by Joseph DeMaio, ©2022

The Law of Nations” by Emmerich de Vattel

(Dec. 2, 2022) — Well, here we go again.  As faithful P&E readers know, on occasion several of your humble servant’s posts generate robust comments.  These comments usually relate to posts addressing the “natural born Citizen” (“nbC”) presidential eligibility clause of the Constitution, Art. 2, § 1, Cl. 5.  There, of course, the Founders stated that, with the exception of persons who were a “Citizen of the United States, at the time of the Adoption of this Constitution…,” in order to serve as President, one first had to be eligible as a “natural born Citizen.”

Two recent commenters on this post, Messrs. Lee and Fremick, have offered two comments, one an assertion by Mr. Lee, one a question by Mr. Fremick.  Your humble servant would normally respond to those matters in the comment section of the post.  But since a more detailed (i.e., longer) response is indicated, this separate, free-standing post is offered.  Let us begin.

Introduction

First, some necessary background.  Much debate and many of the comments made and questions posed are posited in opposition to the argument that the Founders adopted the meaning of the term “natural born citizen” found in the 1758 treatise on international law, “The Law of Nations,” by Swiss lawyer, jurist and legal philosopher Emmerich de Vattel. 

In § 212 of his tome (hereafter, for brevity, “§ 212”), de Vattel states, in French, at that time the language of international diplomacy:  “Les Cityoens sont les membres de la Société Civile: Liés à cette Société par certains devoirs, & soumis à son Autorité, ils participant avec égalité à ses avantages. Les Naturels, ou Indigènes, sont ceux qui sont nés dans le pays, de Parens Citoyens.” 

In English, the two sentences translate thusly: “The Citizens are the members of the Civil Society: bound to this Society by certain duties and subject to its Authority, they participate equally in its advantages.  The natives, or “indigènes” are those [who are] born in the country of parents who are citizens.” (Emphasis added)

John Jay held many positions both before and following the American Revolution: President of the Continental Congress; ambassador to Spain; Foreign Affairs Secretary, New York Governor (1795-1801), and first chief justice of the U.S. Supreme Court under President George Washington.

At this juncture, the discussions usually turn to, “What did the Founders intend when fashioning the words ‘natural born Citizen’ for insertion into the Constitution?”  The “pro-Vattel” camp – your humble servant included – argues that they adopted the words “natural born Citizen” from the identical words used by John Jay in his July 25, 1787 letter to George Washington. 

That letter, of course, “hinted” to Washington that, in order to erect a “strong check” against and barrier to the “admission of Foreigners into the administration of our national government…” it would be wise and seasonable “to declare expressly that the command in chief of the [A]merican army shall not be given to, nor devolve on any but a natural born citizen.”(Emphasis added)

Jay was familiar with the de Vattel tome, as he had frequently referenced it in correspondence with others during the time before and after Constitution was being drafted.  Specifically, that John Jay respected and relied upon de Vattel’s reasoning and logic – and by extension, de Vattel’s § 212 definition of a “natural born citizen” – is corroborated by his several references to him in his correspondence of the period. 

For example, in a Nov. 24, 1785 letter to Samuel Huntington, then-serving President of the Continental Congress, Jay confirmed that a legal question relating to the appointment of the Counsel-General of Great Britain to the United States “is settled by [de] Vattel…,” thereafter quoting from the treatise. And in a letter of Sept. 7, 1794, British Foreign Secretary Lord Grenville responded to Jay stating that, “in conformity to what was mentioned by [Mr. Jay]” earlier that day, he would quote de Vattel with regard to the topic of their discussions.

Since Jay was conversant in French; familiar with the de Vattel treatise; and concerned that only a “natural born Citizen” should be eligible to the presidency, it is no intellectual leap to conclude that he adopted and subscribed to the de Vattel definition of the term: a person “qui sont nés dans le pays, de Parens Citoyens.”  “A person born in this country to citizen parents.”  It is posited that this concept embodied in Jay’s letter to Washington – which letter Washington forwarded to the Convention’s Committee of Eleven – was inserted into the Constitution by the Founders.  It is that simple. 

It is also the most rational and plausible reason why the Supreme Court many years later stated in Minor v. Happersett, 88 U.S. 162, 167-168 (1875), abrogated, 19th Amendment (1920) (“Minor”), that although the Constitution did not itself define the term “nbC”:

“[a]t 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. As to this class there have been doubts, but never as to the first.”  (Emphasis added)

The Lee Assertion

Against this backdrop, your humble servant first addresses Mr. Lee’s contention (comment of 11/30/22 @ 3:23 PM) here: “There’s no evidence the Framers relied on Vattel when drafting the natural born citizen clause.”

Respectfully, your servant disagrees.

The sole direct – as opposed to indirect or tertiary – analogue between provisions of the Constitution and any of the various principles articulated in de Vattel’s treatise is… wait for it…, wait for it: the discussion by de Vattel of those who comprise that category of persons qualifying as “les naturels ou indigènes” found in § 212.  If there is another direct example, it remains elusive.  Perhaps a commenter or faithful P&E reader can supply it.

As already noted, in § 212 of the treatise, de Vattel teaches, in French: “Les Naturels, ou Indigènes, sont ceux qui sont nés dans le pays, de Parens Citoyens.”  It is far short of rocket science to recognize that John Jay – who as an American diplomat was fluent in French – understood that, in English, de Vattel’s words meant: “The naturals, or indigenous, are those who are born in the country, of citizen parents.”

If in his “hint” letter to Constitutional Convention Chairman George Washington, John Jay did not get his terminology from de Vattel’s treatise – with which he was plainly familiar – where did he get it?  Clearly, this is “evidence” of reliance on de Vattel by Jay, Washington and – because the Committee of Eleven adopted Jay’s “hint” – the “Founders” too.

