Birther Bust Bombshell: Prominent Legal Expert St. George Tucker DIRECTLY Refutes Mario Apuzzo’s Crank Natural Born Citizen Claim

St. George Tucker, One of Early America's Most Important Legal Experts

St. George Tucker, One of Early America's Most Important Legal Experts

“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.

Tucker's Edition of Blacktone's Commentaries Quickly Became a Leading Law Text in Early America

Tucker's Edition of Blacktone's Commentaries Quickly Became a Leading Law Text in Early America

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 editionBlackstone 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.

Colonel George Nicholas As a Young Man (Circa 1774)

Colonel George Nicholas As a Young Man (Circa 1774)

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:

And these all turn out to be laws that we have dealt with before. They are:

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.

The Original St. George Slew the Dragon. This One Drives a Stake Through the Heart of the Two-Citizen-Parent Claim.

The Original St. George Slew the Dragon. This One Drives a Stake Through the Heart of the Two-Citizen-Parent Claim.

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.

Posted in Conclusions, Natural Born Citizen, New Information | 418 Comments

Early Use of the Term “Natural Born Citizen”

The State of Maryland and the Marquis de Lafayette Are Associated With One of the Earliest American -- and Legal -- Uses of "Natural Born Citizen."

The State of Maryland and the Marquis de Lafayette Are Associated With One of the Earliest American -- and Legal -- Uses of "Natural Born Citizen."

“Birther” lawyer Mario Apuzzo states that “the ‘natural born Citizen’ clause as applies to republics is a word of art, an idiom, and therefore has a very specific meaning which comes down through the ages.”

And he maintains that this specific meaning is substantially different from the extremely similar “term of art” natural born subject— which does, in fact, have a known and centuries-long history and specific meaning.

But, as always, there are significant problems with Mr. Apuzzo’s claim.

One obvious problem is that early American state legislatures — with a few exceptions which we will shortly see — only began using the term “natural born citizen” after it appeared in our United States Constitution in September of 1787.

And when they did, they used it in exactly the same ways that they had previously used “natural born subject” and “natural born person.”

In fact, the Massachusetts legislature, early in our American history, used the terms “natural born citizen” and “natural born subject” completely interchangeably.

And nobody seems to have ever noted any particular distinction between the two, either — except that we were no longer “subjects” to a king, but “citizens” of a free nation.

“A Very Specific Meaning Which Comes Down Through the Ages” Equals… Nine Known Occurrences?!??

A second major problem is that prior to its use in the Constitution, there are only a handful of known examples of the exact phrase “natural born citizen” — in law, or in any place else.

Mario Apuzzo claims that the term’s definition comes from “the Law of Nations.” But, as detailed in this blog’s two most recent articles, the term was never used — not even once — in any relevant work by any of the major writers on the Law of Nations. And it doesn’t appear to have ever been used even once by any minor writer on the Law of Nations, either.

For this reason, Mr. Apuzzo’s claim that the term was defined by the Law of Nations is now clearly shown to be false.

The Known Occurrences of “Natural Born Citizen” Before the Term Appeared in Our Constitution Are So Few, We Can Actually List Them.

Veturia Pleads With Marcius: Please Spare Rome!

Veturia Pleads With Marcius: Please Spare Rome!

1) The term appears in 1720, in London, in A proposal for printing in English, the select orations of Marcus Tullius Cicero. This quotes Cicero as having stated that the Smyrneans claim Homer (the famous Poet) to be their “natural born citizen.”

2) The term also appears in 1758, in The Roman Antiquities of Dionysius Halicarnassensis, as translated into English by Edward Spelman.

In this story, a woman named Veturia pleads with her son Marcius not to lead the Volscians in an attack against his home town of Rome, but to broker peace instead. She fears that Marcius won’t take her advice, because it would make him look ungrateful to the Volscians, who had given him “all the advantages, which their natural born citizens are intitled to.”

3) Then, in 1774, a translation by J. Patsall was published of Quintlian’s Institutes of the Orator. This was an ancient Roman manual on how to be a public speaker.

In that book, Quintilian advises his pupils, “Therefore, If possible, every word, and the very tone of voice, should bespeak the natural born citizen of Rome, that the language may be purely Roman, and not so by a right different from birth and education.”

The advice was simple, and sound: If you want to go to Rome and impress the crowds, don’t go sounding like a foreigner, or a hick from the sticks. Learn to speak in public using a standard accent and intonation.

It’s advice that newscasters and weather presenters still follow today.

Quintillian, of course, was not writing a legal treatise. He was writing a manual on how to be a successful public speaker.

Now to claim that because one particular Englishman translated Quintillian’s public-speaking advice by telling pupils to speak like a “natural born citizen” — a different translator used the word “native” — that the Founding Fathers of the United States, over in America, read that translation, interpreted the phrase “natural born citizen” as “born in a country of two citizen parents” (which it doesn’t say), and then used that to define a key term is the American Constitution is simply — to use the technical term for it — cuckoo.

And yet, Mr. Apuzzo actually implies (in his 199-page legal brief, filed in Kerchner v Obama) that this is what happened.

All three of the translations above were done in London, by Englishmen.

So why didn’t they use the term “natural born subject?” “Subject” implies an obligation of allegiance to the King. And they knew that in Rome, people weren’t called “subjects.” They were called “citizens.”

So the British translators of these three works simply changed the word “subject” in “natural born subject” to “citizen” — just as we did, years later, for the “natural born citizen” clause of the Constitution.

None of these three brief mentions of the phrase “natural born citizen” — and all of them consist of one use only — occurred in any legal document or even in any philosophical treatise on government or on law.

“Natural Born Citizen” Debuts in America: 1777 — 1786

4) In November of 1777, the Continental Congress drafted the Articles of Confederation, the predecessor to our Constitution. The following wording appeared in one or more drafts of the Articles of Confederation:

“And for the more certain preservation of friendship and mutual intercourse between the people of the different States in this Union, the Citizens of every State, going to reside in another State, Shall be entitled to all the rights and privileges of the natural born free Citizens of the State to which they go to reside.”

The phrase “natural born” was dropped from the final draft.

There are two interesting things to note here. The first is the phrase used: “natural born free Citizens” rather than “natural born citizens.” This suggests that our modern term of art “natural born citizen” had not yet quite taken shape. The Founding Fathers knew they didn’t like the word “subject,” but don’t seem to have quite settled yet on the exact wording that would replace “natural born subject.”

The second thing is the dropping of the words “natural born,” while keeping “free citizens.” This descriptive phrase was dropped in a way that suggests it is just that — a descriptive phrase with its own specific meaning, which could be applied to “subject,” “citizen,” or “free citizen” (“natural born” was also used with “person” in an earlier Maryland law).

All of this suggests that most of the “term of art” is in the adjective phrase — “natural born” — which can equally be applied to “people,” “subjects,” “free citizens,” or “citizens.”

[Credit for this addition goes to gorefan.]

5) By the fall of 1784, word began spreading across the American countryside that all sides had ratified the Treaty of Paris, bringing an end to the Revolutionary War.

A new nation was officially born.

In December, the grateful citizens of Maryland passed a law expressing their appreciation to the Marquis de Lafayette. This French nobleman and military man had come to our shores, served as a general under George Washington, been wounded, acted as a hero, and even returned to France in the middle of the war to drum up additional French support.

As a result, the State of Maryland declared Lafayette — and all of his male heirs forever — “deemed, adjudged and taken to be” natural born citizens of the State of Maryland:

“Be it enacted by the General Assembly of Maryland — that the Marquiss de la Lafayette and his Heirs male forever shall be and they and each of them are hereby deemed adjudged and taken to be natural born Citizens of this State and shall henceforth be intitled to all the Immunities, Rights and Privileges of natural born Citizens thereof…”

It was with this Act that the State of Maryland switched from giving people who were to be naturalized the rights of “natural born subjects” — which they had been doing at least since the early 1700s, to giving such persons the rights of “natural born citizens.” But there appears to be no practical difference between the two.

6) The term appears in a 1785 letter from future President John Adams to future President Thomas Jefferson:

“The Briton’s alien’s duty is a very burdensome thing, and they may carry it hereafter as far upon tobacco, rice, indigo, and twenty other things, as they now do upon oil. To obviate this, I think of substituting the words ‘natural born citizens of the United States,’ and ‘natural born subjects of Great Britain,/ instead of ‘the most favored nation.'”

The interesting thing to note here is that the term “natural born citizens” (for Americans) is used right alongside and in the exact same way as the term “natural born subjects” (for the British).

This strongly suggests that our Founding Father John Adams understood it to have exactly the same meaning — except, of course, for the distinction of freedom between “subject” and “citizen.”

[Credit for this addition goes to ballantine.]

7, 8 and 9) The State of Massachusetts, in the mid-1780s, also began referring to “natural born citizens.”

In February of 1785, the Massachusetts legislature passed “An Act for Naturalizing Nicholas Rousselet and George Smith.”

This act decreed that the aforementioned persons should be “deemed, adjudged and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”

In Februrary of the next year, it was “An Act for Naturalizing Michael Walsh.”

