[RC one]

Give me a break. Read post 82 and then tell me I’m wrong. I don’t think our founders were completely adhering to Vattel incidentally. I know they were fully aware of Law of Nations but I do not think it is clear that they applied his definition of NBC to article II, section I, clause 5. I think they adopted the English common law definition and I think there is ample evidence to support this.

[gusty]

Since we separated from England and not Switzerland, I think you are dead on.

[Springfield Reformer]

I read through your post 82, didn't find anything that rose to the level of binding authority. Most of the commentary cites dealt with the less controversial cases, not the edge cases. None of the case law gets out of the dicta trap. And again, the only time we had operative statutory authority on NBC was when the 1790 Act validated an edge case for NBC under jus sanguinis.

BTW, I did appreciate that your citations were not stuck in the Vattell/Law of Nations universe. However, so long as you are willing to consider the influence of the British framework, Blackstone here accounts for some of those edge cases in a manner favorable to the Cruz theory of jus sanguinis citizenship:

But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

Available here: http://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships1.html

Also notice here there is no artificial boundary between statutory and common law assertions of natural born status. The common law feeds into the statutory corpus and fills the gaps, which is sort of how a lot of statutory law comes into being anyway.  It's really more of a historical question. When did some emerging pattern of judging cases (common law) get absorbed up into the statutory schema?  And what began in the statutory schema in skeletal form, and migrated down to where judges had to fill those gaps with case-based refinements? At some point it becomes a chicken-versus-egg problem.

In any event, I appreciated your effort on post 82. It was a good read. Thanks for posting it.

Peace,

SR