Sunday, 21 February 2016

For The Record

Although we are moving out of the Old into the New, there is still some unfinished business that we need to attend to; and just to clarify a point in the Old, on the 'discussion' regarding the definition of a "natural born" citizen.

The definitive tome of the day on such nation-making matters, E. de Vattel's 'The Law of Nations, Or Principles of Natural Law' (it actually has a longer title, but this captures the essence), defined a 'natural born' citizen as one born "in the country, of parents who are citizens... " (and going on:) '"..those children naturally follow the condition of their fathers..."  The mother and the father were considered as One, and the father was the One; a condition known as the doctrine of coverture.  Which has changed since, allowing the mother her own nationality; but nationality for a child still descends primarily from the father.  (I.e., the child can have dual nationality.)  So, both who the father is (i.e., his nationality) and where the child is born are factors in the difference between just a 'citizen' and a 'natural born' citizen.  However, the de Vattel treatise goes on, a couple of sections further (in Book One, Chapter XIX, Sects. 212 & 215), and talks about, quote, 'Children of citizens born in a foreign country' ("By the law of nature alone, children follow the condition of their fathers..the place of birth produces no change in this particular..."); and that has confused more people than just me, with a couple of prominent commentators on the subject (J.B. Wiliams and Publius Huldah) claiming that that means that the only requirement for being a 'natural born' citizen of the U.S. is to be born of a citizen father.  And a major commentator on this whole subject, Mario Apuzzo, Esq., has not recognized that, continues to maintain that the Sect. 212 definition is the only/definitive definition.  I have just queried him on the subject.  His response is quite a good, extensive comment on the matter.  Herewith: ’Ted Cruz Misrepresents the Law and His Being a Natural Born Citizen at Town Hall Meeting’ - Mario Apuzzo, Esq. - February 18 
(’Natural Born Citizen - A Place to Ask Questions and Get the Right Answers' - 'A blog to discuss the U.S. Constitution Article II, Section 1, “natural born Citizen” presidential eligibility clause’)

Stan said...

As usual, I appreciate very much your erudition on this subject, Attty Apuzzo. But I have a query. It's one thing to quote Sect. 212 of de Vattel. But in Sect. 215, he makes the case that "children follow the condition of their fathers..." and thus, it doesn't matter where the child is born. The child is a natural born citizen of the citizenry of the father - jus sanguinis applying; not necessary for jus soli also to be applying.

And since the mother is no longer automatically One with the father, the child could still be a 'natural born' citizen even if the mother were of a different nationality, because citizenship STILL descends from the father. 


February 19, 2016 at 6:45 AM blank.gif

I of II 


Vattel explained in Section 215 of his highly acclaimed and influential treatise:

§ 215. Children of citizens born in a foreign country.
It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. (59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also. 

Emer de Vattel, The Law of Nations, Section 215 (1758) (1797). 

In Section 212, Vattel distinguished the “citizens” from the “natives, or natural born citizens.” Vattel stated that the question asked was whether that foreign-born child was a "citizen," not whether that child was a "native, or natural born citizen." Vattel’s failure to state the question as if it asked whether they were natives or natural born citizens cannot be considered some oversight or unintentional, given that just in Section 212 he was careful to articulate and distinguish the difference between the two classes, with the latter class reserved only to the children born in a country to parents who were its citizens. Also note that when speaking about the parents, Vattel always referred to them as “citizens,” and never as “natural born citizens,” thus demonstrating that all natural born citizens are citizens, but not all citizens are natural born citizens given his definition of a natural born citizen. 

Vattel explained that the municipal laws of the child's parents' nation had to be followed when determining whether that foreign-born child was a citizen of his parent's nation. In other words, if those laws said that such a child was a citizen, then the child was. If those laws said that the child was not or did not provide for such a child, then the child was not. Vattel added that by nature alone, the place of birth could not take away from the child what nature had given to the child, and that such a child inherited from his or her parents (through the father) their citizenship. 

