Did the Meaning of “Natural Born Citizen” Come From “American Common Law” Derived from the Law of Nations?
New Evidence Destroys Claim on the Origin of “Natural Born Citizen.”
One of the two foundational pillars of the “birther movement” has been that even if Barack Obama was born in Hawaii, he’s still ineligible to be President of the United States — since (according to the theory) it takes birth on US soil, plus two citizen parents at the time of birth, to make a “natural born citizen” who is eligible to be President.
But the birthers very quickly run into trouble, for the following reasons:
1) The phrase “natural born citizen” is exactly analogous to “natural born subject,” which has a centuries-long history in the English common law. Our American Colonies prior to the Revolution were, of course, English colonies.
2) We decided to rename “subjects” as “citizens,” so the obvious meaning of “natural born citizen” is almost exactly the same thing as “natural born subject.” The only apparent difference would seem to be that we are no longer “subject” to the Crown, but “citizens” of a free country.
3) Close to two thirds of our American leaders who wrote the Constitution were lawyers; and a strong knowledge of the English common law at the time was essential — even foundational — training for American lawyers. So at least around two thirds of the Framers of the Constitution were well familiar with the English common law.
For this reason, they would not only have been familiar with the term “natural born subject” — they would have understood what it meant.
4) There is no known technical or legal use of the phrase “natural born” before it was mentioned in the Constitution, that shows any sign of deriving from any source other than the English common law — including from Swiss philosopher Emer de Vattel, whom the birthers say came up with our idea of a “natural born citizen.”
In fact, the phrase “natural born citizen” does not appear at all in any translation of Vattel’s work until 10 years after our Constitution was written.
Nor does anybody ever appear to have even commented on Vattel’s work using the phrase “natural born citizen” at any time before the writing of our Constitution, or for years afterward.
5) There is no known statement anywhere by any member of our Founding Fathers or the Framers of our Constitution, or by any historical commentator, that would indicate that the Founding Fathers or Framers of the Constitution ever relied on Vattel in any way for our meaning of “natural born citizen,” or on his ideas of citizenship in general.
6) The writers of our Constitution did not use Vattel’s terminology. If they had, they would’ve stated that the President had to be a “natural” or an “indigene.”
But instead of using Vattel’s terminology, they used the phrase “natural born citizen” — which in itself almost conclusively indicates that they were referring instead to the English common law concept of a “natural born subject.”
7) There was in fact NO debate on the term in full session of the Constitutional Convention, and we have no record of any controversy whatsoever regarding the term.
This strongly suggests that those present had reference to a well-known phrase and concept, that was well understood by everybody and that had a known and established meaning. And the only phrase and concept that meets these qualifications is the English common law phrase “natural born subject” — as a direct analogue to “natural born citizen.”
8.) “Natural born subject” and “natural born citizen” are known to have been used completely synonymously in early America shortly after the Revolution.
Now here’s where all of the above known and established facts come together and turn into a massive problem for the birthers:
9) Under English common law, it is well known and extremely well established — for centuries — that even the children of non-citizens, born on the territory of the country, were natural born subjects.
And the only exceptions to this rule were the children of foreign royalty, foreign ambassadors, and members of hostile, occupying foreign armies.
From all of the above facts, it would appear — at least at first glance — that the claim that it takes two citizen parents to make a natural born citizen is totally cracked.
Not to be deterred by these known realities, though, birther lawyer Mario Apuzzo claims:
Were American and English Common Law Really Diametrically Opposed on this Point?
So Apuzzo claims it was American common law — not English common law, that provided us with the definition of “natural born citizen” — and that this definition came from the “law of nations.”
Apuzzo admits that under English common law, ALL children born in the country were natural born subjects — with, of course, the few limited exceptions noted above:
“Blackstone told us that any child born in the King’s dominions and under his allegiance, with the exception of one born to foreign diplomats or foreign alien invaders, was a ‘natural born subject,’ regardless of the citizenship of the parents. Hence, the citizenship of the parents played no role in making a child born within the King’s dominions an English ‘natural born subject.'” — Mario Apuzzo
But he says that our Founding Fathers and Framers of the Constitution clearly rejected English common law in this regard, and established some American common law, based on the “law of nations,” that was entirely at odds with the law of England on this particular point.
We’ve already explored in this blog the normal usage of the term “common law.”
By its ordinary definition, “common law” consists of legal precedent that is created by judges, over a period of time through court rulings. We therefore have looked to see whether we could find any records of case law in our American, colonial or pre-Constitution courts that would establish that the meaning of “natural born citizen” only includes children born on US soil of citizen parents.
We have found no such cases. Not one.
Nor has Mario Apuzzo or anybody else been able to produce even one such case, or any such judicial statement at all giving the birther definition for “natural born citizen.”
