More historical and legal papers and analysis on the true constitutional meaning and intent of the founders and framers of the presidential eligibility clause, natural born Citizen, in our U.S. Constitution can be found at this link: http://www.scribd.com/collections/3301209/
Vattel and the American Dream: An Inquiry into the Reception of the Legal Treatise ‘Law of Nations or Principles of Natural Law’ in the United States | by Vincent Chetail – Graduate Institute of International and Development Studies (HEI)
Abstract:No other book on international law has been more widely read and cited than “The Law of Nations” by Vattel. The present article identifies and analyses the various reasons that explain Vattel’s authority in the United States. It first retraces his influence on the Founding Fathers, on the subsequent diplomatic and judicial practice, and on the legal doctrine in the United States. The article then examines his conception of national sovereignty as the most decisive reason explaining Vattel’s influence in the United States and the overall impact of his work.
Number of Pages in PDF File: 50
Keywords: Vattel, history of international law, law of nations, founding fathers, sovereignty, state equality, independence, right of resistance, legal philosophy, natural law, positive law
A Lesson from History. Is Being Born a Citizen (Citizen at/by Birth) of the United States of Sufficient Citizenship Status to be President of the United States and Commander in Chief of Our Military? The Founders and Framers Emphatically Decided … No, It Was Not!
By: CDR Charles F. Kerchner, Jr., P.E. (Retired)
During the process of developing a new U.S. Constitution Alexander Hamilton submitted a suggested draft for a Constitution on June 18, 1787. At some point, he also suggested to the framers a proposal for the qualification requirements in Article II as to the necessary Citizenship status for the office of President and Commander in Chief of the Military. Another version of Hamilton’s proposed Constitution and which principles were stated during the convention’s deliberations per Madison notes and journal (see work of Farrand – pg 619), was given to Madison near the close of the convention for inclusion in Madison record of events for the convention. Hamilton’s proposed Constitution was not accepted.
Alexander Hamilton’s suggested presidential eligibility clause:
“No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”
Many of the founders and framers rightly had a fear of foreign influence on the person who would in the future be President of the United States since this particular office was singularly and uniquely powerful under the proposed new Constitution. The President was also to be the Commander in Chief of the military. This fear of foreign influence on a future President and Commander in Chief was particularly strongly felt by John Jay, who later became the first Chief Justice of the U.S. Supreme Court. He felt so strongly about the issue of potential foreign influence that he took it upon himself to draft a letter to General George Washington, the presiding officer of the Constitutional Convention, recommending/hinting that the framers should strengthen the Citizenship requirements. John Jay was an avid reader and proponent of natural law and particularly Vattel’s treatise on Natural Law and the Law of Nations. In his letter to Washington he said that the Citizenship requirement for the office of the commander of our armies should contain a “strong check” against foreign influence and he recommended to Washington that the command of the military be open only to a “natural born Citizen”. Thus Jay did not agree that simply being a “born Citizen” or “born a Citizen” was sufficient enough protection from foreign influence in the singular most powerful office in the new form of government. He wanted another adjective added to the eligibility clause, i.e., ‘natural’. And that word natural goes to the Citizenship status of one’s parents, both of them, when their child is born, as per natural law.
The below is the relevant proposed change language from Jay’s letter which he proposed to strengthen the citizenship requirements in Article II and to require more than just being a “born Citizen” of the United States to serve as a future Commander in Chief and President.
John Jay wrote in a letter to George Washington dated 25 Jul 1787:
“Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen. “
See a transcription of Jay’s letter to Washington at this link. This letter from Jay was written on July 25, 1787. General Washington passed on the recommendation from Jay to the convention and it was adopted in the final draft and was accepted adding the adjective “natural” making it “natural born Citizen of the United States” for future Presidents and Commanders in Chief of the military, rather than Hamilton’s proposed “born a Citizen”. Thus Article II, Section 1, Clause 5 of the U.S. Constitution, the fundamental law of our nation reads:
Article II, Section 1, Clause 5 of U.S. Constitution as adopted 17 Sep 1787:
“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.”
There you have the crux of the issue now before the nation and the answer.
Hamilton’s proposed principles for a Constitution and a presidential citizenship eligibility requirement therein requiring that a Citizen simply had to be ‘born a Citizen’ of the USA, i.e., a Citizen by Birth. See Madison’s comment in his journal of the convention re this fact in which it reports as follows: ” … Copy of a paper Communicated to J. M. by Col. Hamilton, about the close of the Convention in Philada. 1787, which he said delineated the Constitution which he would have wished to be proposed by the Convention: He had stated the principles of it in the course of the deliberations. …” — 3 Max Farrand, The Records of the Federal Convention of 1787, at 619-630 (1911) – page 619. But that citizenship status for who could be President was rejected by the framers as insufficient. Instead of allowing any person “born a citizen” to be President and Commander of the military, the framers chose to adopt the more stringent requirement recommended by John Jay via George Washington, i.e., requiring the Citizen to be a “natural born Citizen“, to block any chance of the person with foreign influence or allegiances or claims on their allegiance at birth from becoming President and Commander of the Military. No person having any foreign influence or claim of allegiance on them at birth could serve as a future President. The person must be a “natural born citizen” with unity of citizenship and sole allegiance to the United States at birth.
