15, 1791. But the Bill of Rights did not address citizenship or nationality as did the law of nations.
The following United States Supreme Court cases and cases from other courts have confirmed that national citizenship has been defined under American common law which has had its genesis in natural law and the law of nations as explicated by Vattel and not under the English common law or Blackstone: (1) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provides his definition of natural born citizens); (2) Shanks v. Dupont, 28 U.S. 242, 245 (1830) (provided the same Vattelian definition without citing Vattel); (3) Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (Daniels, J., concurring, cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively); (4) Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36(1872) (in explaining the meaning of the Fourteenth Amendment clause, “subject to the jurisdiction thereof,” said that the clause “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”); (5) Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (provided the same Vattelian definition without citing Vattel); (6) Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (provided the same Vattelian definition and cites Vattel); (7) Elk v. Wilkins, 112 U.S. 94 (1884) (“the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations” are not citizens under the Fourteenth Amendment because they are not subject to the jurisdiction of the United States); (8) United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (provided the same Vattelian definition and cited Vattel); (9) U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (distinguished between a “natural born Citizen” and a “citizen of the United States” and cited Vattel and quoted his definition of “natural born Citizen” as did Minor v. Happersett); (10) and Perkins v. Elg, 307 U.S. 325 (1939) (other than Minor v. Happersett, the only U.S. Supreme Court decision that declared someone a “natural born Citizen.” The person was born in the United States to a citizen father and citizen mother through derivative citizenship).
Further evidence that the English common law and Blackstone did not prevail in the United States to define national citizenship is the cases of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), holding that blacks whether slaves or free did not acquire United States citizenship at birth even though they were born in the United States and Elk v. Wilkins, 112 U.S. 94, 102 (1884), holding that American Indians did not acquire United States citizenship at birth even though they were born in the United States. English common law, with the exception for children of diplomats and invading armies, only required birth within the dominion without any reference to the citizenship status of the parents to grant “natural born subject” status. Yet, under these early decisions of our Supreme Court both Indians and blacks even if born in the United States were denied initial membership in the United States.
There does not exist one U.S. Supreme Court decision that defined national citizenship under English common law as commented upon by Blackstone, except for U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898). This decision defined a Fourteenth Amendment born “citizen of the United States” (not to be conflated with an Article II “natural born Citizen”) under colonial English common law rather than under natural law, the law of nations, and American common law which up to that time the Supreme Court had always relied upon to define national citizenship in the United States. There was no need for Wong Kim Ark to resort to the English common law, for Vattel tells us in Section 215 that if the father [meaning parents because of unity of husband and wife] has [have] “entirely quitted his [their] country in order to settle elsewhere,” i.e., has [have] become a “perpetual inhabitant” of that other country, and has [have] a child in that other country, the father [those parents] will become a member [members] of that other society and his [their] child born in that country will follow his [their] condition and also become a member of that same society. Vattel considered these children to be only “members” of that country which under Section 212 translates to “citizens” and not “natural-born citizens.” He did not say that they become “natural born citizens” of that country. Vattel clearly distinguished between the two, with initial “members” of a society being just “citizens,” not “natural-born citizens.” This dichotomy of citizenship is consistent with the views of Samuel von Pufendorf who divided born citizens into two categories, the original citizens and their descendents. Note that he called the children of the original citizens “Indigenes, or Natives.” He stated: “Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges; Or else, Adscititious; that is, such as come from Foreign Parts. Of the first Sort, are either those who at first were present and concerned in the forming of the said Society, or their Descendants, who we call Indigenes, or Natives. Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place; nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners.” The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003, Book II, Chapter 6, xiii, 1691).
Given that Wong Kim Ark found that Wong was born in the United States to alien parents who were domiciled in the United States, the Court could have also found that Wong’s parents were “perpetual inhabitants” of the United States and that Wong was born a member of American society (born subject to the jurisdiction of the United States) and thus a born “citizen of the United States” under the Fourteenth Amendment by using Vattel and the law of nations. Under such a scenario, Wong would be treated the same as an original citizen. We can only speculate why Justice Gray did not use natural law, the law of nations, and American common law (meaning Vattel’s rules on citizenship) to declare Wong a “citizen of the United States” like Chief Justice Waite did in Minor to show that Happersett was a “natural-born citizen.” One thing that comes to mind, however, is that if Justice Gray would have relied upon Vattel and American common law rather than English common law to declare Wong a “citizen of the United States,” if the public knew of Arthur's alien birth circumstances, and if someone would have raised the issue, he would have had to acknowledge that President Chester Arthur, the President who appointed him to the Supreme Court in 1881, was not eligible to be Vice-President or President because he was born in the United States to an alien father and mother (his U.S. born mother also became an alien through then merger of citizenship into the alien father) and at most he would have been a born “citizen of the United States” but not an Article II “natural born Citizen.” Apart from the fact that the American electorate and public was not aware back then that Arthur was born to a non-citizen father, application of the English common law further obscured Arthur's ineligibility. In this connection, we should also consider Senate Resolution 511, passed by the Senate on April 30, 2008, to declare Senator John McCain a “natural born Citizen” and the legal analysis of Theodore Olson (former Solicitor General) and Laurence Tribe (Harvard Law School Professor) on which the U.S. Senate relied to come to its conclusion regarding McCain status and which Senator Leahy requested be printed in the Record. Olson and Tribe did not use Vattel’s Section 217’s born abroad to citizen parents while serving “in the armies of the state” as a ground to declare Senator John McCain a “natural born Citizen.” Their using Vattel would have exposed Putative President Obama’s ineligibility to be President the same as Justice Gray using Vattel would have shown President Arthur’s ineligibility for that same office.
