A Treatise on Law is Not Law

"He that would beat a dog can easily find a stick."

Folk Proverb

"To a man who has only a hammer, everything is a nail."

Abraham Maslow

I am more than a bit taken aback by the vehemence with which Vattel devotees command a slavish devotion to Vattel's observations about the nature of citizenship, and, in particular, his articulation of the legal principle -- jus sanguinus -- under which one's fealty to a nation is derived from one's parents (thus, "sanguinus" or blood). There are dozens of websites that discuss the Presidential Eligibility Clause requirement that one must be a "natural born citizen" and invoke Vattel's Law of Nations to conclusively determine that only those persons born in the United States and to parents who were themselves natural born citizens fit the natural born citizenship requirement.

There are a panoply of arguments that fully answer the Vattelists.

Still, as they are intent on beating candidates such as Marco Rubio and Bobby Jindal, who are, under the jus soli approach to eligibility, fully eligible to be elected President, and they easily find the Vattelic stick. But that stick is not suited to the task, any more than a hammer is suited to the task of removing lug nuts, still, to those who have only a hammer (or Vattel's Law of Nations) everything is a nail (or a good time to invoke jus sanguinus).

It perplexes me. The invocation of Vattel does seem quite selective. Vattel wrote a treatise on the Law of Nations. In his treatise, he begins with the beginning of the topic of nations and he lays out in meticulous detail hundreds and hundreds legal considerations relevant to the creation and maintenance of States. Yet, out of all that Vattel writes of the Law of Nations, only jus sanguinus is invoked.

What do I mean?

Well, for example, in the Law of Nations, Vattel also discusses the wisdom of establishing public granaries. I'm including that section of his treatise below. He provides general principles of operation of such granaries that are, to say the least, inconsistent with the American preference for free market economies and individual choice in the use and disposition of one's property and labor:

§ 82. Of public granaries.

The establishment of public granaries is an excellent regulation for preventing scarcity. But great care should be taken to prevent their being managed with a mercantile spirit, and with views of profit. This would be establishing a monopoly, which would not be the less unlawful for its being carried on by the magistrate. These granaries should be filled in times of the greatest plenty, and take off the corn that would lie on the husbandman's hands, or be carried in too great quantities to foreign countries: they should be opened when corn is dear, and keep it at a reasonable price. If in a time of plenty they prevent that necessary commodity from easily falling to a very low price, this inconvenience is more than compensated by the relief they afford in times of dearth: or rather, it is no inconvenience at all; for, when corn is sold extremely cheap, the manufacturer, in order to obtain a preference, is tempted to undersell his neighbours, by offering his goods at a price which he is afterwards obliged to raise (and this produces great disorders in commerce, by putting it out of its course); or he accustoms himself to an easy life, which he cannot support in harder times. It would be of advantage to manufactures and to commerce to have the subsistence of workmen regularly kept at a moderate and nearly equal price. In short, public granaries keep in the state quantities of corn that would be sent abroad at too cheap a rate, and must be purchased again, and brought back at a very great expense after a bad harvest, which is a real loss to the nation. These establishments, however, do not hinder the corn trade. If the country, one year with another, produces more than is sufficient for the support of her inhabitants, the superfluity will still be sent abroad: but it will be sent at a higher and fairer price.

Of course, Vattelists may wish to assert that the discussion of public granaries is merely an observation of the value to be found in the operation of such an enterprise, and is not a mandatory feature of the nation.

To which I will reply, "well, yes, precisely!" For it is in the nature of a treatise that it is a thorough and careful, complete discussion of a subject. In the case of Vattel's Law of Nations, his is a treatise that treats in detail and with care the broad topic captured in its title. But the law of nations is not, nor has it ever pretended to be THE LAW OF NATIONS. Instead, it is a thorough, expository, examination of its subject.

So, again, NO, we are not bound to Vattel. We are not bound to his preference for jus sanguinus over jus soli. Happily, we can be informed of a principle without having to conform to the principle, else we must begin to build the AmGranaries, the physical facilities of the National Granary Corporation.

