I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. This week, President Obama went even further with the announcement of a new sweeping exemption that not only has no foundation in the federal law but directly contradicts the law. It also happens (again) to be a change debated but not accepted by Congress. The exemption appears an effort to blunt growing criticism of Obama for a false assurance given to citizens before the enactment of the ACA. It is also coming at a time of new polls indicating that Obama is not only hitting a record low in popularity but Republicans appear poised to gain seats in both houses (and potentially could retake the Senate as well as add seats in the House). [Update: The White House is now denying that it will implement the hardship exemption despite the article in the Wall Street Journal and other media]
The individual mandate has long been the most controversial part of the ACA. That controversy magnified after millions of people lost their insurance plans despite assurances from Obama that no one would be forced to give up plans that they like. Even the Washington Post declared the statement to be false and a case of consistent and repeated misrepresentation.
The political damage over the ACA is clearly growing. That damage was greatly magnified by the mismanagement of the rollout by Health and Human Services Secretary Kathleen Sebelius and her staff. Such political costs of federal law however are not a basis for regulatory changes, even when such changes are allowed under the federal law. In this case, the President has far exceeded any plausible claim of statutory or regulatory authority. The individual mandate is the heart of the ACA and was the subject of heated and careful drafting. There is no provision for an exemption, but Obama has now rewritten much of the act with a series of extra-legislative changes — no fewer than 13 such executive changes to the law.
This last change will allow virtually anyone to avoid the individual mandate requirement — precisely the option that the White House successfully blocked when proposed in Congress.
The new change would allow individual to claim a “hardship exemption” to avoid paying a penalty for not buying insurance. That would fundamentally change the operation of the law. Not only does this contradict the law but the Administration fails to clear define what a “hardship” would be. It only says that such an exemption can be claimed if citizens “experienced another hardship in obtaining health insurance.” It seems designed to allow the maximum number of people claim the exemption, particularly given the rather forgiving standard that the person should “submit documentation if possible.”
The President continues to operate well off the Madisonian map — inventing exemptions and granting suspensions where no provision is made under the law. Most importantly, he is ordering changes proposed and rejected in Congress.
These changes are unlikely to receive serious judicial review if past cases are any measure. The Administration has repeatedly relied standing challenges to block review. Since the Rehnquist Court, standing has steadily shrunk to the point that constitutional violations are now being left unreviewed for lack of standing. The courts have long been, in my view, absent without constitutional lead as discussed in prior testimony (here and here and here).
Democrats continue to enable this shift of power to the Executive Branch with no concern for the changes that they are making to our balance of power. They continue to yield power to the Executive Branch even as evidence mounts that they are headed to a possible electoral disaster. It is the ultimate example of personality overwhelming principle. It is not just incredibly short sighted but self-destructive. A future president can easily claim the same inherent authority to suspend or grant exemptions to environmental or anti-discrimination law or suspend tax burdens for the top one percent. It would also mean that a president is virtually unlimited in being able to amend or suspend laws. It makes the legislative process merely a discretionary stage for presidents.
The animus toward the Republicans is blinding Democrats to the implications of what President Obama is creating in this new uber presidency. The President is appealing to that animus in taking these steps and aggrandizing power in his branch. It is part of “all is fair and love and politics” approach to constitutional law. It would take offline the stabilizing elements of the system and reduce the system to little more than raw muscle plays by politicians. Under our current system, there is only so much harm that any branch can do if it remains within the constitutional lines. It is designed to be idiot-proof and we have truly tested that design. However, once one branch goes outside of the lines, the system is left as little more than politics at any means.
While there will be many who applaud the latest insular change either for its political or practical benefits, it will join a troubling mosaic of unilateral and unchecked executive power. There will come a day when people step back and see the entire mosaic for what it truly represents: a new system with a dominant president with both legislative and executive powers.
Mike Appleton has it absolutely right.
We can assume that many of the writers of the Constitution read Vattel. But we cannot assume that they followed THE CHITTY translation of Vattel, which was written well after the Constitution.