Then there’s Ben Franklin’s expression of appreciation to Charles Dumas for the gift of the de Vattel treatise, which Franklin noted to Dumas “… came to us in good season, when the circumstances of a rising State make it necessary to frequently consult the law of nations…,” adding that the treatise “has been continually in the hands of the members of our Congress now sitting.” It is a safe bet that the “congress [then] sitting” and the Founders were not using the treatise as a mere paperweight.  This too is “evidence” of reliance on de Vattel by the Founders.  

But wait…, there’s more.  How about Supreme Court Associate Justice Powell authoring the opinion of the Supreme Court in United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 462, n.12 (1977)? There, Justice Powell recognized that de Vattel and his tome were “the most widely cited in the 50 years after the [American] Revolution,” quoting from 1 J. Kent, Commentaries on American Law 18 (1826).  The 50-year period after 1776 plainly spans the period when the Founders crafted and finalized the Constitution. 

Again, this is “evidence” of reliance by the Founders on de Vattel and § 212.  Indeed, even if not direct “smoking gun” evidence of the adoption of § 212 by the Founders, it nonetheless constitutes Supreme Court recognition and “judicial notice” – which is also an element of “evidence” – of the impact of de Vattel and the principles set forth in his treatise on American jurisprudence and the Founders’ intent.

That influence continues to this day, as recently confirmed in Franchise Tax Board of California v. Hyatt,  __ U.S. __, 139 S. Ct. 1485, 1493 (2019).  There, Associate Justice Thomas refers to de Vattel as the “founding era’s foremost expert on the law of nations.”

However, it is unlikely that those who continue rejecting the relevance and materiality – both being elements of “evidence” – of § 212 and the reliance by the Founders on it will accept anything less than an original certified statement, on sheepskin parchment, from each Founder that in fact, they specifically relied on § 212.  And even that would likely not change their minds. 

But unless and until they can point to a specific, direct analogue in the Constitution adopting some other principle of law from de Vattel, the conclusion is compelled that the references cited above confirm that clear “evidence” of the questioned “reliance” exists.  Since § 212 is apparently the sole direct analogue to a specific provision in the Constitution, the rational and logical conclusion arises that John Jay and the Founders relied directly and solely on de Vattel for that principle. 

The Fremick Question

Mr. Fremick poses the following question in his 12/1/22 @ 12:34 AM (night owl) comment directed to your humble servant:  “And your position appears to be: The natural born citizens of the states were not natural born citizens of the United States.  Is that your position?  [DeMaio response: yes.] [If so], [c]an you explain who were the natural born citizens of Massachusetts mentioned in this February 1785 legislative act?”

The comment then proceeds to replicate the Massachusetts act:

       “AN ACT FOR NATURALIZING NICHOLAS ROUSSELET AND GEORGE SMITH.

Whereas Nicholas Rousselet, resident in Boston, auctioneer, and George Smith, resident in Andover, labourer, …shall be deemed, adjudged, and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”

Where to start…, where to start?

First, the Massachusetts act was one declaring – in its own title – that its purpose was to “naturalize” Messrs. Rousselet and Smith.  It was not intended, nor did it purport, to retroactively bestow upon them status as a “natural born citizen.”  And if they were already Massachusetts “natural born citizens,” (a) why was there a need to naturalize them at all, and (b) why did not the naturalization act divest them of their prior “natural born citizen” status?  

As all will (or should) concede, a “naturalized” citizen is not a “natural born Citizen” for purposes of Art. 2, § 1, Cl. 5 – the presidential Eligibility Clause – of the Constitution.  So although Messrs. Rousselet and Smith were, after the Massachusetts act was passed, “naturalized” citizens of both Massachusetts and the United States, the act did not retroactively convert them into nbC’s.  If de Vattel is correct – and your servant posits that he is – the only way one can exist as an nbC is via birth in the country where the two parents are already citizens.

On the other hand, and to be clear, for purposes of U.S. Constitution Eligibility Clause analysis, both men would still have been eligible to serve as president of the nation (assuming they were elected) under the “citizen grandfather clause” of Art. 2, § 1, Cl. 5.  But the fact that the Massachusetts legislature wished to “deem” the two persons to be entitled to the liberties, rights and privileges of natural born citizens is akin to the mistaken attempt by the First Congress to “deem” children born “beyond sea” to U.S. citizen parents to be “considered as natural born citizens.” 

As is commonly known, in 1790, the First Congress enacted 1 Stat. 103, “An Act to establish an uniform Rule of Naturalization” (emphasis added).  That act, like the Massachusetts act of five years earlier, effectuated a naturalization of children born to “citizen parents” other than in the United States, but it did not effectuate a retroactive alteration of their status at birth.  To be “deemed” or “considered” to be one thing underscores the reality that one is not that “thing.”

Moreover, although 1 Stat. 103 stated that children born “beyond sea” to U.S. citizen parents were “considered” to be “natural born citizens,” only five years later, in 1795, that statute was repealed in its entirety.  In the new statute – 1 Stat. 414, repealing 1 Stat. 103 – the Congress, apparently recognizing that it could not by a statute like 1 Stat. 103 alter or amend the intent of the Eligibility Clause regarding the understood “§ 212” definition of “natural born Citizen” therein (cf. Minor v. Happersett, 88 U.S. at 167-168), deleted the words “natural born” before the word “citizen.” 

The fact that Congress actually made the deletion – regardless of whether it was a conscious, intentional deletion, as opposed to a “stylistic” or “accidental” omission – is beyond dispute: the words “natural-born” in 1 Stat. 103 do not appear in 1 Stat. 414 – or any other subsequently-enacted naturalization statute, the statements of Supreme Court Justices Waite (in Minor) and Gray (in Wong Kim Ark) notwithstanding, as discussed here.

Accordingly, while the Massachusetts Legislature could, so to speak, “knock itself out” in “deeming” Messrs. Rousselet and Smith to be entitled – as naturalized citizens of Massachusetts – to the “benefits” of a true natural born citizen, they were still “naturalized” citizens, not “nbC’s” as contemplated by the Founders under the Constitution.

