U.S. Supreme Court confers on Obama eligibility

WASHINGTON – Is this the case that will break the presidential eligibility question wide open?

The Supreme Court conferred today on whether arguments should be heard on the merits of Kerchner v. Obama, a case challenging whether President Barack Obama is qualified to serve as president because he may not be a "natural-born citizen" as required by Article II, Section 1, Clause 5 of the U.S. Constitution.

Unlike other eligibility cases that have reached the Supreme Court, Kerchner vs. Obama focuses on the "Vattel theory," which argues that the writers of the Constitution believed the term "natural-born citizen" to mean a person born in the United States to parents who were both American citizens.

http://www.thebirthers.org/USC/Vattel.html

Vattel’s Influence on the term

a Natural Born Citizen

What is a natural born citizen? Where did the framers come up with this term? Where was it used before? So many questions, and the answers are right there if anyone wishes to search out the truth.

The term Natural born Citizen appears in our Constitution, in Article 1, Section 2, with these words, “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.”

Before the Constitution the closest reference we have to Natural Born Citizen is from the legal treatise “the Law of Nations,” written by Emerich de Vattel in 1758. In book one chapter 19,

§ 212. Of the 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 society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

“Please note that the correct title of Vattel’s Book I, Chapter 19, section 212, is “Of the citizens and naturals”. It is not “Of citizens and natives” as it was originally translated into English. While other translation errors were corrected in reprints, that 1759 translation error was never corrected in reprints. The error was made by translators in London operating under English law, and was mis-translated in error, or was possibly translated to suit their needs to convey a different meaning to Vattel to the English only reader. In French, as a noun, native is rendered as “originaire” or “indigene”, not as “naturel”. For “naturel” to mean native would need to be used as an adjective. In fact when Vattel defines “natural born citizens” in the second sentence of section 212 after defining general or ordinary citizens in the first sentence, you see that he uses the word “indigenes” for natives along with “Les naturels” in that sentence. He used the word “naturels” to emphasize clearly who he was defining as those who were born in the country of two citizens of the country. Also, when we read Vattel, we must understand that Vattel’s use of the word “natives” in 1758 is not to be read with modern day various alternative usages of that word. You must read it in the full context of sentence 2 of section 212 to fully understand what Vattel was defining from natural law, i.e., natural born citizenship of a country. Please see the photograph of the original French for Chapter 19, Section 212, here in the original French if you have any doubts. Please do not simply look at the title as some have suggested that is all you need to do. Vattel makes it quite clear he is not speaking of natives in this context as someone simply born in a country, but of natural born citizens, those born in the country of two citizens of the country. Our founding Fathers were men of high intellectual abilities, many were conversant in French, the diplomatic language of that time period. Benjamin Franklin had ordered 3 copies of the French Edition of “Le droit des gens,” which the deferred to as the authoritative version as to what Vattel wrote and what Vattel meant and intended to elucidate.”.

If not Vattel, then where did they arrive at this term. Many of those who ridicule us like to quote Blackstone as authoritative that the United States adopted English Common Law. They like to state that Blackstone’s natural born subject is equivalent of a natural born citizen. There is no doubt that the Founding Father’s were influenced from Blackstone’s Commentary. However, the Framers of the Constitution recognized that it was Blackstone, who argued that the Parliament and King could change the constitution at will. Blackstone was increasingly recognized by the Americans as a proponent of arbitrary power. In fact, the framers rejected the notion that the United States was under English Common Law, “The common law of England is not the common law of these States.” George Mason one of Virginia’s delegates to the Constitutional Convention.