This Act naturalized an immigrant by the name of (not suprisingly) Michael Walsh, and provided (again) that he should 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.”

Finally, in July of 1786, the legislature passed a similar “Act for Naturalizing Jonathon Curson and William Oliver.”

Examples 4 through 9 represent the only American usages, and the only legal usages of the term “natural born citizen,” that I’ve been able to locate, prior to the adoption of the Presidential eligibility clause.

Were there others? Most likely. But if there are, they seem to be buried in history; and as far as I can tell, no one has produced them yet.

The Interesting Thing About the American and Legal Usages of the Term “Natural Born Citizen”

Now the interesting thing about these pre-Constitutional usages, is that most of them were used absolutely synonymously with the term “natural born subject.”

Actually, the Massachusetts legislature, in fact, is known to have used the two terms interchangeably.

So not only does the known American and legal usage of the term prior to the Constitution fail to support Mr. Apuzzo’s claim — it provides additional evidence that — except for the difference between “subject” and “citizen” — “natural born citizen” meant exactly what “natural born subject” had always meant.

And “natural born subject” had always included — with extremely limited exceptions (children of ambassadors, foreign royalty, invading armies) — all children born in the country, even of non-citizen parents.

This new information thus adds still more substance to the already large mountain of evidence that it does not — and never did — require citizen parents for any child born in the United States to be a “natural born citizen.”

Posted in Conclusions, Natural Born Citizen, New Information | 75 Comments

What the Writers on the Law of Nations Had to Say Relevant to Natural Born Citizenship

What Did the Law of Nations Writers Say Relevant to Natural Born Citizenship? Pictured: Vattel, Pufendorf, Grotius, Bynkershoek, Burlamaqui, and Wolff

What Did the Law of Nations Writers Say Relevant to Natural Born Citizenship? Pictured: Vattel, Pufendorf, Grotius, Bynkershoek, Burlamaqui, and Wolff

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.

Next we are told that this American common law came from the Law of Nations, which was supposedly incorporated into US law.

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.

These include:

  • 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)

Vattel

Vattel

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

Pufendorf

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

Grotius

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)

Bynkershoek

Bynkershoek

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

Burlamaqui

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

Wolff

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.

Conclusion

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.

And this was true not only according to the English common law — it was also true according to most of the major writers on the Law of Nations.

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.”)
Mario Apuzzo and the Birthers Have Completely Struck Out.

Mario Apuzzo and the Birthers Have Completely Struck Out.

  • 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.
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Natural Born Citizenship and the “Law of Nations”

Did the Meaning of “Natural Born Citizen” Come From “American Common Law” Derived from the Law of Nations?

"Anyone Wanna Take Credit for 'Natural Born Citizen?'" -- Law of Nations Writers Vattel, Pufendorf, Grotius, Bynkershoek, Burlamaqui, and Wolff (Not Pictured: Thomas Rutherforth)

"Anyone Wanna Take Credit for 'Natural Born Citizen?'" -- Law of Nations Writers Vattel, Pufendorf, Grotius, Bynkershoek, Burlamaqui, and Wolff (Not Pictured: Thomas Rutherforth)

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:

… ‘natural born Citizens…’ were defined under American common law (the law of nations) as the children born in the country to ‘citizen’ parents.

Were American and English Common Law Really Diametrically Opposed on this Point?

Natural Born Subject: No Citizen Parents Required. But Natural Born Citizen: Two Citizen Parents Required?

Natural Born Subject: No Citizen Parents Required. But Natural Born Citizen: TWO Citizen Parents Required?

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?

Apuzzo at Bat: The Birthers Really, REALLY Need a Home Run -- Just to Stay in the Game.

Apuzzo at Bat: The Birthers Really, REALLY Need a Home Run -- Just to Stay in the Game.

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.

Where?

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.”

He can’t.

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.

Posted in Conclusions, Natural Born Citizen, New Information | 90 Comments

America’s First Legal Text — Subscribed to by George Washington, John Adams, and James Madison — Reveals the Meaning of “Natural Born.”

Washington, Adams, Madison, Ellsworth, Wilson, Iredell -- Zephaniah Swift's Subscribers Included 3 Presidents and Half the US Supreme Court

Washington, Adams, Madison, Ellsworth, Wilson, Iredell -- Zephaniah Swift's Subscribers
Included 3 Presidents and Half the US Supreme Court

In this article, we will see how America’s first legal text reveals an understanding of what the Founding Fathers’ generation meant by “natural born” — as in “natural born citizen.”

In 1795, United States Representative Zephaniah Swift began publishing the first American legal text in history.

It was a six-book project — in two volumes. It would take until 1796 to complete.

Written by “One of the Greatest Early American Jurists” — and Subscribed to by Three US Presidents, Various Founding Fathers and Framers of the Constitution, and Half the US Supreme Court

America's First Legal Text Reveals the Meaning of "Natural Born"

America's First Legal Text Reveals the Meaning of "Natural Born"

Swift has been described as “one of the greatest early American jurists.” He helped frame the Connecticut state Constitution and served as Chief Justice of the Connecticut Supreme Court.

And our nation’s leaders must have been impressed with his work, because he was chosen to compile the very first official set of United States statutes, “Folwell’s Statutes,” which was published the next year. (It was called “Folwell’s” Statutes because Richard Folwell was the publisher.)

Quoting the University of Connecticut School of Law:

“In 1810, Swift wrote A Digest of the Law of Evidence, the first American treatise on that subject. And in 1822, he authored his most well-known work, the Digest of the Laws of the State of Connecticut. Modeled after Blackstone’s Commentaries, it referred to Connecticut law but covered American law generally and was used throughout the U. S. It had significant influence at the time and is still being cited today.”

More information on Zephaniah Swift is available here.

Swift’s legal treatise, titled, A System of the Laws of the State of Connecticut, was issued on a subscription basis, in two volumes which spanned six books. The first volume is available here.

Subscribers included — among other notables —

  • George Washington, at that time our first President of the United States
  • John Adams, then Vice-President and soon to be the second President of the United States
  • James Madison, our fourth President of the United States, and Father of the Constitution
  • Oliver Ellsworth, Revolutionary, a drafter of the Constitution, and (by the time of the release of the second volume in 1796) Chief Justice of the US Supreme Court
  • James Wilson — Founding Father, Signer of the Declaration of Independence, and then Justice on the US Supreme Court
  • James Iredell — Strong supporter of the American Revolution and our new Constitution, and then Justice on the US Supreme Court
  • Edmund Randolph, influential delegate to the Constitutional Convention, presenter of the Virginia Plan, and first Attorney General of the United States
  • Charles Lee, third Attorney General of the United States
  • Aaron Burr, United States Senator and later Vice-President of the United States (under Thomas Jefferson)
  • Robert Morris, “Financer of the Revolution”
  • James Kent, first Professor of Law at Columbia, later Chief Justice of the New York State Supreme Court, and author of Kent’s famous Commentaries on American Law
  • St. George Tucker, famous Professor of Law at the College of William and Mary — our nation’s first law school
  • the College of William and Mary itself

Swift's Hundreds of Subscribers Were In All 16 States

Swift's Hundreds of Subscribers
Were In All 16 States

There were many other subscribers, of course.

Three of Swift’s subscribers already were (in the case of George Washington) or would soon become United States Presidents. Three of them were members of the US Supreme Court — including the Chief Justice.

Since the Court only consisted of six members in those days, that means that half of the US Supreme Court subscribed to Swift’s series of legal expositions.

And lest it be said that this was only relevant to Connecticut law, it should be noted that the subscriber list contains subscribers from literally every State of the Union — including all of the Thirteen Original States, Vermont, Kentucky, and even Tennessee — which became our 16th state around the time the second volume was published.

What Zephaniah Swift Had to Say About Citizenship and the Meaning of “Natural Born”

In his treatise, Swift uses the term “natural born subjects” rather than “natural born citizens.” Remember that we substituted the word “citizen” for the word “subject.” Remember, too, that in the 1780s and early 1790s the Massachusetts legislature clearly used the two terms — “natural born citizen” and “natural born subject” — absolutely interchangeably.

Swift wrote in 1795. It was nearly 20 years after the Declaration of Independence, and 8 years after the Drafting of the Constitution. The term “natural born subject” was fading in its use in America, but was obviously still being used.

And here’s what Zephaniah Swift had to say about citizenship:

“The people are considered as aliens, born in some foreign country, as inhabitants of some neighboring state in the union, or natural born subjects, born within the state. It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born.”

Note how he describes aliens: They are those “born in some foreign country.” This necessarily implies that those not born “in some foreign country” are not aliens.

Note also his understanding of the relationship between a person and the country in which that person is born:

“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born.

There’s no uncertainty there. There’s no doubt, no ambiguity about a person’s natural allegiance to the country in which he was born.

Swift continues:

“The children of ambassadors, tho born abroad in a foreign country, are considered as natural born subjects [of the sending country], because their parents are not supposed to owe a natural allegiance to the government to whom they are sent, but that which sends them, and of course their children must owe allegiance to the same power. The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.

