Skip to comments.The Constitution, Vattel, and ‘Natural Born Citizen’: What Our Framers Knew
Posted on 07/18/2012 2:31:08 PM PDT by WXRGina
We have been visited recently with several very silly articles which assert that Marco Rubio is a natural born Citizen within the meaning of Art. II, §1, cl. 5, U.S. Constitution (ratified 1789), and hence is qualified to be President:
Bret Baier (Fox News) asserts that Congress can define (and presumably redefine, from time to time) terms in the Constitution by means of law.
Chet Arthur in American Thinker quips that the original meaning of natural born citizen is determined by reference to The Heritage Guide to the Constitution and to the definition of citizen at Sec. 1 of the 14th Amendment, ratified 1868.
Human Events claims that anyone born within The United States is a natural born citizen eligible to be President.
Jake Walker at Red State purports to show how the term has been used from 1795 to the present. After quoting James Madison on the citizenship requirements imposed by Art. I, §2, cl. 2, to be a member of the House, Walker gleefully quotes a 1795 discussion of natural born subject to prove that anyone born here is a natural born citizen:
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. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection [emphasis mine]
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. [emphasis mine]
But subjects are not citizens; and we fought a war so that we could be transformed from subjects of the British Crown to Citizens of a Republic!
The four writers dont know what they are talking about. But I will tell you the Truth and prove it. We first address Word Definitions.
Like clouds, word meanings change throughout time. Awful once meant full of wonder and reverence; cute meant bowlegged; gay meant jovial; and nice meant precise.
Accordingly, if someone from an earlier time wrote of a cute gay man, he was not referring to an adorable homosexual, but to a cheerful bowlegged man.
So! In order to understand the genuine meaning of a text, we must use the definitions the authors used when they wrote it. Otherwise, written texts become as shifting and impermanent as the clouds blown hither and yon throughout the years by those who unthinkingly read in their own uninformed understandings, or deliberately pervert the text to further their own agenda.
So! Is Our Constitution built on the Rock of Fixed Definitions those our Framers used? Or are its Words mere clouds to be blown about by Acts of Congress, whims of federal judges, and the idiotic notions of every ignoramus who writes about it?
Article II, §1, cl. 5, U.S. Constitution, requires the President to be a natural born Citizen.
The meaning of this term is not set forth in The Constitution or in The Federalist Papers; and I found no discussion of the meaning in Madisons Journal of the Federal Convention or in Alexander Hamiltons notes of the same.
What does this tell us? That they all knew what it meant. We dont go around defining pizza, because every American over the age of four knows what a pizza is.
Our Framers had no need to define natural born Citizen in the Constitution, because by the time of the Federal Convention of 1787, a formal definition of the term consistent with the new republican principles already existed in Emer Vattels classic, Law of Nations.
And we know that our Framers carefully studied and relied upon Vattels work. Ill prove it.
During 1775, Charles Dumas, an ardent republican [as opposed to a monarchist] living in Europe sent three copies of Vattels Law of Nations to Benjamin Franklin. Here is a portion of Franklins letter of Dec. 9, 1775 thanking Dumas for the books:
I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author (2nd para) [boldface added]
Vattels Law of Nations was thereafter pounced upon by studious members of Congress, groping their way without the light of precedents.
Years later, Albert de Lapradelle wrote an introduction to the 1916 ed. of Law of Nations published by the Carnegie Endowment. Lapradelle said the fathers of independence were in accord with the ideas of Vattel; they found in Vattel all their maxims of political liberty; and:
From 1776 to 1783, the more the United States progressed, the greater became Vattels influence. In 1780 his Law of Nations was a classic, a text book in the universities.(page xxx) [emphasis added]
In footnote 1 on the same page (xxx), Lapradelle writes:
Another copy was presented by Franklin to the Library Company of Philadelphia. Among the records of its Directors is the following minute: Oct. 10, 1775. Monsieur Dumas having presented the Library with a very late edition of Vattels Law of Nature and Nations (in French), the Board direct the secretary to return that gentle-man their thanks. This copy undoubtedly was used by the members of the Second Continental Congress, which sat in Philadelphia; by the leading men who directed the policy of the United Colonies until the end of the war; and, later, by the men who sat in the Convention of 1787 and drew up the Constitution of the United States, for the library was located in Carpenters Hall, where the First Congress deliberated, and within a stones throw of the Colonial State House of Pennsylvania, where the Second Congress met, and likewise near where the Constitution was framed [emphasis added]
So! Vattels work was continually in the hands of Congress in 1775; Members of the Continental Congress pounced on Vattels work; our Founders used the republican Principles in Vattels work to justify our Revolution against a monarchy; by 1780, Vattels work was a classic taught in our universities; and our Framers used it at the Federal Convention of 1787.
