No simple-minded birther controversy here but a well-reasoned article looking at a frequently-forgotten Founding-era resource, Emmerich Vattel and his 1758 book, The Law of Nations. Download and read Regent law student John Jones's piece, Natural Born Shenanigans: How the Birther Movement Exacerbated Confusion Over the Constitution's Natural Born Citizen Requirement.
Just what does "natural-born citizen" mean? Born anywhere in the world to American citizens? Of course. Born in America to non-citizens? Seems so. But might there be more to the constitutional phrase than the obvious? And would the Framers of the Constitution have intended to convey the "more"?
As for the latter question, Jones asserts a strong conclusion:
Contrary to the popular impulse toward a historically uninformed view of the term ″natural born citizen,″ a cursory reading of Vattel coupled with an understanding of its significance to the Framers suggests that the requirement is not a novel term invented by the Framers, but rather a term of art with a fixed meaning which would have been known to scholars and statesmen of the day. Indeed, this understanding seems to comport with what one would expect of a group of learned men convening to lay out a framework for government--the Framers did not invent terms when invention was improper. They used accepted, established terms to convey meanings in ways that would not be subject to later arbitrary revision.
Yes, Virginia, there may be more to "natural-born citizen" than meets most eyes (including Paul Clements), but I won't spoil your reading by telling you what Vattel included in his understanding of the expression or how, of all people, Chester Arthur fits into this peculiar picture. You'll simply have to read Jones's piece for yourself and draw your own conclusions.
Thanks for the plug, Professor Pryor!
ReplyDeleteGroucho Marx is quoted: "I refuse to join any club that would have me as a member." I refuse to take any academic article seriously that cites me ("Dr. Conspiracy") as a source.
ReplyDeleteI find Mr. Jones argument to be "warmed over birther with footnotes," and I found nothing that I hadn't seen a dozen times on birther blogs and in birther lawsuit briefs. It exhibits the same bias in selecting sources, ignores the same primary sources, and glosses over the same problems. It is the same argument explicitly rejected by the courts since 2008.
Mr. Jones writes: "It would be difficult to overstate the influence of Vattel’s treatise on the Framers," but I think he succeeds quite well in doing so, relegating the elephant in the room--the lack of the phrase "natural born citizen" in any English language edition of Vattel in 1789 to a footnote, and there dismissing the translation problem with a wave of the hand. James Kettner in his 350-page book, "The Development of American Citizenship, 1608-1870," cites Vattel not once. And indeed, I have been able to find but a single citation from the founding generation of Vattel on the acquisition of citizenship, and that was in a letter to the editor of a Charleston, SC, newspaper by a loser in the race to be a member of the first Congress. No one in the founding generation that I know of ever talked about parentage as a criterion of citizenship or allegiance. All of the eligibility debates in the Constitutional Convention centered around how long a person must be a citizen. If the Convention were following Vattel, the United States would have had a king and mandatory state religion.
Mr. Jones cites dicata in a legal decision to support the claim that "Vattel was the most widely cited international jurist in the fifty years following the Revolutionary War," but a legal citation is hardly an appropriate way to demonstrate a historical fact. In an actual study by Mr. Lutz of the works from the founding generation, the most often-cited jurist was Sir William Blackstone (as any lawyer should have guessed). Vattel lags behind John Locke, David Hume, Plutarch, Pufendorf, Sir Edward Coke, Rousseau and Machiavelli. (Vattel is number 29 on the most-cited list). Vattel cannot be discarded, but Mr. Jones discards Blackstone!
The complete omission of the interchangeable usage of "natural born citizen" and "natural born subject" in various state naturalization acts both before and after the ratification of the Constitution is a serious hole in the discussion. I find the complete omission of the Supreme Courts' reasoning in US v. Wong, and its citations on the equivalence of natural born citizen and natural born subject to be inexcusable.
And to bring into the question the 6-2 decision in Wong by saying that Justice Gray was appointed by President Arthur (who the article suggest might not be eligible either) is guilt by insinuation. That bit is pure conspiracy theory right out of the birther playbook. Let me point its absurdity by exposing the contradiction. In order to say that Justice Gray was biased because he was appointed by an ineligible Arthur, one must deny the second premise of that argument: that Arthur hid his father's naturalization status.