We also know that the Constitution does not follow all that Vattel recommended. For example, Vattel recommended that every country should have a state religion and force people to join it or make them leave the country. We did not adopt that. So, what makes you think that we adopted the two parent (or even one parent) requirement?
Once again, they COULD have translated Vattel’s word “indigenes” as “Natural Born Citizen” themselves and used it instead of the common law. But if they did that, THEY WOULD HAVE TOLD US. And, of course, they didn’t. They never said “we translated Vattel and we used his definition.” They never said that parents were required. In their writings before and after the Constitution, they ONLY used Natural Born the same way that the common law did——to refer to citizenship due to the PLACE of birth. There are NO examples of them using it the Vattel way.
Sure, they wanted to protect the USA from foreign influences, but they did not consider children born on US soil to be foreign. They considered them to be AMERICAN. IF they had considered children born on US soil to foreign parents to be foreigners, or lower-class citizens than the children born on US soil to US parents, THEY WOULD HAVE TOLD US—and they didn’t.
Re: ” Then, 1760, along comes Vattel with the latest concepts in nation building. Well how about that?”
Answer: That is as likely as their adopting his recommendation on state religion. They did not adopt his recommendation on every country having a state religion. So, they did not adopt everything that he recommended, not by any means. But, They DID use concepts from the common law—such as Habeas Corpus, and ex post facto—throughout the US Constitution and referred to the common law about twenty times with praise in the Federalist Papers.
And, not only is there NO evidence that they adopted Vattel, but there is the EVIDENCE of their two friends, Tucker and Rawle, that they used the term Natural Born Citizen to refer to the place of birth and that EVERY CHILD born on US soil (except for the children of foreign diplomats) is a Natural Born Citizen. Surely, IF they had used Vattel and not the common law, they would have told Tucker and Rawle—but they didn’t.
John:
Save yourself unnecessary work and read the archives on this issue. Your argument is dead and buried.
As for the common law, check your state statutes. You’ll likely find that one of the first laws enacted by your state legislature following admission to the Union was a provision adopting the common law of England.
I appreciate the fact that you’re not a lawyer, but you should read some legal history in any event. Vattel was a fine scholar, but smrstrauss is absolutely correct.
P.P.S.
SMStrauss, I can’t get the concept out of my mind (loony) that the Founders conducted a revolutionary war against the British Empire only to happily carry on its very British traditions including their 300 year old common law (i.e. stale, anachronstic). These seemed like people looking for a change, perhaps a change from Blackstone even. The Constitution doesn’t say, “we’re following Blackstone, ver batim,” does it? Seems a bit odd. Then, 1760, along comes Vattel with the latest concepts in nation building. Well how about that?
SMStraus, would you agree that the Founders would have found Vattel’s positions on citizenship “state of the art” or the most advanced “point of the spear” thinking in the legal realm of the era? You stated that common law, Blackstone, et. al. had existed for 300 years which would have made it seem out of date to most people. Vattel would have lead, not followed the Founders into nationhood.
SMStrauss
THE
LAW OF NATIONS
OR
PRINCIPLES OF THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF
NATIONS AND SOVEREIGNS
FROM THE FRENCH OF
MONSIEUR DE VATTEL.
§ 212. 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.
I am very sorry but you appear to be contradicted by history, at least according to:
THE NEW EDITION, BY
JOSEPH CHITTY, Esq. Barrister At Law
WITH ADDITIONAL NOTES AND REFERENCES,
By EDWARD D. INGRAHAM, Esq.
Clearly this text quotes Vattel as coining the phrase “natural born citizen” and defining it as those born of parents who are citizens. You may quibble with the authors about their abilities or lack thereof. They present these words as fact. When they retract, I will concede.
You appear to believe that the Founders were the teachers, not the students as Vattel was the student, not the teacher. How can you live with yourself knowing that this translation exists? Why have you not made it your quest to have this publication withdrawn? Have you discussed the subject with this publisher?
I presume you have immutable confidence in the capacity and capabilities of all the Senators and Congressmen who disagree with the Vattel-as-teacher hypothesis. I don’t. As I recall, it was the inestimable Nancy Pelosi who said of the Affordable Care Act that she “had to pass it to find out what is in it.” Priceless. And I should be concerned that most “elected officials” have a different opinon than I and Joseph Chitty, ESq. Barrister At Law on the words of Vattel.
