The reaction to my blog Birther Madness is stunning, with nearly 400 comments in a heated debate over the “term natural born citizen.” Birthers claim our constitution’s framers meant “natural born citizen” born in the U.S. of two citizen parents in the U.S., based on Swiss philosopher Vattel’s Law of Nations.
Birthers critics say Vattel never used “natural born citizen” and common law had long defined natural born citizen as someone who was born a citizen regardless of their parents’ citizenship.
Natural Born Citizen – Jus Soli (law of the soil) vs. Jus Sanguinis (law of the blood)
Nations define citizenship in two broad categories, Jus Soli (law of the soil) and Jus Sanguinis (law of the blood). England and colonies all followed Jus Soli, so anyone born in England or colonies were natural born subjects regardless of their parents’ citizenship. The most authoritative text on Common Law during the colonial era was An Analysis of the Laws of England by William Blackstone. Blackstone is quite clear about the term natural born in the citizenship context:
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 ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.
Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth…
What did Natural Born Citizen Mean When the Constitution was Adopted?
Our constitution doesn’t explicitly define the term “natural born citizen” but there is overwhelming evidence that “natural born citizen” was widely understood at the time and didn’t need definition.
Following independence, the articles of confederation were adopted, which concentrated power in the states, including immigration. Every state embraced English common law, except where it conflicted with their new constitution. For example, the Delaware constitution states:
The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this state, shall remain in force unless they shall be altered by a future law of the Legislature, such parts only excepted as are repugnant to the rights and privileges contained in this Constitution and the declaration of rights, & agreed by this convention.
Virginia’s reception statute:
And be it further ordained, That the common law of England, all statutes or acts of Parliament made in aid of the common law prior to the fourth year of the reign of King James the first, and which are of a general nature, not local to that kingdom, together with the several acts of the General Assembly of this colony now in force, so far as the same may consist with several ordinances, declarations, and resolutions of the General Convention, shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony.
English common law became American common law, and no state passed a statute embracing Jus Sanguinis (law of the blood). Immigration power was reserved to the states, until our constitution shifted that power to Congress.
Birther ‘Pretzel Logic’ and Vattel’s “Law of Nations”
It takes ‘pretzel logic’ to believe our constitution’s framers meant Vattel’s notion of “naturals” to define citizenship, a drastic change from centuries of jus soli. Surely if our founders wanted to make such a drastic change they would have explicitly defined “natural born citizen”, indicating the term was widely understood. Vattel never used the term “natural born citizen.”
The framers did read Vattel, but never quoted the following passage from Emer de Vattel’s 1758 book, “Le Droit des Gens,” or “The Law of Nations.”
§. 212. Les Citoyens sont les membres de la Société Civile: Liés à cette Société par certains devoirs, & sourmis à son Autorité, il participent avec égalité à ses avantages. Les Naturels, ou Indigènes sont ceux qui sont nés dans le pays, de Parens Citoyens.
The bold phrase in English states les Naturels, ou Indigènes (the naturals or indigenous) are those who were born in the country, of parents who are citizens. Nowhere did Vattel use the phrases “natural born citizen” or “natural citizens.” Moreover, Vattel was Swiss, and his legal framework was Swiss law. Switzerland follows Jus Sanguinis (law of the blood), and in Switzerland one must be born of Swiss citizen parents to be born a Swiss citizen. Naturally Vattel would tend to view citizenship as jus sanguinis, or the two-parent rule.
Vattel’s book is a treatise, a book of philosophy about international law. The framers also read law books, among them Blackstone’s Analysis of the Laws of England. Birthers stress the importance of Vattel to bolster their argument, but this analysis by Donald S. Lutz shows Vattel was tied for last place for influence by our founders, while Blackstone was #3 (7.9%), both of whom wrote extensively about English common law. For every founder quote of Vattel, there were 16 of Blackstone!
Birthers Epic’ Failure to Make Their Case!
Of 337+ birther court decisions (see scorecard), birthers have won ZERO cases and several were fined for frivolous cases! Most losses were for lack of standing, technical deficiencies, but more than a ten judges explicitly ruled that Obama is a natural born citizen. Here’s a list of those cases with links:
- Ankeny v. Daniels
- Fair v. Obama
- Farrar v. Obama (Secretary of State also found Obama is a NBC)
- Galasso v. Obama
- Jackson v. Obama
- Paige v. Obama
- Purpura et al v. Obama
- Strunk v. NY State Board of Elections
- Tisdale v. Obama (appeal too)
- Voeltz v. Obama