What If ... ?

(Dec. 15, 2022) — What if your humble servant were to reveal something here at The P&E which could, once and for all, put an end to “natural born Citizen” (“nbC”) debate raging in the comments sections of numerous posts here? What if recently-discovered “hard” evidence – in the form of a letter from John Jay to David Brearley, Chairman of the “Committee on Postponed Matters” at the Constitutional Convention in 1787 – was produced? And what if that letter confirmed the intent of the Founders to rely on § 212 of Emmerich de Vattel’s treatise The Law of Nations for its definition of an nbC, requiring birth in the nation to parents who were already U.S. Citizens? Would that change any of the minds of those who believe that the only criterion for an nbC is to be born here as a “citizen at birth” or a “citizen by birth?” Curious? Read on. ...

The 1716 English edition of Pufendorf’s “Whole Duty of Man and Citizen according to Natural Law” describes citizens and even says citizens born in the place and those who form the original state and their descendants are the “indigene or Natives”

The first essential point here is that Pufendorf wasn't English.

The second essential point here is he is citing natural law, not English common law. The usage of the word "citizen" effectively means a "natural law" foundation, not one from English common law.

You are also ignoring what was happening in the other states.

Connecticut
1795 Zephaniah Swift - “The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.”

"Considered as," means "*We will Pretend*." He effectively says they are not the same thing. You make my point for me.

Virginia 1779
Thomas Jefferson - “…that all white persons born within the territory of this commonwealth … shall be deemed citizens of this commonwealth”

"White Persons?" Sounds very Jus Sanguinus to me.

"Deemed" means "we will pretend". It does not mean "is."

To make that statement mean what you want, it would have to read:

" …that all white persons born within the territory of this commonwealth … *are* citizens of this commonwealth”.

And it would have to come from the Virginia Legislature. Not TJ.

It makes no sense that the Framers just figured everyone would figure out what they meant.

I'm pretty sure they considered the matter not terribly significant in the difference between a subject and a citizen, and for the vast majority of the cases, the legal basis of the one is completely compatible with the other.

But for the one purpose for which "natural born citizen" was specifically desired, (qualifications for the Presidency), The Vattel version fills the need while the English common law version does not.

For all the rest, the distinction doesn't matter, and most people of that era didn't see the issue as significant enough to worry about.

Thankfully we have the Supreme court of Pennsylvania to clarify which one the founders had in mind when they were talking about "citizen."

One problem with with quoting what some Framers discussed is that the people never ratified Framer discussions. They ratified the black letter text of the Constitution itself. Neither Framers nor the Federal legislature ratified the Constitution or any of its amendments. That was done by States.

The purported intent of the lawgiver is irrelevant if the actual words of the law have a clear meaning. The words prevail even where the lawgiver's words are contrary to his intent. This is even so with legislation where the legislators voted to pass legislation. The words are ratified or passed into law, the intent is not.

Ex Parte Grossman, 267 U.S. 86, 108-09 (1925)

The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.

"A Matter of Interpretation," Federal Courts and the Law, by Antonin Scalia, 1997. This book contains an essay by Antonin Scalia and responses to that essay by professors Ronald Dworkin, Mary Ann Glendon, Laurence Tribe, and Gordon Wood. There is a final response by Antonin Scalia.

Laurence Tribe, pp. 65-6

Let me begin with my principal area of agreement with Justice Scalia. Like him, I believe that when we ask what a legal text means — what it requires of us, what it permits us to do, and what it forbids — we ought not to be inquiring (except perhaps very peripherally) into the ideas, intentions, or expectations subjectively held by whatever particular persons were, as a historical matter, involved in drafting, promulgating, or ratifying the text in question. To be sure, those matters, when reliably ascertainable, might shed some light on otherwise ambiguous or perplexing words or phrases - by pointing us, as readers, toward the linguistic frame of reference within which the people to whom those words or phrases were addressed would have "translated" and thus understood them. But such thoughts and beliefs can never substitute for what was in fact enacted as law. Like Justice Scalia, I never cease to be amazed by the arguments of judges, lawyers, or others who proceed as though legal texts were little more than interesting documentary evidence of what some lawgiver had in mind. And, like the justice, I find little to commend the proposition that anyone ought, in any circumstances I can imagine, to feel legally bound to obey another's mere wish or thought, or legally bound to act in accord with another's mere hope or fear.

Aldridge v. Williams, 44 U.S. 9, 24 (1845)

In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.

United States v Union Pacific Railroad Company, 91 U.S. 72 (1875)

In construing an act of Congress, we are not at liberty to recur to the views of individual members in debate nor to consider the motives which influenced them to vote for or against its passage. The act itself speaks the will of Congress, and this is to be ascertained from the language used. But courts, in construing a statute, may with propriety recur to the history of the times when it was passed, and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it. Aldridge v. Williams, 3 How. 24; Preston v. Browder, 1 Wheat. 115, 120 [argument of counsel -- omitted].

Downes v. Bidwell, 182 U.S. 244, 254 (1901)

In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.

Wong Kim Ark at 169 U.S. 658-59:

It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established. In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying: "Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide." 6 U. S. 2 Cranch 64, 6 U. S. 119.
In Inglis v. Sailors' Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said: "It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects."

Wong Kim Ark at 169 U.S. 662-63:

In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said: "All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."

The principle of English common law regarding citizenship carried on for three centuries before independence, and it continued after independence, with all thirteen original states explicitly adopting so much of the English common law as was not inconsistent with the Constitution, either in their state constitution or state statute law.

Perkins v. Elg, 99 F. 2d 408 - Court of Appeals, Dist. of Columbia Circuit 1938

The record in this case is wholly lacking in any showing of intent, actual or presumptive, on the part of appellee at any time to abandon American citizenship and, lacking such showing, what was said by Attorney General Pierrepont in Steinkauler's Case, 15 Op. Attys. Gen. 15, is true here, that:
"There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States * * *."
Like opinions were expressed by Secretary Olney on May 29, 1896, in a letter to Mr. Materne, by Secretary Frelinghuysen in 1882, and by Mr. Blaine in 1892. These and many other instances of the application of the rule to a state of facts like those in the present case are to be found in Moore's Digest of International Law, Vol. 3, p. 532, et seq. And the rule is summarized in the statement of Mr. Uhl, acting Secretary of State, in a letter to Mr. Rudolph of May 22, 1895, as follows:
"* * * no principle is better settled than that birth in the United States, irrespective of the nationality of the parents, confers American citizenship. The right of election of nationality, which it is generally conceded a person born under such circumstances has, cannot be exercised until he attains his majority. The father cannot by any act of his alter the status conferred upon the son by his birth in this country."

Perkins v. Elg, 307 U.S. 325 (1939)

First. On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866, 329*329 14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U.S. 649. In a comprehensive review of the principles and authorities governing the decision in that case — that a child born here of alien parentage becomes a citizen of the United States — the Court adverted to the "inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship." United States v. Wong Kim Ark, supra, p. 668.
As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality. And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law, on the resumption of that citizenship by her parents, does not compel the conclusion that she has lost her own citizenship acquired under our law.

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