Swift therefore makes it plain that children of ambassadors are not natural born subjects, but children born in Connecticut of all other aliens are.

This is in exact accordance with the “same rule” that the US Supreme Court tells us (in US v Wong Kim Ark) has always applied both in England and in the United States.

And Swift also makes it plain that when he uses the word “natural born subjects,” he is referring to individuals who are citizens of the United States:

“The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.

In short, Zephaniah Swift concurs with what we know from every other legal authority: the children born on US soil were always considered to be “natural born” — regardless of the citizenship of their parents. And they are citizens.

They are natural born citizens.

Posted in Natural Born Citizen, New Information | 115 Comments

“At Common-Law… It Was Never Doubted:”
Minor v Happersett and the American Common Law

Here We Document Legal Evidence that American Common Law Defined “Natural Born Citizen” as a Person Born on US Soil of Two Citizen Parents.

We Present the Evidence that Chief Justice Morrison Waite Was Relying on American Common Law

We Present the Evidence that Chief Justice Morrison Waite Was Relying on American Common Law

 
“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.”

— United States Supreme Court, Minor v Happersett (1875)

A Different, Perhaps More Charitable Tack

This blog has previously destroyed many of the most prominent “birther” claims that Barack Obama, Bobby Jindal, and Marco Rubio are ineligible to be President because they do not have two citizen parents.

  • The critical claim that Chinese-American Wong Kim Ark, born on US soil of two Chinese parents, was found by the US Supreme Court to be only a “citizen” and not a natural born citizen has been destroyed.
  • The flagship claim that the US Supreme Court in Minor v Happersett defined “natural born citizen” as “a person born on US soil of two citizen parents” has been ground into the dust over the course of five articles.
  • The equally important claim that the Founding Fathers and Framers of the Constitution relied on Vattel, rather than on the English common law, for the concept of “natural born citizen” has been pulverizedhere too.
  • The claim that the citizenship law Thomas Jefferson wrote for the Commonwealth of Virginia in 1779 only gave citizenship to children born on Virigina soil if their parents were already citizens has been thoroughly debunked.
  • And the claim that “Congress in the Naturalization Acts of 1790, 1795, 1802, and 1855 told us that a child born in the U.S. to alien parents was not even a ‘citizen'” has been shown to be absolutely false.

But let’s take a different, perhaps more charitable tack. Today, instead of looking for evidence to debunk the two-citizen-parent claim, I’d like to look for evidence to support it.

The birthers, and particularly Mario Apuzzo, have really been struggling lately in the face of the devastating facts that illustrate how false their major claims are. It seems only fair that we should try to help them out for a change.

I am even willing to work together with birther attorney Mario Apuzzo on this project.

Mario Apuzzo Says that When the Supreme Court in 1875 Said, “At Common-Law,” They Meant the American Common Law.

Mario Apuzzo has been clear in his claim that when the Supreme Court gave us the quote above, they were referring to American common law, and they EXCLUDED the English common law.

This is really important, because under the English common law — which Alexander Hamilton and other Supreme Courts besides Minor have told us we ought to look to when interpreting the terminology of the Constitution — it was very clear that ANY child born on the soil of the country, whether his parents were citizens or not, was a “natural born subject.” And we know for a fact that the terms “natural born subject” and “natural born citizen” were used interchangeably in the early days of the United States.

Here’s what Mr. Apuzzo has to say:

“Note that the Constitution in Article I, Section 8, Clause 4 gave the power to naturalize exclusively to Congress. This power did not include the power to make ‘natural born Citizens’ who were defined under American common law (the law of nations) as the children born in the country to ‘citizen’ parents.”

Let’s Help Mr. Apuzzo and the Birthers by Documenting the American Common Law that Defined “Natural Born Citizens” as “the Children Born in the Country to ‘Citizen’ Parents.”

Common law, by its definition, is generally law that has been established as a result of judicial decision.

So common law generally consists of:

  • the legal precedents established by judges,
  • and their quotes, in the rulings of court cases, as to what the law is.

Common law, generally speaking, doesn’t consist of theories written in books by persons who are not members of a nation’s legal system — unless, of course, those theories and quotes have been taken up by actual judges in the courts of the nation, and been made a part of the law through judicial ruling.

Since the American common law established that “natural born citizen” only meant a child born on US soil to two citizen parents, we therefore ought to look for court cases in America, prior to 1787 when the Constitution was written, in which this legal principle was established.

And we ought to try and list quotes from American judges, prior to 1787, confirming this legal precedent.

Since (as Mario Apuzzo quite rightly notes) “natural born citizen” is a term of art, and since he is very clear on the point that “natural born citizen” must have a very different meaning from “natural born subject,” (which, as we know, always included the children of non-citizen parents) then we should look for the court cases and judicial statements that use that exact term.

And of course, since we need a precedent that applies to the entire United States, we ought to look for court cases and rulings made by United States federal courts (including the Supreme Court) between 1776 and 1787, when the Constitution was written.

Oh… wait. The US Supreme Court and federal court system were established by the Constitution, in 1787. And under the previous Articles of Confederation (1776 to 1787) there was no federal court system.

So we’re likely to come up a bit skimpy on that count.

Okay then… let’s include every mention of the term of art “natural born citizen” from all State and Colonial courts, dating from the establishment of the first Colony at Jamestown in 1607, right up until the Constitutional Convention adjourned in September of 1787.

So let’s list those court cases and quotes below that establish this American common law definition!

Mario, can you help us with this? You’re the expert!

Our Listing of American Court Decisions Prior to 1787, that Establish the American Common Law Definition of “Natural Born Citizen:”

1)

 

2)

 

3)

 

4)

 

The Quotes from American Colonial, State and Federal Judges, Prior to 1787, that Make Clear the American Common Law Definition that Being a “Natural Born Citizen” Requires Two Citizen Parents:

1)

 

2)

 

3)

 

4)

 

Contributions from other researchers are welcome as well. Thanks for supporting the Constitution!


Update: I can’t seem to get any help yet from Mario Apuzzo on this project… although he has been spotted over at his blog crying that John Woodman “does not even know what American ‘common law’ is or where it came from in the early years of the Republic.”

Mario claims that the relevant “American common law” comes from elsewhere than court cases and judicial quotes. We’ll look at that claim later. First let’s establish what court cases and judicial quotes might exist.

In fact, let’s be generous to Mario here and say we’ll also be happy to list any statutory laws that were passed by any legislative bodies in America prior to the establishment of the Constitution, that specifically and clearly defined the term of art, the exact phrase “natural born citizen” as being “someone born on US soil (or in whichever Colony or State) of two parents who were already citizens,” and that children born of non-citizen parents are thereby excluded from “natural born citizen” status.

If we could even find one example of a law defining “natural born citizen” in that way, then we at least we could suppose there was some obvious basis for Mr. Apuzzo’s claims: a) that American law ever defined “natural born citizen” in that way, and b) that the Supreme Court in Minor v Happersett was referring to some type of such American law in their ruling.

Update 2: Mr. Apuzzo tacitly acknowledges, by completely failing to provide even one single example of any American judicial decision, any statement at all from any American judge, or any American law at all, from any State or Colony prior to the adoption of the Constitution, defining “natural born citizen” as requiring two citizen parents, that he HAS no such examples.

Mr. Apuzzo instead insists that the “American common law” of which he speaks is the “law of nations” incorporated into American law.

That, then, is how we (according to Mr. Apuzzo) got the definition of “natural born citizen” into our Constitution:

We supposedly adopted (apparently wholesale) the “law of nations” into our federal law, and the “law of nations” supposedly defines “natural born citizen” as “someone born in a country of two citizen parents.”

And any such definition of “natural born citizen” supposedly supersedes the fact that we changed “subject” to “citizen” and that for hundreds of years, “natural born subject” had always included the children born locally of non-citizen parents.

Surprisingly, the claim is not just dismissible out of hand. Our Founding Fathers did indeed generally believe that we should comply with certain principles of relationships between nations — the “law of nations,” and they were in fact concerned that we do so.

In a future article I intend to address the “law of nations.” For now, it’s enough to note: Mr. Apuzzo has produced, and can produce, no evidence at all to indicate that any past judicial precedent in America, or any American law, established the definition of “natural born citizen” that he claims.

Update 3: I have made some corrections to this article in accordance with Apuzzo’s having pointed out that it doesn’t really address his actual claim. Ironically, correcting an article is something I’ve never seen Mr. Apuzzo do. But I am not here to imitate him (far from it). I am here to write the truth, whichever directions the truth leads.

Apuzzo still has produced absolutely no evidence whatsoever that any American judge or legislature prior to the writing of the Constitution ever defined the term of art “natural born citizen” as “someone born on US soil of two US citizen parents.” We may therefore assume he has none.

We must hunt elsewhere, then for this “American common law.”

Update 4: Two articles looking at whether the definition of “natural born citizen” could possibly have come from American common law originating in the “Law of Nations” have been posted. This series concludes with a summary of the legal evidence.

