Wednesday, July 29, 2009

What were the Founding Father's thinking?

“Natural Born Citizen” as intended by the founding fathers is not difficult to figure out; first one needs to get past the fact that the founding fathers were moving beyond the influences of English Common Law and the King’s Law. Therefore the emphasis on the King’s subjects being Natural Born Subject was not synonymous with the new constitutional intent of “Natural Born Citizen” being included in Article II of the United States Constitution; no the founders did not specifically define what they intended with that insertion, but were influenced appropriately by Vatell’s definition of how a “Natural Born Citizen” takes shape and occurs. Some justices, based on their political philosophies and legal training prior to the ratification of the United States Constitution, have made reference in their decisions to English Common Law in trying to define “Natural Born Citizen” to thereafter be rebutted by other justices who see in their arguments the intent of the founding fathers’. Let look at some of the letters, correspondence excerpts to see if we can understand where the founders were coming from.

Before you read below, let also keep in mind: Congress shall make not laws not granted by the Constitution of the United States; that said please remember congress is empowered to right laws, the judiciary is empowered to review the laws and where constitutional legal then enforce the laws as written. In that context, the one law congress cannot write, pass and have signed into law is who is a “Natural Born Citizen”; the founding fathers reserved that to the constitution as written. The Supreme Court of the United States, and its subsidiary courts can interpret the constitution but cannot re-write it. Therefore in their interpretations they must look at the founding father’s intent and rule from there. The justices cannot be activists from the bench.

Now read and reflect on the some excerpts from the founding fathers; and when you get to the current congressional musing; keep in mind what I just wrote.

If congress does not like the constitutional provision, they have every right to offer up a constitutional amendment, but until that is done and affirmed the constitution remains as written.

I have highlighted some in blue.

§ 212. Cituyes & Natureles‘Les Naturels, ou Indigènes’.-Emer Vatell (original version 1758)
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. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) 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. Your manuscript "Idee sur le Gouvernement et la Royaute" is also well relished, and may, in time, have its effect. I thank you, likewise, for the other smaller pieces, which accompanied Vattel.-Ben Franklin (December 9, 1775), \Letter 459: Benjamin Franklin to Charles William Frederic Dumas.

My dear Friend,Philada. Mar. 24. 1776 Inclos'd is an Answer to the Request from the Inhabitants of Dartmouth. I have comply'd with it upon your Recommendation, and ordered a Post accordingly. (1) I have put into Mr Adam's Hands directed for you, the new Edition of Vattel When you have perus'd it, please to place it in your College Library. (2) I am just setting out for Canada, and have only time to add my best Wishes of Health & Happiness to you & all yours. Permit me to say my Love to Mrs Bowdoin, & believe me ever, with sincere & great Esteem, Yours most affectionately B Franklin-Ben Franklin (March 24, 1776),Letter 454: Benjamin Franklin to James Bowdoin

Qu:1. Can an American citizen, adult, now inherit lands in England? Natural subjects can inherit – Aliens cannot. There is no middle character -- every man must be the one or the other of these.A Natural subject is one born within the king's allegiance & still owing allegiance. No instance can be produced in the English law, nor can it admit the idea of a person's being a natural subject and yet not owing allegiance.An alien is the subject or citizen of a foreign power.- Thomas Jefferson (1783),Letter 151: Jefferson Notes,

Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.-John Jay (July 25, 1787 ) to George Washington

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.-US Constitution (adopted September 17, 1787) Article II, Section 1, Clause 5

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:- Congress’ Rule of Naturalization (March 26,1790; but changed in 1795, to read as “citizens”)

§ 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.-Emer Vatell (English language version, 1797)

They well knew, that to give to the members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive, and make him the creature of the Legislature. This therefore they have guarded against, and 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.-Senator Charles Pinckney, (March 28, 1800). Records Federal Convention 1787 CCLXXXVIII p 385, 387

Vatell 455, speaking of the rights of conquest by war says, a Prince taking a town or province from an enemy,…-WILLIAM L. CHEW vs. ALEXANDER CALVERT & OTHERS. Adams County, MS Archives Court.....Chew, William L June 1818