According to you, Vattel said that
“the natives, or indigenes (italics indigenes) are those born in the country of parents who are citizens.”
Of course, you know “natives” referred to contemporary, not original, citizens of the country and that they were born of parents (plural) who were citizens. I presume you don’t infer that Vattel confined his publication to the perspective of original populations excluding subsequent populations? The natives Vattel refers to are not a nation’s original population but the subsequent, contemporary population, wouldn’t you agree?
Blackstone influenced the Founders. Why did they not quote his phrase? You state that Blackstone was vastly, vastly, vastly MORE POPULAR, and yet the Founders quoted Vattel or, do I have that wrong, Vattel quoted the Founders posthumously?
It is very interesting that you admit that the Founders studied Vattel but did not study his definition of citizenship. If it turned out that the Founders read Vattel, would they have read that his essential description of a citizen required parents (plural) as citizens? Would they have learned that Vattel was concerned that the FATHER (not mother) constituted negative influence as a foreign citizen?
I find no response to my inquiry about any disagreements you may have with translations of the Bible. How is it that we can accept the English translations of that work but not the “Law of Nations.” Have not multiple languages, some obsolete, been ascribed to the verses of the Bible? It seems that the anomaly there is that there are no anomalies. It is not plausible that translations can be so erroneous as to be felonious and still enjoy publication.
Just to be clear. Did Blackstone use the phrase “natural born citizen?” What is the first publication of that phrase? Why do publishers attribute the phrase to the American Founders and Vattel in the “Law of Nations?” There does appear to be a connection that you are deliberately ignoring while Blackstone did not use the phrase.
Loony. Is that related to the moon or the bird? Whatever, it seems to have challenged you.
More reading on the subject:
http://tesibria.typepad.com/whats_your_evidence/scotus-natural-born-citizen-a-compendium.html
http://tesibria.typepad.com/whats_your_evidence/the-natural-born-citizenship-clause-updated.html
Re: “It was impossible to obtain the English version. ”
Now you are showing how loony you are. There was an English language version, and had been a translation since 1760, but it does not use the phrase “Natural Born Citizen.” It says “the natives, or indigenes (italics indigenes) are those born in the country of parents who are citizens.” The term “Natural Born Citizen” was not substituted for indigenes until the translation of 1797.
So the requirement is still that IF the Constitutional Convention were using Vattel and not the common law, they would have had to have translated the French word “indigenes” either from the French edition or from the existing English Language edition, and they would have had to have done it themselves—and not told anyone that they translated it themselves—which is hardly likely.
The use of the common law, which had been around for 300 years and which virtually all of them were experts in, is far more likely—and, after all, it’s in English. To be sure, they COULD have translated “indignes” as “Natural Born Citizen”—but to do so and NOT TELL that they did, is not likely. Moreover, it may not even be a good translation. Remember it says that the natives, or indigenes—so indigenes were natives, and in America natives are Indians.
Re: “OK. No American of the era ever heard of Vattel or “The Law of Nations.”
Answer: Again you are wrong. That is neither true, nor did I say it. Vattel’s work was popular—but BLACKSTONE was vastly, vastly, vastly, MORE POPULAR. Vattel’s work was almost entirely devoted to INTERNATIONAL LAW, Blackstone concerned domestic law, which makes up the bulk of cases—and lawyers NEED to know it. The idea that the writers of the Constitution would consult an expert on international law on the DOMESTIC matter of the criteria for a leader (especially when Vattel DOES NOT SAY that a leader must even be a citizen, much less one with two citizen parents) is simply absurd. Blackstone does not give criteria for leaders either, but his use of Natural Born is the same one that had been in the common law for 300 years—and which referred to the place of birth, not the parents.
Re: “The phrase, not variations on the theme, was verbatim transposed according to contemporary representations of translations (presumably, you perceive the translators you referenced to be nefarious felons). ”
Answer: Once again, the term Natural Born appeared in Blackstone and the common law. The phrase “Natural Born Citizen” did not appear in Vattel, only the French word “indigenes.” In 1797, the translation with “Natural Born Citizen” in it appeared, but that could not have affected the Constitution, which was written a decade before.