Posted in Natural Born Citizen, New Information | 111 Comments

Some Questions for Mario Apuzzo on Natural Born Citizenship

In This Article, We Put Mario Apuzzo on the Hot Seat

In This Article, We Put Mario Apuzzo and His Dubious Constitutional Claims on the Hot Seat

Recently, Mario Apuzzo, the main proponent of the claim that “natural born citizen” means “someone born on US soil of two citizen parents” — has participated in some debate here regarding Swiss philosopher Emer de Vattel’s influence (or lack thereof) on the meaning of “natural born citizen.”

For about 3 years, Mr. Apuzzo has been very determinedly claiming that anyone who does not have two US citizen parents at the time of his or her birth is ineligible to run for or serve as President or Vice-President of the United States.

Apuzzo has been “spreading the word” that our current President is Constitutionally ineligible — and so are some potential conservative candidates for President or Vice-President, including Bobby Jindal and Marco Rubio.

Mr. Apuzzo’s claims are impressive in their volume, their detail, and their seeming plausibility. Because of this, quite a few people in America have listened to his claims, and quite a few other people have passed them on to others.

Entire organizations — such as an “Article II SuperPAC” — have been formed to ensure that candidates meet these “Constitutional qualifications.” There are some folks pushing for our legislatures to pass laws making sure candidates are born with citizens for parents. And literally dozens of lawsuits have been filed in our courts challenging our current President’s eligibility on Constitutional grounds.

Yet, when one starts to closely examine the claims of Mr. Apuzzo, and similar claims made by others, one quickly begins to run into problems.

This has brought to mind a list of questions that we might ask Mr. Apuzzo. I am, of course, inviting Mr. Apuzzo to answer these questions in the comments here.

Many of these questions have to do with the nuts and bolts of the major claims made by Mr. Apuzzo and other “birthers.” Those who are newer to the issue and would like an overview — including conclusions reached regarding the “birther” claims — may like to refer to this article.

By the way, these are not new issues. They’ve been out there for a while. There’s already been extensive discussion of almost all aspects of Apuzzo’s major claims. But in spite of having deficiencies (and frankly, falsehood) of many of these claims pointed out by many people, Mr. Apuzzo continues to widely promote them. This fact has led to bringing a number of fairly pointed questions together in a single place, so as to help illustrate the fact that these claims of two-citizen-parent birtherism do not accurately represent our Constitution or our laws.

The Questions for Mario Apuzzo

1) Mr. Apuzzo: Why do you claim that THREE SHORT SENTENCES in the Supreme Court case of Minor v Happersett established “binding precedent” on a topic (the citizenship of children with non-citizen parents) that was not by any stretch of the imagination the actual question before the Court?

[Note: Further detailed discussion of Apuzzo’s claims regarding Minor v Happersett is available starting here.]

And is it normal for a lawyer to claim that three sentences on a topic that is not a part of the question before the court constitutes “binding precedent?”

2) Why do you claim that three sentences on a topic (see above) that was not by any stretch of the imagination the actual question before the Court, in which there was ZERO discussion, ZERO research, and ZERO presentation of any actual authorities or references, is “binding precedent,” or anything other than pure obiter dicta — side comments — when in fact it clearly is nothing but side comment?

3) Why do you claim that Minor v Happersett gave a “definition” of “natural born citizen” — when there was clearly no reason for them to do so in that case, no expressed intention in that paragraph to do any such thing, and they themselves said regarding the status of children born on US soil to non-citizens, “For the purposes of this case it is not necessary to solve these doubts?”

4) Why did you make the following transparently false statement on my blog?

“Third, the Founders and Framers, in using the ‘natural born Citizen,’ clause for presidential eligibility, could not have intended that the clause would have had more than one definition. Minor gave us that only one definition and said that there were no doubts about that definition.

5) Why do you claim that the Court would EVER lay down a “binding precedent” on a topic not before the Court, without clearly spelling such a precedent out, and without giving even ONE single statement of background reasoning or even ONE single authority to justify such a “binding precedent?”

6) Why do you refuse to acknowledge that the Supreme Court in US v Wong Kim Ark found that the child born on US soil of parents was “natural born” — when the Court clearly stated that every citizen or subject of another country, while domiciled here” has an allegiance that is “strong enough to make a natural subject, for if he hath issue [that is, a child] here, that issue is a natural-born subject?

And why do you refuse to acknowledge that Wong Kim Ark clearly and absolutely fit those circumstances, and therefore was found — as an “irresistible” “conclusion” (in the words of the Court) to be a “natural born subject” (or if you prefer, a “natural born citizen” — whichever term you choose to use) as well as “a citizen?”

7) Why do you refuse to acknowledge the plain words of the Court in US v Wong Kim Ark, when they stated that the “SAME RULE” had always applied, first in England, then in the English Colonies, then in the United States after independence and after the adoption of the Constitution, and that that RULE was that “every child born in England [and later, the Colonies and the United States,] of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born?”

8.) Why do you claim that the Framers of the Constitution meant Vattel’s idea of citizenship,

  • when the term “natural born” itself came very clearly and undeniably directly from the English common law,
  • when it had a long-established and accepted meaning that is in direct conflict with Vattel’s concept,
  • when the Founding Fathers quoted Blackstone (the English common law authority) SIXTEEN TIMES as often as they quoted Vattel,
  • when there is absolutely zero evidence that the Framers of the Constitution meant anything other than what the term had always meant,
  • when there is absolutely zero record of any debate on the subject (indicating that the term was clearly understood and non-controversial and therefore MUST have meant what it had always meant),
  • when there is absolutely zero association of the term with Vattel in any of the writing of the entire period,
  • when it is clear that the Founding Fathers rejected many of Vattel’s other ideas (such as restrictions on the right to bear arms and freedom of press and religion),
  • and when you have produced and can produce absolutely no evidence that they actually meant Vattel’s concept by it?

9) If the Framers of the Constitution were referring to Vattel’s concept, then why didn’t they use Vattel’s terminology — and state that the President had to be “a natural,” or “an indigene?”

10) And finally, if they didn’t rely on our ENGLISH heritage and the common law for the meaning of “natural born citizen,” then why would they ever choose to use a specific legal term which was found in the common law and no place else?

Posted in Conclusions, Natural Born Citizen, New Information, Stuff Birthers Believe | 245 Comments

Vattel and “Natural Born Citizen”

Was Swiss Philosopher and Early Fashion Icon Emer de Vattel Behind Our Concept of "Natural Born Citizen?"

Was Swiss Philosopher & Early Fashion Icon Emer de Vattel Behind Our Concept of "Natural Born Citizen?"

According to a new wave of commentators on the US Constitution — such as “birther” lawyer Mario Apuzzo — the Founding Fathers, when writing that the President was required to be a “natural born citizen,” did not rely on our own English heritage and existing English-language terminology for the concept and definition of that phrase.

Instead, according to Apuzzo and others, the Framers of the Constitution were referring to a concept of citizenship put forward by the Swiss philosopher Emer de Vattel in his 1758 book, “Le Droit des Gens,” or “The Law of Nations.”

In his book, Vattel stated that the “naturels” or “indigenes” were those born in a country of parents who were citizens. And he added, “I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

But some have noted that there are just a few small problems with the idea that the Framers of the Constitution were thinking of Monsieur Vattel’s ideas when they wrote that the President of the United States had to be a “natural born citizen.”

The First Problem: Neither Vattel Nor His Translators Had Ever Used the Phrase “Natural Born Citizen.”

The first difficulty is that Vattel’s phrase that Apuzzo and others quote (“les naturels, ou indigènes” ) wasn’t actually translated into English using the phrase “natural born citizens” until 10 years after the Constitution’s Presidential eligibility clause was written.

Hmm. That’s a problem.

Undeterred, and even though Mr. Apuzzo states, “I do not believe Vattel wrote ‘natural-born citizens,'” and even though he admits that Vattel’s book was never translated  into English using the phrase “natural born citizens” until 10 years after the Constitution was written — Mr. Apuzzo nonetheless maintains that still the Founding Fathers meant Vattel’s concept when they said “natural born citizen.”

A dubious claim, to be sure.

Exactly how dubious begins to become clear when you understand that the phrase “natural born subject” already had a very long and clear history in the English language.

A Centuries-Established Term With a Centuries-Established Meaning — Well Known in Law

A second issue is that this exact phrase was a standard term in the English common law, which was very well known to most if not all of the Framers of the Constitution. And the phrase had always, literally for centuries, included all children born on the soil of the country.

Even those with two alien parents.

The only exceptions were children born to foreign royalty and ambassadors, and to members of a hostile, invading army.

And exactly how dubious Apuzzo’s claim is becomes even more clear when you look at the research of Professor Donald Lutz into the influences on our Founding Fathers.

Lutz’s research shows clearly that for every one time the Founding Fathers quoted Vattel, they quoted Blackstone, the authority on the common law, a whopping sixteen times.

A Lack of Any Known Quote Ever Attributing the Concept to Vattel

The third problem is that nobody has ever produced any quote, from any significant figure in history, that actually says that the Founding Fathers or Framers of the Constitution relied on Vattel for their definition of “natural born citizen.”

