“Birther” lawyer Mario Apuzzo has repeatedly claimed that early American legal expert St. George Tucker supports his well-debunked assertion that it takes two citizen parents at the time of birth for a person to be a “natural born citizen” and therefore eligible to be President.
This seems to be about the only significant claim Mario has left that hasn’t been shredded like the upholstery in a free-range cattery. And I describe the claim as “significant” because Mario is right about at least one thing.
St. George Tucker was arguably the most important legal expert to emerge in early America after the establishment of the Constitution.
Tucker’s Contribution to American Law
St. George Tucker was a student of George Wythe, America’s first law professor, at the College of William and Mary. He eventually succeeded Wythe as our first law school’s second professor of law.
But it wasn’t just the prestige of our first law school that gave Tucker his place in history. It was the way he extended his teaching to the public at large.
The foundational text for the training of lawyers in early America was Sir William Blackstone’s Commentaries on the Laws of England.
“[Blackstone's Commentaries] exerted a tremendous influence on the American bar, both because of their intrinsic value and because they were the only treatises readily available during that period of U.S. history. The Commentaries were the primary reference tools for lawyers and judges until the nineteenth century… Blackstone’s books, which were periodically updated by American editors, constituted a major source of law for approximately fifty years after the American Revolution.” — West’s Encyclopedia of American Law (2008)
The relationship between American law and the English common law was a bit complex. The “birthers” are right in saying that the English common law was not incorporated wholesale into our national law. George Mason, one of our Founding Fathers and the “Father of the Bill of Rights,” complained that the new Constitution did not provide for the people to “be secured even in the enjoyment of the benefit of the common law.”
But incorporating the English common law into our national law simply was never a workable idea, because of too many monarchical provisions, and the number of exceptions that would have had to be made.
Nonetheless — and this is the point that the “birthers” downplay or deny — the English common law still gave us our legal vocabulary and most of our legal world view — including the general meaning of terms used in the Constitution. Alexander Hamilton, in a discussion of the meanings of Constitutional terms having to do with taxation, noted, “where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.” The common law also provided many principles and precedents to help guide American law, and was considered to apply to varying degrees in many of our States.
For such reasons, Blackstone was the foundational textbook for the law school at William and Mary under both George Wythe and St. George Tucker.
Tucker, however, found himself collecting notes on the exceptions that our new nation (and the Commonwealth of Virginia) made to certain provisions of the common law.
And as a result, in 1803, Tucker published a new edition of Blackstone’s Commentaries, incorporating notes from his law school lectures and additional commentary into the work.
This new edition — Blackstone modified for America — quickly became a leading law text and has since been cited (including recently) in numerous cases by the US Supreme Court, when the Court has sought the original intent of our Constitution’s meaning.
“Birther” Lawyer Apuzzo Uses Contorted Logic to Try and “Prove” Tucker’s Support
“Birther” lawyer Mario Apuzzo claimed at his blog that St. George Tucker supports his claim that it takes two citizen parents to make a natural born citizen. And he has repeated this claim many times since.
Now the first odd thing I noticed was that the footnote in the article referenced didn’t contain any actual quote from St. George Tucker — only some biographical notes. And when I searched Tucker’s writings back in March, I was unable to find any such support at all.
Mr. Apuzzo has been asked roughly a dozen times (perhaps more) to produce his supposed quote from St. George Tucker backing up his position, and never has, in spite of promising to do so.
Recently, I finally located what Apuzzo has reference to. It’s not one single quote. Rather, Mr. Apuzzo (according to his usual pattern) has taken a series of quotes from Tucker on peripheral matters, and twisted them to try and make Tucker say something he never said. Apuzzo’s argument is contained in the brief he filed in Tisdale v Obama, and the core of it runs as follows:
Tucker also specifically addressed what a “natural born Citizen” was by informing who had the “civil right” to be elected President. He explained that the right to be elected President was one of the most important “civil rights”, “civil rights” were only possessed by citizens who either inherited or acquired rights, and while naturalized citizens acquired “civil rights,” only a person born to citizen parents inherited them. He said that naturalized citizens were forever barred from possessing the right to be elected President. Hence, the “civil right” to be elected President could only be inherited and not acquired. Since only a child born to citizen parents inherited civil rights and the right to be elected President could only be inherited, the civil right to be elected President belonged only to a child who was born to citizen parents. So only a person born to citizen parents became a citizen not by naturalization. And only a person born to citizen parents was a “natural born Citizen” and therefore eligible to be President. In his discussion on naturalization, Tucker explained that a child born to alien parents, no matter where born, is an alien and becomes a “citizen of the United States” by law when his parents naturalize if done before the age of majority or by his own right if done thereafter. This is the same rule that our early Congresses used when they wrote the Naturalization Acts of 1790, 1795, and 1802. From Tucker’s explanation as to who possessed the “civil right” to be elected President, we arrive at the inescapable conclusion that a “natural born Citizen” could only be a child born to citizen parents.
Are you dizzy yet? If not, then you may not have gotten his argument.
