Some Additional nbC Developments

by Joseph DeMaio, ©2024                            

(Aug. 9, 2024) — As a brief follow-up to your humble servant’s most recent offering here, this one will be shorter.  Your servant recently received information from long-time natural born Citizen (“nbC”) warrior, CDR Charles F. Kerchner, Jr. (Ret), further supporting the conclusions of the prior post.

Specifically, the information coming to your servant’s attention was that Founder John Jay was almost certainly relying on the definition of a “natural born citizen” found in Book 1, Ch. 19, § 212 of “The Law of Nations” (1758) by Swiss attorney, jurist and international law scholar Emer de Vattel.  The qualifier “almost certainly” is used because the following excerpts and facts are anecdotal and because unless and until the Supreme Court directly addresses the nbC question in a live “case or controversy,” the debate will continue.

As a prefatory matter, in various of the past Congressional Research Service (“CRS”) memoranda and reports on the nbC issue, it has been argued, for example, that none of the Framers of the Constitution could possibly have relied on the de Vattel treatise or even been aware of de Vattel, because, purportedly, none of them spoke or understood French – a demonstrably false claim – and/or that no English translation of the French term “indigènes” as “natural born citizens” existed until after the Constitution was signed in 1787.   Such are the shallow arguments of the folks at the repository of the “nation’s best thinking.”

Returning to the information from CDR Kerchner, it consisted of a link to a comment made by one “Amendment10” (probably a pseudonym…) at the FreeRepublic.com website addressing your servant’s “conundrum” posting here at The P&E.  In that comment, there was a reference to John Jay’s “Charge to the Grand Jury, the Circuit Court for the District of Virginia” on May 22, 1793 in Richmond, Virginia.

That citation included Jay’s specific reference to the “Laws of nations,” which immediately caught your servant’s attention.  Drilling down into Jay’s charge to the Grand Jury, one finds that Jay recognized and differentiated between the terms “laws of nations” and “Law of nations.” (Emphasis added)  As to the first term, Jay states in the charge: “[T]hey are those Laws by which civilized nations are bound to regulate their Conduct towards each other, both in peace and in war.”  Jay gives no origin attribution to that definition, which is generic and unsourced.

However, Jay thereafter refers to the “Law of nations,” (emphasis added) stating: “The Law of nations considers those as neutral nations ‘who take no part in the war, remaining Friends to both parties, and not favoring the arms of one to the Detriment of the other…,’” followed by footnote 7.  The “Law of Nations” is, of course, the title of the treatise by Emer de Vattel where, in Book 1, Ch. 9, § 212 (hereafter, “§ 212”), is found the definition of a “natural born citizen,” that definition being a person born in a country to a mother and father who are both already at the time of birth citizens of that country.

Of greater significance, footnote 7 of the Grand Jury charge confirms that Jay sources the statement made in text of the charge to Emer de Vattel and his treatise.  In fact, in Jay’s charging document, there are no fewer than eleven (11) direct references to de Vattel and/or his treatise as bearing upon the basis for the Virginia proceeding.  Clearly, de Vattel and The Law of Nations were central participants in Jay’s formulation of the charging document.

Many years prior to the date of the charging document, Jay had also corresponded (July 15, 1784) with the President of the Continental Congress, Samuel Huntington.  Jay noted to Huntington that the question of whether the Counsel-General of Great Britain to the United States was to be acknowledged here as a matter of law or as a matter of grace or comity, was a question that was “settled by Vattel.”

Moreover, Jay himself served as a member of the Continental Congress from New York.  He was thus included among those recognized by Benjamin Franklin – in his Dec. 9, 1775 letter of appreciation to Charles Dumas for the copies of the de Vattel treatise he sent, and which “has been continually in the hands of the members of our Congress now sitting…,” – as a member possessing “The Law of Nations.” See United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 462, n.12 (1977).

Accordingly, against this empirical and unambiguous historical backdrop, it is abundantly clear that John Jay – the Founder whose July 25, 1787 “hint” letter to George Washington resulted in the insertion of the nbC eligibility restriction into Art. 2, § 1, Cl. 5 of the Constitution – cited and relied consistently on de Vattel and The Law of Nations in forming his legal conclusions and articulating his principles of law.  Moreover, the suggestion that Jay could not read or understand French is fatuous.  Thus, he almost certainly intended to adopt the definition articulated by de Vattel in § 212. 

The fact that Jay had read and sourced myriad of his legal opinions, stretching from 1775 in the Continental Congress; to advice given to the President of the Congress 1784; to his 1793 Virginia Grand Jury charging document, to the de Vattel treatise throughout that period – including in 1787 when the Constitution was drafted – cannot be disputed with any intellectual honesty.  That said, “intellectual honesty” is sometimes in short supply when addressing and analyzing the nbC constitutional restriction, particularly when a result-oriented outcome is the objective of the effort.

Moreover, to contend that against this factual backdrop, Jay would have agreed that the nbC term meant a person who became a “citizen at birth” or a “citizen by birth” with no need for further naturalization proceedings, and without regard to the place of birth or the U.S. citizenship status of both parents is, respectfully, nonsense.  That conclusion flies in the face of the Founders’ concerns of erecting the highest available barrier against the insinuation of “foreign influence” into the presidency.  Yet that is what is being currently marketed as the “accepted” and “settled” meaning of the term…, move along…, nothing to see here….  This is both lamentable and wrong.