Not once.

So if Vattel’s phrase had never been translated “natural born citizens,” and if “natural born” was a well-known, long-standing term that had been used for centuries to describe subjects of England — not just in England itself but also in the American colonies — and if we have no record whatsoever that actually says that any Founding Father or Framer of the Constitution ever relied on Vattel for the meaning of the term… one begins to wonder why exactly it’s claimed that the meaning came from Vattel?

No Debate At All Implies an Understood, Unambiguous Term.

The fourth problem is that there was no debate at all on the term.

If the Framers of the Constitution had intended the use of this term — with its well-known, established meaning — in any different sense than the one which it had always held (or in other words, if they had intended to mean Monsieur Vattel’s concept), then undoubtedly there would have been some debate as to exactly what the phrase was being used to mean. And undoubtedly there would have been some clarification as well.

But there wasn’t. The records of the Constitutional Convention show no debate whatsoever on the meaning of the term.

Actually, if there had been any doubt as to the term’s meaning, it would’ve been far better to use a phrase that did not have any ambiguity at all in its meaning.

For example, if the Founding Fathers had meant Vattel’s meaning, then logically, one would expect them to have used Vattel’s terminology — either “naturel,” or — even better, “indigene,” which is a recognized word in English as well as in French.

But they didn’t use either of those words.

Actually, even that might have required a bit of clarification, since Noah Webster’s famous 1828 dictionary gives the meaning of “indigene” as “One born in a country; a native animal or plant.”

It would appear that — even in regard to the same word — even Mr. Webster wasn’t thinking in terms of the Swiss guy’s concept.

New Information! We Can Get a Pretty Good Idea of What Was Being Said in Early America Regarding Vattel and Natural Born Citizenship.

Today I realized that it’s actually fairly easy to get a pretty good idea of how much Emer de Vattel was being talked about in regard to “natural born citizenship.”

It turns out that we have a wonderful repository of a large number of searchable books that date back for literally hundreds of years.

This repository of searchable texts is brought to us courtesy of Internet giant Google, and it’s available at books.google.com.

Now if Mr. Vattel and his work — The Law of Nations — was associated with the phrase “natural born citizen,” then undoubtedly somebody will have written something about that fact.

We can therefore get an idea of how closely Vattel’s name was associated with the phrase “natural born citizen” — by searching books of the era both for that phrase and “Vattel” in the same work.

For example, we can look for materials published between the years of, say, 1758 (when Vattel’s work was first published) and the end of 1786 — eight years after the Constitutional Convention. We just have to do an “advanced search.”

That would give us enough time to catch any references to Vattel and “natural born citizen” for close to 30 years before the Constitutional Convention, and up to the publication of the first English-language Vattel version that actually employed the phrase, in 1797.

Actually — let’s go beyond that. Let’s go ahead and search up to January 1, 1800. That will give us a span of 42 years, including about 30 years before and a dozen years after the writing of the US Constitution. It may also give us some results that indicate how much “buzz” there was about “natural born citizen” as used in the 1797 translation of Vattel’s book.

Hmmm… a Google books advanced search for

“natural born citizen” Vattel

on materials published between January 1, 1758 and January 1, 1800, conducted on April 17, 2012, turns up exactly one result.

It’s Vattel’s “Law of Nations,” but it’s in the original French (“Le Droit des Gens”), and it’s dated 1758.

And of course searching the book itself doesn’t turn up the phrase in English. So that’s a dead end.

[Note: Search results don’t appear to be 100% consistent. A search the next day gave NO results, so the search engine automatically dropped the quotes and managed to find a couple of items that used all the words, but not the exact phrase “natural born citizen.”]

Let’s Try Dropping the Word “Citizen.”

Okay… since Americans weren’t really called “citizens” until after the Constitution, let’s change that to:

“natural born” Vattel [dates: January 1, 1758 up to January 1, 1800]

Ah — that’s better. We get 4 additional results.

One of these mentions both “Vattel” and “natural born,” but the mentions are clearly unrelated. Strike one.

The second is titled, “The Revised Reports: Being a Republication of Such Cases in the English Courts of Common Law and Equity : from the Year 1785, as are Still of Practical Utility, Volumes 1-5; Volume 53.”

So… that’s a collection of legal cases from England, put out by a British publisher. (The English company “Sweet & Maxwell” is still in business, by the way). While I couldn’t access the text, it seems quite safe to say that a collection of English court cases won’t contain any discussion of Vattel and “natural born citizen” in America. Strike two.

The third title is “Pamphets of the American Revolution,” dated 1776. A bit of searching reveals this doesn’t appear to be an actual book. Although a similarly-titled book was published in 1965, there’s no record of any such book dated in the 1700s at the Library of Congress, at Amazon, anywhere on the web, or among the 140 million old books in the database of AbeBooks.com. So it doesn’t exist. It’s kind of a rogue database entry, most likely referring to the 1965 book.

Still, that book might contain a pamphlet with both of the phrases in the same pamphlet.

Here’s a description of the 1965 book: “This is the first volume of a four-volume set that will reprint in their entirety the texts of 72 pamphlets relating to the Anglo-American controversy that were published in America in the years 1750-1776.”

So there are a bunch of pamphlets in the 1965 work, not just a few. That seems a dead end as well. Strike three.

Our final “hit” is a reference to the actual 1797 edition of Vattel’s work, which translated his phrase into English as “natural born citizens” for the first time.

Well… of course that would be there. Strike four.

So we’ve completely struck out. As far as we can tell, there does not seem to be record of one single mention of “Vattel” together with the phrase “natural born,” at any time between the years 1758 and 1800, in the entire vast store of books searchable through Google books.

The Founding Fathers Relied on Vattel for the Definition of Natural Born Citizen. So Surely One of Them Must Have Noted it in Some Book Over the Next 50 Years After Writing the Constitution, Right?

We can do a search on this too. “Natural born citizen,” Vattel, years 1787 through 1837.

Hmmm…. That similarly strikes out. Nothing at all.

[Note: A search the next day did produce 3 results, but none of these were useful.]

Maybe the Phrase Just Was Never Used.

Our next question ought to be: Well, how often was the phrase “natural born” used? Maybe it’s a phrase that was only used a very few times, but always in reference to Vattel.

Fortunately, we can do that search, too.

A Google books search on

“natural born” -Vattel

which will show uses of “natural born” that did NOT include the word “Vattel” (note the use of the “minus”) for dates between January 1, 1758 and January 1, 1800 yields:

About 4,070 results (0.24 seconds)

That sounds like a lot — and it is. Google sometimes overstates the case. Running it all the way down reduces it to 303 real results.

Still, 303 results without Vattel is an awful lot more than the “none” we got from trying to associate Vattel with the term.

So What of the Idea that the Phrase Comes Very Specifically from our English Heritage and the Common Law?

A search on:

“natural born” -vattel “common law”

gives 69 real results for the date range indicated,

and

“natural born” -vattel “common law” england

gives 53 real results.

Interestingly, among these results, one finds letters from the Speaker of the House of Representatives for the “province of the Massachusetts-Bay,” dated January 1768, and addressed to “the Earl of Shelburne, one of His Majesty’s principal Secretaries of State,” and to “Dennis de Berdt, Esq., Agent for the House of Representatives.”

These letters appeal to the aforementioned recipients, on the basis of the fact that, “by the common law,” the colonists in America are “natural-born subjects” — and are therefore “entitled to all the privileges of such.”

Conclusion

Hmmm. it would appear that there is absolutely no historical evidence at all for any link between Vattel’s idea of what citizens were, and the Constitutional phrase, “natural born citizen.”

In fact, it turns out that the Framers of the Constitution actually did use a phrase that had no ambiguity at all in its meaning.

Because it had never, ever been used to mean anything other than what it had always meant.

That phrase, of course, was “natural born.”

And it came directly and absolutely from our English heritage and the common law.

Posted in Conclusions, Natural Born Citizen, New Information | 158 Comments

New Jersey Court Finds Obama “Natural Born Citizen,” Chastises Apuzzo for His Common-Law Claim

New Jersey Judge Jeff Masin

New Jersey Judge Jeff Masin: Two Citizen Parents Not Required

A New Jersey court has ruled against another ballot challenge filed on the basis that it supposedly takes two citizen parents to be a “natural born citizen,” specifically taking birther lawyer Mario Apuzzo to task for making the claim that the common law rule for natural born citizenship did not apply on the national level.

Here are quotes from the ruling by Judge Jeff Masin in the case of Purpura & Moran v Obama:

While there are several decisions that could be cited, the decision issued by the Court of Appeals of Indiana in 2009 in Ankeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009), is representative of the position taken by courts and other agencies who have considered the merits of the issue. As the court therein noted, and as the petitioners here have contended, the thrust of the argument against Obama’s status as natural born is that there is a “clear distinction between being a ‘citizen of the United states’ and a ‘natural born Citizen.’” Id. at 685. The decision notes that the petitioner therein, as here, cites to an eighteenth century treatise by Emmerich de Vattel, “The Law of Nations” and to various early sources for support for their argument that one who is the child of a non-citizen cannot be natural born even if born in the United States. But the Ankeny court, relying upon the decision of the United States Supreme Court in U.S. v. Wong Kim Ark, 169 U.S.649, 18 S. Ct. 456, 42 L. Ed. 890 (1898), rejected that position.