As to what is a natural born subject, Blackstone went on to say that any person, freeman or alien, except those of diplomats who were born in the realm of the King of England was a natural born subject. There is a problem with a simple substitution of citizen in place of subject, that some people think are synonymous. In England, not all natural born subjects of the Crown can become the King. This is reserved for a very small subset of natural born subjects called the royalty. This is drastically dissimilar to the American concept that any Natural Born Citizen can become President. Under Blackstone’s subjects only a very, very small subset of Natural Born Subjects could rise to be King, the American Presidency is drawn from the largest class of citizens, the natural born. Like the analogy of a field of clover, the Founding Fathers were not looking for that elusive genetic mutation of a four-leaf clover, they were looking for the common, naturally occurring three-leaf clover to be President.

But Blackstone is confusing on this issue. Blackstone also writes, “To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. 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.” This use of Blackstone gave Great Britain claim over US Citizens, which lead to the war of 1812, when Britain went about impressing American sailors into their navy because English law did not recognize the right of our Founding Father’s naturalizing themselves into our new country. “Once an Englishman, always an Englishman,” was the reason the British used to impress our citizens into service for the Crown. This law and concept of claim to the subjects to the Crown, regardless of place of birth is still in effect in Great Britain, and had the effect of Congress passing a law that required all the officers and three fourths of the seamen on a ship of the United States be natural born citizens. (Journal of the House of Representatives of the United States, February 9, 1813) Further, the Crown passed a law that made it treason for former British subjects, even though they were now American citizens to participate on the side of America during the war of 1812. (Journal of the Senate of the United States of America, February 23, 1813) to If the Founding Fathers accepted Blackstone’s definition of a natural born subject, then impressments of American-British citizens into the Royal Navy would not have been a casus belli, for the War of 1812. The fact that Madison included the impressments of American Citizens as a reason for a state of War clearly indicates that they rejected Blackstone’s definition of a natural-born subject.

John Jay’s letter to Washington address this dual and permanent loyalty to England that Blackstone introduces. To George Washington, President of the Constitutional Convention, Jay writes “Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government ; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.” Jay not only knew of Vattel, , as can be seen from his correspondence with James Madison in 1780 during treaty negotiations with Spain, but he was also a proponent of Vattel as well.

What further discredits Blackstone as being the author of the Natural Born Citizen clause, is the first immigration act passed by our First Congress in 1790. In chapter III we find direct references to Vattel’s assertion that citizenship is derived from the father, in that citizenship was prohibited to children whose fathers have never gave intent to permanently reside of the Untied States. Interestingly in this same act, we also find the clarification of a Natural Born Citizen, as being one “And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been a resident in the United States:” Residency was defined in that same act as someone under oath declaring that they wished to remain and live in the Untied States. It should be noted that the Supreme Court was tasked with defining several phrases in this law, and since Jay was the first Chief Justice of the Supreme Court, and had reviewed the immigration law of 1790. If Jay was in favor of Blackstone’s definition, he remained silent.

To add further proof to the intent of the Founding Fathers literal meaning of Vattel’s definition of a natural born citizen being born of two citizens, and in the country itself, and wanting a natural born citizen having no other claim to his loyalty except that of the United States of America, in 1795 the Congress amended the Naturalization Act of 1790. The Naturalization Act of 1795, which was also signed by George Washington, recognized Blackstone’s commentaries on English Common Law, making children born overseas in the lands under British rule, British Subjects. Even if their parents were American. This act removed the words natural born from children born overseas of American parents, so that no other potentate could lay claim to this person, and thus establish “a presence of influence” in the Executive Branch. It was the intent of our Founding Fathers to “naturalize at birth” these children, but not give them the status “natural born citizens.” Also in this act of 1795, we see the importance of complete allegiance to the United States for all people naturalized, as this is the first appearance of the oath of allegiance “to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whereof such alien may at that time be a citizen or subject.” This oath is still in effect today.

If it was not Blackstone who they relied on for defining the term Natural Born Citizen, then the only remaining source is from Vattel. Many of these detractors say we are reaching to extremes to use Vattel, as the source of a Natural Born Citizen clause. Some of there arguments are that the Law of Nations is a obscure mention to an idea, found in Article I, Section 8. What they fail to mention that this phrase is capitalized, if it was an inference to a general idea, it would not have been capitalized. School children know well the rules of capitalization, and the use of the capitalized Law of Nations would indeed make it uses consistent with a title of a publication. Let us take this and consider if indeed Vattel was a source of inspiration for the Founding Fathers and the Framers of our Constitution. The question we need to understand is were the founding fathers truly influenced by Vattel, or not.