Now it only takes one fallacy or incorrect assumption to create a false claim, and several fallacies and assumptions are obvious.
First, Tucker classified ALL participation in government short of the actual exercise of the power of a political office — voting, serving as an elector, running for and being elected to any position — as “civil rights.” So “civil rights” were far from unique to the Presidency. Secondly, Tucker never stated that “ONLY” the children of citizens “inherited” civil rights. He doesn’t tell us how he thinks the children born on US soil of non-citizen parents gain their civil rights, because he simply doesn’t mention their case in this passage. In fact, he may have considered children born on US soil of alien parents to have “inherited” their civil rights simply by virtue of being born in the dominions of the United States.
Nor does Tucker ever state that one must “inherit” their civil rights — as opposed to “acquiring” them otherwise — in order to become President. He only states the obvious — that naturalized citizens cannot be elected as President.
When he states that children of citizens “inherit” civil rights, that obviously has reference to children who may be born of American parents either in the United States or overseas — just as was also the case in English law. The English passed specific laws in order to ensure that children born overseas of English parents enjoyed rights in England — particularly, the right to inherit property.
The actual quote from Tucker that Apuzzo alludes to here is as follows:
These civil rights may be inherited, or acquired, in the United States: they are acquired by a foreigner who is naturalized; they are inherited by all whose parents, at the time of their birth, were citizens.
The distinction between “inherited” civil rights and otherwise “acquired” civil rights, in fact, does not seem to be very important. But Apuzzo has to read into Tucker’s quote things that he does not say, and attach non-existent importance to words that are merely descriptive, in order to twist the quote to “support” the claim that two citizen parents are required for a person to be a natural-born citizen.
Mr. Apuzzo also makes an outright false statement when he says that “In his discussion on naturalization, Tucker explained that a child born to alien parents, no matter where born, is an alien and becomes a ‘citizen of the United States’ by law when his parents naturalize if done before the age of majority or by his own right if done thereafter.”
Because the plain fact is, Tucker never said any such thing. (Actually, as we will see later, he clearly says the direct opposite!!) All Tucker does in his naturalization discussion is quote the law, which makes provision for children who are already born but under 21 years of age:
The children of persons naturalized under any former law of the United States, or under the laws of any state, previous to the passing of any law of congress upon the subject, being under twenty-one years of age, at the time of the parents naturalization, if dwelling in the United States, shall be considered as citizens; and the children of citizens of the United States, wheresoever born, shall also be considered as citizens. But the right of citizenship shall not descend to persons whose fathers have never resided within the United States.
It’s been shown elsewhere that Apuzzo’s claim regarding the Naturalization Acts is also entirely false.
What St. George Tucker Actually Said About Natural-Born Citizenship and Presidential Eligibility
As with other authorities, Apuzzo has twisted peripheral comments while selectively ignoring the more explicit and directly on-topic comments that disprove his point. We will mention four specific comments by Tucker. The first three have been mentioned before. The fourth is entirely new to current writing on the subject. And although concise, it will prove to be the most devastating of all.
Quote One: Tucker Says Natural Born Citizens Were Distinguished by Their Place of Birth — With No Mention Whatsoever of Citizen Parents.Tucker approvingly (if anonymously) quotes Colonel George Nicholas, first professor of law at Kentucky’s Transylvania University (1799), as follows:
“A very respectable political writer makes the following pertinent remarks upon this subject. ‘Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it.’”
Nicholas’ original quote occurs in a fairly well-known (at the time) letter to some unnamed “friends in Virginia,” dated November of 1798.
The reasonable question that comes to mind is: “Okay, that was before the Constitution was adopted. What about after?”
Colonel Nicholas goes on to say that he is going to next consider the changes that were made in American law following the adoption of the Constitution (which at the time of his letter is a time span of less than 10 years). He then continues with a long discussion of the controversial Alien and Sedition Acts, arguing that they are unconstitutional.
The entire letter, to the degree it touches on citizenship, has to do with our treatment of immigrants, born outside of the United States. Nowhere does Col. Nicholas EVER indicate that any change has been made in the principle that those born within any State of the Union — with no reference to the citizenship of their parents — were natural born citizens.
Quote Two: Tucker Says the Constitutional Provision Is that the President Must Be “Native-Born.”
In the following quote, Tucker discusses Presidential eligibility:
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.
Birthers are quick to focus on Tucker’s clear opposition to “foreign influence” — without rightly noting exactly who Tucker considers “foreigners” to be, or what kind of foreign influence he’s talking about.
Like our Founding Fathers and Framers of the Constitution, nowhere does Tucker mention any fear of “foreign influence” at all stemming from a Presidential candidate having had non-citizen parents.
And Tucker makes it abundantly clear that being “native-born” (which is and always has been generally understood to mean “born within a country”) qualifies a person for the Presidency.
Quote Three: Tucker Tells Us Precisely Who “Aliens” Are.