In Wong Kim Ark, Justice Gray wrote at great length about the understanding of the term “natural born” and its common law meaning, probing English authorities and concluding that [by] the “law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, . . . every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established. ”This position as to the common law meaning is in accord with Justice Joseph Story’s statement, concurring in Inglis v. Trustees of Sailors’ Snug Harbor, 28 U.S. (3 Pet.) 99,7 L. Ed. 617 (1830), “Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents reside there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” See Wong Kim Ark, 160 U.S. at 660, 18 S. Ct. at 461. In Wong Kim Ark, the Court also cited Justice Swayne’s comment in United States v. Rhodes, 1 Abbott 26,40, 41 (1860).

All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.

The Wong Kim Ark Court then stated

We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions [children of ambassadors, etc.], since as before the Revolution.

[Wong Kim Ark, supra, at 169 U.S. 662-663, 18 S. Ct. at462].

[T]he Wong Kim Ark ruling certainly goes very far in defining the term [‘natural born citizen’] and its meaning in this country. And the decision does not suggest that the common law rule identified therein only applied at the state level and not on a national basis, as counsel here claims.

The petitioners’ legal position on this issue, however well intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr.Obama was born in Hawaii, he is a “natural born Citizen” regardless of the status of his father.

Based upon the above I CONCLUDE that the petitioners have failed to meet their burden to establish that Barak Obama failed in any obligation to prove to the Secretary of State that he is qualified to hold the Presidency[,] and that he is a “natural born Citizen” of the United States of America, as required by the United States Constitution. The petitions challenging his petitions are DISMISSED.

Not surprisingly, it didn’t take long for a “birther” to label Judge Masin a “traitor.”

One starts to get the feeling it must be a bummer to live in a world with so few “patriots” and so very many “traitors.”

Posted in Natural Born Citizen, What's Happening | 63 Comments

Tracy Fair, Chester A. Arthur, Elk v Wilkins, and Natural Born Citizenship

"Take My Presidency -- Please!"
Was Chester Arthur Asking Congress to Impeach Him? Or Is There a More Rational Explanation for His Words?

Tracy Fair (who has a lawsuit going in Maryland challenging Mr. Barack Obama’s eligibility to be President) recently posted a comment here:

“My Maryland ballot challenge has the proof that Obama is illegal. Perhaps you should read it and get educated! All sourced by Congressional Records, the Founder’s writings and Supreme Court precedent!”

And the actual brief filed by Tracy contains the statement:

“Overwhelming evidence proves that Barack Obama is not a natural born citizen and was fraudulently allowed to be placed on the ballot by the defendants, even though he is not eligible under federal and state laws.”

The statement certainly sounds good. But it’s simply not true.

Tracy’s brief does raise at least one interesting thing, though, that I hadn’t seen elsewhere before.

Here is my response to Tracy Fair:

Tracy, I do thank you for dropping by and commenting.

You seem to presume, though, both that I need to be “educated” on the subject, and that your brief is going to fill the bill.

You seem to presume that I haven’t already read and studied the full opinions (and some of the dissents as well) of all of the important court cases you cite.

You seem to presume that I haven’t spent many, many hours reading the Congressional debates on the Civil Rights Act of 1866 and the 14th Amendment — in context — for myself.

You seem to presume that I haven’t spent time studying the history of our Constitutional Convention, or made myself familiar with what the Founding Fathers had to say on the subject of citizenship, natural-born and otherwise.

And you seem to presume that I haven’t read what birther lawyers Leo Donofrio and Mario Apuzzo have to say on the subject.

But I have.

I’ve done all of those things in my research on the topic, and a good deal more. I’ve read Ramsay’s essay on citizenship and researched William Loughton Smith. I’ve read Frederick Van Dyne’s book on citizenship, and Horace Binney’s essay, and Vattel in the original French. I’ve researched what Jefferson had to say, and James Madison. I’ve searched through St. George Tucker’s View of the Constitution and Commentaries on Blackstone. I’ve read Bob Barney’s writings on the subject, and Stephen Tonchen’s. I’m familiar with Jacob Howard and James McClure and Jack Maskell and Donald Lutz and George Collins and George Bancroft.

I’ve even looked up who the heck Peter Van Schaack was.

And I know that there were a few people — not many, but a few — who made the same case you’re making today. Probably about the most notable of these was George D. Collins, a San Francisco lawyer, who argued for the government’s position in US v Wong Kim Ark.

Interestingly, this would be the same George D. Collins who a few years later got married in Chicago to the daughter of a wealthy widow, and ran into a few problems when he got back to San Francisco. Specifically, Mr. Collins was accused of being married to two women at the same time. He went before the court and swore that he had never been married to Charlotte Newman, but to her sister. That was fine until Charlotte herself showed up. One day Collins failed to appear for the trial. He had fled to Canada, because there was no extradition treaty for bigamy. Unfortunately, he had also committed perjury, and there was an extradition treaty for that. He was extradited back to the United States and duly sentenced to 14 years in prison for his crimes. There’s no doubt Collins was a skilled lawyer. He appealed the case all the way to the US Supreme Court, but they were not impressed. He did some hard time in San Quentin, eventually emerged, and died an old man during World War II.

But after extensive analysis and reasoning that comports with the vast majority of historical opinion and writing on the subject, the Supreme Court voted Collins and the government down, 6 to 2.

Not really even close. And have you read Fuller’s dissent? I have. It’s awful. And that’s not necessarily entirely Fuller’s fault. It seems that “awful” was about the best the dissenters — the birthers, we could say — could do.

So about the only significant thing in your brief that was new to me was the speech by President Chester A. Arthur in December 1884.

Let me be clear here before I comment on President Arthur’s speech: Literally every other significant point in your paper has already been addressed and found wanting, by myself and/ or other people.

I would refer you to my recent 5-part article on Minor v Happersett, my article on US v Wong Kim Ark, my article on Horace Binney, my article on John Bingham, the full debate I participated in with Mario Apuzzo, and my bottom-line conclusions.

There is plenty of evidence there to conclude that the two-citizen-parent claim does not have the slightest bit of merit to it whatsoever. I think you will find every significant point from your entire brief already addressed, with the exception of your words regarding Chester A. Arthur.

But President Arthur’s speech was new to me. So let’s talk about that.

Was Chester A. Arthur Really Inviting Congress to Find Him Ineligible and Impeach Him? Or Did He Have Reference to Something Else?

In December 1884, President Arthur made a speech in which he said, among other things:

“An uniform rule of naturalization such as the Constitution contemplates should, among other things, clearly define the status of persons born within the United States subject to a foreign power (section 1992) and of minor children of fathers who have declared their intention to become citizens but have failed to perfect their naturalization. A just and uniform law in this respect would strengthen the hands of the Government in protecting its citizens abroad and would pave the way for the conclusion of treaties of naturalization with foreign countries.”

You say:

“The statement is rich with context. President Arthur indicated that persons born in the U.S., subject to a foreign power, required naturalization. Additionally, he calls for the status of such persons to be clarified. Which class of persons subject to a foreign power does he refer to? Certainly not ambassadors and ministers, since their status has always been clear. And only four weeks earlier, in Nov. 1884, the status of Indians was declared in Elk v. Wilkins, so he’s not making reference to them. That leaves the third class of persons discussed on page 73 of The Slaughter-House Cases, “citizens or subjects of foreign States born within the United States”.

You basically suggest that President Arthur (whose father was not a US citizen at the time of his birth) was asking Congress to pass a law to make him ineligible.

I would suggest that that doesn’t make just a whole great deal of sense.

In fact, Presidents’ speeches are not normally geared towards finding a way to get Congress to impeach them.

They much more usually tend to address contemporary issues, that arise through contemporary events. Wouldn’t you agree with that?

And guess what kind of speech it was that President Chester A. Arthur gave on December 1, 1884?

It was the 1884 State of the Union Address.

Now what is a State of the Union Address all about?

It’s about the state of the Union. And because of that, it is ALL about what’s going on in the country at the time.

Furthermore, if you read Arthur’s State of the Union address, it’s abundantly clear that that’s exactly what his speech was about.

You yourself have glossed over the glaringly obvious context and reason for Arthur’s quoted comments in that speech.

Four weeks to the DAY before Arthur’s speech, the United States Supreme Court handed down a decision in a big, important citizenship case.

It was a decisive decision — 7 to 2 — but it was hardly a satisfactory one.

It was the decision in Elk v Wilkins.

Elk v Wilkins — Decisive, But Not Satisfactory

As I think you know, the case of Elk v Wilkins was brought on behalf of a Mr. John Elk, a resident of Omaha, Nebraska.

Mr. Elk had gone to register to vote in 1880, and had been turned away by the registrar, a Mr. Charles Wilkins.