Which brings us to the next point.  Whatever were the enactments of the states, including those of the Massachusetts Legislature, prior to the adoption, ratification and enforcement of the Constitution after 1789 – and without regard to the chaos of the Civil War – when the individual states amalgamated into the United States of America, they each became subject to and bound by Art. 6, § 2 of the Constitution.  That provision states, in relevant part: 

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (Emphasis added)

To the extent that the argument is being advanced that a state law using the term “natural born citizen” for that state’s purposes can properly also use and define the term in a manner that is inconsistent and at odds with the definition of the term most likely intended and relied upon by the Founders – the one found in § 212 as seemingly ratified in Minor – the argument must fail.  To conclude otherwise is to advocate that the “supreme Law of the Land” under the Constitution is not supreme at all. 

Moreover, the language of the Constitution confirms that the same reasoning applies to the decisions of judges – at minimum, judges of state courts, appellate or otherwise – which run afoul of the Constitution.  Cf. Ankeny v. Governor of State of Indiana, 916 N.E.2d 678, 688 (Ind. App., 2009). 

And as for the latent argument that the 9th Amendment applies, respectfully, it does not.  The 9th Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The restriction in Art. 2, § 1, Cl. 5, prohibiting anyone other than an nbC to serve as president, is not a “right.”  Instead, it is a prohibition on any purported “right” possessed by any person other than a natural born Citizen to be president.

Conclusion

The argument will persist on what, exactly, the Founders understood the term to mean and what their intent was when placing it in the Constitution.  And yet, the “evidence” discussed in this post would seem to suggest – if not compel – the conclusion that the Founders, including John Jay, meant to adopt de Vattel’s § 212 meaning.

And that the argument will persist will likely be proven when a new chain of email comments from Messrs. Lee and Fremick, as well as others, will launch against this post.  And perhaps there will even be citations to provisions of the Constitution having direct analogues to principles set out in the de Vattel treatise other than § 212.  Now that would be interesting.  

Let the exchanges begin.

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  1. The Law of Nations is specifically mentioned in the U.S. Constitution which clearly shows that the founders and framers looked to The Law of Nations for guidance.

    The Constitution addresses piracy in Article 1, Section 8. It gives Congress “the Power … To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”

    And the premier legal treatise on the Law of Nations and Principles of Natural Law at that time was Emer de Vattel which was cited by Benjamin Franklin, who was fluent in French which was the diplomatic language of that time, and others as a valued resource to them.

    And as has been stated repeatedly here and is still a fact, Emer de Vattel’s The Law of Nations and Principles of Natural Law defines a “natural born Citizen”, i.e. “Des citôyens et naturels” which is the title in French of Vol.1 Chapter 19 Section 212: https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/

    1. “The Constitution addresses piracy in Article 1, Section 8. It gives Congress “the Power … To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.””

      Where in Vattel’s Law of Nations does he discuss piracy?

      Blackstone’s Commentaries has an entire chapter devoted to “Offenses against the Law of Nations” and he lists one of them as piracy.

      He describes piracy as an felony committed on the high seas.

      “THE offence of piracy, by common law, consists in committing those act of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there.”

      https://avalon.law.yale.edu/18th_century/blackstone_bk4ch5.asp

      So did the Framers use Blackstone’s in describing offenses against the Law of Nations?

      And still no comment on the 1785/1786 use of the term “natural born Citizens of the United States” by John Adams and Thomas Jefferson

      1. And where in the Framers’ records does it indicate Article I, section 8 was a specific reference to Vattel?

        More basically, Vattel’s book was not the binding authority for the United States or any other nation. The U.S. Constitution contradicts Vattel’s beliefs on various points, so the Framers did not wholesale adopt it.

        Especially considering “law of nations” is just a term of art for what is now called international law. “International” means “existing between nations,” so international law is law existing between (or “of”) nations.

        1. It was more likely a response to the Articles of Confederation.

          “ARTICLE IX. The united states in congress assembled, shall …appointing courts for the
          trial of piracies and felonies committed on the high seas.”

      2. “Where in Vattel’s Law of Nations does he discuss piracy?” writes Mr. Fremick.

        More gaslighting and strawmen planted doubts as a question and other mis-directions by the gadflies trolling here who wish to plant doubts that Vattel’s treatise was being used by the founders and framers to justify the revolution and to write the founding and framing documents. The key point is that it was used and heavily used as stated by Benjamin Franklin and others in the Revolutionary time frame and for many decades thereafter: https://www.scribd.com/document/63130788/Ben-Franklin-thanks-Charles-Dumas-for-Copies-of-Vattel-s-Law-of-Nations-or-Principles-of-Natural-Law And in modern times, even Hillary Clinton formally disagreed with these anti-Vattel trolls on the influence of Vattel. In fact she highlighted it and praised it. See: https://www.scribd.com/document/63746242/Secretary-of-State-Hillary-Clinton-admits-Founders-of-U-S-were-Inspired-by-Vattel … and … https://www.scribd.com/lists/3224507/Vattel-s-Influence-on-U-S-Founders-Constitution-s-Framers

        Vattel certainly does discuss piracy in his treatise, The Law of Nations and Principles of Natural Law. In addition to Volume I, read Volumes II and III of his treatise. Look up the word “piracy” in an indexed edition. Do you have both an English and French edition? I do.

        CDR Kerchner (Ret)
        http://www.ProtectOurLiberty.org

        1. Again, no one doubts that Vattel was an influence, among many, on the Framers’.

          But generalized assertions that Vattel was the primary influence on the natural born citizen clause or Article I, section 8, continue to lack any evidentiary support.

          And they are not beliefs accepted by any court.

    2. And as has been stated repeatedly here and is still a fact, Emer de Vattel’s The Law of Nations and Principles of Natural Law defines a “natural born Citizen”, i.e. “Des citôyens et naturels” which is the title in French of Vol.1 Chapter 19 Section 212: https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/

      Image from original French version of Vattel’s Vol.1 Chapter 19 Section 212 here: http://www.kerchner.com/images/protectourliberty/vattel-section212-french+english-sidebyside.jpg

      CDR Kerchner (Ret)
      http://www.ProtectOurLiberty.org

      1. There continues to be no evidence that Framers relied on or even consulted section 212, or would have translated any French into the phrase natural born citizen.