The highest court in Arthur's state had said in Lynch v. Clarke (1844), that the children of aliens born in the United States could become president. Vice Chancellor Sandford also said that this was the universal opinion of the legal community and the public. Sandford gives an extensive historical survey, much broader and far more balanced that we get from Mr. Jones, even to the point of examining Vattel.
I agree with Mr. Jones, that birthers have muddied the waters and sown confusion on the question of presidential eligibility; however, I do not see that the works of Mr. Jones can be distinguished from the birthers in any way, and I am one of the nation's foremost experts on birthers.
Mr. Davidson mentions the Massachusetts Naturalization Acts.
ReplyDeleteFebruary, 1785, “AN ACT FOR NATURALIZING NICHOLAS ROUSSELET AND GEORGE SMITH.” in which it was declared that Nicholas Rousselet and George Smith “shall be deemed, adjudged, and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
February, 1786, “AN ACT FOR NATURALIZING MICHAEL WALSH.” in which it was declared that Michael Walsh “shall be deemed, adjudged, and taken to be a citizen of this Commonwealth, and entitled to all the liberties, rights and privileges of a natural born citizen.”
July, 1786, “AN ACT FOR NATURALIZING JONATHAN CURSON AND WILLIAM OLIVER” in which it was declared that Jonathan Curson and William Oliver “shall be deemed adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born citizens.”
March, 1787, “AN ACT FOR NATURALIZING WILLIAM MARTIN AND OTHERS.” in which it was declared that William Martin and Others, “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
May, 1787, “AN ACT FOR NATURALIZING EDWARD WYER AND OTHERS THEREIN NAMED.” in which it was declared that Edward Wyer and Others, “shall be deemed, adjudged and taken, to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
October, 1787, “AN ACT FOR NATURALIZING BARTHOLOMY DE GREGOIRE, AND MARIA THERESA, HIS WIFE, AND THEIR CHILDREN.” in which it was declared that Bartholomy de Gregoire, and Maria Theresa, his wife, their children, “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
November, 1787, “AN ACT FOR NATURALIZING ALEXANDER MOORE, AND OTHERS, HEREIN NAMED.” in which it was declared that Alexander Moore and others, “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, & entitled to all the privileges, liberties, and immunities of natural born subjects.”
June, 1788, “AN ACT FOR NATURALIZING WILLIAM MENZIES, AND OTHERS, THEREIN NAMED.” in which it was declared that William Menzies and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and intitled to all the liberties, privileges & immunities of natural born subjects.”
November, 1788, “AN ACT FOR NATURALIZING ELISHA BOURN, AND OTHERS, THEREIN NAMED.” in which it was declared that Elisha Bourn and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, & entitled to all the liberties, privileges & immunities of natural born Citizens.”
February, 1789, “AN ACT FOR NATURALIZING JAMES HUYMAN, AND OTHERS, THEREIN NAMED.” in which it was declared that James Huyman and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the Liberties, Privileges and Immunities of natural born subjects.”
June, 1789, “AN ACT FOR NATURALIZING NATHANIEL SKINNER, AND OTHERS, THEREIN NAMED.” in which it was declared that Nathaniel Skinner and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
March, 1790, “AN ACT FOR NATURALIZING JOHN JARVIS, AND OTHERS, THEREIN NAMED” in which it was declared that John Jarvis and others, “shall be deemed adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
March, 1791, “AN ACT FOR NATURALIZING JOHN WHITE & OTHERS” in which it was declared that John White and others, “shall be deemed adjudged and taken, to be free citizens of this Commonwealth, and intitled to all the liberties, privileges, and immunities of natural born subjects.”
The Note is not serious legal scholarship; it is birthers' warmed-over arguments that lost every single time that they were raised in a court.
ReplyDeleteThe thesis of the article revolves around one sentence in Vattel's book, but Vattel never wrote "natural-born citizen," a fact relegated to a footnote in the Note. And the author handwaives this away by ... citing the losing birther attorneys' speculation.
