Note: This article continues and concludes a series of three posts on “American common law” that began here and has continued with consideration of the Law of Nations, here. In a broader sense, it also completes a series of articles clearly establishing the legal meaning of “natural born citizen.” That larger series began in April 2012 with an article on the 1898 Supreme Court case of US v Wong Kim Ark.
Recently, some commentators — most notably “birther” lawyers Mario Apuzzo and Leo Donofrio and those who follow them — have claimed that the definition of “natural born citizen” is “someone born on US soil of two citizen parents.”
We are told that this definition of “natural born citizen” came to us from Swiss philosopher Emer de Vattel. But there seems to be absolutely no evidence at all that the phrase — or the concept — for our Constitutional “natural born citizen” came from Vattel, and plenty of evidence it did not.
Next we are told that it came from American common law. But the ordinary definition of common law is “law created by judicial precedent.” And there seems to be no evidence whatsoever of any such judicial precedent in our courts.
As noted in our last article, there are some very serious problems with this claim.
Moving beyond the observations already made, one of our best tests of whether “natural born citizen” came from “American common law” (which in turn came, we are told, from the Law of Nations) would be to examine the Law of Nations itself.
So in this article, we will look at the actual content of the “Law of Nations,” to see whether it supports the birther Constitutional claim.
If the Founding Fathers and Framers of the Constitution Looked to the “Law of Nations” to Define “Natural Born Citizen,” They Would’ve Had to Get the Idea from at Least One — Or More Likely, Several — of These Writers.
There were only a handful of major writers on the “Law of Nations.” Vattel was one of these.
But the idea that our concept of “natural born citizen” comes from Vattel, as noted above, has been utterly destroyed.
If it wasn’t Vattel, then who would it have been? There are really only half a dozen candidates left.
- Samuel von Pufendorf, of Germany
- Hugo Grotius, of the Netherlands
- Cornelius van Bynkershoek, of the Netherlands
- Jean-Jacques Burlamaqui, of Switzerland
- Thomas Rutherforth, of England
- and Christian Wolff, of Germany.
And that was it, as far as the major writers on the Law of Nations are concerned.
Did anybody else write anything on the “Law of Nations?” Yes, a few others did. But our list of seven are certainly considered to be all of the major Law of Nations writers.
It is very unlikely that any writer not on this list had any significant influence at all on our Founders or on the development of our Constitution. In fact, only 3 of the above 7 writers — Vattel included — are counted in the top 37 writers that were quoted by our Founding Fathers.
An examination of the works by these writers shows they had very little to say relating to the concept of “natural born” citizenship. And what little they did have to say generally seems to have supported the same concept enshrined in English law: that a person’s country was the country he or she was born in, with little if any regard as to the citizenship of his or her parents.
The only real exception to this rule is Vattel, who has already been ruled out as showing any evidence of any influence on the Founders’ definition of citizenship at all.
Did you ever wonder why the birthers never seem to quote any writer on the Law of Nations other than Vattel?
Now you know.
He’s the only writer on the Law of Nations that appears to support their position.
Let’s look at the Law of Nations writers one by one.
1) Emer de Vattel (Switzerland)
Was Vattel influential on our Founding Fathers? Absolutely. But his level of influence — particularly on our idea of citizenship — has been rather exaggerated by Mario Apuzzo and other birthers.
While by some accounts Vattel was the most influential writer on the Law of Nations, two of the other Law of Nations writers were actually quoted more frequently by our Founding Fathers.
According to the research conducted in 1984 by Professor Donald Lutz, Emer de Vattel was the 30th most cited author by the Founding Fathers. Out of every 200 times they quoted an authority to support their views, they quoted Vattel once.
By comparison, they quoted Sir William Blackstone — the commentator on the English common law (from which our phrase “natural born” actually came) — some sixteen times.
Vattel’s flagship work was Le Droit des Gens (The Law of Nations, 1758). As noted elsewhere, an English translation of this work using the phrase “natural born citizens” appeared 10 years after that phrase was popularized by its use in our Constitution. Most other translations, however, including all up to that time, used the phrase “natives, or indigenes.”
If you haven’t read it yet, much more information on Vattel is available here.
2) Samuel von Pufendorf (Germany)
Pufendorf was the 10th most cited author by the Founding Fathers. For every 200 times they quoted a writer, 2 or 3 of those quotations would have been from Pufendorf.
