As a lawyer with over quarter century experience in the practice of federal constitutional law, and nearly a decade teaching advanced constitutional law, I can tell you this truth: the outcome of cases can nearly
perfectly be predicted by knowing what legal standard a court will apply to any
particular question. Like a student writing the results of a lab experiment
before, or without, actually conducting the experiment, the outcome of many
cases is entirely predicated on the test adopted by the court deciding the
case. For example, in cases alleging violations of the right to freedom of
speech, when a court announces that the case is governed by the strict scrutiny
standard, the chances are extremely good that a government injury to freedom of
speech will be found. On the other hand, when the court states that it is
applying the reasonableness test, the chances are very good that whatever
government action is in dispute will not be found to violate the right.
It is really just that simple. We can tell where others will have us end up by paying attention to the path on which they invite us to walk. Reasoning through disputes over the eligibility of various candidates to be President of the
In one camp, relying on English common law, some will
contend that a person is a natural born citizen if they are born on United States
soil. In the other camp, relying on Emmerich Vattel’s Law of Nations, some will contend that a person born on United States soil is not a natural born citizen
if the person’s father is not a citizen of the United States . As the birther
movement waxed in the earlier days of the Obama administration, those that
depended on the outcome promised by applying principles from the Law of Nations began the torturous work
of reconstructing the American Constitution to suit their theories.
Vattel’s Law of
Nations, an eighteenth-century treatise, has enjoyed something of a
renaissance in the last six years. Not a broad one, across the Nation, the renaissance
for this author came from one quarter, namely activists opposed to Barack
Obama’s election to the presidency, whose opposition results from their view
that Obama is ineligible because he is not a “natural born citizen.” I have
discussed this constitutional prerequisite here,
here
and here.
Those activists invoke Vattel because he espoused the principle of jus sanguinus, the rule that one takes
the citizenship of one’s father, a principle they have concluded should govern
determination of citizenship for the United States .
Invocation of Vattel’s work as a talismanic determiner of
citizenship, however, falls flat. True, in the Law of Nations, Vattel states the principle of jus sanguinus. True, jus
sanguinus makes the all important questions in deciding citizenship, who is
your father and of nation is he a citizen? But, despite the value found by many
of the framers in Vattel’s orderly explication of natural law, his views do not
now, nor have they ever, governed the disposition of legal questions in the United States .
First, jus sanguinus is contrary to the rule of English common law. Under English common law, one’s standing within the civic community was determined by jus soli, which makes the all important question, not who is your father, but where were you born? (This fact is incontestable: English common law limited status as “natural born subjects” to those persons born on English soil. Parliament enacted statutes to extend that status to persons born away fromEngland because that status was denied to them
by common law.) The significance of the English common law approach, adopting jus soli, appears in the following
paragraph.
First, jus sanguinus is contrary to the rule of English common law. Under English common law, one’s standing within the civic community was determined by jus soli, which makes the all important question, not who is your father, but where were you born? (This fact is incontestable: English common law limited status as “natural born subjects” to those persons born on English soil. Parliament enacted statutes to extend that status to persons born away from
Second, at independence, all thirteen original States of the
union by their constitutions, statutes, or judicial decisions, adopted the body
of English common law for the decision of legal questions. So called Reception
Statutes accomplished the adoption of English common law. Here are the Reception
Statutes, or Constitutional Reception Clauses, of Virginia, Delaware, New York,
North Carolina, Pennsylvania and Massachusetts. Some in the “birther”
movement contend that Vattel’s Law of
Nations governs citizenship because it contains an early reference to
“natural born citizens” and defines them according to jus sanguinus. They even bolster the claim with the assertion that America is not
an English common law nation. That latter claim they bolster by quoting George
Mason, who, in a rhetorical flourish made during the Virginia Ratification debates, denied that the common
law of England was the common law of the newly independent States. Virginia , as the link provided above demonstrates, enacted a Reception Statute. Virginia, of course, was George Mason's home.
A distaste from Barack Obama does not warrant the flight of
fancy required to impose Vattel’s continental views on these Englishmen who had
just become the new Americans. Moreover, even were Vattel relevant at our
founding, those who depend on him, and on jus
sanguinus, fail to account for an intervening fact of constitutional
dimensions: ratification of the Fourteenth Amendment. That amendment, a tonic
to the erroneous Dred Scott v. Sandford
decision, defined citizenship and, for the first time, ensconced a definition
of “citizen” where neither Congress nor Vattelists can dislodge it with
ease: in the Constitution. Ultimately,
it appears that insistence that Vattel’s views govern these issues for the
American republic are mere obstinancy, and approaches fetishistic dimensions.