Cruz, McCain, George Romney, Ineligible Candidates for President: Drilling Down into the Natural Born Citizen Qualification for the Presidency

If an officer of the general government of the United States were inclined to comport her conduct with the requirements of the Constitution, how could she do so? Among possibilities, reliance on instinct about what the Constitution forbids and allows is an option; another would be a bit more arduous, tasking the would-be upright constitutional officer more than instinct. She could study the Constitution. She could contemplate the Constitution. She could discuss the Constitution with others, including those who shared her views and those who were amused by her views. She could hide the Constitution in her heart, so that she might not sin against it.

That approach might now guarantee success in her venture. It seems, however, better suited to an honest intention to comport with the metes and bounds of the Constitution. Our Nation’s Founders understood a mindset like that. They saw it in the Psalmist.

The Psalmist wrote, “Your words I have hid in my heart, so I might not sin against you.” This is more than placing a verse of God’s Word on the doorpost of the home, more than tucking a copy of it in the folds of his garment. Instead, he has learned God’s Word. He has read and studied it, meditated on it, considered it, incorporated it into his way of thinking. The approach he took suggests that he viewed God’s word much the same way that Jesus’ disciples would later view it. Many that came out to see Jesus, listened to His teaching, and marveled at the wonders that came to pass at His hand, departed from Him because of His saying that unless they ate of his flesh and drank of his blood they would not have life in them. Jesus, when they departed, turned to his closest followers, the disciples, and asked if they too would depart, and they responded:  “Where would we go, Master, only you have the words of life.”

With his understanding enlivened by his study and incorporation of God’s Word, David sought to live a life in accord with God’s design. Such a life, truly lived, would be one free from sin. David imperfectly approached that true living of God’s Word. His affair with Bathsheba, his murder of Bathsheba’s husband, proved that he approached perfection of life asymptotically at best.

Now, our American government officer, and we Americans alike, can and should study, understand, and enliven the Constitution. For the functionary, she must do so to comport with its requirements and limitations. For the citizen, we should do so to hold the general government accountable to the Constitution.

Picking up the Constitution and reading it through is less work than reading Psalm 119. Understanding the Constitution is less work than untangling the “begets” of the Old Testament, or the mysteries of the Book of Revelations. One good technique for acquiring a facility with the Constitution is contextual understanding. Drilling down into constitutional text, meaning and application as the needs of particular moments arise, when addressing either a constitutional crisis or a mere kerfluffle.

Mocked by many, a stalwart ragtag band of activists have pressed their contention that Barack Obama was not constitutionally eligible to be elected President. Beginning in advance of the 2008 general election, and continuing virtually to today, so called “birthers” have challenged Obama’s eligibility to be President. Their arguments are premised on either of two theories that suggest he could not meet the requirement that the President be a “natural born citizen.”

One line of attack against his eligibility, the one most often played in the media, alleges that Obama was not born in the United States. Being born in another country might, in the right circumstances, prevent the child of an American citizen from claiming US citizenship. These “foreign born birthers” are the ones who have fought for the release of the long form birth certificate that Hawaii’s Secretary of State says is located in their documentary vaults.

The other line of attack is more sophisticated. The “foreign father birthers” do not contend that Obama was born in Kenya or anywhere else other than Hawaii. For these “birthers,” including Clinton supporter Phil Berg, Obama cannot be a natural born citizen because his father was a British subject at the time of Obama’s birth, and owed allegiance to a foreign sovereign.

The questions raised by these two groups of birthers, the constitutional contentions upon which their arguments depend – coupled with the high likelihood that questions about constitutional qualifications will continue into the 2016 Presidential season – makes an evaluation of the Qualifications Clause and the Natural Born Citizen provision of it a worthwhile subject of study.

When they ratified the Constitution, the States established a tripartite general government, consisting of a Legislative Branch, an Executive Branch, and a Judicial Branch. These branches the Framers devised in Articles I, II, and III, respectively, of the Constitution. The Executive Branch, the Presidency, is set up in Article II of the Constitution. Included in that Article are a short, frankly disturbingly short, set of constitutional qualifications for election to the Presidency:

"No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States."

As you see, only Natural Born Citizens are eligible to be elected President. Love for this land, sacrifice in its service, lifetime devotion to its preservation, none of these highly significant characteristics suffices, in the absence of one being a “Natural Born Citizen.” Uncertainties on the question of what is a “Natural Born Citizen” have previously moved the United States Senate to action (more on that in a bit) and launched the cottage industry of challenges to Barack Obama’s qualification to be President.

