IRREFUTABLE AUTHORITY HAS SPOKEN

by John Charlton

(Oct. 18, 2009) — The Post & Email has in several articles mentioned that the Supreme Court of the United States has given the definition of what a “natural born citizen” is.  Since being a natural born citizen is an objective qualification and requirement of office for the U.S. President, it is important for all U.S. Citizens to undertsand what this term means.

Let’s cut through all the opinion and speculation, all the “he says”, “she says”, fluff, and go right to the irrefutable, constitutional authority on all terms and phrases mentioned in the U.S. Constitution:  the Supreme Court of the United States.

First, let me note that there are 4 such cases which speak of the notion of “natural born citizenship”.

Each of these cases will cite or apply the definition of this term, as given in a book entitled, The Law of Nations, written by Emmerich de Vattel, a Swiss-German philosopher of law. In that book, the following definition of a “natural born citizen” appears, in Book I, Chapter 19, § 212, of the English translation of 1797 (p. 110):

§ 212. Citizens and natives.

The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. . . .

The French original of 1757, on that same passage read thus:

Les naturels, ou indigenes, sont ceux qui sont nes dans le pays de parents citoyens, . . .

The terms “natives” and “natural born citizens” are obviously English terms; used to render the idea convyed by the French phrase “les naturels, ou indigenes”: but both refered to the same category of citizen:  one born in the country, of parents who were citizens of that country.

In the political philosophy of Vattel, the term “naturels” refers to citizens who are such by the Law of Nature, that is by the natural cirumstances of their birth — which they did not choose; the term “indigenes” is from the Latin, indigenes, which like the English, “indigenous”, means “begotten from within” (inde-genes), as in the phrase “the indigenous natives are the peoples who have been born and lived there for generations.”  Hence the meaning the the term, “natural born citizen”, or “naturels ou indigenes” is the same: born in the country of two parents who are citizens of that country.

Vattel did not invent the notion “natural born citizen”; he was merely applying the Law of Nature to questions of citizenship.  In fact the term first appears in a letter of the future Supreme Court Justice, John Jay, to George Washington during the Constitutional Convention, where the Framers were consulting 3 copies Vattel’s book to complete their work (according to the testimony of Benjamin Franklin).

Let take a brief look, now, at each case.  For each case I include the link to the full text of the ruling.

The Venus, 12 U.S. 8 Cranch 253 253 (1814)

The first was decided in A.D. 1814, at the beginning of the republic, by men who were intimately associated with the American Revolution. In that year the following men sat on the Supreme Court:

Bushrod Washington, (b. June 5, 1762 — d. Nov. 26, 1829), served Feb. 4, 1799 til Nov. 26, 1829.

John Marshall (b. Sept. 24, 1755 — d. July 6, 1835), served Feb. 4, 1891 til July 6, 1835.

William Johnson (b. Dec. 27, 1771 — d. Aug. 4, 1834), served May 7, 1804, til Aug. 4, 1834.

Henry Brockholst Livingston (b. Nov. 25, 1757 — d. Mar. 18, 1823), served Jan. 20, 1807 til March 18, 1823

Thomas Todd (b. Jan. 23, 1765 — d. Feb. 7, 1826), served May  4, 1807 til Feb. 7, 1826.

Gabriel Duvall (b. Dec. 6, 1752 — d. Mar. 6, 1844), served Nov. 23, 1811 til Jany 14, 1835.

Joseph Story (b. Sept. 18, 1779 — d. Sept. 10, 1845), served Feb. 3, 1812 til Sept. 10, 1845

Nearly all these men either participated in the American Revolution, or their fathers did. Joseph Story’s father took part in the original Boston Tea Party.  Thomas Todd served 6 months in the army against the British; and participated in 5 Constitutional Conventions from 1784-1792.  During the Revolutionary War, Henry Brockholst Livingston was a Lieutenant Colonel in the New York Line and an aide-de-camp to General Benedict Arnold, before the latter’s defection to the British. William Johnson’s father, mother, and elder brother were revolutionaries, who served as statesman, rebel, or nurse/assistant to the line troops, respectively. John Marshall was First Lieutenant of the Culpeper Minutement of Virginia, and then Lieutenant in the Eleventh Virginian Continental Regiment, and a personal friend of General George Washington; and debated for ratification of the U.S. Constitution by the Virginian General Assembly. Bushrod Washington was George Washington’s nephew and heir.

Being witnesses and heirs of the Revolution, they understood what the Framers of the Constitution had intended.

The Venus case regarded the question whether the cargo of a merchantman, named the Venus, belonging to an American citizen, and being shipped from British territory to America during the War of 1812, could be seized and taken as a prize by an American privateer.  But what the case said about citizenship, is what matters here.

WHAT THE VENUS CASE SAYS ON CITIZENSHIP

In the Venus Case, Justice Livingston, who wrote the unanimous decision, quoted the entire §212nd paragraph from the French edition, using his own English, on p. 12 of the ruling:

Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says:

“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.

“The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state while they reside there, and they are obliged to defend it…

Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)

In 16 years later the Supreme Court heard the case regarding the dispute over the inheritance received by two daughters of an American colonist, from South Carolina; one of whom went to England and remained a British subject, the other of whom remained in South Carolina and became an American citizen.  At the beginning of the case, Justice Story, who gave the ruling, does not cite Vattel per se, but cites the principle of citizenship enshrined in his definition of a “natural born citizen”:

Ann Scott was born in South Carolina before the American revolution, and her father adhered to the American cause and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the Revolution and afterwards, remained in South Carolina until December, 1782. Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country. Her citizenship, then, being prima facie established, and indeed this is admitted in the pleadings, has it ever been lost, or was it lost before the death of her father, so that the estate in question was, upon the descent cast, incapable of vesting in her? Upon the facts stated, it appears to us that it was not lost and that she was capable of taking it at the time of the descent cast.

Minor v. Happersett , 88 U.S. 162 (1875)

This case concerned Mrs. Happersett, an original suffragette, who in virtue of the 14th Amendment attempted to register to vote in the State of Missouri, and was refused because she was not a man.  The Chief Justice of the Supreme Court in that year, wrote the majority opinion, in which he stated:

The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents.

United States v. Wong Kim Ark, 169 U.S. 649 (1898)

In this case, Wong Kim Ark, the son of 2 resident Chinese aliens, claimed U.S. Citizenship and was vindicated by the court on the basis of the 14th Amendment.  In this case the Justice Gray gave the opinion of the court.  On p. 168-9 of the record, He cites approvingly the decision in Minor vs. Happersett:

At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.

On the basis of the 14th Amendment, however, the majority opinion coined a new definition for “native citizen”, as anyone who was born in the U.S.A., under the jurisdiction of the United States.  The Court gave a novel interpretation to jurisdiction, and thus extended citizenship to all born in the country (excepting those born of ambassadors and foreign armies etc.); but it did not extend the meaning of the term “natural born citizen.”

CONCLUSION

Finally it should be noted, that to define a term is to indicate the category or class of things which it signifies.  In this sense, the Supreme Court of the United States has never applied the term “natural born citizen” to any other category than “those born in the country of parents who are citizens thereof”.

Hence every U.S. Citizen must accept this definition or categorical designation, and fulfil his constitutional duties accordingly.  No member of Congress, no judge of the Federal Judiciary, no elected or appointed official in Federal or State government has the right to use any other definition; and if he does, he is acting unlawfully, because unconstitutionally.

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