Friday, January 8, 2016

Blackstone, Vattel, and Natural Born Citizen

There is an informative discussion at  It traces some of the pertinent timing and content of the unfolding debates among the Founders.  I found the following quotes to be particularly interesting:

The term "natural born" citizen has a long history in British common law.(38)  In fact, a law passed in 1677 law says that "natural born" citizens include people born overseas to British citizens. This usage was undoubtedly known to John Jay, who had children born overseas while he was serving as a diplomat.(39)  It also appears to have been employed by the members of the first Congress, who included many of the people who had participated in the Constitutional Convention. To be specific, The Naturalization Act of 1790, which was passed by this Congress, declared "And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens; Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident of the United States."(40) This history suggests that the Founding Fathers used the term "natural born" as an expansive definition of citizenship, that is, as a way to make certain that people born overseas to American citizens would have the full rights of other American citizens.(41)


Other parts of Yinger's analysis are nearly as interesting.

To my reasoning, "citizen" is most inclusive, "natural born citizen" is less inclusive, "native born citizen" is a class that overlaps with "natural born citizen" but is less inclusive than "citizen."  To my reasoning, a person may be a native born citizen without being a natural born citizen, and vice versa.  And, a person may be a citizen without being either native born or natural born.  That is, he may be born in a territory not of a citizen parent under circumstances in which legislation still makes him a citizen.  Or he may be naturalized.

BOTTOM LINE:  For the new republic, reference to Blackstone makes more sense, to me, than reference to Vattel.  Moreover, reference to Blackstone can be better squared with how events have actually unfolded.


To restate some interesting analysis I found earlier today:

Franklin's letter thanking the person who sent him copies of Vattel's treatise was written in English, in 1775 -- before the Declaraton of Independence, not at the time of the drafting of the Constitution more than 10 years later.

From Chapter XIX, 212 (page 248 of 592):
Title in French: "Des citoyens et naturels"
To English: "Citizens and natural"

French text (about citizens): "Les citoyens sont les membres de la societe civile : lies a cette societe par certains devoirs et soumis a son autorite, ils participent avec egalite a ses avantages."
To English: "The citizens are the members of the civil society: linked to this society by certain duties and subject to its authority, they participate with equality has its advantages."
French text (about "natural" born citizens): "Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens"
To English, gives this: "the natural, or indigenous, are those born in the country, parents who are citizens"

COMMENT:  This appears to be a matter of grammatical agreement.  The "natural or indigenous" is here used in a plural sense.  By way of grammatical agreement, "parents" also is plural.  With consistency, one may say that the naturals are children of parents who are citizens.  That does not necessarily mean that each child has parents, both of whom were citizens.  If some of the children have a parent who is a citizen, and some have parents who were both citizens, it would still be said that the children have parents who are citizens.  And this is EVEN IF the Founders had the French version.  But I suspect they had an English translation,  and I suspect the English translation did not then contain the formulazation, "natural born citizen."  I will try to find out.

So, not even the French version clearly or unambiguously supports the Borner Argument.

See also  "there does not seem to be record of one single mention of “Vattel” together with the phrase “natural born,” at any time between the years 1758 and 1800, in the entire vast store of books searchable through Google books."

A commenter (Ballantine) astutely noted:

"[T]he Constitution is full of terms that had no meaning other than with respect ot the English common law and that the Court has always defined in accordance with the English common law. Simply a fact that habeas corpus, impeachment, ex post facto, bill of attender, high crimes and misdemeanors, cruel and unusual, the right to bear arms, due process, grand jury, presentment, indictment and on and on are all English common law terms that didn’t exist anywhere else in 1787. Of course, “natural born” didn’t exist anywhere else either which is why the Court looked to the common law to define it."