        Certainly no court has accepted these beliefs.

  2. In my way of thinking people that advocate for anything less than nbC as provided in deVattel do so because it is what they want not what is. Why anyone would want foreign influence to control our country, which is what the UN is doing makes no sense.

  3. The Who, What, When, Where, Why, and How of the “natural born Citizen” Term In Our United States Constitution: http://www.kerchner.com/protectourliberty/naturalborncitizen/TheWhoWhatWhenWhereWhyandHowofNBC-WhitePaper.pdf

    See in this list of lists the list for — Some Politicians Seeking High Office Who Are Not a “natural born Citizen” of the United States: https://www.scribd.com/user/52640192/protectourliberty/lists

    CDR Kerchner (Ret)
    http://www.ProtectOurLiberty.org

  4. We all know that the U.S. Constitution lists the phrase “natural born Citizen”. To wit: Article II, Section 1, Clause 5:
    “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.”

    Question to anyone out there: Why is there no current citizenship/naturalization law that cites this phrase “natural born Citizen”?

    Thank you; I will answer in-advance.

    In my clear thinking with no outside white noise to muddy my thinking, I believe that the answer to that question IS and always will be: Congress has ZERO authority to create a citizenship/naturalization statute (law) to claim or proclaim that ANYONE is a natural born Citizen, because the act of becoming a natural born Citizen is truly a NATURAL event through the law of nature – i.e., born in the country to two (2) parents who already are citizens of THAT country without outside intervention through positive law. If certain persons were indeed natural born Citizens as the result of U.S. citizenship/naturalization positive laws, then the phrase “natural born Citizen” would certainly be included in the wording of the citizenship/naturalization statute (law) as it certainly is listed in the U.S. Constitution to avoid any ambiguous wording or dyslectic rewording – i.e., “born a citizen” and inserting words where there are no words.

    I believe that the Founding Framers realized the error of their way when they cited “natural born Citizen” phrase in the first Naturalization Act (1790). We know that they deleted the words “natural” and “born” in the Naturalization Act (1795) that repealed the 1790 law in its entirety and every other succeeding citizenship/naturalization law thereafter.

    Even Neal Katyal & Paul Clement can’t dispute the above, but they do go a long way around the barn in their ‘Perry Mason’ lawyer speak to justify the current individuals who have circumvented the natural born Citizen requirement, either through actual usurping of the Executive Office or by attempting to do so as a candidate through past presidential elections.

    Summary: All citizens cited in current U.S. citizenship/naturalization laws are STATUTORY citizens via positive law, because positive laws are not naturally occurring events, but instead are intentional acts of intervention.

    1. There’s no law defining what natural born citizen means because, as the U.S. Supreme Court already has explained, absent express authorization from the U.S. Constitution, Congress lacks the authority to define terms in the U.S. Constitution.

      The U.S. Constitution, by the way, is not “natural”; it does not exist in nature.

      1. Of course the U.S. Constitution is not “natural”. You are creating a straw-man argument. The U.S. Constitution is man-made positive law like all other Positive Law. Positive Law (man-made law) is not Natural Law (from the Law of Nature and nature’s Creator). The one unique fact for the U.S. Constitution however is that it is the supreme law of the United States and all other positive laws, actions, and acts must comply with it, until it is amended. And that requires a super-majority of Congress and the States to do that, as set up by the founders and framers. It also enshrines and protects certain God given natural rights such as those listed in the Bill of Rights. What is completely “natural” when it comes to Citizenship, is a “natural born Citizen” who is created by our Creator under the Laws of Nature and Natural Law per the specific circumstances and facts at birth, i.e. born in the country to parents who were both Citizens of the country when their child was born — a child born with unity of Citizenship and Allegiance to the USA and only the USA. Dual and Tri citizens at birth are born with citizenship in more than one country and innate allegiance demands from two or more countries.

        See The Law of Nations or the Principles of Natural Law Emmerich de Vattel for what is a country, a Citizen, and a “natural born Citizen:: https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/

        1. The Creator created natural born citizen?

          Countries, including the United States, also are “man-made.”

          Neither “citizen” nor “United States” exist in nature; both require positive law to exist.

  5. Dual Citizens aren’t Natural Born Citizens even if they’re born in the USA. The US Dept. of State states dual citizens are required to owe allegiance to both nations and they’re are required to obey the laws of both nations as well. Anyone believe John Jay and the other founders would have been good with the President owing allegiance & being subject to the jurisdiction of a foreign country? The whole Obama birth certificate was a head fake they were really concerned being challenged on his dual citizenship that State Department rule would have been problematic for his campaign. It’s interesting when the rule is brought up because it’s a government rule and it’s not optional it’s a requirement to comply with.No one in the media has asked Harris if she’s held or has ever held Jamaican Citizenship. Harris, Haley, Cruz and other dual citizens aren’t Natural Born Citizens.

    1. Dual citizenship and natural born citizenship are not mutually exclusive. Cruz, for example, was a natural born citizen of both Canada and the United States.

      The U.S. State Department can impose rules on its employees, but it cannot impose rules on the president and vice president.

      Questions have been asked about daul citizenship; questions, for example, eventually led Cruz to renounce his Canadian citizenship. Oz’s dual citizenship was fodder for campaign ads in Pennsylvania. But those are electability concerns, and not eligibility ones.

      1. Cruz isn’t a Natural Born Citizen of The United States, a Natural Born Citizen wouldn’t have to write a letter to a foreign country requesting his citizenship be renounced. Those rules aren’t for State employees they apply to US Citizens who are dual citizens. So the US govt. is stating explicitly that dual citizens owe allegiance and are required to obey the laws of both nations, there’s zero chance the founders would have allowed someone who is bound by the laws of a foreign country to be President.

