Thursday, June 1, 2017

Reprise of Natural Born Citizen

What is self evident is that a nation can define who shall be considered a citizen at birth. Since the Constitution itself did not do that, the Framers left that task to the Congress, in its enumerated powers. At the time, the power to determine naturalization clearly included power to determine who would be a citizen at birth. Whoever Congress, within its power, determines to be a citizen at birth is eligible, upon meeting other prerequisites (14 years in country and 35 years of age) to run for, and to become, President.

Following is a summary of my thinking, pulled together from various sources online, including Mike Ramsey.
See generally:
Too many people debate based on unfounded and differing assumptions.  They assume, with no basis, that a person cannot be both a naturalized citizen and a natural born citizen.  They assume that a person born with a right of citizenship does not necessarily qualify as a natural born citizen.  They assume that natural born means something different for citizens than for subjects.  They assume citizens of France were not also subjects of France.  They assume the Founders intended natural born citizen to mean something implied either by Vattel or Blackstone.  They assume Congress was not intended to have authority to determine or change who should qualify as a natural born citizen.  They assume such a thing exists as "natural law" or "law of nations" that precedes the Constitution, Vattel, Blackstone, and the authority of Congress.  They assume such law of nations is that which was set forth by Vattel, unchanging.  Some even assume, stupidly, that the U.S. did not adopt much of British Common Law.  In short, they assume what they want to believe, in order to rationalize what they want to enforce.
However, no one can be a citizen of a nation until a nation is made.  By being born to such conditions as a nation prescribes for citizenship, one can be born a citizen.  The interesting thing is, the Constitution did not define who would be a citizen of the U.S.!  Much less a citizen at birth, or a natural born citizen.  However, the Framers did grant Congress power to determine issues of naturalization.  Which, consistent with Common Law inherited through the British, has encompassed power to determine conditions for conferring citizenship at birth.
*George Washington did not check out the book about Law of Nations until long after Vattel's death, after the Constitution was written.  The book referenced by Franklin was shortly before the Declaration of Independence, long before the Constitution was written.  The words, "natural born," were long used by Blackstone, English Law, and Colonial Law --- before the Constitution was written.
The English translation of the 1758 edition of Vattel did not use the term “natural born Citizen.” That term did not appear until the 1797 edition, a decade after the Constitution was ratified.  Even the attorneys leading the challenge to Obama’s eligibility admitted the term was not in the edition available in 1787. 
No English translation of Vattel's work used such term until more than 30 years after Vattel's death.  Even using the French language, consider:  "Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens"  In English, this gives this: "the natural, or indigenous, are those born in the country, parents who are citizens".  Notice, this does not say citoyen né naissance. What it does do is to relate the "natural or indigenous" in a plural sense to "parens citoyens".  It does not say that a child must be born in country to be a citizen at birth.  It does not say that both parents must have been citizens at the time of such child's birth.
But suppose the person who translated the 1797 version of Vattel's treatise, 30 years after his death, had translated to say "those who are native citizens at birth are those who are born in the country of parents who are citizens."  In that case, such translation would have been consistent with, not inconsistent with, British law and precedent from 1731.  Such British Law provided that the status of being "natural born" applied as follows: "A]ll children born out of the ligenace of the crown of England or of Great Britain, or which shall hereafter be born out of such ligeance, whose fathers were or shall be natural-born subjects of the crown of England or of Great Britain, at the time of the birth of such children respectively, shall and may, by virtue of the said recited clause in the said act...and of this present act be adjudged and taken to be, and all such children are hereby declared to be natural-born subjects of the crown of Great Britain to all intents, constructions and purposes whatsoever."
Had Vattel been thus translated, clearly, it would not have precluded Americans from having a broader understanding of who shall naturally be a "citizen at birth," in the ordinary course of the common law as inherited through Britain. Such a translation would have been at least as faithful to the original French as the translation of 1797, 30 years after Vattel's death, that, in reconstructivist approach, took into account the American Revolution, the American Constitution, the drafting of the Rights of Man, and the French Revolution. Indeed, before the French Revolution, ordinary Frenchmen were hardly more like citizens or less like subjects than their British counterparts. Simply put, the words "natural born citizen" were not in Vattel's original, nor in any English edition that was available to the American Founders at any time between 1775 and 1790.
Regardless, to say that children of parents who are citizens will be naturals or indigènes would not be to say that such children themselves must be citizens, much less "natural born citizens." To suggest that such children should "succeed" to the rights of their parents (or father) is not to specify when such succession should occur, or whether it may be forfeited. After all, not every nation need guarantee status of citizenship, whether "natural" or "artificial." Indeed, nations sometimes think it natural or reasonable to require that status of citizenship be earned at some point after reaching an age of responsibility.
In any event, the term, natural born citizen, simply does not occur in a direct translation of Vattel.  Given that the phrase “natural born citizen” was not in the French, was it in the English translations available to the framers of the US Constitution? The answer is, “no”.  Rather, what was available to the Founders of 1787 with regard to the terminology of "natural born" citizen was in the New York Statute of 1700, the English Statute of 1731, and the Massachusetts Statute of 1784. NOT in Vattel.
REGARDLESS, even if one swallowed a reconstructivist 1797 translation of Vattel, such would not preclude of any nation a right, whether by statute or otherwise, to extend such definition to a wider circle. Which, under English law and the Colonists' adoption of it, HAD ALREADY BEEN DONE by the Americans. See the 1700 Statute of New York and the 1784 Statute of Massachusetts.
The Naturalization Acts of New York from 1770 used the phrase “natural born subject” such as in the following:
BE IT THEREFORE ENACTED by his Honor the Lieutenant Governor the Council and the General Assembly and it is hereby enacted by the authority of the same that the before mentioned several Persons and each and every of them shall be and hereby are declared to be naturalized to all Intents Constructions and purposes whatsoever and from henceforth and at all Times hereafter shall be entitled to have and enjoy all the Rights Liberties Privileges and Advantages which his Majesty’s Natural born Subjects in this Colony have and enjoy or ought to have and enjoy as fully to all Intents and purposes whatsoever as if all and every of them had been born within this Colony.
A few years later after the Revolution we see similar language in a naturalization act of Massachusetts (1784): “…thereupon, and thereafter taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
It seems very likely that when the Colonies became States, and subjects became citizens, the form of the naturalization acts changed, replacing “subject” by “citizen”. [TO INTERJECT MY NOTE: In 1770, New York was a Colony, and its statute referred to natural born subject. In 1784, Massachusetts was a State, and its statute referred to natural born citizen. Before Vattel was translated into the 1797 edition! IOW, the Americans were referring to the terminology "natural born citizen" before such language was published in any edition by Vattel, and before such language was recommended by Jay to the Constitutional Convention of 1787!]  It’s certain that the British Colonial language came from British common law. If indeed the States just substituted citizen for subject, then it is pretty certain that they retained the common law meaning. Jay, a lawyer, would have been familiar with the acts’ language.