I find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen -Rep. John Bingham, framer of the 14th Amendment, before The US House of Representatives ((Cong. Globe, 39th, 1st Sess., 1291, March 9, 1866 )

“All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.” - Sec. 1992 of U.S. Revised Statutes, 1868

[If a "citizen" cannot be subject to a foreign power, how can a "natural born citizen" be subject to a foreign power?]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.-Circuit Justice Swayne, in United States vs Rhodes (1866)

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.-Chief Justice Waite in Minor v. Happersett (1875)

“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the fourteenth amendment now in question, said: 'The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.' And he proceeded to resort to the common law as an aid in the construction of this provision.”-Justice Grey, in US v Wong Kim Ark (1898)“Miss Elg was born in Brooklyn, New York, on October 2, 1907. Her parents, who were natives of Sweden, emigrated to the United States sometime prior to 1906 and her father was naturalized here in that year [1906] . In 1911, her mother took her to Sweden where she continued to reside until September 7, 1929. Her father went to Sweden in 1922 and has not since returned to the United States. In November, 1934, he made a statement before an American consul in Sweden that he had voluntarily expatriated himself for the reason that he did not desire to retain the status of an American citizen and wished to preserve his allegiance to Sweden.”[snip]“The court below, properly recognizing the existence of an actual controversy with the defendants [307 U.S. 325, 350] (Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 , 57 S.Ct. 461, 108 A.L.R. 1000), declared Miss Elg 'to be a natural born citizen of the United States' (99 F.2d 414) and we think that the decree should include the Secretary of State as well as the other defendants.”- Chief Justice Hughs, in Perkins v Elg ( 1939)

My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen,” Chertoff replied.“That is mine, too,” said Leahy-Homeland Security SecretaryMichael Chertoff and Senator Patrick Leahy, (April 03, 2008) John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be itResolved, That John Sidney McCain, III, is a `natural born Citizen' under Article II, Section 1, of the Constitution of the United States. -110th Congress, SR 511


Rep. John Bingham of Ohio, considered the father of the 14th Amendment, confirms that understanding and the construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:" ... I find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents (plural, meaning two) not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen..."Bingham is also quoted saying in the Spring of 1868 some serious warnings:"May God forbid that the future historian shall record of this day's proceedings, that by reason of the failure of the legislative power of the people to triumph over the usurpations of an apostate President, the fabric of American empire fell and perished from the earth!...I ask you to consider that we stand this day pleading for the violated majesty of the law, by the graves of half a million of martyred hero-patriots who made death beautiful by the sacrifice of themselves for their country, the Constitution and the laws, and who, by their sublime example, have taught us all to obey the law; that none are above the law..."

Keep in mind where the founding fathers thoughts were with regard to the British Empire and the King while they set about the business of drafting our constitution. English common law was the furthest thing from their minds and intent. The pre-constitutional legal system in the colonies was obviously English Common Law; but not the basis by which the framers envisioned US laws after the constitution was ratified.
My Personal opinion obviously!


  1. Sure, Vattel said it. And, sure Franklin read Vattel (and he read a lot of other things too). But what is the evidence that the writers of the Constitution followed Vattel and not Blackstone?

    Blackstone said that Natural Born is simply a synonym for native born or born in the country. It means that someone who is born in the country becomes a citizen regardless of the number of parents. Natural Born thus refers to the place of birth, not to the number of parents involved.

    Re: "English common law was the furthest thing from their minds and intent."

    This can be demonstrated to be wrong. John Jay, who wrote the first sentence about the need to have a Natural Born Citizen as commander in chief (in a letter to Washington), was a lawyer and justice, and would become the first US Chief Justice. Jay is well known in New York State for being the author of New York State's first constitution after the Declaration of Independence.

    And what did the New York Constitution that he wrote say? It said:

    XXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.

    In other words Jay WAS thinking of the common law, and actually wrote the common law into the Constitution of New York. This was done for a practical reason, of course, which was that the new government could not simply erase the past and start with completely new laws, but the fact of the matter is that Jay was thinking of the common law.