        1. Courts already ruled Cruz is a natural born citizen.

          Again, dual citizenship and natural born citizenship are not mutually exclusive.

          Again, the State Department cannot make rules that would apply to the president or vice president.

          You need a seance to discern the Framers’ desire about dual citizenship, but the courts already have answered these questions.

      2. “Cruz was a natural born Citizen of “BOTH” Canada and the United States”. That is so moronic, you are either one or the other. And in Cruz’s case he may be neither and not even a documented citizen of any country. Also that would make him ineligible to be a United States Senator. But the Republicans let him run for President, among others, ruining the ability to challenge Obama. And they will probably do it again. Keep an eye on Rubio and Halley.

        1. There’s nothing to prevent someone being a natural born citizen of more than one country.

          Cruz is a natural born citizen of the United States because his mother was a U.S. citizen at the time of his birth.

          Rubio, Haley, and President Obama all are natural born citizens because they all were both in the United States.

        2. This comment is actually for Rudy Lee. An administrative law judge in NJ, what a joke. First of all The State Department can make rules for US Citizens and they have for dual citizens, and those rules aren’t optional. Canada could make a law and Cruz would have been required to comply with that law, the founders would never have allowed an individual subject to the jurisdiction of a foreign country to be President. It’s not hard to infer why, they were distrustful of foreign governments, especially those with ties to England like Canada is, they still have the Queen on their currency.

        3. I have no idea why you believe a judge in New Jersey is a joke, but judges’ rulings carry the force of law and have real-world consequences. And there were other judges in other states who ruled in line with a New Jersey judge.

          No one disputes the State Department can make rules for its employees. The president and vice president aren’t its employees. The State Department works for them.

          Your beliefs about the Framers’ beliefs continue to have no source beyond a seance.

      3. Actually The President & VP have to abide by federal rules, this was made clear by the court’s ruling against Trump for not adhering to the APA on DACA. So yes if someone was a dual citizen they would be required to obey the rules. Also stop saying that those rules only apply State Department employees, they apply to any US Citizen who is a dual citizen. Their employer is irrelevant.

        1. And no court has ruled any president or vice president is ineligible, or in your terms, violating any rule of eligibility.

          I have no idea why you believe the State Department can write rules that bind every U.S. citizen. I certainly don’t know why you believe the State Department has the authority to define terms in the U.S. Constitution.

  6. That was a wordy concession there’s no direct evidence that the Framers relied on Vattel when drafting the natural-born-citizen clause. What remains is weak and unsupported supposition.

    The Framers kept fairly detailed notes of their proceedings during the Constitutional Convention. Their records often are consulted when attempting to determine their intent. And there’s no evidence, from their records or anywhere else, the Framer’s relied on Vattel when drafting the natural-born-citizen clause.

    Vattel undisputedly was an influential thinker, but he was not the only influence on the Framers. They also were influenced by Hobbes, Grotius, Montesquieu, Rousseau, Voltaire, and others. There’s no evidence Vattel was the Framers’ sole influence. Vattel was a voice among many.

    Assuming at least some of the Framers spoke French, and further assuming they ever read section 212, there’s no evidence they translated Vattel’s “indigènes” as “natural born Citizen.” The 2016 CRS memo, in footnote 102, actually refutes the assertion they did.

    Franklin’s thanking Dumas for books received during the 1775 Second Continental Congress is not evidence those books were at the 1787 Constitutional Convention. At best, it shows Franklin generally was influenced by Vattel, which is neither disputed nor particularly probative as to the drafting of the natural-born-citizen clause.

    There also is no evidence Jay, in his letter to Washington, was referring to Vattel. Like the Framers, Jay was well read and influenced by Vattel. But, again like the Framers, there’s no evidence Vattel was his sole influence.

    1. That Justice Waite in 1875 roughly paraphrased Vattel is not evidence that the Framers relied on Vattel when drafting the natural-born-citizen clause because Waite was not a Framer, and 1875 is not 1787. Regardless, Waite specifically referred to the common law; Vattel in section 212 was not describing the common law.

      Justice Powell in 1977 acknowledged Vattel was an influence on the Framers, again something undisputed but unilluminating. This is especially so because Powell specifically acknowledged Vattel’s expertise in international law. Defining who is a citizen is quintessential domestic law. Justice Thomas’ 2019 acknowledgment similarly is confined to Vattel’s influence in international law.

      In contrast, in U.S. v. Wong Kim Ark, the U.S. Supreme Court exhaustively examined the origins of United States citizenship. The court acknowledged section 212, but did not dwell on it. Rather, the court looked to the common law. In doing so, it looked to English law, and its influences, such as Blackstone and Coke. And, from that, the court concluded the Framers were influenced by them.

      Which is why it is no surprise that courts and experts are in general consensus that English law, and not Vattel, influenced the Framers’ meaning of natural-born citizen. As shown by the various rulings in eligibility challenges that are consistent with English law and inconsistent with the meaning ascribed to Vattel. Despite numerous attempts, no one has been able to convince a single judge to follow the meaning ascribed to Vattel.

      Doubters, despite their weak footing, assuredly will continue to doubt. But those doubts also will continue to bear no fruit, as their doubts are not in equipoise to courts’ rulings. Or the simple fact that multiple people have served as president and vice president, without notable controversy, despite not fulfilling the meaning ascribed to Vattel.

    2. Charles W.F. Dumas, an ardent supporter of the American cause, printed an edition of {The Law of Nations} in 1774,
      with his own notes illustrating how the book applied to the American situation.
      In 1770, Dumas had met Franklin in Holland, and was one of Franklin’s key collaborators in his European diplomacy.
      He sent three copies to Franklin, instructing him to send one to Harvard University, and to put one in the Philadelphia library.
      Franklin sent Dumas a letter, Dec. 9, 1775, thanking him for the gift.
      Franklin stated, “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, has been continually in the hands of the members of our congress, now sitting …|.”