Jay’s proposal and recommended clause added the additional adjective of “natural” before simply being a “born Citizen” which was proposed by Hamilton. And that word and adjective “natural” means something special from the laws of nature that modifies just being born a Citizen of the USA such as being simply born on the soil of the United States. Natural means from nature by the facts of nature of one’s birth. Not created retroactively after the fact by a man-made law. A natural born Citizen needs no man-made law to bestow Citizenship on them. The added adjective “natural” comes from Natural Law which is recognized the world over as universal law and which is the foundation of the Law of Nations which was codified by Vattel in 1758 in his preeminent legal treatise used by the founders, The Law of Nations or Principles of Natural Law. In Vol.1 Chapter 19 of Vattel’s Law of Nations, the “Des citoyens et naturels“, Vattel in Section 212 explains to us (the French term “naturels” was translated to English in 1781 in the Journal of the Continental Congress and in the 1797 English edition of Vattel), to tell us that the “natural born Citizens” are those born in the country to parents (plural) who are Citizens of the country when their child is born. These are the natural Citizens of the nation per universal principles of natural law for which no man-made law is necessary to explain or justify. Such a person, a natural born Citizen, is born with unity of Citizenship and sole allegiance at birth due to having been both born on the soil AND being born to two Citizen parents. The person who would be President must be a second generation American with no foreign claims of allegiance on them at birth under the law of nations and natural law, the child of two Citizens and born in the USA. This is a much stronger check to foreign influence than simply being born a Citizen say on the soil of the USA but with one or the other parent being a foreigner, such as is the case of Obama. The situation with Obama’s birth Citizenship status is exactly the problem that the founders and framers did not want. They did not want the child of a foreign national, non-U.S. citizen serving as President and Commander of our military. This was a national security concern to them. And it is a national security concern now.
Another founder of our nation and great historian of the American Revolution named David Ramsay contemporaneously defined in a 1789 essay what the term “natural born Citizen” means. Read a copy of Ramsay’s original dissertation at this link. Other research papers from history on the term “natural born Citizen” published long before the current controversy was created by the 2008 election debacle can be read at this link. The paper by Breckenridge Long in 1916 is a particularly good one.
The current defacto president and unconstitutional occupier of the Oval Office Barack Hussein Obama II may or may not be a born Citizen of the USA depending on what the 1961 contemporaneous birth registration documents sealed in Hawaii reveal. And Americans have good reason to be greatly concerned about the truth as to where he was physically born as opposed to where his birth may have been falsely registered by his maternal grandmother as occurring in Hawaii as this Catalog of Evidence details. But he can never be a “natural born Citizen of the United States” since his father was a foreigner, a British Subject who was never a U.S. Citizen and was not even an immigrant to the USA. Since his father was a British Subject and not a U.S. Citizen when Obama was born, Obama was born a British Subject. The founders and framers are probably rolling over in their graves knowing this person was sworn in as the putative President and Commander of our military.
The founders rejected acquisition of Citizenship by birth on the soil without consideration as to who were the parents. That is clear from the history and evolution of the writing the eligibility clause in Article II, Section 1, Clause 5, which specifies who can be President and Commander in Chief of the military.
I listened to Professor Gutzman’s comments in the above video. Here are my comments.
The purpose of having the term “natural born Citizen” as a constitutional requirement for future presidents and commanders in chief or our military was as a “strong check” against “foreign influence”, per John Jay’s letter to George Washington, on the person who would hold that office in the future. They wanted a person born with Sole Allegiance and Unity of Citizenship to the USA and only the USA. See this article for more on that point: http://puzo1.blogspot.com/2009/04/article-ii-natural-born-citizen-means.html They would never have wanted a person born with dual or tri citizenship and attendant multiple allegiances and foreign influences on them at birth to ever gain command of our military. As with anything dealing with our Constitution, if you wish to understand terms therein we need to go back to original intent and understanding as to why the founders and framers chose the words they did. We need to understand the Who, What, When, Where, How, and Why the term “natural born Citizen” was chosen by the founders and framers. The Why was they wanted a person with sole allegiance to the USA at birth, and only the USA, for future commanders in chief of our military.