Another commenter (Woodman) noted:

"[B]y the time of the American Revolution, the study of the English common law (as presented by Blackstone (in his “Commentaries on the Laws of England”), was the foundation of legal training in the United States. As far as the Founders themselves were concerned, Professor Donald Lutz, who researched who the Founders actually quoted from, found William Blackstone nearly tied for most-quoted, with St. Paul and Montesquieu. Vattel was a distant 30th."

“The same question is presented, therefore, in this respect, which arose in Lynch v. Clark… where it is, I think, very clearly shown that, in the absence of any statute, or any decisions of our own courts, state or national, on the subject, the question of citizenship can only be determined by reference to the English common law, which, at the time of the adoption of the Constitution of the United States, was, to a greater or less extent, recognized as the law of all the states by which that Constitution was adopted.”

"So the principle clearly stated in Ludlam v Ludlam was that since there was no clear guidance from any other authority, the case could only be decided with reference to English common law."

"It turns out the title of Book 4, Chapter 5, of Blackstone’s Commentaries is:  Of Offenses against the Law of Nations."

SUMMARY:  I think "Borners" (looking for a more polite term) have simply gotten carried away with some kind of self-feeding and mass-hysterical response on account of absolute (and understandable!!!) wariness of Obama.  Given how history has unfolded, I don't think even Superman could turn back the pages.  Permit me to suggest that a better way forward might be with an Article V Convention.



Twenty of the members of the First Congress were among the Founders.  Much of their work took place before the Supreme Court took final power to interpret the Constitution.  Yet, those twenty chose not to oppose or debate the first Act that defined "natural born citizen" by statute.  The Constitutional provision concerning the natural born citizen clause originated within a committee of eleven.  Of that eleven, eight became members of the First Congress.  None expressed any concern that the first Act that defined natural born citizens included some persons not born within the U.S. 

Obviously, those members of the First Congress did not believe the Founders intended the Constitution to preclude children of American citizens from being within the category of natural born citizens.  Clearly, they felt the principle of jus sanguinus was not inconsistent with the American Constitution.  In that, they likely were influenced by similar British law.  Having established the idea of providing for citizenship at birth under Congressional legislation, it becomes surplusage to require the formulazation "natural born" instead of "citizen at birth" -- or the same idea in similar words.

Were this not so, a child born abroad to U.S. military parents would not be a natural born citizen, but a child born at home of legally visiting foreigners would.  Such a situation would not be tolerable.  It is not the law, nor should it be the law.


The original Constitution did not define who is a citizen.  Under the 14th Amendment, a citizen would include a person who is born or naturalized in the United States, and subject to the jurisdiction thereof.  Yet, none of the following were born in a state:  Charles Curtis (Veep under Hoover), FDR, Jr., Barry Goldwater (candidate against LBJ), George Romney (Republican primary candidate), Lowell Weicker (Republican primary candidate), Al Gore (Veep under Clinton), and John McCain (candidate against Obama).

Even so, they were obviously citizens, and they were considered "natural born" enough to occupy or run for higher office (excepting that FDR, Jr., was never a candidate for President or Vice President.

George McClellan (candidate who opposed Lincoln) was born in Paris.  Charles Curtis was born in the Kansas Territory.  FDR, Jr. (son of President FDR and a Representative),was born in Canada.  Barry Goldwater was born in the Arizona Territory.  George Romney was born in Mexico.  Lowell Weicker was born in France.  Al Gore was born in Washington D.C. (not in a state).  John McCain was born in Panama.

Under English law, "natural born" citizens would include people born overseas to British citizens.  Indeed, most of the colonists in America were natural born British citizens! even though born in America. See

The Founders were well familiar with British law and wrote numerous provisions into the Constitution that were in direct reference to terms then common under English law.

 Under the first nationality law written by the First Congress (of which 20 were among the Founders), birth in the U.S. was not required to be a natural born citizen.  Under immigration statutes in effect when Ted Cruz was born, he held a claim of right as a citizen from birth.  Under the prevailing weight of legal opinion, Ted Cruz, like numerous candidates before him who were not born in a state, qualifies as a natural born citizen.  However, this is not an issue on which any court would issue an advisory or declaratory opinion.  So Trump's raising it is merely Trump being disingenous, as typical.