One of Samuel von Pufendorf’s major works was De Jure Naturae et Gentium (Of the Law of Nature and of Nations, 1672). This runs close to 1000 pages. However, Pufendorf appears to have nothing to say here about the definition of citizenship.
The only quote I could find in the entire book that appears relevant is in a footnote that implies that one’s allegiance (and therefore citizenship) belongs to the country of his birth: “He that is born under a Prince, doth originally engage his faith and allegiance to him.” Since this was apparently added some 50 years later by French jurist Jean Barbeyrac, however, we won’t count it for much.
Pufendorf also published De Officio Hominis et Civis Juxta Legem Naturalem, or On The Duty of Man and Citizen According to the Natural Law, in 1673.
In this work, Pufendorf generally uses the words “subject” and “citizen” interchangeably — which only tends to undermine any argument by Mario Apuzzo and any other “Law of Nations” birthers.
There is, however, a passage in which he addresses citizenship in a bit more detail:
The state being thus constituted, the central authority, according as it is one man, or one council of the few, or of all, is called a monarch, a senate, or a free people. The rest are styled subjects, or citizens, understanding the latter term in its wider sense. There are some, however, who, in a narrower sense, usually call only those citizens, who by their union and consent formed the state in the first place, or else their successors, namely, the heads of households. Moreover, citizens are either original or adopted. The former are those who were present in the beginning at the birth of the state, or their descendants. These it is the custom also to call indigenous. The adopted citizens are those who from without join themselves to a state already constituted, with the purpose of planting the seat of their fortunes there. As for those who sojourn in the state, merely to tarry for a time, though subject just so long to its authority, they are still not regarded as citizens, but are called strangers or immigrants.
There are several things to note about this passage.
- Pufendorf uses the terms “subjects” and “citizens” pretty much interchangeably.
- He says here are some who give a stricter definition of the word “citizens,” indicating that this is not a universal practice.
- He divides citizens between those who are “original” (which he also calls “indigenous”) and those who are “adopted.”
- The “original” or “indigenous” citizens would include those who formed the state, and their descendants. “Adopted” citizens would apparently include all immigrants and their descendants. For example, one’s grandparents might all have immigrated into the United States from Germany; one’s parents might have been born in the United States, and one might have been born of such parents in the United States himself. Such a person — although clearly a natural born citizen even by birther standards — would apparently be considered an “adopted citizen” by Pufendorf.
- That constitutes Pufendorf’s division of citizenship. Nowhere does he mention a concept or definition of “natural born citizen” or “natural born subject.” And other than his mention of “original” or “indigenous” citizens versus “adopted” citizens, nowhere does he engage in a discussion of place of birth versus citizenship of parents in the determination of an individual’s citizenship status.
Pufendorf also wrote Elementorum Iurisprudentiae Universalis (Elements Of Universal Jurisprudence, 1660). A search of this work turns up nothing at all defining or attempting to define either a “natural born subject” or a “natural born citizen,” and nothing that appears relevant to the question.
Samuel von Pufendorf thus has little to say on the subject. He provides no definition of “natural born citizen,” and no use of the term “natural born” at all.
3) Hugo Grotius (Netherlands)
Grotius was the 15th most cited author by the Founding Fathers, with about 2 quotes out of every 200.
His major work is De Jure Belli ac Pacis (On the Law of War and Peace, 1625).
This says nothing that appears to be relevant to the question.
Grotius also wrote De Origine Gentium Americanarum Dissertatio (Dissertation on the Origin of the Native Races of America, 1642). This was a 15-page work in Latin that consisted merely of speculation on where the races of the Native Americans had come from.
Hugo Grotius appears completely silent on the issue of “natural born citizenship.”
None of the our remaining leading authors on the “Law of Nations” appear on Donald Lutz’s list of the 37 writers most cited by the Founding Fathers. Still, they were influential in their narrow field.
4) Cornelius van Bynkershoek (Netherlands)
The one work by Bynkershoek which appears to actually be relevant is his Quaestiones Juris Publici (Questions of Public Law, 1737).
Bynkershoek taught that a person has the right to remove himself from a society and renounce his allegiance to the sovereign of the country from which he departed.
In regard to parentage versus place of birth: All references by Bynkershoek to a person’s national allegiance seem to do with the place of their birth, and not to the nationality of his or her parents.
For this reason, it seems obvious that Bynkershoek would regard foreign-born persons who had established residence in the United States as members of the United States; and their children as “natural born citizens” of the United States.