While the waning days of the Obama presidency might mark the end of an era of pressing consideration of eligibility challenges, quite the opposite is true. First, at least two potential contenders for the 2016 Republican nomination for President face the contention of ineligibility based on questions about their status as “Natural Born Citizens:”  Ted Cruz and Marco Rubio. Second, the disputes over Obama’s eligibility reveals continuing uncertainty about the term “natural born citizen,” its meaning within the Constitution, and the power of the federal government to define – or redefine – that term.

With the 2008 presidential candidacy of John McCain, the United States Senate quietly addressed the question whether McCain was eligible, under the Constitution, to be elected president. Eligibility questions have arisen previously. For example, in 2000, some contended that the Bush-Cheney ticket was ineligible based the fact that Both Bush and Cheney resided in Texas. Contentions about McCain’s eligibility rested on other grounds. McCain was born to an American mother in the Panama Canal Zone during his American father’s naval tour of duty there. The Senate expressed its sense on the question, adopting a nonbinding resolution concluding that McCain was, in fact, a natural born citizen.

Was the Senate, correct? Was John McCain a "natural born citizen” of the United States at the time of his birth? The Senate concluded that he was. As it turns out, the question, although simply stated, does not seem to have an easily identifiable analysis and answer.

We seem to presume that questioned American citizenship is resolved simply by asking whether a person was born in America or became an American through the legal process of naturalization. At a high level of generality, that assumption holds true. Closer inspection of particular cases, however, proves that the presumption does not arise from an always binding principle.

For example, suppose a woman serves as an ambassador to the United States from another nation. During her service, and while present in the United States, suppose she gives birth to a daughter. Customarily, although she is “present” in the United States, that is, physically she is within the territory of the United States, she is not “subject to the jurisdiction” of the United States. This conclusion reflects the Law of Nations by which the exchange of emissaries – ambassadors, consuls, and special representatives – is possible. That customary rule clothes such individuals with immunity to the law of the nation to which they have been dispatched.

So, then, what is the citizenship of a child born to a foreign ambassador present in a foreign land? Again, while state simply, the question is not necessarily answered simply. As it turns out, the answer depends on which of two approaches to citizenship the ambassador’s home country has adopted. Some nations follow a legal principle called jus sanguinus; others follow a contrary principle called jus soli.

Nations that follow the jus sanguinus rule tie citizenship to blood relationships. Nations that follow the jus soli rule tie citizenship to the soil on which one is born. Essentially, the rule of jus sanguinus states that what is important is not where one is born, but who one’s father is. To the contrary, the rule of jus soli states that what is important is not who one’s father is, but, instead, where one is born.

Putting aside the special circumstances of the ambassador’s baby, determining citizenship by birth, has long required clarifying the choice of law in the relevant country. To answer this question for persons claiming status as natural born citizens of the United States, we must discover the rule followed an American law, as well as address any subtleties or variations thereof.

To answer the question, we should consider what rule applied in colonial America to resolve citizenship questions and then discover whether that rule changed with America’s independence from England. We should also consider the adoption of State Constitutions and the United States Constitution: did the Constitution itself, change the governing rules for citizenship? Did the Constitution adopt a definition for “natural born citizen?”  Of course, we should also consider subsequent changes in the law – including, for example, amendments to the Constitution and judicial decisions.

The original thirteen States arose when those thirteen colonies severed their ties to the British Crown. Prior to independence, the colonies lived under the laws of England. In turn, English law derived from two sources: the long accumulation of judicial decisions extending back nearly a millennium, a body of law identified as English Common Law; and statute law, imposed by the Crown or enacted by Parliament, which we can call English Statute Law.

At independence, the Founders in every one of the thirteen newly independent States adopted English Common Law as the law for the determination of legal questions until altered or amended by State Legislatures. So, although the tyranny of England’s Crown so burdened the Founding Generation that they engaged in open rebellion and warfare, their essential identity at the time, as Englishmen, was reflected in their decision to retain the familiar body of decisional law called the English Common Law in their new, independent States. (In fact, as additional States joined the Union, virtually every State, except Louisiana, also adopted English Common Law as the body of decisional law for the determination of legal questions.)

As a historical oddity, some elements in the “foreign father birther” crowd will cite a remark by George Mason, made by him during the Virginia Ratification Convention, to the effect that we are not a common law nation. Mason helped to frame the Constitution. He shepherded the Virginia plan through the 1787 Constitutional Convention in Philadelphia. True, he did say, in a moment of rhetorical flourish, that we were not a common law country.