Re: “You can’t be serious that everyone involved in a novel, representative form of government would not want the best candidates available, who aligned with the highest standards, to hold office and that they would hold candidates for the highest office to the highest standards. Is it conceivable that they would want murderers and thieves to attain high office?”
Answer: is it conceivable that they would want a seven-year-old Russian kid to be the Chief Justice of the USA? Answer: Obviously not, but there are NO requirements of any kind to be a chief justice or any justice. Why no requirements? Because the writers of the Constitution realized that they had to TRUST the future leaders who picked justices not to pick seven-year-olds, and they had to trust the voters not to pick criminals too. Criminals are not excluded because they are good, they are excluded to allow us to CHOSE, and the same goes for the US-born children of foreigners. The writers of the US Constitution were worried about FOREIGN BORN US citizens being loyal, but there is no evidence whatever that they worried about the US-born children of foreigners being loyal. IF they had said that they worried, if they had said that they thought that the US-born children of foreigners were not as likely to be good citizens as the US-born children of US citizens, that would be a different matter. But they never ever did.
Re: “Finally, is it not true that the standards for candidacy, for the office of president, were imposed to avoid “foreign allegiances?” I believe I heard a reference to that effect. Where did I hear that phrase? Would not having a father who was an eminent citizen of a foreign country have high potential to engender “foreign allegiances?” May one only guess at that? ”
Answer: The common law holds that a person can have only one allegiance, to the country of the place of birth. Get it? Regardless of the citizenship of the parents, under the common law—and indeed according to current US law—a person born on US soil (except for the children of foreign diplomats) is considered to have allegiance ONLY to the USA. A person born in the USA who had two citizen parents and was a dual citizen who fought against the USA in a war would be tried for treason because he violated his allegiance. A person born abroad to two citizen parents who fought against the USA in a war MIGHT be tried for treason, or might not, but there is no question that every child born on US soil has allegiance to the USA, and that allegiance cannot be divided.
Re: “P.S. Weren’t McCain et. al. born on diplomatic “U.S. soil” in a foreign country? Were they not born on “effective” American soil?”
Answer: I agree with you, a US naval base is US soil, even if it were on leased territory. But, that, of course, does not change the facts that (1) Obama and Rubio and Jindal were all born on US soil with one or two parents who were not US citizens at the time of their births; (2) they are all Natural Born US Citizens. Cruz, having been born in Canada, is not clearly a Natural Born Citizen.
Re: “The purpose of the natural born citizen clause is to protect the nation from foreign influence.”
Answer: Yes, no question about it. IF you were born on foreign soil, you have foreign influence. If you were born on US soil, you don’t. See discussion of allegiance above.
Re: “St. George Tucker, an early federal judge, wrote in 1803 that the natural born citizen clause is “a happy means of security against foreign influence”,
Answer: That’s right. If you were born on foreign soil, and naturalized, you were considered subject to foreign influence. But, if you were born on US soil, you WEREN’T. Try to grasp the fundamentals. IF the writers of the US Constitution thought that a child born on US soil who had two or one foreign parent was likely to be have so much foreign influence as to be distrusted and barred from the presidency—–THEY WOULD HAVE TOLD US—and they didn’t.
Re: ” laws of England specifically allowed a foreign-born head of state.”
The current King of Thailand, Bhumibol, was born in Boston about 90 years ago, and if he had not specifically renounced US citizenship, he’d be eligible like everyone else born on US soil. He would have been excluded from US citizenship IF his parents were diplomats—but they weren’t.
Re: “If we establish “foreign allegiance” as anathematic, to completely avoid that, the standard for candidacy for the office of president would have to have been NO PARENT as a foreign citizen. Thus, BOTH parents would have to be citizens. ”
Answer: Once again, you are “reading into the Constitution” something that it does not say—-which is not allowed under Strict Construction interpretation. If the Constitution does not specifically say that BOTH or even one parent is required, they aren’t required. If it was possible—indeed likely—that the term comes from the common law, and the writers of the US Constitution did not SAY that it came from Vattel or that two or one citizen parents are required, they aren’t required.