5) Jean-Jacques Burlamaqui (Switzerland)
Burlamaqui’s work included Principes du Droit Naturel (1747) and Principes du Droit Politique (1751), sometimes published in a single volume (The Principles of Natural and Politic Law).
According to Wikipedia: “His vision of constitutionalism had a major influence on the American Founding Fathers; for example, his understanding of checks and balances was much more sophisticated and practical than that of Montesquieu.”
In Burlamaqui’s view, foreigners who established permanent residence in a new country were no longer even subjects of the country that they had left!
For this reason, it seems quite obvious that Burlamaqui would have regarded the children of such persons as being “natural born citizens” of the country they were born in.
6) Thomas Rutherforth (England)
Rutherforth’s sole relevant work appears to be his Institutes of Natural Law (1754-56).
In this, he writes:
It will be necessary… to consider by what means men naturally become members of any particular nation or civil society; and by what means, after they are so become members, they may be at liberty to separate themselves from it again. Civil societies, in general, are willing to consider persons who are born amongst them, as members of those societies where they are born… There does not appear to be any natural reason why a child, though he is born of parents who belong to any particular nation or civil society, and is likewise born within the territories of that nation, should be obliged, after he is come to years of discretion, to continue in it.
The only difference between a native and a foreigner, in respect of their becoming members of any particular civil society, is that the native was certainly never united to any other society; whereas, the foreigner may possibly have been united to some other, before he came to settle within the territories of this… These principles, however, are not applicable to foreigners, who have been brought by their parents into the territories of any nation, and have settled there, whilst they were in their infancy. For at that time of life, they could naturally owe no allegiance elsewhere.
It is thus clear that Rutherforth regards a young child brought by non-citizen parents into a country as having NO allegiance whatsoever to the country his parents came from. And this refers to a child already born elsewhere! For this reason, Rutherforth further undermines the claims of Apuzzo and the birthers.
7) Christian Wolff (Germany)
Wolff wrote Jus Gentium Methodo Scientifica Pertracatum (The Law of Nations Treated According to a Scientific Method, 1764).
And he seems to disagree with Vattel on who are natives.
Those who are born of citizen parents either on the unoccupied sea, or an occupied part of it, are natives. For those who are citizens remain such, wherever they may live for the purpose of any business, consequently they do not lose the right of citizenship for the reason that they are living on the unoccupied sea or on an occupied part of it. Therefore, since a state is preserved through the children who are born of citizens, the children through their birth become members of the state, consequently citizens; and since therefore those are natives who are citizens of that region in which they dwell, those who are born of citizen parents either on the unoccupied sea, or on an occupied part of it, are natives.
So he says that the state is preserved through its citizens’ children, and that those born on the sea of citizens are also citizens. So far, so good for the birthers. But…
Foreigners, as long as they dwell in alien territory or stay there, are temporary citizens. For when they enter an alien territory they tacitly bind themselves that they wish to subject their acts to the laws of the place, and the laws have the same force over them as over citizens… since civil laws bind only the members of that state in which they are passed, foreigners, as long as they dwell in alien territory or stay there, are to be considered as members of that state to which the territory belongs; consequently, since members of a state are citizens, foreigners, as long as they dwell in alien territory or stay there, are temporary citizens.
Uh oh… Wolff regarded foreigners dwelling in a country as temporary citizens of that country. This is not good for the birther position. Not at all.
He who dwells in alien territory or stays there, since that cannot be done without the consent of the ruler of the territory, associates himself with citizens, not indeed permanently, but at all events for a certain time. And he cannot be considered otherwise than as one received into the state on a certain condition for a certain time. Therefore the idea of a temporary citizen, such as we conceive foreigners to be as long as they dwell in the territory of another or stay there, contains nothing absurd, and there is no one who does not know that foreigners staying in alien territory are called temporary citizens.
He even says “there is no one who does not know that foreigners staying in alien territory are called temporary citizens.”
Let’s see what Wolff says about a person’s native country:
A native country is defined as a place, namely, a land or city, in which one’s parents have a domicile, when he is born, the reference being to the nation or some particular corporation of a nation, to which the land or city belongs. In the native vernacular, we say with the broader meaning das Vaterland [Fatherland], in the narrower die Vaterstadt [Father-city], as the land or city in which our fathers dwelt from whom we have derived our stock.