Mason’s flight of rhetorical flourish has to be taken in its context. When he said this, the thirteen independent States had already existed for 11 years under adopted English Common Law. His flourish cannot undo historical fact, and the Reception of English Common Law was just that, historical fact.

Under English Common Law, there was not a status of “natural born citizen.” Civil roles were defined in relation to the Crown. So English Common Law employed a different, but related, concept: “Natural Born Subject” of the Crown. Under English Common Law, every person born within the British realm had status as “Natural Born Subject,” excepting only the offspring born in the realm of foreign emissaries engaged in diplomatic service in England. This fact of English Common Law is confirmed by reference to Blackstone’s Commentaries on the Law of England. It is also confirmed by parliamentary actions. Parliament, by statute, expanded the status of “natural born subject” to certain persons born abroad, whose foreign birth, by English Common Law, would have deprived them of Natural Born Subject status. (Conferring such status served important purposes. For example, the ability to inherit hereditary lands and titles depended on one’s status as a Natural Born Subject.)

So, when the newly independent States adopted English Common Law (but not English Statute Law), they adopted the relevant legal concept, “natural born subject,” modified to suit their status as independent republics. From the foregoing, you see that England followed the rule of jus soli under English Common Law, and to the extent required by English Statute Law, it followed jus sanguinus. Thus, here in the newly independent States, the governing principle, the English Common Law principle, was jus soli.

Following independence and until the ratification by the States of the Constitution in 1790, citizenship was strictly a matter of state law considerations. Being native born, being naturalized as a citizen, each devolved entirely either on the English Common Law adopted by each State at independence (along with its principle of jus soli), or on subsequent enactments of State legislative bodies.

The States ratified the Constitution with its requirement that one must be a “natural born citizen” to be eligible to serve as President. The States omitted from the Constitution any definition of “citizen” and of “natural born citizen.” 

The States did endow on Congress the power to “provide a uniform rule of naturalization.” Congress immediately put that power to work, enacting the Naturalization Act of 1790. That Act allowed free white persons age 21 and older that had resided in the United States for at least two years to apply for naturalization. Such applications could be made to state courts and would be granted on a court’s satisfaction that the applicant was of good character. In the 1790 Act, Congress also declared that certain offspring born abroad to American citizens were “natural born citizens.”

Subsequent to the ratification of the Constitution, only one change to it touched on any question of citizenship. The Fourteenth Amendment declared that all persons born or naturalized in the United States and subject to its jurisdiction were citizens of the United States and of the State in which they resided.:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

That amendment, on the heels of the War Between the States, redressed an error of monumental dimensions committed by the Supreme Court of the United States. In the case Dred Scott v. Sandford, the antebellum Court struck at the compromise by which the uneasy peace of the Union was being maintained. The Court concluded that Congress had not had the power to restrict slavery in federal territories, and also concluded that Africans in America were not citizens, and could never be citizens.

Still, questions remain.

One question would be how many categories of citizenship do we have in the United States. It appears that, by operation of the Fourteenth Amendment, we have a category of “citizens” that includes all persons who are (a) born . . . in the United States and who are (b) subject to the jurisdiction of the United States. We might call these Fourteenth Amendment citizens.

Persons who are not born in the United States become citizens by naturalization. Naturalization is the legal process of making an alien into a citizen. The Naturalization Act provides that process. We call these statutory citizens.

We have not yet resolved how to move that additional step, the one from citizen to natural born citizen. If we follow the English Common Law, the answer would seem to be persons born in the United States and subject to its jurisdiction are not only Fourteenth Amendment citizens, but they are natural born citizens by operation of the common law. If, on the other hand, we follow appeals made by the “foreign fathers birthers,” then there would be one additional step in determining whether a person that is a Fourteenth Amendment citizen by birth is also a natural born citizen. That additional step would be an inquiry into the person’s parentage, particularly the citizenship of the father of the person. Such an appeal to parentage is commanded by the jus sanguinus principle discussed earlier.

With Canadian-born Ted Cruz, the son of an natural born American citizen mother and a Cuban exile father, announcing his candidacy for the Republican nomination for president in 2016, the questions are worth evaluation and resolution.

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.