Re: ” That delineates definitively a HIGHER STANDARD for the HIGHEST OFFICE, which can only be that the candidate is a citizen born of parents…”
Answer: The only difference in the standard between Senator and President is that a Senator can be a naturalized US citizen, and the president cannot be naturalized.
Re: “coincidentally, the wording of Vattal in his definition of “natural born citizen.”
Answer: There’s no coincidence. Birthers want Obama (and maybe Rubio and Jindal) to be not considered eligible, and so they found the 1797 TRANSLATION of Vattel, which they think shows that they aren’t eligible. But that is only true if there is EVIDENCE that the writers of the Constitution used Vattel and not the common law—which was, duh, much more common—and there ISN’T ANY.
Birthers and two-fers were not able to convince a single member of the US Electoral College to change her or his vote to vote against Obama in either the 2008 or 2012 elections. Obama won 356 electoral votes in the 2008 general election, and 356 electors voted for him. He received 332 votes in the 2012 general election, and 332 electors voted for him. In short, NOT ONE SINGLE ELECTOR changed her or his vote—that is because not one of them believed the nutty birther claim that Obama was born outside of the USA or the loony birther constitutional theory that two citizen parents are required. And ditto for the US Congress, which confirmed Obama’s election UNANIMOUSLY twice, and that included the votes of Rep. Michele Bachmann and Rep. Ron Paul.
More reading on the subject:
http://www.fredthompsonsamerica.com/2012/07/31/is-rubio-eligible/
http://www.economist.com/blogs/democracyinamerica/2012/02/birtherism-2012
SMSStrauss, this may demonstrate intent as to “foreign allegiances:”
The purpose of the natural born citizen clause is to protect the nation from foreign influence. Alexander Hamilton, a Convention delegate from New York, wrote in Federalist No. 68 about the care that must be taken in selecting the president: “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”[5] St. George Tucker, an early federal judge, wrote in 1803 that the natural born citizen clause is “a happy means of security against foreign influence”, and that “The admission of foreigners into our councils, consequently, cannot be too much guarded against.”[6] Delegate Charles Cotesworth Pinckney of South Carolina said in a speech before the Senate, “to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible.”[7]
There was also a perception that a usurper from the European aristocracy could potentially immigrate and buy his way into power.[8] Constitutional scholar Akhil Amar points out that the laws of England specifically allowed a foreign-born head of state, and that this had been an unhappy experience for many who had immigrated to the United States.[8]
If we establish “foreign allegiance” as anathematic, to completely avoid that, the standard for candidacy for the office of president would have to have been NO PARENT as a foreign citizen. Thus, BOTH parents would have to be citizens.
P.S. The requirement for the secondary position of U.S. Senator is simple citizenship. That delineates definitively a HIGHER STANDARD for the HIGHEST OFFICE, which can only be that the candidate is a citizen born of parents (plural) as citizens, which is, coincidentally, the wording of Vattal in his definition of “natural born citizen.”
Very enjoyable. Thank you.
OK. No American of the era ever heard of Vattel or “The Law of Nations.” It was impossible to obtain the English version. Was it also impossible to obtain a decipherable version of the Bible? Did they have a clear understanding of the Ten Commandments?
Also, the phrase and definition of “natural born citizen,” requiring “parents” (plural) as citizens, was originated by the Founders spontaneously upon consideration of the composition of the Constitution, having NO knowledge of the works of Vattel? Preposterous! The phrase, not variations on the theme, was verbatim transposed according to contemporary representations of translations (presumably, you perceive the translators you referenced to be nefarious felons).
You can’t be serious that everyone involved in a novel, representative form of government would not want the best candidates available, who aligned with the highest standards, to hold office and that they would hold candidates for the highest office to the highest standards. Is it conceivable that they would want murderers and thieves to attain high office? That’s really reading something into the mix. If we look at the effect, those who actually held office were of the highest standards, in deed.