The answer to this lies with none other than Thomas Jefferson, who penned Virginia’s Citizenship statue in 1779, “Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens.” As can be seen Jefferson is equating citizenship of the child to that of the parents, and not the land.

For further proof on the question of Vattel’s influence we only need to look at Benjamin Franklin. In 1775, he observed, the importance of the Law of Nations, on the Founding Fathers and he then ordered 3 copies of the latest editions. The Library Company of Philadelphia which holds one of the three copies, lists the 1775 reference to this book, as “Le droit des gens,” from the publishing house of Chez E. van Harrevelt in Amsterdam, Holland, with a personal note to Franklin from the editor of this edition, C.G.F. Dumas. The fact that this particular volume that Franklin ordered is in French is significant, for at that time French was considered by the “family of nations” to be the diplomatic language, and the 1775 edition was considered the most exact reference of Vattel’s Law of Nations.

There is no doubt that the Founding Fathers did not exclusively use the English translation, but relied upon the French original. On December 9th of 1775, Franklin wrote to Vattel’s editor, C.G.F. Dumas, “ 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. has been continually in the hands of the members of our congress, now sitting. Accordingly, that copy which I kept has been continually in the hands of the members of our congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author.”

Samuel Adams in 1772 wrote, “Vattel tells us plainly and without hesitation, that `the supreme legislative cannot change the constitution” Then in 1773 during a debate with the Colonial Governor of Massachusetts, John Adams quoted Vattel that the parliament does not have the power to change the constitution. John Adams as so taken by the clear logic of Vattel that he wrote in his diary, “The Idea of M. de Vattel indeed, scowling and frowning, haunted me.” These arguments were what inspired the clause that dictates how the Constitution is amended. The Framers left no doubt as to who had the right to amend the constitution, the Nation, (that is the individual States and the people) or Legislature (which is the federal government.)

In the Federalist Papers number 78, Alexander Hamilton also echoed Vattel, and both of the Adams, when he wrote, “fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.” Then in 1784 Hamilton arguing for the defense in the case of Rutgers v. Waddington extensively used Vattel, quoting prolifically from the Law of Nations. The Judge James Duane in his ruling described the importance of the new republic abiding by the Law of Nations, and explained that the standard for the court would be Vattel. He ruled that the Statues passed under the color of English Common Law, must be interpreted from the standpoint of its consistency with the law of nations. This concept of Vattel lead to the creation of the Judiciary branch of our government to insure that Congress could never legislate away the provisions of the Constitution.

In 1794, then President Washington was faced with the first threat to his Neutrality Proclamation of that same year by the Ambassador of France, Citizen Edmond-Charles Genêt to honor their treaty and support France’s wars with England and Spain. In a very rare agreement both Jefferson and Hamilton using Vattel’s Law of Nations they were able to give Washington the international legitimacy not to commit the United States to war in 1793. Genêt wrote to Washington, “you bring forward aphorisms of Vattel, to justify or excuse infractions committed on positive treaties.”

At this point there can be little doubt that the Framers of our Constitution considered both Blackstone and Vattel, and they choose Vattel over Blackstone. The Founding Fathers placed into Constitutional concept that the loyalty of a Natural Born Citizen is a loyalty can never be claimed by any foreign political power. The only political power that can exclusively claim the loyalty of a natural born citizen is that power that governs of his birth. Vattel by including the parents and place removes all doubt as to where the loyalties of the natural born citizen ought to lie, as Vattel’s definition removes all claims of another foreign power by blood or by soil, and is the only definition that is in accord with Jay’s letter to Washington.

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