      Reference comments from https://freerepublic.com/focus/f-bloggers/2495732/posts

  7. DeMaio: “It was not intended, nor did it purport, to retroactively bestow upon them status as a “natural born citizen.””

    I never claimed that. My point was that the states used the term “natural born citizen” before the Constitution and their definition of the term could not require two citizen parents at the time of their birth.

    I also posted a second comment of John Adams’ 1785 letter to Thomas Jefferson where he used the term natural born Citizens of the United States.

    The term had a meaning outside of the Constitution and prior to it. What was that definition?

    DeMaio, “To the extent that the argument is being advanced that a state law using the term “natural born citizen” for that state’s purposes can properly also use and define the term in a manner that is inconsistent and at odds with the definition of the term most likely intended and relied upon by the Founders – the one found in § 212 as seemingly ratified in Minor – the argument must fail. To conclude otherwise is to advocate that the “supreme Law of the Land” under the Constitution is not supreme at all.”

    “most likely”

    The use of the term predates the Constitution and with a definition that could not be from Vattel. A definition of natural born based on the English Common Law is a more logical conclusion.

    1. Everyone assumes it was based on English common law but the country was founded on breaking away from Britain , they were deeply concerned about foreign influences on their fledgling government, that was made clear in John Jay’s letter to George Washington, Jay is the one responsible for the term being inserted in the constitution in the first place. So would they rely on law from a country they were trying to separate from? The Natural Born Citizen term is all about allegiance to the USA. The founders wanted the President to be immune from divergent allegiances. The only people who have full allegiance to the United States are those born in the United States and whose parents are also US Citizens. That’s why dual citizens aren’t Natural Born Citizens because they are required to owe allegiance to a foreign country.

      1. It is assumed because the states drafted constitutions that specifically incorporated the English Common Law.

        Delaware:
        “ART. 25. 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”

        Maryland:
        “. That the inhabitants of Maryland are entitled to the common law of England, and the trial by Jury, according that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances, and of such others as have been since made in England, or Great Britain, and have been introduced, used and practiced by the courts of law or equity; and also to acts of Assembly, in force on the first of June seventeen hundred and seventy-four, except such as may have since expired, or have been or may be altered by facts of Convention, or this Declaration of Rights-subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State:”

        New Jersey:
        “XXII. That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall still remain in force, until 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 Charter; and that the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever”

        New York:
        “XXXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State”

        Find them here:
        https://avalon.law.yale.edu/subject_menus/18th.asp

        1. While parts of English Common Law such as inheritance, land transfer, and other intra-state legal matters, etc. were incorporated into state laws and state constitutions, English Common Law was not used for guidance in justifying the revolution against England by the independent colonies and nor was English Common Law used to unite the 13 newly independent and sovereign states under the federal constitution of a new country, a constitutional republic more perfectly and solidly united thereunder.

          The founders and framers looked to The Law of Nations and Principles of Natural Law to write the new U.S. Constitution to unite the 13 independent and sovereign states. And the premier writer of The Law of Nations and Principles of Natural Law during the founding and framing time frame was Emer de Vattel who clearly defined the term “natural born Citizen” used in the new U.S. Constitution. See the various chapters for Volume 1 of Vattel’s treatise on the subject of what is a nation and who a new nation can be formed: https://lonang.com/library/reference/vattel-law-of-nations/ and of course the chapter that contains the discussion of citizenship https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/

          One cannot use English Common Law to unite sovereign and independent states like the 13 new states were who were only loosely organized under the Articles of Confederation before the U.S. Constitution was formed. To say English Common Law was used to create their more perfect union under the U.S. Constitution for the new nation of the United States of America is absurd. Even the name of our country points out that we are a nation of united states that were once sovereign and independent after the revolution was won. To make such arguments here is gas lighting to the extreme and to spread misinformation and disinformation. Where does English Common Law discuss breaking away from an existing sovereign and creating a new nation and uniting newly formed independent sovereign states? It does not and did not. To say that is as I said absurd. But Vattel did teach in Volume 1 how to justify and break away from an unjust sovereign and how to create a new type of government and unite said nations under the Law of Nations. Just read Volume 1 of Vattel’s work and you will see the various ideas embodied in our U.S. Constitution jumping right out to you. To unite the sovereign and independent states the founders and framers looked to The Law of Nations, not English Common Law. And Vattel’s treatise on the The Law of Nations or Principles of Natural Law was the contemporaneous premier and much used source for the founders and framers ideas on more perfectly unifying the 13 former colonies, and after the revolution, newly independent sovereign states.

          CDR Kerchner (Ret)
          http://www.ProtectOurLiberty.org

        2. There continues to be no evidence the Framers relied exclusively on Vattel when drafting the U.S. Constitution generally or the natural born citizen clause specifically.

          The U.S. Supreme Court already has rejected the claim the Framers weren’t influenced by English common law; indeed, the U.S. Supreme Court ruled the roots of the United States’ beliefs on citizenship came from English common law.

      2. It also is “assumed” because the U.S. Supreme Court already expressly looked at English law, and not Vattel, when exploring the meaning of citizenship.

        The letter by Jay, who was not a Framer, says nothing about two citizen parents or Vattel.

        Dual citizenship and natural born citizenship are not mutually exclusive.

        1. Weeks after the letter the clause was in the Constitution, he explicitly mentioned foreigners, which dual citizens are. So yes they are mutually exclusive because a Natural Born Citizen wouldn’t have to obey a foreign country’s law in the United States, something dual citizens must.

        2. Dual citizen are, by definition, also not foreigners.

          Jay was not a Framer, and there’s no evidence any of them actually held the beliefs are ascribing to them.

          Regardless, courts and reality do not share your beliefs.