Before long, opponents will be saying about Trump's own misadventures, "Well, I don't know.  Maybe he should explain ..."  Then, were he to take the bait to explain, say, "Well, I don't know.  Maybe he should explain further concerning  ..."  And so on.  It's just a ploy to keep the opposition on defense.  Trump can play that way because his base is so angry at the regime.  IOW, the other candidates let Trump get out in front in milking anger at the regime, and now they cannot likely catch up. 

But how is this continuing ploy by Trump going to translate into an actual governing philosophy?  As to that, I am not too concerned.  Mainly, I want a philosophy for ripping up and tearing out big gov.  Trump is good for that.  Domestic rebuilding can come later -- maybe under Cruz.


cite regarding  Rogers v. Bellei 401 U.S. 815 (1971).  So far, it seems to me to make the rat's nest rattier.  What follows is more than any human being should be required to read.  However, for reference purposes, it sets out my candid assessment of Rogers v. Bellei.

My Preliminary Assessment:   It's a 5 to 4 decision.  It's an addition to rat's nest confusion regarding NBC concerns.  Thankfully, the case does NOT discuss eligibility to become President.  However, it does discuss what types of citizenship can be taken away, such as based on failure to abide by residency requirements

Some of the ideas seem to be:

A person who is a "first sentence" 14A citizen at birth (BORN in U.S. and subject to its jurisdiction) cannot likely be deprived by statute of his citizenship based on failure to meet residency requirements.

A person who is a "first sentence" 14A citizen at birth (NATURALIZED in U.S. and subject to its jurisdiction) might possibly be deprived by statute of his citizenship based on failure to meet residency requirements.

A person who is not a 14A citizen may be accorded citizenship by STATUTE, as by descent through a citizen parent, even if born abroad -- provided, the statute may impose residency requirements such that the child who is thus made a citizen by descent may acquire something less than "full citizenship."

For example, a statute may make the granting or retention of his citizenship conditional on residency requirements. Once the child meets residency requirement, the child would have full citizenship.

If a condition subsequent is imposed by statute and not met, the child's "less than full" (conditional?) citizenship may be lost.

Would such a "less than full" citizen," after meeting his residency requirement, then qualify as a natural born citizen to be eligible to become President?  Under the statute, before such as person, such as Ted Cruz, reached 35, he necessarily would have met the requirement and become a full citizen, from birth.

However, Birthers might argue as follows:  Since he did not become a "full citizen" until he had met the residency requirement, he was not a full natural born citizen at birth. Their argument would be that his having to meet a condition subsequent, i.e., a residencey requirement, would make him only a naturalized citizen, not a natural born citizen at birth. 

The counter argument would be that he had at birth a claim of right to citizenship that could not be taken away, so long as he did not choose to fail to meet the residency requirement.  During the interim, even as a child, he would be entitled to access in country.

Since the 1790 statute would have allowed for status as a natural born citizen, and since a successor to such statute was in effect when Cruz was born, and since the only residency requirement imposed in his case would be on his mother, who had already met it at the time of his birth, Cruz' status would be "full citizenship" as of the time of his birth (in 1970).  Arguably, such status would be within the meaning of "natural born."

[The pertinent statutory provisions are confusing, so I have not yet been able from online resources to confirm the following:  That Cruz' claim to be a citizen at birth who would qualify as a natural born citizen might be stronger if, under 8 U.S. Code Sec. 1401(g), his mother's length of residence already made him a "full citizen at birth, not on a condition subsequent."  This would be because the conditon subsequent had already been satisfied by his mother, before he was born.