And Mr. Wilkins gave as his reason that Mr. John Elk was an Indian, and therefore not a citizen of the United States, and therefore not entitled to vote.

So Mr. Elk took him to court.

The matter eventually reached the United States Supreme Court, where after months of consideration it was decided, 7 to 2, that Wilkins was right: as an American Indian, Mr. Elk was not a US citizen, and was not entitled to vote in the city council election.

This was counted true even though John Elk had completely separated himself from his tribe, and gone to live in Omaha, and was participating in the society of that town.

And the reason of the Court was that Elk had been born under a separate government — that of his tribe.

In other words, Elk had been born not subject to the jurisdiction of the United States. Therefore, Elk had not been born a citizen, and having not been born a citizen he could only become a US citizen by going through a naturalization process.

This meant that for any Indian who separated himself from his tribe, and went to participate in regular American society, he or she was — until and unless he or she went through the naturalization process for foreigners — literally a person without a country, a person with no nationality at all.

It was far from a satisfactory decision.

And that was the obvious reason for the comments in President Chester Arthur’s speech. That was why President Arthur told Congress that the nation’s law ought to “clearly define the status of persons born within the United States subject to a foreign power.”

Like virtually every other time this phrase is used, it had clear and primary reference to the Indians.

In fact, it is very plain, in reading the Congressional Debates on the Civil Rights Act of 1866 and on the 14th Amendment, exactly WHO the words “subject to the jurisdiction of the United States” and “not subject to any foreign power” INCLUDED, and who those words EXCLUDED.

Those who were “subject to the jurisdiction of the United States,” and who were “not subject to any foreign power” were the following:

* children born on US soil of people who were participating in United States society.

That’s it. There was no requirement of citizen parents. At all. So “subject to the jurisdiction of the United States” and “not subject to any foreign power” INCLUDED the children born on US soil of non-citizen parents, as long as they didn’t meet any of the exceptions listed below.

Those who were NOT “subject to the jurisdiction of the United States,” or who were “subject to any foreign power” were the following:

* children of foreign royalty and ambassadors
* children born on foreign ships
* children of members of occupying armies
* and children born into Indian and other indigenous American tribal governments.

And the biggest category of these, by far, was the American Indians and Eskimos, or indigenous Americans.

In fact, during the debates, whenever those words were used (“subject to a foreign power,” or “not subject to the jurisdiction of the United States”), it was clear who was mostly being referred to.

THE INDIANS.

And that was what Chester A. Arthur was commenting on.

Because it just didn’t make sense to say to American Indians who wanted to take the huge step of separating themselves from their tribal governments and joining the mainstream of American society, “Fine, buddy. You can do that if you want. But you won’t be a citizen if you do. And if you show up to vote, we’ll turn you away. Oh, if you want to become a citizen, you can — using the same naturalization process we would apply to someone from Botswana. But even though you were born right here in the United States, you’ll be treated like a complete foreigner until you do.”

In spite of Arthur’s appeal, it would not be until 1924 — some 40 years later — that Congress would finally pass a law granting full US citizenship to all indigenous Americans.

Again, as for the rest of your brief, I’ve already heard every argument in it that’s significant.

You expressed a belief that I ought to become educated on the matter. I’ve already done that. I would suggest that YOU might actually like to become educated on the matter, by reading — in context — all of the original source materials referenced above.

But along the way, you might also want to get oriented by first going through, with a fine-toothed comb, the various writings mentioned, including the debate that ehancock and I had with Mario Apuzzo had on the subject over at Ballot-Access.org.

In that debate, 12 different specific claims are identified by Mario Apuzzo that are simply not true. And it’s not hard to verify that the claims are false. The sources are clear enough for you to do that.

That’s not a good track record, so I wouldn’t put a great deal of faith in Mr. Apuzzo’s writings.

Finally, you mention in your petition that the woman at the Carroll County Bar Association stated to you, “You are a nutcase and need to check yourself into a mental institution.”

I don’t agree. I don’t think you’re a nutcase at all. And I totally don’t think you need to check yourself into a mental institution.

This is particularly true if you have simply believed the law-and-history-twisting writings of Leo Donofrio and Mario Apuzzo without doing your own in-depth research. On the surface, until you actually check them out, their claims can sure sound pretty convincing.

The problem is this: You’re just 114 years too late to the party. And legally and historically speaking, when all of the facts are known you don’t have a leg to stand on. In the courts, you don’t have a snowball’s chance in Havana of prevailing. You are simply wasting your effort and time.

But don’t take my word for that. I would invite you to do the research for yourself.

I really don’t think there’s any other conclusion that a rational and fully informed person can come to.

Posted in Answering Critics, Conclusions, Natural Born Citizen, New Information | 17 Comments

At Least One Court Has Very Specifically Ruled that Minor v Happersett Says No Such Thing as What Birthers Claim.

Arizona Judge Richard E. Gordon Threw the Minor v Happersett Claim Unceremoniously Out of His Courtroom.

Arizona Judge Richard E. Gordon Threw the Minor v Happersett Claim Unceremoniously Out of His Courtroom.

This is Part 5 of a series of articles. In the previous four parts, we ripped the birther claim regarding Minor v Happersett into little tiny pieces, looking at it from the points of view of its merits of legal precedent, the merits of the claim that the Court established a definition, the plain English of the claim, and the logic behind that plain English. For Part One, see here.

In March 2012, the Arizona Superior Court, Pima County very specifically ruled that Minor v Happersett quite simply does not say what the birthers claim it says.

Here’s what that court said:

[Supreme Court] precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President. See United States v. Wong Kim Ark… Contrary to Plaintiff’s assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise.

That was a flat-out slapdown.

But it gets worse.

At least NINE federal and state courts — not even counting US v Wong Kim Ark — have either found or stated that citizen parents are NOT required to make a natural born citizen, or have given examples of people who were “natural born citizens,” who clearly did NOT have two US citizen parents.

These cases include:

  • Nwankpa v. Kissinger, 376 F. Supp. 122 (M.D. Ala. 1974)
  • Diaz-Salazar v. INS, 700 F.2d 1156 (7th Cir. 1983)
  • Mustata v. US Dept. of Justice, 179 F.3d 1017 (6th Cir. 1999)
  • Tisdale v. Obama (US District Court for the Eastern District of Virginia, Richmond Division, 2012)
     
  • Lynch v. Clarke (New York, 1844)
  • Ankeny v. Governor of the State of Indiana, 916 NE2d 678, 688 (2009), (Ind. Supreme Court, Apr. 5, 2010)
  • Farrar-Welden-Swensson-Powell v Obama (Georgia, 2012)
  • Allen v Democratic Party (AZ Superior Court, Pima Co., 2012)
  • Purpura & Moran v. Obama (New Jersey, 2012)

At the same time, no court has ever ruled that two citizen parents are required.

I’ve written an entire article on the recent Arizona ruling, here.

Finally, This Brings Us to the 900-Pound Gorilla that Grinds Whatever Is Left of the Claim into a Fine Powder.

The 900-pound gorilla is, of course, US v Wong Kim Ark.

In that case, the United States Supreme Court found that a young man, born in San Francisco of two non-US-citizen Chinese parents, was both “a citizen” and “natural born.” And the Court’s statement that he was “natural born” were part of the core reasoning of the case, which ran to more than 50 pages.

This being the case, it is US v Wong Kim Arknot Minor v Happersett — that has established binding precedent regarding who is a natural born citizen.

This brings us to the final point of this series: Even if Minor v Happersett had established such a precedent (which it didn’t) it would’ve been overruled by the later Wong Kim Ark case, which is the definitive ruling on the matter.

I have a separate post that makes plain that United States v Wong Kim Ark is the Supreme Court case that decided the matter.

Posted in Answering Critics, Conclusions, Natural Born Citizen, New Information | 14 Comments

The Supreme Court in Minor v Happersett Never Claimed That Citizen Parents Are Required to Make a “Natural Born Citizen.”

Basic Logic Shows the Claim is False.

Note: This is Part Four in a series demonstrating the falsehood of the claim that the Supreme Court case Minor v Happersett (1875) created a “binding precedent” that it takes two citizen parents, plus birth on US soil, to make a person eligible to be President.

For Part One, see here.

Our fourth demonstration that the “flagship” claim by Mario Apuzzo and Leo Donofrio is false comes by the way of simple logic.

The statement:

“There is no doubt that someone who has A PLUS B can be a member of this club.”

simply is not a statement that

“Nobody who only has A can be a member of this club.”

That’s elementary logic, and our birther lawyers go to all kinds of peripheral garbage to try and deny it.

Let’s give a more concrete example.

When someone says, “Anybody who makes straight A’s in high school AND gets a perfect ACT score is GUARANTEED a scholarship at university,” that is not, logically, a hard statement that nobody who only has a perfect ACT score will get a scholarship.

It is simply a statement that someone who has both will be guaranteed a scholarship.

And yet that’s the construction that Donofrio and Apuzzo argue regarding Minor v. Happersett.

They argue, in essence, that the university has already proclaimed that no one other than those with both straight A’s and perfect ACT scores will get scholarships.