Prior to 1797, all English translations of The Law of Nations, including the 1787 American Edition all said “natives or indegenes”. It was not until the 1797 edition that the new translation used the words “natives or natural born citizens.”
Quote from "Greg" -- By 1803, St. George Tucker was writing that Natural Born Citizen meant the same as Natural Born Subject – born here without regard to parentage. By 1829, William Rawle wrote, “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”
Because Congress has power by statute to extend birthright citizenship to persons born in a territory recognized and organized for such purpose, there is little reason to suppose Congress should lack power, by statute, to extend birthright citizenship to certain classes of citizens born, in venues abroad, of parents who are U.S. citizens -- without making such venues into part of the U.S.
In either case, Congress would be extending birthright citizenship (i.e., natural born status) by statute.
This is consistent with Congress' enumerated power to establish a uniform rule of naturalization and with Congress' power to make all laws which shall be necessary and proper for carrying into executon such power.
In the broadest usage of "naturalization," Congress has power, by statute, to make citizens at birth. In the more narrow usage of "naturalization," persons are more commonly considered to be naturalized when they are brought into a country and made citizens at some time after they were born.
In the common usage, a person who is a citizen at birth is not naturalized. However, in the broadest usage, under the enumerated powers delegated to Congress, Congress has power, by statute, "to naturalize" such classes of persons as may thereafter be born under its provisions.
For making citizens at birth, Congress has always been recognized as having naturalization power under the broad sense. For persons who are citizens at birth, the common usage, however, has not considered such persons as being naturalized unless they are brought into the country at some time, after their birth, for the purpose of making them citizens.
Before the French Revolution, ordinary Frenchmen were hardly more like citizens or less like subjects than their British counterparts.
When the Founders sent consuls to the negotiations for the Treaty of Paris, they selected persons from the pool of those who were "natural born" to the American Cause in the Blackstone sense -- not the Vattel sense.
Early in our republic, our precedents and practice came to be to recognize every free white person born in country as a natural born subject or citizen. That was a practice we inherited from Britain. By Statute, Britain expanded natural born status to persons born abroad of a British father. We adopted a similar statute in 1790.
The point is, we inherited the British idea that NBC status was a matter that could be expanded by statute. Later, by statute, we expanded to make a child born abroad of an American mother a citizen at birth. Under British practice, all citizens at birth were natural born citizens, and vice versa.
Obviously, people can define terms in different ways for different purposes and contexts. English and American language and law are filled with examples. In broad sense, "naturalization" may pertain to having been made a citizen by a particular statute or law -- whether at birth or after birth. In practice, when most people think of applying to be naturalized, they think of applying to become a citizen after birth. "Applying" usually connotes a possibility of being turned down. Not so with being a citizen at birth.
In the 1782 lead up for negotiating the Treaty of Paris to formalize the end of the Revolutionary War, it was necessary to have various consuls from various nations. It was agreed that "The consuls and vice consuls respective may be considered that among the natural subjects of power which will appoint them."
In France, this would have been interpreted as "subjects natural." I doubt France had an idea of everyone born abroad of a French citizen being himself of French citizenship. Regardless, England did! So England interpreted this as calling for consuls who were, under its law, "natural born subjects." America also sent its "natural born subjects."
So, who did the U.S. consider to be proper consuls and "natural born subjects"? Well, we sent Benjamin Franklin, John Jay, Henry Laurens, and John Adams. So I ask: Were all of those American consuls born of parents who were citizens of the geographical U.S.?
No, they were not! Benjamin Franklin was born to Josiah Franklin and his second wife, Abiah Folger. Josiah was born in the village of Ecton, Northamptonshire, England on December 23, 1657. And Henry Laurens' mother was Hester (or Esther) Grasset, a Huguenot refugee (probably from Southern France). Evidently, we did not then consider the status of being "natural born" to have required that the consuls' parents have been born in the territorial U.S.
But the main point is that the agreement, for the French, was taken to mean "subjects natural," while for the English and Americans it was in that context taken to mean "natural born subjects." This had to do with sending agents with proper authority to represent their sovereign powers. Not with a word for word translation of "Les consuls et vice consuls respectifs ne pourront être pris que parmi les sujets naturels de la puissance qui les nommera...."
By itself, "sujects naturels" only means subjects natural. It was the context and purpose that affected the way the different parties interpreted to send their consuls.  It would be pathetic to take this as some kind of absolute proof that "sujets naturel" meant "natural born" subjects.  Anyone can plug "sujets naturels" into a translator and see that, depending on context, it need mean no such thing. Rather, the direct translation is more like "natural objects" or subjects natural.  In the very negotiation of the Treaty of Paris, after we had long been the U.S., we considered our consuls to be our "subjects." So much for Birthers' claims that Americans no longer considered themselves to be any kind of subjects!
From Massachusetts statute of 1784: "[T]hereupon, and thereafter taken to be citizens of this ... , and entitled to all the liberties, rights and privileges of natural born citizens.” [This was before the Constitution was drafted and before the 1797 edition of Vattel's Treatise.]
John Jay was among the American consuls negotiating the treaty. He was an eminent lawyer from New York, A New York statute, as early as 1700, had referred to "natural born subjects." Jay would have been familiar. Seeing that "natural born" was thought appropriate to New York law and for selecting agents for negotiating treaties, it is hardly surprising that he would consider that a qualification to be President should include being "natural born." Seeing that Benjamin Franklin and Laurens were considered "natural born" and fit to serve as consul for America, Jay would not have considered such status to require that both of one's parents have been a citizen. More likely, Jay would have been concerned that persons born abroad and of no American or landed parentage (like Von Steuben) not be eligible (especially to have command of the military).
But Jay would NOT likely have wanted to disqualify children of persons, like Franklin, Laurens, or himself, who may be born abroad (especially while their parents were in the service of their country).
At the time of Senator’s McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73- 250, 48 Stat. 797.
So, McCain was a citizen at birth, i.e., a natural born citizen. He qualified as such only because of a statute, similar to Cruz's situation. If such statute made McCain an eligible NBC, then its successor likewise made Cruz an eligible NBC.
As to McCain, please don't argue Birther crap about military bases.
See the Foreign Affairs Manual:
Birth on U.S. Military Base Outside of the United States or Birth on U.S. Embassy or Consulate Premises Abroad:
Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not born in the United States and does not acquire U.S. citizenship by reason of birth.