From our beginning, we were subjects of the British Crown. With the War for Independence, we became citizens. (READ this footnote!) We needed new concepts to fit our new status as citizens. Vattel provided these new republican concepts of citizenship. The gist of what Vattel says in Law of Nations, Book I, Ch. XIX, at §§ 212-217, is this:
§ 212: Natural-born citizens are those born in the country of parents who are citizens it is necessary that they be born of a father who is a citizen. If a person is born there of a foreigner, it will be only the place of his birth, and not his country.
§ 213: Inhabitants, as distinguished from citizens, are foreigners who are permitted to stay in the country. They are subject to the laws of the country while they reside in it. But they do not participate in all the rights of citizens they enjoy only the advantages which the law or custom gives them. Their children follow the condition of their fathers they too are inhabitants.
§ 214: A country may grant to a foreigner the quality of citizen this is naturalization. In some countries, the sovereign cannot grant to a foreigner all the rights of citizens, such as that of holding public office this is a regulation of the fundamental law. And in England, merely being born in the country naturalizes the children of a foreigner.
§§ 215, 216 & 217: Children born of citizens in a foreign country, at sea, or while overseas in the service of their country, are citizens. By the law of nature alone, children follow the condition of their fathers; the place of birth produces no change in this particular.
Do you see? The republican concept of natural born citizenship is radically different from the feudal notion of natural born subjectship. Under feudalism, merely being born in the domains of the King made one by birth a natural born subject. But in Vattels Model and Our Constitutional Republic, Citizens are natural born only if they are born of Citizens.
The Federal Convention was in session from May 14, through September 17, 1787. John Jay, who had been a member of the Continental Congress [where they pounced on Vattel], sent this letter of July 25, 1787, to George Washington, who presided over the Convention:
Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of foreigners into the administration of our national government and to declare expressly that the Command in Chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen 
Accordingly, Art. II, §1, cl. 5 was drafted to read:
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. [boldface added]
In § 214, Vattel states that fundamental law may withhold from naturalized citizens some of the rights of citizens, such as holding public office. The Constitution is our fundamental law; and, following Vattel, Art. II, §1, cl. 5 withholds from naturalized citizens (except for our Founding Generation which was grandfathered in) the right to hold the office of President.
Remember! None of our early Presidents were natural born Citizens, even though they were all born here. They were all born as subjects of the British Crown. They became naturalized citizens with the Declaration of Independence. That is why it was necessary to provide a grandfather clause for them. But after our Founding Generation was gone, their successors were required to be born as citizens of the United States not merely born here (as were our Founders), but born as citizens.
And do not forget that the children born here of slaves did not become citizens by virtue of being born here. Their parents were slaves; hence (succeeding to the condition of their parents) they were born as slaves. Black people born here did not become citizens until 1868 and the ratification of the 14th Amendment.
So! Do you see? If Our Framers understood that merely being born here were sufficient to confer status as a natural born citizen; it would not have been necessary to grandfather in our first generation of Presidents; and all the slaves born here would have been natural born citizens. But they were born as non-citizen slaves, because their parents were non-citizen slaves.
David Ramsay was an historian, Founding Father, and member of the Continental Congress [REMEMBER: This is where they pounced on Vattel], whose Dissertation On The Manner Of Acquiring The Character And Privileges Of A Citizen Of The United States was published in 1789, just after ratification of our Constitution and the Year the new Government began.
It is an interesting dissertation and only 8 pages long. At the bottom of his page 6, Ramsay states:
The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776. [modernized spelling & emphasis are mine]
Do you see? Ramsays Dissertation sets forth the understanding of the Time, formally stated by Vattel and incorporated by our Framers, that a natural born Citizen is one who is born of citizens. And we had no citizens until July 4, 1776.
Now, let us look at the First Congress.
Article I, §8, cl. 4 delegates to Congress the power To establish an uniform Rule of Naturalization. Pursuant to that power, the First Congress passed the Naturalization Act of 1790. Here is the text, which you can find at the Democrat Party has the right to nominate whoever they choose to run for president, including someone who is not qualified for the office. [See pages 3 & 4 of the linked Court Order.]
The school-girlish Establishment Republicans who swoon over the glib, handsome & Hispanic Marco Rubio (who is not a natural born Citizen, but only a naturalized citizen) will ultimately destroy our sovereignty. Once we accept that our President need not be a natural born Citizen, we will have made a major step towards submission to global government. Because then, anybody can be President. PH.