Here’s how St. George Tucker defines “aliens”:
Aliens, in the United States, are at present of two kinds. Aliens by birth, and aliens by election…
“Aliens by election” are those who give up US citizenship, so they don’t matter here. Tucker continues:
1. Aliens by birth, are all persons born out of the dominions of the United States, since the fourth day of July, 1776, on which day they declared themselves an independent and sovereign nation, with some few exceptions…
So Tucker begins by saying that aliens are those who are born outside of the US, and then lists 4 exceptions. These exceptions describe persons who are NOT aliens, so they simply add more people to the list of those who are citizens.
Or, to put it another way — since all people may be divided up only into US citizens and aliens — the group of people who are US citizens begins with all persons born in the country. And it continues with the addition of certain people born outside of it. Such additions generally include children born outside of the US to American parents, persons who have been naturalized as citizens, and the minor children the latter group of people had when they were naturalized.
It is therefore clear from his detailed description of who “aliens” are, that NO person born within the dominions of the United States was counted by St. George Tucker to be in the category of “aliens.” All such persons were citizens, and they were citizens from the moment of birth.
Quote Four: Tucker Compares the Law of England With the Laws of the United States and Virginia.
Tucker’s fourth quote is so matter-of-fact and so concisely worded that I almost missed it. And yet, it is the most devastating of all.
The comment occurs in a footnote he wrote to his famous 1803 edition of Blackstone’s Commentaries on the Law of England.
The passage from Blackstone that Tucker is commenting on is as follows. (Although the formatting isn’t great yet, it’s available from this page.)
“The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.10 In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.”
Did you notice the little “10?” The “10″ is a reference to what St. George Tucker had to say on this passage of Blackstone.
Remember that Tucker’s purpose in publishing this work was to compare the laws of England with the laws of the United States, drawing distinctions where they existed.
St. George Tucker’s footnote is as follows:
“10. L. V. Edi. 1794, c. 110. L. U. S. 1 Cong. c. 3. 7 Cong. c. 28. accordant.”
What does this somewhat cryptic note mean? Well, it contains abbreviated references to three American laws –
- L. V. Edi. 1794, c. 110.
- L. U. S. 1 Cong. c. 3.
- and [L. U. S.] 7 Cong c. 28.
– and then it says “accordant.”
It turns out that it is possible, more than 200 years after Tucker wrote these cryptic legal references, using the key to his abbreviations, to decipher and track them down. They are as follows:
- The Laws of Virginia, as referenced in the 1794 Edition of Pleasants and Pace, ch. 110;
- The Law of the United States, passed by the 1st Congress, chapter 3;
- and the Law of the United States, passed by the 7th Congress, chapter 28.
And these all turn out to be laws that we have dealt with before. They are:
- The 1783 version of the citizenship law for the Commonwealth of Virginia that Thomas Jefferson originally wrote in 1779.
- The 1790 United States Naturalization Act.
- And the 1802 Naturalization Act.
So what does St. George Tucker say about the laws of both the Commonwealth of Virginia and the United States of America, in his footnote to the principle that the children of aliens were always “natural born subjects”? In comparing our American position with that of the English common law, he says that all of these American laws are “accordant.”
The meaning of “accordant” is “agreeing; conforming; harmonious.”
But did it mean the same thing 200 years ago? From Webster’s 1828 Dictionary:
ACCORD’ANT, a. Corresponding; consonant; agreeable.
And “consonant,” in turn, means:
1. Agreeing; according; congruous; consistent; followed generally by to; sometimes by with; as, this rule is consonant to scripture and reason.
And the definition of related words:
CONSONANTLY, adv. Consistently; in agreement.
CONSONANTNESS, n. Agreeableness; consistency.
Tucker thus says — clearly — that all the important citizenship laws of both Virginia and the entire United States are agreeing, conforming, harmonious, consistent with the principle in English common law whereby the children of aliens were natural-born subjects.
Perhaps even better is the word “corresponding.” In America, a “citizen” was the corresponding term for what was called a “subject” in England.
And all of this is precisely what honest and accurate commentators on this subject have been saying all along.
Now Mario Apuzzo will doubtless try to find some pretext on which to explain away this clear footnote of St. George Tucker (and Tucker’s other quotes as well). That’s his pattern. It’s what he does.
He might desperately claim that the footnote only means these laws agreed that the children of aliens were “natural born subjects” over in England (which is obvious nonsense that would never have gotten a footnote), or that it means these three laws are in agreement with each other (which of course is equally nonsense), or that it means the children born in the United States of alien parents were “natural born subjects” of the United States, but not “natural born citizens” of the United States.
Nonetheless, whatever excuse Mr. Apuzzo might try to produce — or whether he simply ignores the evidence — it is abundantly and absolutely clear that early American legal expert St. George Tucker (just like virtually every other authority who has ever said anything at all on the subject) considered children born on American soil of alien parents to be natural born citizens of the US — just as much as children born on English soil of alien parents were always natural born subjects of England.This bogus birther claim had already been demolished from many different directions. But now adding to the authority of that demolition, we have the clear and unambiguous voice of the man who was arguably early America’s greatest legal authority — St. George Tucker.