Here's the conclusion I've drawn: that Pryor can't recognize junk research speaks volumes about his own incompetence.
Mr. Jones in his article cites Justice Scalia in D.C. v Heller.
ReplyDeleteHe should have cited this passage from Justice Scalia's opinion - "we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931) ; see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation."
The "ordinary citizens" of Massachusetts would have recognized "natural born Citizen" to have the same meaning as "natural born subject"
Scalia original intent...
ReplyDeleteScalia said, "Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation."
What was "known to ordinary citizens in the founding generation" since September 17, 1787?
1 - Singular U.S. citizenship by birth on U.S. soil to two U.S. citizen married parents?
2 - Dual U.S/foreign citizenship by birth on U.S. soil OR foreign soil?
3 - Dual U.S./foreign citizenship by birth to two OR one OR zero U.S. citizen parents?
The "ordinary citizens" of the new Union, from 1787 until the 1868 Fourteenth Amendment was misinterpreted by the 1898 U.S. v. Wong Kim Ark Court, would have recognized "natural born Citizen" to mean what John Jay meant when he underlined the word "born" in "natural born Citizen" in his July 25, 1787 note to George Washington -- ONLY singular U.S. citizenship of ONLY one nation (America) ONLY by birth on U.S. soil ONLY to two U.S. citizen married parents. It is common sense obvious that Jay would NOT have meant dual U.S/English (foreign) citizenship only four years after the 1783 Treaty of Paris ended the war of independence from England, a foreign power.
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U.S. Constitution: The Original Birther Document of the Union
Since Mr. Davidson pointed many errors and inaccuracies in Mr. Jones paper I won't go through all of those again.
ReplyDeleteMr. Jones tried gloss over the fact that no English translation of Vattel extant at the time of the Constitutional Convention contained the phrase "natural born citizen" by saying in a footnote: "Although no English translation of Vattel existing in 1787 contains the exact phrase
²natural born citizen,² the parlance of the 1797 version shows that translating indigenes to English would yield that result during that
time in history." Jones resorted to the oft used Birther Time Machine to attempt to make us believe a translation published by an anonymous English translator in London influenced the writers of the Constitution 10 years earlier.
Mr. Jones also ignores the plain reasoning of the Wong Kim Ark decision that there are only two kinds of citizens, natural born and naturalized, and by law in effect at the time of the case Wong could not be naturalized. A majority of the court found Wong to be a citizen. It is clear what type he had to be. The government recognized that if the court found Wong to be a citizen he would be eligible to run for president. So did Chief Justice Melville Fuller in his dissenting opinion. William D. Guthrie, one of the leading attorneys in the country at the time wrote that the ruling meant that the ruling meant Wong was an natural born citizen. That is why every court and tribunal who have addressed the question in cases challenging President Obama's eligibility have concluded that he is a natural born citizen. Several have mentioned Wong Kim Ark as a definitive ruling.
The two citizen parent theory was invented in late 2008 only after it was apparent that Barack Obama really was born in Hawaii and not in Kenya and lawsuits like Berg's were going nowhere. Berg has never embraced the two citizen parent theory and doesn't even today. One of the leading proponents of the theory, Mario Apuzzo, barely mentions the theory in a footnote in his original complaint in Kerchner v Obama. He doesn't cite either Minor or Vattel in the complaint.
Jones makes another factual erro when he said about Minor v Happersett: "In the Court’s opinion, Chief Justice MorrisonWaite wrote, ²[t]he Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.² 39 Chief Justice Waite proceeded to consult British common law from the time of the founding to elucidate this question, and ultimately settled on a definition which largely
comported with an originalist understanding."
Waite did not settle on any definition for the term. He specifically said the court was not addressing that question because it had nothing to do with the matter before the court, which was Virginia Minor's right of suffrage as a citizen. Waite also didn't "miss an important source". He knew as an honest modern day scholar knows that the 18th century Swiss philosopher, Emer de Vattel's writings had nothing whatsoever to do with American citizenship whose origins were rooted in English common law.
Professor Herb Titus understand the importance of Wong Kim Ark.