Mr. Apuzzo has, however, clarified his claim for us. It’s not that any such “common law” by that ordinary definition exists, he tells us.
It’s that the “Law of Nations” was incorporated, very early on, into our national law.
Therefore the Law of Nations — according to Mr. Apuzzo — controls our national definition of citizenship — particularly our definition of natural born citizenship.
IF Mario Apuzzo’s Claim is True, We Can Expect to Find that the Following Three Things Are True:
1) There is clear evidence that the Law of Nations was incorporated into US law — strongly enough to control the definition of “natural born citizen” in the Constitution.
2) The legal term of art “natural born citizen” is recorded somewhere in the Law of Nations. (Otherwise, how could it possibly be defined by that Law?)
3) And finally, we can expect to find that this term is, in fact, clearly defined in the Law of Nations as “a person born on the soil of a country [that is, within its territory] of parents who are citizens.”
If we (or he) can produce such evidence, and if that evidence is conclusive, then that should clearly establish that the term “natural born citizen” was intended to mean exactly what Mr. Apuzzo claims it means.
On the other hand, if no such evidence exists that the above three things are true, it will finally establish that there is no basis at all in law for the claim that “natural born citizen” requires having two citizen parents — because we will have exhausted all possible sources in American law for finding such a definition.
Will This Be Strike Three for the Birthers? Or a Home Run?
It’s been shown that the 1874-1875 Supreme Court case Minor v Happersett clearly does not establish a precedent for the definition of “natural born citizen.” This has been Strike One for the major legal claims (no pun intended!) of the birthers.
It’s also been shown that even if it had, any such precedent would’ve been overturned by the 1898 case of US v Wong Kim Ark, which clearly found that the child born on US soil of non-citizen parents was a natural born citizen.
Mr. Apuzzo has been invited to refute the evidence in these cases. In spite of his constant assertions to the contrary, it is clear that he has completely failed to do so. In fact, he really has never even attempted to directly address most of the points made in the articles referenced.
[And why not? Because he really can’t. The established facts simply don’t allow him to. All Mr. Apuzzo can do is repeat, against the evidence, “I have proven… I have shown…”]
So Minor v Happersett is Strike One for the birther position. That case represents their strongest claim that the Supreme Court has ever ruled for their position. And any reasonable analysis of the case shows that such a claim is simply not true.
US v Wong Kim Ark is Strike Two for the birthers. It shows that in fact, the Supreme Court has ruled directly against their position.
Now instead of arguing that Wong was wrongly decided, Mr. Apuzzo’s approach has been to completely deny the ruling that case reached and insist instead that the Court found in favor of his position. (?!?!!)
Nonetheless, the actual finding of the Court in that case is clear. And the obvious and accurate understanding of that ruling has been repeatedly affirmed ever since, by Constitutional scholars and judges alike.
Still… it might be possible that US v Wong Kim Ark was wrongly decided. Hence our search for an earlier legal definition (in “American common law”) that might establish the birther definition of “natural born citizen.” We failed in the Colonial and pre-Constitution courts, but we might still succeed with the Law of Nations.
This is the last chance for Apuzzo and the birthers.
So which will it be — a home run? Or strike three?
If it is the latter, then the birthers are “Out,” in terms of any legal arguments… although there might theoretically still be some historical argument to be made for their position.
Yes, the Founders Believed in the “Law of Nations.” But Even So, the Claim Quickly Runs into Problems.
It’s clear that our Founders’ generation did, for the most part, believe that there was such a thing as the “Law of Nations.” Furthermore, they believed it was important, and that our new country should absolutely fulfill its obligations to this international law or code of conduct.
Because to a good degree, that’s what it was: The international code of conduct that dictated how nations should treat one another. Our Founding Fathers understood that if a nation violated the way that nations were supposed to behave, the consequences could be very costly.
A brand new nation that had just concluded its war for independence didn’t need or want to stumble into a war with some other country.
Unfortunately for Mr. Apuzzo and the birthers, as soon as you begin actually examining both the Law of Nations and our relationship to it, you very quickly run into problems. And not just one or two problems, but a whole truckload of them.
We’ll deal only briefly with most of these, in order to focus on the most important ones. But let’s at least list the various problems that seem obvious.
1) The Constitution does not expressly incorporate the “Law of Nations” into our law.
It’s disputed and unclear to this day to what degree (if any) the “Law of Nations” was ever really intended to be incorporated into American law. And if it was intended to be “incorporated” into our law, it’s not entirely clear exactly how it was intended to be incorporated, and what priority in our legal system it was intended to have.
