Monday, March 23, 2015

Vattelic Fetishism

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 United States is a like experience.

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 from England 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.

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.