ReplyDelete"It is not necessary at this point to decide whether President Obama is a natural born citizen. Nor is it necessary now to endorse Justice Gray’s views over those of dissenting Chief Justice Fuller, or vice versa. Indeed, Mr. Rudy’s case against President Obama’s citizenship is based upon both views — that he is not a natural born citizen based either on his place of birth, or on the citizenship of his parents." in amicus brief filed in Rudy v. Lee (2014-1056) Petitions for certiorari and rehearing denied
Original Intent...
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Professor Pryor,
I will make only a few comments here that I will bounce off of your comment, quote:
"Just what does "natural-born citizen" mean? Born anywhere in the world to American citizens? Of course. Born in America to non-citizens? Seems so. But might there be more to the constitutional phrase than the obvious? And would the Framers of the Constitution have intended to convey the "more"?"
~ ~ ~ ~ ~ ~ ~ ~ ~ ~
>> "Just what does "natural-born citizen" mean?
John Jay had only one meaning when he underlined the word "born" in "natural born Citizen" in his July 25, 1787 note to George Washington. Jay could only mean ONLY singular U.S. citizenship of ONLY one nation ONLY by birth on U.S. soil/jurisdiction ONLY by birth to two U.S. citizen married parents. Jay obviously did NOT mean dual U.S/English (foreign) citizenship only four years after the 1783 Treaty of Paris that ended the war of independence from England.
>> "Born anywhere in the world to American citizens? Of course."
Under the language of the 1790 Naturalization Act, yes, of course.
When born on foreign soil to U.S. citizen parents (plural) the child is identified in the 1790 naturalization statute as a "natural born Citizen" with singular U.S. citizenship by birth to two U.S. citizen married parents, but obviously NOT eligible to be POTUS.
Under the language of the 1795 Naturalization Act, and ALL subsequent statutes and acts of Congress, no, of course.
When born on foreign soil to U.S. citizen parents (plural) the child is identified in the 1795 naturalization statute as a "citizen" with singular U.S. citizenship by birth to two U.S. citizen married parents, and also, obviously, still NOT eligible to be POTUS.
>> "Born in America to non-citizens? Seems so. "
No, NOT a "natural born Citizen" when born to non-citizens, only a "citizen" if born in America to non-citizens, according to the 1868 Fourteenth Amendment that was misinterpreted (as wrong as the Taney Court's [Dred] Scott v. Sanford decision) by the 1898 U.S. v. Wong Kim Ark Court which held that Wong Kim Ark, born on U.S. soil to two non-U.S. citizens parents, was a "citizen" and could NOT coherently affirm that Wong Kim Ark was a "natural born Citizen" even though he was born on U.S. soil because his parents were non U.S. citizens at his birth.
Also, definitely NOT under the Fourteenth Amendment with the original intent of John Bingham, the main author of the language of the first sentence of Section 1 of the Fourteenth Amendment: "All persons born or naturalized in the United States...are citizens of...." That 1868 "born" language, which incorporated the original intent of the 1787 Article II Section 1 clause 5 "natural born" language, was designed initially for the 1865 Thirteenth Amendment free Negroes who were naturalized as "citizens" with ONLY singular U.S. citizenship of ONLY one nation, America, not dual U.S./foreign citizenship. As naturalized "citizens" the 1865 Thirteenth Amendment free Negroes were not eligible to be POTUS, eligibility being reserved only for children born on U.S. soil to U.S. citizen married parents. However, their children, and the children's children, of the 1865 Thirteenth Amendment free Negroes were as eligible to be POTUS as the children of 1787 "natural born Citizens" were eligible, although the recalcitrant Reconstructionists were detrimental for decades for total inclusive equality for the posterity of the 1865 Thirteenth Amendment free Negroes.
Original Intent...