It’s just not valid.

Here’s some more elementary logic:

“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.”

This is the very passage in Minor v. Happersett that Apuzzo and Donofrio and their groupies quote to justify their nonsense.

They leave off or explain away the following comment, which specifically says that the Court was not going to address the status of children born on US soil to foreigners domiciled here. And they claim, nonsensically, that the foregoing passage purposefully and bindingly excludes such children from natural born citizenship.

The first thing to note is that the Court, even in this passage, has reference to the common law, but never mentions the Swiss philosopher Vattel, who these guys claim gave our Founding Fathers the concept of natural-born citizenship.

Apuzzo tries to deal with this by making the claim that the Court was referring in this phrase to American common law, not English common law.

Never mind the fact that at the time the Founding Fathers established the country, there really was not and could not have been very much at all in the way of “American common law” separate from the common law of the country that all of the Colonies were a part of — England.

Never mind the fact, either, that Blackstone’s treatise on English common law was the fundamental text of the law school at William & Mary — our nation’s first law school.

Never mind the fact that Blackstone was quoted by the Founding Fathers some 16 times more frequently than Vattel.

In spite of that overwhelming evidence that the Founding Fathers looked to the English common law far more often than to Vattel, and in spite of the fact that the phrase “natural born” is known to have come from the English common law, and in spite of the fact that Vattel’s word indigenes is known not to have even been translated “natural born citizens” until 10 years after the Presidential eligibility clause was written, Apuzzo still insists that it was Vattel that the Founding Fathers looked to, and not the English common law.

Never mind the fact that when people used the phrase “the common law,” there’s no sign that it was EVER understood to mean “American common law.” It was generally understood to mean the English common law that had been handed down for centuries.

And neither Apuzzo nor anybody else has ever produced any evidence at all that any supposed recognized body of American common law even existed — let alone that anybody EVER used the phrase “the common law” to mean “American common law” as distinct from the English common law.

Here’s some more elementary logic:

“These were natives or natural-born citizens, as distinguished from aliens or foreigners. “

Here the Court made absolutely no distinction in this sentence between “natives” and “natural born citizens.”

And yet Donofrio and Apuzzo claim there’s this enormous difference — that just being a “native” doesn’t make you a natural born citizen.

Yet the Court made no distinction at all between the two. Perhaps Leo or Mario can explain that?

Secondly, the Court recognized two, and ONLY TWO categories of people. One was “natives or natural-born citizens.” The other was “aliens or foreigners.”

There was not, and never had been, any fictional third category of native-born citizens who were born citizens, but who were not “natural-born.” Such a third category appears NOWHERE — not in Minor v. Happersett. Not in US v. Wong Kim Ark. And not in any other case in the entire history of American jurisprudence that anybody has ever produced.

[Note: Having said all that, there do appear to exist natural born citizens who are not also “native born.” These are those persons who have been born US citizens because of their birth to US citizens abroad. The recognition of such children as “natural born citizens” was provided for by our very first Congress. And everything I have read on the subject indicates to me that such persons are also, to this day, also eligible to run for President.]

Given the lengths to which Leo Donofrio and Mario Apuzzo have gone to “prove” their point, and given their stunning legal brilliance, surely if ANY case or statement establishing the existence of a “native-born citizen” who was not a “natural-born citizen” existed anywhere, Mr. Donofrio or Mr. Apuzzo would have produced it by now. Wouldn’t they?

Here’s some more elementary logic:

From Webster’s 1828 dictionary:

native, a: 1. Produced by nature; original; born with the being; natural; not acquired; as native genius; native affections; a native talent or disposition; native cheerfulness; native simplicity.

2. Produced by nature; not factitious or artificial; as native ore; native color.

3. Conferred by birth; as native rights and privileges.

4. Pertaining to the place of birth; as native soil; native country; native graves.

5. Original; that of which any thing is made; as mans native dust.

6. Born with; congenial.

Every single definition of “native” from the authoritative dictionary of the early 1800s gives the word “native” the sense of “natural” or “original” or “born with.” Every single definition.

We could go on through the definitions of a bunch of similar and related words, and we would find much the same. I’ve read all of the relevant definitions, and there is nothing in Webster’s 1828 dictionary to contradict the above statements that “native” carried a meaning of “natural” or “at birth.”

If there had been any real distinction between a “native-born” citizen and a “natural-born” one, surely someone would have clarified the distinction. But no. Apparently, EVERYBODY understood that (with the sole exception that children born abroad to US citizens were also “natural born”) the terms meant essentially the same thing.

Mario Apuzzo Tries to Answer the Logic — and Fails Miserably.

Mario Apuzzo attempted to answer these very statements at his blog. Here’s what he said:

“Mr. Woodman’s ‘is’ and ‘is not’ argument is hilarious.”

Here Apuzzo resorted to what has become a typical “birther expert” rejoinder: The claim, with no (or at least, totally insufficient) supporting evidence, that the points raised by critics are “ridiculous,” “incoherent,” or “hilarious.”

It’s similar to the way in which Mara Zebest has ridiculed me for not using as expensive a graphics program as the one she uses. It is similar to the way that Jerome Corsi said, “You’re very argumentative.” And it’s a sign of desperation.

If you can’t win the discussion on the facts, then try to find some point — any point at all — on which you can attempt to discredit the person bringing the facts.

And you don’t have to have any actual evidence of your assertion. Just label him. He’s “incoherent.” He’s “hilarious.” He’s “an Obot.” He’s “argumentative.”

Pretty much any derisive or dismissive label will do, if all you want — or all you can hope — to accomplish is to mislead the gullible.

Mario continues:

“Yes, indeed, the statement that a cow ‘is’ an animal that gives milk does not mean that a cow ‘is not’ an animal that also gives orange juice. So therefore, a cow also gives orange juice. Is this the legal brilliance that you and your people are peddling to the American public?”

To his credit, Apuzzo does actually try to bring some support to his “hilarious” statement. But the argument is an absolute “straw man.”

Apuzzo’s “Straw Man”

Here’s how you do a “straw man” ploy. First, you claim (as Apuzzo did here) that your opponent is making some ridiculous argument (one that he isn’t making) instead of the argument that he is making.

Then, publicly knock down the “straw man” you have set up. Hey, you’re a winner!!!

You’ve shown how big you are by kicking the stuffings out of the straw man— after first convincing the gullible that the straw man is the real argument.

And by doing so, you avoid publicly facing the real argument that — if you actually do face it — is going to embarrassingly knock you on your butt.

Here’s the actual statement I made. It’s a perfectly true, valid and logical statement:

The statement: “There is no doubt that someone who has A PLUS B can be a member of this club.”

IS NOT a statement that

“Nobody who only has A can be a member of this club.”

Mario sets up his straw man to pretend that he has shown that statement to be false. He has not.

All he has done is demonstrate that he claims a clearly true and logical statement to be false, and that when presented with a true and valid analysis, his response — rather than acknowledging its validity — is to try attacking it using a straw-man argument.

Not good.

Now we weren’t actually talking about cows. But since Mario has a fascination with livestock that moos, let’s reconstitute the argument in terms he can relate to:

The statement:

“Any large animal that gives milk and has horns is definitely a cow.”

DOES NOT MEAN,

“No large animal that gives milk, but is hornless, can possibly be a cow.”

And in fact, a bit of research shows that there are indeed breeds of cattle that give milk, but who have no horns. They’re called “polled” dairy cattle, and they definitely exist.

But not according to Mario. Because according to Mario’s logic, hornless dairy cattle can’t possibly exist.

And yet they do. Good heavens. Mario forgot to tell the cows.

A Final Note as to How Frankly Ridiculous the Apuzzo/Donofrio/Birther Claim Is

Before moving on, I’d like to make just one final note as to how ridiculous the claim is.

Apuzzo and Donofrio claim that the Supreme Court actually did address — in one or two sentences — the issue of whether such people were natural born, even though they didn’t address the issue of whether they were citizens.

When the Supreme Court addresses a matter, they address it. They don’t write just one or two sentences on a matter. They go extensively into the pros and cons.

The Court spent 6 entire pages on whether or not Virginia Minor was a citizen — when it had already been conceded by everybody that she was!

And the Court told us themselves, in Minor v Happersett, that they weren’t going to get into citizenship issues regarding the children born on US soil of non-citizen parents.

How much space would it take for the Supreme Court to actually explore the issue? Would one or two sentences do?

It turns out that we know the answer to that question: It would take the Supreme Court more than 50 pages to explore that particular issue. Not two sentences.

And we know that, for a fact, because that’s exactly how much space it did take them, when they finally explored — and answered — that EXACT question.

The case was United States v Wong Kim Ark.

So What Do Recognized Authorities Think of the Claim?

We have beaten the ever-living daylights out of the false claim that Minor v Happersett established a “binding precedent” that it takes two citizen parents plus birth on US soil to make a natural born citizen. We’ve ripped it down from 4 different directions.

In the 5th and final part of this series, we will see what our courts think of the claim.

Posted in Answering Critics, Conclusions, Natural Born Citizen, New Information | 7 Comments