 Monarchies have subjects. Republics are formed by citizens. We broke from a monarchy under which we were subjects; and with our War for Independence, were transformed into citizens!
The common law of England recognizes only subjects of the Crown. England has never had citizens. Her feudal doctrine of natural born subjects is set forth in Book I, Ch. 10, of Blackstones Commentaries on the Laws of England (I modernized the spelling):
THE first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie which binds the subject to the king [emphasis mine]
Under feudalism, people are possessions who belong to the Land in which they were born. So they are naturally subject to whoever owns the Land. They were born as subjects to the owner of the land [ultimately, the King] on which they were born.
With our War for Independence, We repudiated the notion of natural born subjects. As Citizens, We ordained and established Our Constitution wherein We created a federal government which was subject to us!
Jake Walker doesnt seem to know the difference between being a subject of a King and a citizen of a Republic, as he equates the feudal concept of natural born subject with the Republican concept of natural born Citizen.
Chet Arthur and Human Events tell us the original intent of natural born Citizen at Art. II, §1, cl. 5 is given by an Amendment defining citizen [not natural born citizen] ratified 80 years later!
And Bret Baier seems unaware that the methods for amending the Constitution are set forth in Article V; and that Congress may not amend the Constitution by making a law which redefines terms set forth in the Constitution!
These four amateurs would do well to study Birthright Citizenship and Dual Citizenship: Harbingers of Administrative Tyranny, by Professor Edward J. Erler. Erler addresses the distinctions between citizenship and subjectship; and the concept of citizenship at §1 of the 14th Amendment. He proves that not everyone born here is a citizen: Only those whose parents are subject to the jurisdiction of the US are citizens. Illegal aliens are not subject to the jurisdiction of the US they are invaders whose allegiance is to the Country they left. Foreign diplomats stationed here are not subject to the jurisdiction of the US. Thus, children born here of these aliens are not citizens!
 The 1916 ed. of Law of Nations with Lapradelles introduction is a Google digitized book. If you download it, you get an easily readable text.
 Many thanks to my friend, David J. Edwards, who provided me with Evidence of Vattels profound influence on our Founders & Framers.
 The hyperlink contains another link where you can see Jays handwritten letter!
 Note that Art. I, §2, cl. 2, permits naturalized citizens to serve as Representatives; and Art. I, §3, cl. 3, permits them to serve as Senators.
 Naturalization is the process, established by law, by which foreigners become citizens.
 Note that in §§ 215, 216 & 217, Vattel says that children born of citizens in a foreign country, at sea, or while overseas in the service of their country, are citizens. He goes on to say that by the law of nature alone, children follow the condition of their fathers; the place of birth produces no change in this particular. But he doesnt expressly say they are natural born citizens. The italicized words at the end of the 1790 Act correct that and make it clear that children of citizens of the United States are natural born citizens wherever they are born.
 The 14th Amendment doesnt change this one whit! READ Prof. Erlers paper, linked above.
NOTICE! To all who strain to find something I failed to mention: I didnt quote Minor v. Happersett because Minor merely paraphrases, in dicta, a portion of the Naturalization Act of 1790, the text of which is set forth above.
And I didnt show why John McCain & Mitt Romney ARE natural born Citizens; and why Marco Rubio & Obama are NOT natural born Citizens. J.B. Williams has already done an excellent job in applying the Republican Principles set forth by Vattel, and which were embraced by our Founders, Framers, and the First Congress, in his recent paper, Romney, Rubio, McCain And Natural Born Citizen. PH
Another excellent offering from Ms. Publius Huldah!
Has a precedent been set by Obama? He of the fraudulent birth certificate and Kenyan father.
Neither parents were illegal aliens, in fact both were in the US with the permission of the US Govt.
“Neither parents were illegal aliens...”
That isn’t relevant in this instance.
The question is whether the parents were citizens.
I.e., were they born here or had they sworn an oath of allegiance to the U.S. via a citizenship process?
Did you read the whole piece?
Rubio’s parents did not receive their naturalized citizenship until several years AFTER Rubio was born. Just because they are in the country “with the permission of the US Govt” does not make them naturalized citizens.
Rubio is NOT a natural born citizen.
It most certainly is relevant. There is no requirement in the Constitution that both parents had to be citizens.
Even the fine print is enlightening. Under the article, down past the comment section is this nugget of gold:
"We don't intend to turn the Republican Party over to the traitors in the battle just ended. We will have no more of those candidates who are pledged to the same goals as our opposition and who seek our support. Turning the party over to the so-called moderates wouldn't make any sense at all." - Ronald Reagan, Nov. 10, 1964If we had only listened to Ronald Reagan.