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For the "natural born Citizen" new meaning neo-birthers here on your blog who usually post at Kevin Davidson's blog, who are trying to maintain the incoherent theory of dual U.S./foreign citizenship by birth to only one U.S. citizen parent, their dual citizenship argument is really with original birther John Jay who underlined the word "born" in "natural born Citizen" in 1787 and also with original birther John Bingham who wrote "All persons born...." in Amendment XIV in 1868. Both men were coherent in their singular U.S. citizenship of only one nation, America, for the “natural born Citizen” and for the "...born or naturalized...citizens...," with only those persons born on U.S. soil/jurisdiction to two U.S. citizen married parents being eligible to be POTUS from 1787 into perpetuity, until the error of the 1898 U.S. v. Wong Kim Ark Court holding of citizenship for a child born on U.S. soil to parents were are not U.S. citizens, with the incoherent conclusion by “natural born Citizen” new meaning neo-birthers that the child born on U.S. soil to one OR zero U.S. citizen parents is eligible to be POTUS.
>> "But might there be more to the constitutional phrase than the obvious?"
What is "more...than the obvious" if the obvious is the 1787 (and 1868) original intent? If the obvious is ONLY singular U.S. citizenship, is the “more...than the obvious” dual U.S./foreign citizenship? Conversely, if the obvious is dual U.S./foreign citizenship, is the “more...than the obvious” ONLY singular U.S. citizenship?
>> "And would the Framers of the Constitution have intended to convey the "more"?"
Since original intent is original intent, what is the "more" that negates the original intent of the obvious of singular U.S. citizenship?
Original birther John Jay and his original genesis original intent for underlining the word "born" in "natural born Citizen" in his note to his friend George Washington could have ONLY ONE coherent "original intent" that can't allow for "more" than his original intent. Jay's original intent could only be -- ONLY birth on U.S. soil/jurisdiction -- ONLY citizenship of one nation -- ONLY birth to two U.S. citizen married parents -- ONLY singular U.S. citizenship.
Of course, we are probably on the same side of the ideological divide in America, even if we may disagree about the original meaning of "natural born Citizen." I am simply presenting a coherent view of original birther John Jay's singular U.S. citizenship for POTUS eligibility that is common sense when compared to the theory of the 2008-2015 "natural born Citizen" new meaning neo-birthers, whom some call Obots or Cruzbots, who posit the incoherent theory that a child born to only one U.S. citizen parent with the child having dual U.S/foreign citizenship means that the child is eligible to be POTUS.
The neo-birthers insist that since "natural born Citizen" was not defined by the 1787 framers (or the 1868 Fourteenth Amendment framers), that means that their neo-birther theory of dual U.S./foreign citizenship by birth to only one U.S. citizen parent is what "natural born Citizen" means.
THAT is incoherent.
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U.S. Constitution: The Original Birther Document of the Union
An additional note on Vattel worthy of mention can also be found in Professor Lutz's excellent paper; i.e. Vattel's influence on the founding generation waxed and waned based upon the facts on the ground as well as their own political maturity. By the time it came to frame the Constitution, his influence had fallen dramatically.
ReplyDeleteHe was of greatest influence on the Declaration of Independence, an aspirational document asserting the right oft he colonies to take their place on an equal footing among the family of nations. He was a particular value in establishing the rights of self determination and expatriation both as individuals and as larger communities. The rationale for the Declaration was embedded in international law, and Vattel's importance in that field cannot be denied. But eleven years later when time came to focus on foundation rather than aspiration, and on municipal rather than international law Vattel could not possibly be as useful.
He was (for starters) a staunch monarchist who favored an established state religion, opposed the freedoms of press and speech, and favored denying the right to bear arms to anyone other than the military and the nobility. As such, the framers of the Bill of Rights had no reticence about rejecting his ideas four times in the first two amendments alone.
But worse, when time came for the ratification debates, the Federalists found no use of Vattel at all and failed to cite him a single time. Not so among the antiFederalists who found him nominally useful in opposition to the new Constitution. But even then, references to him and his ideas were sparse.
The contemporary deification of Vattel among adherents of the birther movement simply cannot withstand competent critical scrutiny. It would appear that Mr. Jones made no actual effort to apply any.
I've never received the number of comments that this post. has generated. And to think, most have come in a flood three weeks after the fact. I appreciate the many insights and thoughtful comments posted by some. Indeed, I appreciated the others that seem to have wandered a bit afield. I am, however, bringing the comments to an end. It's time for all of us to move on to more fruitful pastures or at least to take this conversation elsewhere.
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