Finally, is it not true that the standards for candidacy, for the office of president, were imposed to avoid “foreign allegiances?” I believe I heard a reference to that effect. Where did I hear that phrase? Would not having a father who was an eminent citizen of a foreign country have high potential to engender “foreign allegiances?” May one only guess at that?
P.S. Weren’t McCain et. al. born on diplomatic “U.S. soil” in a foreign country? Were they not born on “effective” American soil? Come on now, let’s be honest here. You guys are sneaky.
“A person must be a citizen at birth to be a natural born citizen. Senator McCain was born in the Canal Zone in 1936. Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.
“http://www.michiganlawreview.org/articles/why-senator-john-mccain-cannot-be-president-eleven-months-and-a-hundred-yards-short-of-citizenship
Annie nor Romney, born in Mexico, nor McCain born in the Panama Canal Zone.
Re: “. And, IF “indignes” had for sure meant “Natural Born Citizen,” they when people translate the US Constitution into French, they would use “indignes” to mean Natural Born Citizen—but NO translation does. ”
That should read: “. And, IF “indignes” had for sure meant “Natural Born Citizen,” THEN when people translate the US Constitution into French, they would use “indignes” to mean Natural Born Citizen in the French translation—but NO translation does. “
Re: “The highest office in the land requires the highest standards.”
That is “reading into” the Constitution something that it does not say—that’s not allowed in strict construction interpretation, you know.
Actually, the example of the Constitution is that it sets minimal standards, allowing the voters to make the final choice. Did you know that a convicted murderer is eligible to become president? Serial killers can become president, so long as they are Natural Born Citizens, so can atheists, communists, fascists and even former Tories (remember the Tories, the guys who fought against the patriots in the American Revolution? Well, there is not a word barring them from becoming president.) Did the writers of the Constitution want Tories and serial killers to be president? Of course not, but they figured that the voters would be smart enough to figure such things out—and if they didn’t—well, the responsibility should be on the voters, not on some guys in Philadelphia who were likely to be dead when the election was held.
That said, the criteria for becoming president IS the highest of all eligibility criteria in terms of age and residency. Also, it requires that the president be a citizen at birth, not a naturalized citizen—which is allowed for members of Congress. But you are “reading into” the Constitution that the citizenship requirement goes beyond not being a naturalized citizen. If the writers of the Constitution had wanted the president to have two citizen parents (or even one), they would have told us—and they didn’t.
annieofwi, thank you for the practical demonstration that the “interpretation” that the Constitution does NOT require a presidential candidate to have two parents as citizens is ENTIRELY a point of a political agenda with absolutely NO objective, “judicial” bearing. I apprecate that.
Re: “Are you saying that the Founders were a confused bunch that did not know what they were saying when they wrote the final versions of the Preamble and Constitution.”
Not at all. I am saying that IF the writers of the US Constitution translated Vattel’s ONE word “indigines” which was not translated into English in any volume of The Law of Nations until ten years after the US Constitution was written, and IF they had translated Vattel;’s ONE word, “indignes” as Natural Born Citizen and used that and not taking the Natural Born from the common law and adding it to Citizen—they would have TOLD US, but they didn’t.
Moreover, if you do a search in the writings of the members of the Constitutional Convention, you will never find them EVER using either Natural Born or Natural Born Citizen to refer to parents—not once. They used the term to refer to the place of birth, as it was used in the common law. Moreover, they had two friends, who wrote about the meaning of Natural Born Citizen in books, and BOTH of them used the term exactly the way that it was used in THE COMMON LAW.
“Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
(Notice that the above refers only to the PLACE of birth, not to the citizenship of the parents. And, once again, Tucker and Rawle were friends with the members of the Constitutional Convention.)
“Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
And finally, there is the letter from John Jay to George Washington, which appears to be the very first use of the term Natural Born Citizen. John Jay was AN EXPERT IN THE COMMON LAW, so if he had intended to use Natural Born differently from in the common law—HE WOULD HAVE SAID SO, but he didn’t.