      3. In Blackstones introduction to his book on English law he states the British common law does not apply to the North American Colonies. Several factors put the colonies outside the dominion of Great Briton. So the Kings or Queens issued charters to establish the relationship between the two.
        In these charters the colonists were granted the right to arms, to make needful laws to carry on down to the persons granted the charter and their heirs and successors. Also granted to them that their children born at sea or in the colony would be as if a natural born subject born within the dominion.
        The supreme court stated in Minor V Happersett that born of citizen parents within the limits was and always was the definition, but everyone keeps the wool over that ruling. Look back carefully over English law and you will find that is more likely the meaning came from British acts then from Vattel.
        Also the definition in the of nbc in the 1790 act in the definition of the days. Congress was not expanding the term it was a limit so children of parents not born within the country to give natural status to them.
        It was a providing that clause. Much like the United Kingdom Nationalization act of 1948 that states the the children of a Kenyan man would still be a natural born subject or commonwealth citizen providing these provisions are met. Which means our 44th president was a subject of the Queen.

        1. Many colonies and States created laws to adopt English law, which actually is an acknowledgement of Blackstone’s point. Nothing prevented these laws that expressly adopted English law.

          Minor, in its dicta, does not provide an exclusive definition for natural born citizen. It just says that no one doubts that a person born in the United States to two citizen parent is a natural born citizen because literally no one doubts that.

          The United Kingdom’s citizenship laws have been extensively rewritten since 1948; it is extremely doubtful President Obama still has some sort of UK citizenship. Regardless, it also is irrelevant if he does.

  8. Repeating and rephrasing my comment of Thursday, December 1, 2022 at 10:32 PM responding to Ray Fremick’s Thursday, December 1, 2022 at 3:03 PM comment on Adams July 24th, 1785 letter to Jefferson.

    For anyone who might be interested here is the agreement with Great Britain that Adams was writing about in July, 1785. It was written in April, 1786.

    The American Commissioners to the Marquis of Carmarthen

    “ Grosvenor Square April the fourth 1786
    My Lord
    Agreably to your Lordships request expressed to one of Us in Conversation, and again communicated to Us through Mr Fraser, We have drawn up the enclosed Project of a Treaty of Commerce, which We do ourselves the Honour to propose to the Consideration of his Majestys Ministers.”
    “ We have the Honour to be My lord / your Lordships most obedient and / most humble servants
    John Adams
    Th: Jefferson

    Enclosure

    Article 1
    “The Subjects of His Britannic Majesty may frequent all the Coasts and Countries Bay’s, Harbours, Creeks, Rivers and Ports of the United States of America, and reside and trade there, in all Sorts of Produce, Manufactures, and Merchandize, and Shall pay within the said United States, no other or greater Duties, Charges, or fees whatsoever than the natural born Citizens of the United States themselves are or shall be obliged to pay; and they shall enjoy all the Rights, Priviledges, and Exemptions in trade Navigation and Commerce which the natural born Citizens of the said United States do or shall enjoy.“

    Article 3
    “…shall be paid by the natural-born subjects of Great Britain, in the Dominions of His Britannic Majesty, and the natural born Citizens of the said United States within their Dominions. …”

    https://www.masshist.org/publications/adams-papers/index.php/view/ADMS-06-18-02-0119

    Adams and Jefferson describe the “natural born Citizens of the United States” in the present tense in 1785 and 1786.

    Can DeMaio explain who these natural born Citizens of the United States were and when they became natural born Citizens?

    1. For history buffs – a footnote:

      The Adams/Jefferson 1786 draft Treaty of Commerce is directly linked to the Constitutional Convention.

      The British rejected the treaty because any US state could refuse to follow the treaty. The US Congress had no authority over commerce. This lack of congressional authority over commerce led to the Annapolis Convention in September, 1786. But only five states attended this convention and it ended with a call for another convention to take place in Philadelphia in May 1787.

      1. Also for you history buffs, George Washington was inaugurated for the first time on April 30, 1789, as a STATUTORY U.S. CITIZEN with just over 14 years as a resident which squeaked him into the presidential eligibility for the U.S. presidency qualifications – dated from the April 19, 1775, (official start of the Revolutionary War). You would be safe to say that George Washington was the first U.S. president period and who also was the first to be ‘grandfathered’ to sidestep the natural born Citizenship requirement in accordance with the U.S. Constitution, Article II, Section 1, Clause 5, because there were no (U.S.) natural born Citizens existing who were yet 35 years old in 1789. At best, any natural born Citizens living were at the most 14 years + 11 days old.

        1. That’s right Sharon.
          I knew from past knowledge that G. Washington was born in Virginia. Guess I sort of mixed the U.S. citizenship with residency in my mind while writing the original comment and did not think it through properly.
          Nonetheless, I believe the 14 years residency was included in Article II to make sure only Revolutionary War patriots were eligible for the POTUS.

        2. John Adams and Thomas Jefferson said there were natural born Citizens of the United States in 1786. They were not referring to nine year old children.

          George Washington born in Virginia in 1732 was a natural born Subject of Great Britain until July 4th, 1776 when he became a natural born Citizen of the United States.

    2. Let me answer this for Mr. DeMaio since he may not be familiar with how young a lad could be while serving on a sailing ship on the high seas.

      And do note, this is a prospective agreement and document. The agreement’s words were in the present tense when they wrote them; it meant from this point forward and because they knew who a “natural born Citizen” is/was at that time the agreement was signed, and would continue to be in the future. A person born in the country to parents who were both Citizens of the country when said child was born: https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/

      The agreement did not say a legally of age “natural born Citizen” at the signing of this agreement and document. This is a prospective agreement and document and was to be used from that point on in regards to the subject of the agreement, whether for a 10-12 year old “natural born Citizen” while in the naval service on a ship on the high seas or in the future a fully of age “natural born Citizen” of the United States.

      See this link https://seahistory.org/sea-history-for-kids/kids-as-crew/

      It explains how very young a lad could be and still be in service aboard a sailing ship at sea, both military and commercial, in the colonial era … and unfortunately at times could have been impressed into the service of the English Navy, as that sort of thing happened and eventually led up to the War of 1812.

      I joined the U.S. Navy at age 17. Back then one could easily be 12 or younger and be serving on a Navy ship or commercial sailing ship.