You didn’t read the article did you?
When the drafters distinguished between the citizenship requirements for Senators and House members and those for the President and VP they used the term “natural born citizen”. They did not have in mind a mere citizenship requirement for the latter, who would or might also serve as the commander in chief.
The term used for the two highest offices was, at the time, well understood to mean “born of two citizen parents.
If the issue was the intention of the parties regarding the definition of a term used in a contract, it wouldn’t be much of a case.
But one suspects you know that.
Have a nice evening.
You’re welcome! Ms. Publius Huldah is a marvelous teacher and scholar of our Constitution and founding documents.
You’re so right that we should have listened to President Reagan!
Thanks for a most exellent post.
I suggest you ping the “brilliant constitutional scholar” Mark Levin, whose freeper name is “holdonnow”.
excellent... FR’s spell check doesn’t.
You're welcome. Ms. Publius Huldah's papers are always packed with pure, brain muscle-building, information protein!
I suggest you ping the brilliant constitutional scholar Mark Levin, whose freeper name is holdonnow.
I didn’t even catch the typo! We often “see” what we assume we’re seeing. :-)
Our founders might indeed have understood Vattel in the way this thread suggests. That’s not what they said in plain text. Incorporating Vattel by inference is NOT strict construction.
If our founders meant that both parents be should be citizens, they should have explicitly said that.
Both Jindal and Rubio are eligible to run. Even if you could have made an argument otherwise before, Obama sets the precedent that NBC means citizen at birth, period.
The NBC argument has been settled. Vattel lost.
If there is any government where prerogatives might with apparent safety be entrusted to any individual, it is in the federal government of America. The president of the United States of America is elected only for four years. He is not only responsible in the general sense of the word, but a particular mode is laid down in the constitution for trying him. He cannot be elected under thirty-five years of age; and he must be a native of the country.Yes, Paine did use the term "native of the country." Does this mean "native born" instead of "natural born?" We have to look at the following statements to answer that question.
In a comparison of these cases with the Government of England, the difference when applied to the latter amounts to an absurdity. In England the person who exercises prerogative is often a foreigner; always half a foreigner, and always married to a foreigner. He is never in full natural or political connection with the country, is not responsible for anything, and becomes of age at eighteen years; yet such a person is permitted to form foreign alliances, without even the knowledge of the nation, and to make war and peace without its consent.
But this is not all. Though such a person cannot dispose of the government in the manner of a testator, he dictates the marriage connections, which, in effect, accomplish a great part of the same end. He cannot directly bequeath half the government to Prussia, but he can form a marriage partnership that will produce almost the same thing. Under such circumstances, it is happy for England that she is not situated on the Continent, or she might, like Holland, fall under the dictatorship of Prussia. Holland, by marriage, is as effectually governed by Prussia, as if the old tyranny of bequeathing the government had been the means.
The presidency in America (or, as it is sometimes called, the executive) is the only office from which a foreigner is excluded, and in England it is the only one to which he is admitted. A foreigner cannot be a member of Parliament, but he may be what is called a king. If there is any reason for excluding foreigners, it ought to be from those offices where mischief can most be acted, and where, by uniting every bias of interest and attachment, the trust is best secured. But as nations proceed in the great business of forming constitutions, they will examine with more precision into the nature and business of that department which is called the executive. What the legislative and judicial departments are every one can see; but with respect to what, in Europe, is called the executive, as distinct from those two, it is either a political superfluity or a chaos of unknown things.
Paine refers to Engish examples in order to define this. Paine cites "foreigner" and "half a foreigner" as the oppposite to "full natural" connection to the country. So, what is "half a foreigner?"
It seems to me that "half a foreigner" is a person with one parent who is a citizen and one parent who is not. This person does not have have a "full natural... connection with the country."
Paine wrote plainly of why the Framers did not want "half-foreigners" to be president, and why only people with a "full natural... connection with the country" were allowed to become President.
Paine was widely recognized as the most influential writer of the time of Independence because of his plain writing style that resonated with the common person.
Paine's description of the meaning of Article II was written in 1791, and I take it to be reflective of the common understanding of the time. This was, after all, written just two years after the ratification of the Constitution. If Paine said that natural born citizens meant both parents were citizens, then that was the plain meaning.
So how does Vattel -- less cited than Pufendorf or Grotius, Hobbes or Rousseau, and far less cited than Blackstone or Coke -- all of a sudden end up being the one and only authoritative source for the Founders' thinking about citizenship?
This does not argue for or against the article, but Alexander Hamilton remained in New York the entire time of drafting the Constitution. He showed up on the final day only to sign his name to the document.
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