A child, if he continued to reside in a foreign country beyond the age of majority, without timely reasserting his claim to U.S. citizenship by re-residing in the U.S., then, by such action, he may be deemed to have relinquished, forfeited, or expatriated his claim to U.S. citizenship. While such minor child was residing abroad, his U.S. citizenship may sometimes have been thought to be unperfected, or "inchoate." See Perkins v. Elg, 307 U. S. 325, 307 U. S. 329 (1939), wherein the Court observed that a native-born citizen who had acquired dual nationality during minority through his parents' foreign naturalization abroad did not lose his United States citizenship "provided that, on attaining majority, he elects to retain that citizenship and to return to the United States to assume its duties.
LYNCH V. CLARKE: In this light, it is clear that the New York Court of Chancery case of Lynch v. Clarke was properly decided. See
"[W]as Julia Lynch a citizen? That was the question before the court. The peculiar nature of the case meant that she must either have been a natural born citizen because she was born to her parents, though they were aliens, on U.S. soil, or that she was not a citizen at all because her parents were aliens regardless of the place of her birth and that she had never made any attempt to be naturalized."
The court held: "It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States?"
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]here is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
"To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212 [of Vattel], which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215, we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ” whether 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.” ” By the law of nature, children follow the condition of the father; the place of birth produces no change in this particalar.” “But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ”These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason. The Supreme Court of the U. S. held the doctrine as thus laid down by Vattel in Dawson’s Lessees v. Godfrey,(4 Cranch, 321.) And see Rutherforth’s Institutes, ch. 2, p. 41."