Moreover, the place of birth, which is the place in which we have been born, differs from native country. When any one is born in his native country, a thing which usually happens, place of birth is synonymous with native country especially in the stricter significance, but if any one is born on a journey or in a foreign land, where his parents are living on account of some business, his native country differs from his place of birth… It is not without reason that the native land is discussed in the law of nations, since on it depend certain rights, which men do not enjoy unless they have this native land. Therefore, since these rights belong to any one because he is born of parents who have a domicile either in this territory or in this city or in this district, this is the reason why native country admits the broader and narrower significance…
…he who is born of parents who have their domicile in London in England, is called a Londoner and an Englishman, even if his parents at the time of his birth have been living in some place outside of England, for example, if they were in Germany on account of military service or if the father was performing the duty of an ambassador in the court of the most Christian King.
Since a native country is a place where the parents have domicile at the time of one’s birth, moreover, since vagabonds have no domicile anywhere, he who is born of parents who are vagabonds has no native country, except so far as vagabonds are supposed to have retained their natural domicile, consequently the native country of the parents is considered their native country also. So those who are born of Gipsies have no native country, just as their parents do not.
Since your native country depends upon birth, moreover, since what has been done cannot be undone, your native country remains your native country, even if you establish your domicile outside of it, or abandon it, or even if you are driven out of it. So England or France remains the native country of an Englishman or a Frenchman, even if he has established a domicile for himself outside of England or France, intending never to return to England or France. And although those born of French parents in Germany or Holland are still called French, because they derive their stock from a Frenchman; nevertheless their native country is Germany or Holland, or the city of which they are natives in the narrower sense.
Wolff’s view is therefore a bit complex, but clear:
A person’s native country is the place where his parents have a permanent residence or domicile, when he is born, without regard to the citizenship of the parents. Therefore, if a person was born to Italian citizens merely visiting the United States on business, his native country would have been Italy. But if he was born to Italian citizens with a permanent domicile in the United States, then his native country would have been the United States and not Italy.
It also follows, by Wolff’s view, that if a child was born to Italian parents on a trip to Italy, but their only permanent domicile was in the United States, then their child’s native country would be the United States. And that native country was permanent.
For this reason, according to Wolff, the “native country” of a child born in the US to non-citizen parents living in the US is… the United States.
He thus further undermines Apuzzo and the birthers.
We have looked at every relevant work by every major writer on the Law of Nations.
Except for Vattel, those Law of Nations writers who actually have anything to say on the subject appear to hold concepts of citizenship that were virtually identical to the English common law concept of “natural born subject.”
Vattel is the ONLY writer on the “Law of Nations” who claims that in order to be “of” a country, you must have parents who are citizens of that country. Generally speaking, a person’s country was the country in which he was born, without regard to whether or not his parents were citizens.
Summary of the Relationship between “Natural Born Citizen,” American Common Law, and the “Law of Nations”
- The evidence is unclear whether and to what degree the “Law of Nations” was ever incorporated into American common law.
- Even though the Law of Nations was incorporated “in its full extent” into the English common law, that in no way ever prevented the child born on English soil of non-citizen parents from being a natural born subject.
- Therefore, even if the Law of Nations were fully incorporated into American law, there is absolutely nothing that would prevent the child born on US soil of non-citizen parents from being a natural born citizen.
- Meanwhile, not one of the 7 major writers on the Law of Nations ever used the term of art “natural born citizen.” The term therefore did NOT originate with the “Law of Nations.”
- Neither is it true that a concept of “natural born citizen” as being born exclusively of citizen parents originated in the Law of Nations. Many of the Law of Nations writers in fact clearly undermine the Mario Apuzzo / birther concept of who the natural citizens of a country are.
- As we’ve seen, there is NO specific evidence linking “natural born citizen” to the writings or concepts of Emer de Vattel at all. Nor is there anything to link “natural born citizen” to similar writings or concepts from any other major writer on the Law of Nations.
- All available evidence of any substance at all links the term to the English common law term and concept of a “natural born subject.” And under that concept, children born in a country, even of non-citizen parents, were always “natural born.”
- As mentioned in our last article, Minor v Happersett emphatically did not rule in favor of a “birther” definition of natural born citizen (“Strike One.”) And US v Wong Kim Ark emphatically ruled against a “birther” definition of natural born citizen (“Strike Two.”)
- The Law of Nations was therefore the third strike and last chance for the main legal claims of Mario Apuzzo and the birthers. They have thus completely struck out.
There is simply no specific evidence whatsoever that “natural born citizen” legally means that a person must have two citizen parents. And as we’ve seen elsewhere, there is an abundance of legal evidence against the idea.