But Vattel explained that the laws of nature applied to the affairs of nations became the law of nations. Vattel’s law of nations parents did not live in a state of nature, but rather in civil and political society. Hence, Vattel added that the child's parents' nation, for various reasons, could pass political or civil laws which would take precedent over what nature ordained. Vattel also explained that the parents would not have quitted their native country and if they did, their child would not inherit their native citizenship. If the parents would have become permanent inhabitants of the foreign nation, then a child born to them in the foreign nation would inherit from them the status of a permanent inhabitant, not that of a citizen of their native nation. Hence, we can see that Vattel was only speaking about plain and simple membership in a nation and not the status of a natural born citizen, for the parents in that situation would still have been citizens of their native nation, but become permanent residents of that foreign nation. Additionally, that child could not be a natural born citizen under Vattel’s own definition of the clause that he gave in Section 212. This principle also applied to Vattel's Section 212 natural born citizen, requiring that the child be born in the country to parents who were its citizens and if not, then not even a citizen of that nation in which born. 

Continued . . . 

February 19, 2016 at 10:08 AM


Continued . . . 

You will note that Congress in the early naturalization Acts treated children born in the United States to alien parents as aliens and in need of naturalization. Except for the period between 1802 and 1855, Congress has also always seen fit to provide through its naturalization Acts for children born out of the territory and jurisdiction of the United States to one or two U.S. citizen parents. We saw what happens when a nation does not provide for children born out of its territory and jurisdiction to its citizens. Under the Naturalization Act of 1802 and until the Naturalization Act of 1855, children born out of the United States to U.S. citizen parents who were not citizens prior to 1802 were aliens who could become U.S. citizens only through naturalization, not derivatively through their parents naturalization for the parents were already citizens, but only on their own upon reaching the age of majority. 

Hence, in Section 215, Vattel was talking about a nation's positive laws making citizens of children born out of the country, not making natural born citizens of those children. In referring to those foreign-born children, Vattel did not in the least suggest that the citizenship status that their parents’ nation may bestow upon them through its positive laws would somehow change the definition of a natural born citizen which is clearly and plainly stated in Section 212, without any exceptions. The changing definition of citizenship of which Vattel spoke in Section 215 referred only to children born out of the country who Vattel saw as citizens if born to citizen parents, not as natural born citizens who also had to be born in the country, and only if the parents' nation provided for that status through its positive laws. Surely, if those children were natural born citizens, they would not have needed those civil or political laws to seal their citizenship fate, which is the case of the natural born citizens. In fact, Minor v. Happersett (1875) explained how Virginia Minor did not need any law, including the Fourteenth Amendment to make her a natural born citizen and thus ipso facto a citizen. We have seen Congress since 1795 (it repealed the Naturalization Act of 1790) constantly change its naturalization Acts which it applied to children born out of the United States to U.S. citizen parents and to alien parents. On the other hand, Congress has never sought to change the meaning of a natural born citizen, not even through the Fourteenth Amendment. 

So, Section 215 does not contradict my position that a natural born citizen is a child born in a country to parents who were its citizens at the time of the child's birth. If anything, it shows that only in a state of nature does membership (what Vattel calls being a citizen when applied to civil and political society) automatically follow the parents no matter where one is born. Section 215 also supports my position, for it shows that in civil and political society (not in a state of nature) positive laws (like Congress’s naturalization Acts) are needed to make children born out of the country to citizen parents citizens of their parents' nation. Given that in civil and political society such positive laws are needed to make them citizens of their parents’ nation, those children are at best “citizens;” they are not and cannot be “natural born citizens.” Keep in mind how the Third Congress removed “shall be considered as natural born citizens” and replaced it with “shall be considered as citizens of the United States.” Also keep in mind that children born out of the country to citizen parents who were serving abroad in a diplomatic capacity or in the armies of the state are reputed born in the country and therefore natural born citizens. See Vattel, Section 217 and John McCain. 

February 19, 2016 at 10:09 AM     


Thus, a child born to a U.S. citizen father abroad, not on official U.S. business, is a citizen of the U.S.,  but is not a 'natural born' citizen.  That requires both jus sanguinis - by law of blood - and jus soli - by law of soil.  Sect. 215 does not simply turn around and contradict Sect. 212.  It is talking about a different kind of citizen from a 'natural born' citizen.

I consider all of the above the definitive statement on the matter.  Thus, out are Cruz, Rubio, and - of course - Obama.

Now, to move on....

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