It is a mistake to assume that because modern usage tends more often to consider birth citizens as being separate from naturalized citizens that the Founders thought in the same way.  A simple check of history shows that is not the case. The Founders did NOT look upon persons who were born abroad, yet citizens at birth by statute or naturalization, as necessarily not being natural born citizens.
I have cited to Mike Ramsey, a well known professor who clerked for Justice Scalia, an originalist if ever there was one.  See Quoting from the Originalism Blog of Mike Ramsey:
"[A] natural born citizen and a naturalized citizen are not mutually exclusive." He writes:
"The discussion is sometimes framed as a dichotomy between natural born (meaning a citizen at birth) and naturalized (meaning one who became a citizen later). That may be modern usage, but it’s not the eighteenth century meaning.  Blackstone used “naturalized” to mean “made a citizen by statute,” whether at birth or otherwise. For example, he referred to the statute making subjects of some children born abroad as an act “for naturalizing the children of English parents born abroad.” That use carried over into the U.S. in the 1790 Act, which is called an act of naturalization (passed under Congress’ power to provide a uniform rule of naturalization), and continued at least at far forward as the Fourteenth Amendment – which says there are two ways to be a citizen: born in the U.S. or naturalized. So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen.
Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute). And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high office."
Let me say it again: So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen.
Blackstone thought children naturalized at birth “are” natural born.
Show me where you find anything in the Constitution that says that a natural born citizen is (and can only be) a person who was born a citizen whose citizenship cannot be forfeited.
I can’t find any evidence that the Framers wanted to discriminate against the children of Americans anywhere. The first naturalization statute, passed in 1790, said that “children of citizens of the United States, that may be born beyond sea, or out of limits of the United States, shall be considered as citizens of the United States.” (Citizenship did not extend to such children if their fathers had never lived in the U.S.)
The Supreme Court, interpreting Congress’ use of its power over citizenship, has noted that there are “two sources of citizenship, and two only: birth and naturalization.”  Congress extended citizenship to people like Cruz at birth.
*EDIT:  On October 5, 1789, George Washington, after having become President on April 30, 1789, more than 2 years after the Constitution had been completed on September 17, 1787, more than 15 months after Virginia had ratified it on June 26, 1788, checked out "The Law of Nations" by Emer de Vattel from the New York Society Library.  It was returned 221 years later.
Since Washington did not check the book out until considerably after the Constitution had been drafted, there is nothing to indicate he would have referred to it at the time the terminology "natural born citizen" was specified as a prerequisite to be eligible to become President.  Moreover, the terminology "natural born citizen" was not in that edition.


This lily has already been perfumed by rabbit pellets quite enough. The people that want to perfume it further tend to have little insight concerning the new problems they will unleash.
If a person has been 14 years a resident of the U.S. and was a citizen of right of the U.S. at the time of his/her birth, then he/she is a natural born citizen and qualified to run for the presidency. Period. The rest is rabbit pellets, recycled to a point of complete lack of nutritional value. But hey, if reprocessing old rabbit pellets and ridiculous interpretations of "natural law" or French "law of nations" is your entertainment, enjoy. Everyone needs a hobby.

The rule we are following is the same rule we have almost always been following: A child of an American citizen is a citizen at birth, under jus sanguinus. It is the trend of modern nations. It is the way to avoid anchor babies. It ensures to some extent that a child will have American influences. The 14 year residency requirement adds to that.

Regarding the CRBA: The paperwork is only evidentiary of the fact. Everyone can be subjected to having to prove a right, especially when crossing borders.

Example: When you apply for a passport, you have to fill out forms. But that does not mean that you did not have the right to the passport. The forms are the method for recording the facts by which to exercise the right.

John McCain did not forfeit citizenship because his parents failed to file a form. You would have the right to obtain your passport before you filled out the forms. The forms make it convenient for you to prove and exercise the right.

But if you found yourself in a foreign country and lost your passport, I'll bet an embassy would assist you in reclaiming your right. You would not forfeit your citizenship for not having the passport.

In years past, Congress passed various citizen forfeiture statutes. Most of those have been repealed or voided.  How Congress and the Judiciary exercise authority in that regard seems to wax and wane. I don't see how that can in any reasoned way have to do with determining whether a person who is born with a claim of right to citizenship qualifies as a natural born citizen.

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