It is critical to understand that Wong Kim Ark did not define a “natural born Citizen,” for the Court recognized that Minor v. Happersett had already done that in 1875 and did not object to that definition. Rather, the Court defined a born “citizen of the United States” under the Fourteenth Amendment which only defines initial membership in American society and did not amend Article II, Section 1, Clause 5’s definition of a “natural born Citizen” which is that status reserved to those children born in the United States to a citizen father and citizen mother which makes them second generation United States citizens who are born with unity of citizenship and sole allegiance to the United States and who are therefore eligible to be President. Hence, Wong Kim Ark did not change the definition of an Article II “natural born Citizen.”
In addition to these Supreme Court cases, there exists other cases and historical evidence which show that the Founders and Framers rejected the English common law and Blackstone as a basis for rules of decision for the new federal government and nation. For sake of brevity, that evidence will not be discussed here. The Founders and Framers would not have rejected the English common law and Blackstone at the federal level and then at the same time relied upon those sources to define generally who the people of the new nation were going to be and specifically who among those people could hold the highest offices in government including the office of President and Commander in Chief of the Military.
Minor told us 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.” Minor, 169 U.S. at 679-80. So we can see that the legal and political battles over citizenship have not been over the meaning of a “natural born Citizen. Rather, they have been over who can be a “citizen of the United States” or in other words, who can be accepted as an initial member of the political society known as the United States. The battle over who can be an initial member of American society has existed in our history because the United States is the product of conquest (of the American Indians), revolution ( against Great Britain), and immigration (involving not only “white” Europeans but also Asians and others who fell outside that description). This battle has also raged because the institution of slavery involving blacks brought to the colonies from Africa existed at the time of the Founding and up to 1865 when the Civil War ended. Hence, because of this historical development, the United States has found itself populated with people of different races, colors, national origins, religions, and ethnicities. In the early years of the English colonies, even religion was a factor that could prevent one from becoming a citizen. James Kettner, The Development of American Citizenship, 1608-1879 (1978). The problem for defining an Article II “natural born Citizen” is that we have lost sight of the fact that historically our courts and political institutions have struggled to define a “citizen of the United States” or who can be a member of the political society called the United States and not a “natural born Citizen.” It is this struggle that produced the Civil Rights Act of 1866, the Fourteenth Amendment, and other special Congressional acts and treaties allowing American Indians to become citizens at birth.
The Constitution should be honored and enforced in the way that it was written and originally intended by the Framers rather than in a way that pleases political parties or some political majority. Needed changes to it brought about by social evolution should not be made for political expediency by political parties or voting majorities without going through the formal amendment process prescribed by the Constitution itself in Article V. It has always been Emer de Vattel that provided our nation with the definition of an Article II “natural born Citizen’ and not William Blackstone. It is this definition that the Founders and Framers used to define the clause and it is this definition which should be enforced for the national security reasons of it being there if we are to be true to the Constitution and the rule of law.
Obama fails to meet this definition because if he was born in Hawaii, he was born to a British father and a U.S. citizen mother and he himself was born a British citizen under the British Nationality Act of 1948, causing him to be born with allegiance to Great Britain and to the United States. The U.S. State Department has confirmed that Obama was born with dual allegiances. Leventhal cites FactCheck.org to state, "Obama was originally both a U.S. citizen and a citizen of the United Kingdom and Colonies from 1961 to 1963 given that his father was from Kenya, which gained its independence from the British Empire in 1963. Upon independence, Obama became both a U.S. and Kenyan citizen from 1963 to 1982 [should be 1984], and solely a U.S. citizen after that." The entry "The Obama Birth Controversy" was written by Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State.
While today our law does not provide for merger of the wife’s citizenship into that of the husband, Obama was still born to an alien father and as a British citizen himself, thereby causing him to lack unity of citizenship and sole allegiance to the United States at birth, necessary conditions to be an Article II “natural born Citizen.” It should be noted that Obama's father was in the United States on a temporary student visa and he returned to Kenya after his studies were complete. Hence, he never had an intention to become domiciled in the United States. On the other hand, Obama's mother was not only a U.S. citizen but also domiciled in the United States. Assuming that Obama’s parents were domiciled in the United States and that he was born in the United States (a fact which he has yet to conclusively prove), which would arguably all make him “subject to the jurisdiction thereof,” he was at most born a “citizen of the United States” under the Fourteenth Amendment and a citizen of Great Britain under the British Nationality Act of 1948. While such dual citizenship creates dual allegiances, under current interpretation of the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause, such dual allegiances would not prevent him from being a born “citizen of the United States.” But they would prevent him from being an Article II “natural born Citizen,” which constitutional status does not produce dual allegiances at birth. Obama is therefore not eligible to be President.
Finally, if Obama was not born in the United States, he would not even be a “citizen of the United States” under the version of Section 301(g) of the Immigration Nationality Act that was in effect in 1961 because his 18-year-old U.S. citizen mother was too young when he was born to pass her U.S. citizenship to him under that law as it existed then.
Mario Apuzzo, Esq.
November 1, 2010