So: (1) Vattel is not mentioned in the Federalist Papers; (2) His word “indignes” was not translated as “Natural Born Citizen” until TEN years after the Constitution; (3) the writers of the US Constitution did not give any examples of using the term Natural Born to refer to parents; (4) Their friends Tucker and Rawle used Natural Born Citizen exactly the same way that Natural Born was used in the common law; (5) John Jay was an expert in the common law–and BTW, he wrote the first Constitution of the state of New York which makes THE COMMON LAW the law of New York State unless changed by a New York statute..
Moreover Vattel himself NEVER recommends that the leader of a country even be a citizen, much less a citizen who has citizen parents.
Re: ” Vattel, three words. No more. No less. “Natural born citizen.”
Answer: As discussed above, only a TRANSLATION (and some say a BAD translation) of Vattel says “Natural Born Citizen.”
He used the single French word “indignes” in his book. And, IF “indignes” had for sure meant “Natural Born Citizen,” they when people translate the US Constitution into French, they would use “indignes” to mean Natural Born Citizen—but NO translation does.
And, as noted, the translation with the “Natural Born Citizen” in it did not come along until ten years after the Constitution was written, so IF the writers of the US Constitution had used Vattel, they would have had to have translated his word themselves. This they could have done, since they were highly literate—but the notion that they BOTH translated Vattel’s word, and used that translation WITHOUT TELLING US that they got the term from Vattel is far-fetched—to put it mildly.
SMR Straus et. al., at the peril of your arguments, you completely ignore the obvious – the highest office in the land requires the highest standards. There are three possibilities. The candidate has NO parents that are citizens, ONE parent that is a citizen or TWO parents that are citizens. The highest standard here is the requirement for two parents (plural) that are citizens. It is not possible that the secondary or lowest standard would be applied.
So Cruz can’t run for President, ok.
OK. Excellent. We’re making progress. To be sure, the Federalist Papers are not the Preamble or the Constitution. Are you saying that the Founders were a confused bunch that did not know what they were saying when they wrote the final versions of the Preamble and Constitution? My aren’t you something. I guess YOU, not the historical facts or the written word are the final meaning of the American foundation. I’ll stick with the words of the Founders in the Preamble and Constitution which are the same as the text they transposed from, the “Law of Nations,” including the phrase “Natural Born Citizen” defined as having “parents” who were citizens.
Let’s focus. Blackstone used two words, Natural Born. Vattel, three words. No more. No less. “Natural born citizen.” Are those words used in the “Law of Nations” and the U.S. Constitution within a few years; in the same era? Yes. The phrase was accepted and used in the era to mean a certain thing.
The “Law of Nations” and the U.S. Constitution did not have competing phrases. One was the original and one was a copy. The Founders used the phrase, natural born citizen, because of its accepted definition in the legal text of the day – a text that was studied and referenced by the Western legal community. To say that there are other words in the “Law of Nations” is a clear indication that you simply want to rationalize and make eligible a candidate that is clearly not eligible. These particular words and phrases don’t lie. They have one source and one meaning.
Methinks thou dost protest too much.
The emperor has no clothes.
Re: ” By what authority do YOU declare that the Founders did NOT study, reference and accept the “Law of Nations?””
Answer: Yes, they did read Vattel’s book “THE Law of Nations,” but then they read a lot of other things too. In particular, they read BLACKSTONE, and he said that the meaning of Natural Born refers to the place of birth and that every child born in the country is Natural Born, and there is no evidence whatever that the writers of the US Constitution used any other definition other than that in the common law that was described by Blackstone. And, guess what, they did not mention Vattel or “The Law of Nations” even once in the Federalist Papers—while they mentioned the common law about twenty times, and always with praise.
BTW, if you read “The Law of Nations” yourself, and you really should, you will find that it NEVER says that the leader of a country should be even a citizen, much less a citizen with citizen parents. In fact, Vattel gives several examples of countries picking their leaders from the nobility of other countries, and he never said that doing that was a bad thing.
You mean to tell me that America was established to have the government control and plan for industry? Why that sounds like something mandated by the Communist Manifesto. Are the Preamble/Constitution and the Manifesto the same? Maybe free healthcare and insurance industries were provided for by the Founders and we simply can’t understand the language they used. Boy, call us stupid. Maybe freedom and self-reliance were established and expected by the Founders. Boy, call us stupid!