Regarding Cruz' situation, see 8 U.S. Code Sec. 1401:
The following shall be nationals and citizens of the United States at birth:
                (a)  a person born in the United States, and subject to the jurisdiction thereof;
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:

Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;

Note:  In 1972-Subsec. (b). Pub. L. 92–584, §1, substituted provisions that nationals and citizens of the United States under subsec. (a)(7), lose such status unless they are present continuously in the United States for two years between the ages of fourteen and twenty eight years, or the alien parent is naturalized while the child is under the age of eighteen years and the child begins to reside permanently in the United States while under the age of eighteen years, and that absence from the United States of less than sixty days will not break the continuity of presence, for provisions that such status would be lost unless the nationals and citizens come to the United States prior to attaining twenty three years and be present continuously in the United States for five years, and that such presence should be between the age of fourteen and twenty eight years..

In the case of Rogers v. Bellei 401 U.S. 815 (1971), a different version of the statute may have applied.  According to the case cite, that version provided for the Plaintiff to lose his
citizenship for failure to meet a residency requirement imposed by a statute.  The residency requirement in question imposed in that statute was on him -- not on his American parent.  His father was Italian, not an American, and had never resided in the U.S.  His mother was an American who had been born in Philadepphia.  Plaintiff was born in Italy.

The statute made the Plaintiff a "less than full" citizen at birth, because it required that he himself meet a residency requirement before he turned 28 years of age.  The holding allows a person who is a "less than full" citizen as an adult to be stripped of his citizenship upon failure to meet a residency requirement that is reasonably imposed by Congress.  The holding does not directly concern the issue of qualifying as a citizen at birth for the purpose of becoming President.

In any event, that case seems not to pertain to Cruz' situation, since Cruz long ago met any residencey requirement. Moreover, under the statute that was made (retroactively) effective to the time when Cruz was born (of an American mother and Cuban father and while they were in Canada), his mother might (?) have already met the only pertinent residency requirements then in effect. 
If (?) so, Cruz, at birth, would be deemed a "full citizen" at birth -- under the authority of a statutory enactment of Congress.  Moreover, even had any such statute not been made retroactive, he and/or his mother long ago satisfied any residency requirement.

So the QUESTION is:   Did Congress, under law as understood by the Founders/Ratifiers and as provided in the Constitution, aside from the 14A, have authority by statute to provide for conditions that would make Cruz such a "full citizen at birth" as to qualify him to status as a "natural born citizen" for the purpose of making him eligible to become President?

I think the answer is, Yes.

However, this case will incite research and argumentation concerning the following issue:

QUESTION:  Is a person, like Cruz, who is made a full citizen at birth, only a "naturalized" citizen and not a "natural born citizen" for purposes of Section 1 of Article Two of the United States Constitution?

This case does not answer that question.   It does indicate that Congress, by statute, can provide for "full citizenship" at birth.

However, since we have had various candidates and higher office holders who have been born outside the U.S., and various candidates and higher office holders who have had only one American parent, the argument that seems to follow from experience and history and usage is that a person who is by common law or statute made a "full
citizen" at birth is a natural born citizen and qualified to become President.

(If there is a PROBLEM, it may be this:   Apart from suspicions concerning Chester Arthur and Obama, there does not seem to have been any President, apart from grandfathered Presidents, who was born both outside the U.S. and of only one citizen parent.

Justice Story may have mentioned a case of approximately 1830, Young v. Peck, 21 Wendell's Reports 389, which apparently would show that a person born in Britain, whose father established citizenship in the U.S., could also claim such citizenship (naturally), even though not born in the U.S.   It would seem reasonably to be be inferred that, had her father been born in the U.S., and had he traveled to Scotland to visit, and had his daughter at that time been born in Scotland, she would, as of such time, have qualified as a natural citizen of the U.S., at birth.  That is, a natural born citizen.

A number of old cases from Massachusetts, as previoiusly posted, pertaining to years between 1785 and 1791, strike a hammer blow against those who say the words "natural born citizen" had not previously been used in American jurispridence.

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