Now some specific comments about what Professor Gutzman said and also what he omitted from Vol.1 Chapter 19 Section 212 of Vattel’s writings. First, he does not give the full name of Vattel’s book. And that is important to the debate on its content. It was titled The Law of Nations or Principles of Natural Law. “Natural Law” is key to this debate because the term under scrutiny is a natural law term, “natural born Citizen”. Any legal term with the word “natural” in it refers to Natural Law and not to positive, man-made law. Vattel’s book was a treatise on Natural Law. And Natural Law forms the foundation of other types of law. And the founders and framers where keenly interested and aware of Natural Law as evidenced by the opening of the Declaration of Independence wherein it specifically cites the “Laws of Nature”, i.e., Natural Law. And the Law of Nations was mentioned in the Constitution also in reference to defining Piracy. So the founders and framers were keenly aware of Natural Law and the Law of Nations. And Vattel was their number one choice and reference on those subjects.
I own both a French and English copy of Vattel’s “The Law of Nations or Principles of Natural Law”. Regarding the comment that Vattel’s treatise The Law of Nations or Principles of Natural Law being written in French, the professor does not mention that most of the key founders and framers were multi-lingual and specifically they were fluent in French, which was the diplomatic language of that time frame. The French were our allies in our Revolutionary War against England. When he read part of the section 212 and he read the French word “naturels” he failed to acknowledge that that in 1781 the French word naturels, years prior to the writing of the U.S. Constitution in 1787, had been translated in treaty correspondence with the French to mean “natural born” in U.S. English. Thus the USA founders in U.S. English understood the term “the naturels” when used in the context of discussion of the matter of Citizenship in the USA or in the case of England being a Subject of the King, they translated the adjective and term and understood it to mean “the natural born”. See: https://cdrkerchner.wordpress.com/2015/04/17/absolute-proof-the-founders-knew-and-accepted-vattels-french-naturels-to-mean-natural-born-before-constitution-was-written/
It also should be noted that the very title of Vol. 1, Chapter 19 in which “natural born Citizen” is defined, is “Des citoyens et naturels” which in the USA meant to the founders and framers, “The natural born Citizens”. They got the idea and meaning of “natural born Citizen” from Vattel and other writers in Europe of the Enlightenment. They did not look to English Common Law to define and understand the citizenship terms in our new federal Constitution and Constitutional Republic. They discarded English Common Law when it came to Citizenship in the new nation. They looked to Natural Law and the Law of Nations to found our new form of government, a Constitutional Republic, and to determine who would be its initial citizens and the subsequent natural born Citizens, i.e., the children born in the country of citizens (both parents, born or naturalized).
The professor also neglects to read all of section 212 in which after Vattel states to be a “naturel” one must be born in the country of parents who are citizens, and since at that time married women could not have independent citizenship and the citizenship of the husband determined that of his wife and children, Vattel goes on to state that emphatically the father must absolutely be a citizen of the country for the child to be a citizen of the country at birth. Vattel does not say the citizenship of the mother and place of birth do not matter. He clearly said it does in the prior clear cut definition of the naturel Citoyens, the natural born Citizens. But Vattel in the balance of section 212 further reinforces the importance of the citizenship of the father. Per Vattel not having a father who was a Citizen of the country you were born in absolutely precludes you from being a natural born Citizen of that country and that it is only your place of birth and not your country. The citizenship of the father controlled and determined the citizenship of his wife and his children. It takes two tigers to naturally create a tiger and two lions to naturally create a lion. Likewise it takes two Citizens of the country to procreate a natural born Citizen when the child is born in the parents’ country.
In the cases of Obama, Cruz, Rubio, and Jindal the citizenship of their father when they were born is clearly a relevant issue. None of them had a U.S. citizen father at the time of their birth and thus they are not “natural born Citizens” of the USA to constitutional standards. In addition, for the case of Ted Cruz he was clearly and admittedly not born in the USA either in addition to not having a U.S. Citizen father when he was born. Thus Cruz misses natural born Citizen of the USA status on at least two counts.
The professor in his 2013 interview was carefully picking and choosing words, and ignoring others, in his readings and discussions about Vattel’s book/treatise to try and make the case that Obama and Cruz are constitutionally eligible. They are not.
As to English translations, there was a prior English translation of Vattel done circa 1759/1760 in England that Professor Gutzman did not mention. However, the 1797 is considered the better translation. But the founders and framers were using the 1775 edition edited by Dumas which was in French, as attested to by Benjamin Franklin. See: http://puzo1.blogspot.com/2010/04/benjamin-franklin-in-1775-thanks.html In regards to the 1797 English language translation which correctly translates Vattel’s des naturel Citoyen to “natural born Citizen”, the 1797 edition was just confirming and clarifying what the world at that time knew as to what Vattel meant and as was implemented in the U.S. Constitution several years before. And it was widely used in the new and great constitutional republic in the new world., the USA. And it was used to defend the rights of U.S. natural born Citizens in the disputes with England on the high seas leading up to the war of 1812.