      The agreement does not specify the age of any “natural born Citizen” when this agreement was made. The age of a “natural born Citizen” of the United States is irrelevant to the terms of this agreement, whether they are of age or not.

      1. More information regarding the age of boys serving in the Navy in the colonial time frame: https://www.histclo.com/youth/mil/cou/eng/navy/msn-rat.html . Thus, a 10-12 year old (or younger) young lad and “natural born Subject” of the King could be serving in the British Navy and a 10-12 year old (or younger) young lad and “natural born Citizen” of the United States could be serving via a solemn Oath of Enlistment to protect the U.S. Constitution against all enemies foreign and domestic in the United States Navy. And a “natural Born Citizen” was contemporaneously defined here, as we all know, but many the trolls here refuse to accept: https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/ Here it is in both the French and English versions: http://www.kerchner.com/images/protectourliberty/vattel-section212-french+english-sidebyside.jpg . “Naturels” in French translates to “Natural Born” in English. See this for proof of that translation in American records long before 1787 here: http://www.kerchner.com/naturalborncitizen/Absolute-Proof-Naturels-Translated-To-Natural-Born-In-1781.pdf

        As long as the young lad was strong and physically able to serve for example as a powder boy or other tasks listed in the aforementioned first link, the respective Navy would take them, and/or a commercial sailing ship would also take into the crew such a young, motivated strong lad. And likewise as the British Navy was boarding American ships they could take and impress such a young “natural born Citizen” of the United States lad involuntarily into his majesty’s service against his will. History tells us how the British Navy did not respect that agreement which ultimately led to the War of 1812.

        CDR Kerchner (Ret)
        http://www.ProtectOurLiberty.org

      2. “Let me answer this for Mr. DeMaio since he may not be familiar with how young a lad could be while serving on a sailing ship on the high seas.”

        What does any of that have to do with the Adams/Jefferson commerce treaty?

        Are these nine and ten year old sailors going to “reside and trade there, in all Sorts of Produce, Manufactures, and Merchandize”?

        Again this is a commerce treaty that allowed British subjects to pay no more duties than “natural born Citizens of the United States”.

        And yes, this is absolutely written in the present tense. This was Adams’ response to the British alien duties on “Tobacco, Rice Indigo and twenty other Things, as they do now upon oil.”

        https://founders.archives.gov/documents/Jefferson/01-08-02-0249

        This treaty would allow British subjects to pay the same duties on their goods as natural born Citizens of the United States were paying. Article 2 of the treaty was the reciprocal clause that allowed American Citizens to reside and trade in England while only paying the duties of British subjects (Adams’ solution for avoiding British alien duties).

        Article 5 starts the treaty one year after ratification.

        The treaty has absolutely nothing to do with nine year olds serving as powder boys. It has everything to do with natural born citizens engaging in trading produce and manufactured goods for sale in England.

        1. Article II Section 1 Clause 5 of the U.S. Constitution, the presidential eligibility clause, by its wording clearly tells us there is a difference between merely being a Citizen of the United States at the time of the adoption of the U.S. Constitution and a natural born Citizen of the United States. That wording differentiating the two kinds of Citizens in that clause is what is known as the “grandfather clause” in said presidential eligibility clause.

          Since the first Citizens of the United States as a new nation were first created upon the signing of the Declaration of Independence in 1776 and adhering to it, (see Ramsay 1789: https://www.scribd.com/doc/33807636/A-Dissertation-on-Manner-of-Acquiring-Character-Privileges-of-Citizen-of-U-S-by-David-Ramsay-1789) there obviously were no legally of majority age “natural born Citizens of the United States” in the year 1785, whether one argues the Vattel’s definition of “natural born Citizen” in section 212 of the Law of Nations or Principles of Natural Law (https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/) or the fallacious argument being made by some here from time to time in this newspaper’s comments forum, that anyone who is merely a “Citizen at Birth” declared under some man-made Positive Law, Act, Treaty, or Constitution is identically equal and 100% totally one and the same as a “natural born Citizen”, without regard as to what the citizenship status was for the two parents when the child is born in the country. (This Euler Diagram proves the logical fallacy of that identity argument — https://cdrkerchner.wordpress.com/2018/06/16/natural-born-citizen/ )

          Via Natural Law and the Law of Nations the first “natural born Citizens of the United States” would be the children born in country of parents who were both one of those first Citizens created in 1776

          So, it is obvious to this party that the 1785 draft treaty wording is obviously prospective in its purpose and in meaning for the future when there will be natural born Citizens of the United States of sufficient age or majority age and engaged in commerce as its purpose, or it is simply logically in error and was not well thought out in the use of the term “natural born Citizens of the United States” in that 1785 draft treaty. People make errors. Diplomats do make errors. Congress members people make errors. The 1790 Naturalization Law which was totally repealed 5 years later in 1795 proved that in the erroneous and unconstitutional use of the term “natural born” in the 1790 Law. Congress cannot create “natural born Citizens”. So the diplomats imo made a error with the wording in that 1785 treaty just like the new Congress seated after adoption of the new U.S. Constitution did with that 1790 law. They are human after all dealing with the founding of a new country, making laws and treaties. And mistakes were made. Especially those in a hurry who OK’d the draft and were shortly scheduled to go on a tour of some beautiful gardens in Europe. Time probably was the cure for that treaty as eventually there were adult “natural born Citizens of the United States” engaged in commerce and industry. But there none in 1785.

          So pray tell me, who do you think were the “natural born Citizens of the United States” engaged in commerce that were referred to in that 1785 draft of a treaty? I say there were none of majority age engaged in commerce at that time and it was a mistaken choice of wording in that document. Of course there could have been some very young 9-10 year old entrepreneur. But I don’t think so. So, again, what say you? Who were the “natural born Citizens of the United States” referred to in that 1785 draft treaty?

          CDR Kerchner (Ret)
          http://www.ProtectOurLiberty.org