Was the Law of Nations intended to supersede our own explicit national and state laws? The idea seems very doubtful indeed. Here’s how one of the conservative members of our current Supreme Court describes the Law of Nations:
“At the time of its enactment, the ATS [Alien Tort Statute] provided a federal forum in which aliens could bring suit to recover for torts committed in ‘violation of the law of nations.’ The law of nations that would have been applied in this federal forum was at the time part of the so-called general common law… General common law was not federal law under the Supremacy Clause, which gave that effect only to the Constitution, the laws of the United States, and treaties. U.S. Const., Art VI, cl. 2. Federal and state courts adjudicating questions of general common law were not adjudicating questions of federal or state law, respectively -– the general common law was neither.”
— Justice Antonin Scalia, Concurring Opinion, Sosa v Alvarez (2004)
2) Assuming that at least some aspects of the “Law of Nations” were intended to be “incorporated” into US law does not mean that all aspects of the “Law of Nations” would have necessarily been incorporated.
Since the purpose of our working with the Law of Nations seems to have been to avoid conflicts with other nations, in international law, it seems very questionable that any aspects of the Law of Nations relating to whether a US born child of non-citizen parents was a “natural born citizen” would have been applicable to that purpose.
3) The “Law of Nations” was, however, considered to be fully incorporated into the English common law — and that did not change the fact that locally-born children of aliens were always “natural born subjects!”
Quoting the preeminent authority on the English common law:
“…in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land.”
— Sir William Blackstone, Commentaries on the Laws of England
This is a serious issue, for if the “Law of Nations” was incorporated “in its full extent” into the English common law, and if such incorporation in no way prevented the children of non-citizens from being “natural born subjects,” then there’s no reason on earth why it would prevent such children from being “natural born citizens” here in America.
In fact, this one point alone is likely fatal to Mr. Apuzzo’s claim… unless we can find some clear, definite, unambiguous American principle to the contrary.
4) Not everyone agreed what the parameters of the “Law of Nations” were. Not everybody agreed what the correct practice was in a particular situation, either.
In fact, not everyone even agreed what the Law of Nations even was. I’ve found at least three different definitions.
For some, it was the law of nature applied to nations. For others, it represented whatever international agreements nations had consented to between themselves. And for still others, it was that body of law that simply seemed to be common to all developed societies around the world.
5) There is no indication at all that Vattel’s definition of citizenship was intended to supercede our traditional understanding of citizenship.
In fact (as noted earlier) all indications are to the contrary.
And now we begin to arrive at some of the most critical problems for the claim that “American common law,” derived from the Law of Nations, dictated our definition of “natural born citizen,” and that that definition excluded those born on US soil of non-citizen parents.
6) When we look specifically at what was written on the “Law of Nations” — not one of the significant “Law of Nations” writers made any mention whatsoever of the legal term of art “natural born citizen” — not even Vattel.
Therefore, it is abundantly clear that the term itself DID NOT ORIGINATE from ANY writer on the “Law of Nations.”
This fact is diametrically opposed to the claim of Mario Apuzzo, who wrote:
“The Framers did not define an Article II ‘natural born Citizen’ because they did not see a reason to. It was a term that was well defined by the law of nations and well-know [sic] by civilized nations.”
In response to Apuzzo’s claim, one could ask him a one-word question.
Show us the quotes, Mario. Show us the long lists of authorities and quotes that establish exactly WHERE “natural born citizen” was “well defined by the law of nations.”
Because that clear definition of the term of art “natural born citizen” simply does not exist — as far as I can determine — anywhere in the “Law of Nations.”
It certainly does not appear in any relevant work by any major writer on the subject. I’ve even searched (albeit less exhaustively) for its occurrence in the works of at least six minor writers on the subject — and come up completely dry.
Mr. Apuzzo claims that “natural born subject” doesn’t mean “natural born citizen” because it’s a different phrase. It’s a different term of art.
This seems at least plausible.
But what’s good for the goose is good for the gander.
If Mr. Apuzzo maintains that we cannot accept the definition of “natural born citizen” as being similar to “natural born subject” because one single word is different (albeit highly analogous) then there is no way that we can possibly accept his definition for “natural born citizen” — because it appears that the only “terms of art” that were ever defined to mean his concept are “naturel” and “indigene.”
And the term “natural born citizen” bears far less resemblance to “naturel” and “indigene” than it does to “natural born subject.”
So by Apuzzo’s own argument, since none of the writers on the Law of Nations ever defined or even used the term of art “natural born citizen” — apparently not even once — he and the birthers do not have a leg to stand on.
As it stands, it looks like Apuzzo and the birthers are striking out.
But to round out our evaluation of whether it’s actually even plausible that “natural born citizen” came from the Law of Nations, we will look carefully at what the writers on the Law of Nations actually had to say about citizenship, to see whether the birther position can be rescued.
We will do this in our next article, titled:
What the Writers on the Law of Nations Had to Say Relevant to Natural Born Citizenship.