Do words come into existence and meaning only by their instant creation in a dictionary or legal writings first and only then at the exact time of printing said book. Or were they there and understood before that print date and in use for some time in society? Use common sense.
The 1797 translation of Vattel’s treatise into English simply was an improved translation from the original French and it confirmed and clarified to English speakers and readers what Vattel meant by his term “Des Citoyens et naturels” and/or naturel Citoyens, and his definition of same is therein clearly written. And the founders and framers knew and understood what it meant and that Vattel was their source when they chose the term, natural born Citizen. The 1781 treaty negotiations translation I mentioned previously prove that. When it came to the U.S. Supreme Court cases in the first 100 years of the USA they clearly looked to Vattel’s writings on issues of Citizenship, quoting him literally in a couple cases, and saying in at least one case that Vattel was the best on the matter of Citizenship issues.
When the professor in the soft ball back and forth discussion in the video finally admits that he’s not sure and says “I don’t know”, he is in effect saying what we Constitutionalists all have been saying since 2008, we need the U.S. Supreme Court to decide this. And as Chief Justice Marshall said as to words and matters in the Constitution, … the U.S. Supreme Court should have taken up a case if it goes to the Constitution, as it does in this matter on the meaning of “natural born Citizen” to constitutional standards as it applies in Article II. The U.S. Supreme Court should decide it once and for all instead of ducking the question for the last almost 7 years. The U.S. Supreme Court should have taken up the Atty Berg case in the summer of 2008 and decided the question right then and there re Obama. In my 2010 petition to the U.S. Supreme Court we specifically said the question would come up again in the future. See: https://www.scribd.com/doc/38506403/Petition-for-Writ-of-Certiorari-filed-with-the-U-S-Supreme-Court-for-Kerchner-v-Obama-Congress
Now the Pandora’s box is open and we have people not even born in the USA and with non-U.S. citizen fathers and twisting words and conflating two different legal terms and arguing they are eligible to be President and Commander in Chief of our military.
Another founder of our nation and framer of our Constitution, Benjamin Franklin, was also quite familiar and well versed with the writings of Vattel as early as 1775 when he wrote to Charles Dumas in the Netherlands and thanked him for sending Franklin 3 copies of the newest edition of Vattel (in French). Franklin commented to Dumas that his personal copy was in heavy demand by the other delegates to the Continental Congress meeting in 1775. Dumas had recently edited and published a new addition of Vattel (in the original French) in the Netherlands. Franklin and most of the founders were fluent in French which was the diplomatic language of that time. Dumas also made comments in his writings to Franklin about Vattel’s enlightened writings and vision for a new form of government for a nation where the people were sovereign and the unique opportunity for its application to the affairs in America in the colonies splitting from Great Britain. The words found in our Declaration of Independence mentioning the “Laws of Nature” and the phrase mentioning unalienable rights such as “life, liberty, and pursuit of happiness” are right out of Volume 1 of Vattel. As are the words of seeking a more perfect union in the Preamble of our Constitution were also inspired by the teachings and writings of Vattel. Thus it is quite evident that the founders read and used Vattel extensively. Here is a reprint of the letter from Franklin to Dumas thanking him for sending the books.
Benjamin Franklin to: Charles William Frederic Dumas
Philadelphia, 9 December, 1775.
I received your several favors, of May 18th, June 30th, and July 8th, by Messrs. Vaillant and Pochard;(1) whom if I could serve upon your recommendation, it would give me great pleasure. Their total want of English is at present an obstruction to their getting any employment among us; but I hope they will soon obtain some knowledge of it. This is a good country for artificers or farmers; but gentlemen of mere science in les belles lettres cannot so easily subsist here, there being little demand for their assistance among an industrious people, who, as yet, have not much leisure for studies of that kind.
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. Your manuscript “Idee sur le Gouvernement et la Royaute” is also well relished, and may, in time, have its effect. I thank you, likewise, for the other smaller pieces, which accompanied Vattel. “Le court Expose de ce qui s’est passe entre la Cour Britannique et les Colonies,” bc. being a very concise and clear statement of facts, will be reprinted here for the use of our new friends in Canada. The translations of the proceedings of our Congress are very acceptable. I send you herewith what of them has been farther published here, together with a few newspapers, containing accounts of some of the successes Providence has favored us with. We are threatened from England with a very powerful force, to come next year against us.(2) We are making all the provision in our power here to oppose that force, and we hope we shall be able to defend ourselves. But, as the events of war are always uncertain, possibly, after another campaign, we may find it necessary to ask the aid of some foreign power.