    By far most of the writers of the Constitution were either lawyers or judges and they were very familiar with the common law and with the laws in the colonies at the time of the Revolution. In both, the term Natural Born referred to someone who was born in the colony or country, and did not indicate that the person had to have two citizen parents.

  2. There is also this quote, showing that Jay, John Adams and Benjamin Franklin, who were our Ambassadors in France (and Henry Livingston, but he is less famous) used the term Natural Born Citizen as a synonym to Natural Born Subject. This means that Natural Born refers to the well-known legal phrase at the time, and not to Vattel.

    If a Natural Born Citizen required two citizen parents but a Natural Born Subject required no citizen parents, then they could not be used as equivalents in this:

    (The spelling and capitalization are what they were at the time.)

    Quote begins:

    Draft Articles to Supplement the Preliminary Anglo-American Peace Treaty [ca 27 April 1787 [in Paris]

    Articles agreed on by David Hartley Esq., Minister Plenipotentiary of His Brittanic Majesty for &c in behalf of said Majesty on the one part, and J.A. [John Adams], B.F. [Benjamin Franklin], J.J. [John Jay] and H.L [Henry Livingston], ministers plenipotentiary of the Unites States of America for treating of peace….in addition to the articles agreed on the 30th day of November 1782…The subjects of the Crown of Great Britain shall enjoy in all and every of Said United States, all Rights, Liberties, Privileges and Immunities and be Subject to the Duties and Allegiance of natural born Citizens of the Said States---and, on the other hand, all the citizens of the Said United States shall enjoy in all and every of the Dominions of the Crown of Great Britain all Rights, Liberties, Privileges and Immunities and be Subject to the Duties and Allegiance of natural born Subjects of that Crown, excepting Such Individuals of either Nation as the legislature of the other shall judge fit to exempt."

    End quotation

    Another way of wording the same thing, in another draft, was that “the subjects of his Brittanic Majesty and the citizens of the United States shall mutually be considered as Natural born Subjects & enjoy all rights and privileges as such in the Respective Dominions and Territories in the manner heretofore accustomed.”

  3. I will agree that all pre-constitutional draftings were rife with English Common Law; but again, once constitution was being drafted the farthest thing from the founding fathers mind in drafting the constitution was England and its laws. As I said in my 3rd blog posting; the laws applicable in the states prior to our independence was English Common Law; but once the constitution was ratified, the nation established, the laws changed to United States Law, Statutes and Codes. Some of these new laws, etc. may have English Common Law leanings but they are not English Common Law. Let's fast forward; congress can make no laws that are not based in the constitution and/or its Amendmentts.

    We are a Constitutional Republic, a nation of laws; so long as we can keep it.

  4. Re: "congress can make no laws..."

    Sure. But where does it say that Natural Born Citizen requires two US parents other than in Vattel?

    Did John Jay say "two US parents" in his letter to Washington?

    He said "Natural Born," and he was a lawyer. What did Natural Born mean at the time? It meant born in a colony.

    If there were a new meaning of "Natural Born," it would be around somewhere; written down somewhere. There would be something defining "Natural Born = two citizen parents" other than Vattel.

    Vattel is a philospher, not lawyer. And he was an expert on international law, not citizenship. He recommended things like nations should pick a state religion and force people to join it, which we did not do. So, where is the evidence that the writers of the Constitution were following Vattel and not the overwhelmingly common meaning of Natural Born that they were familiar with?

    At this point I have had people reply that the framers were concerned about foreign influence, which is true. It is clear that they banned foreigners and naturalized citizens from being president. But why ban the children of foreigners if they were born in the USA? Is the child of a foreigner who was born in the USA less loyal than the child of two parents who were already citizens?

    And besides, the law at the time was simple. If you were born in a colony or a state after 1776, you were considered Natural Born, regardless of the number of parents. That is what Natural Born meant.

  5. For the sake of argument, even if you were right on two US citizen parents; and only one was required, under English Common Law as you pretend is the correct interpertation, the Natural Born Subject follows the father's citizenship. Therefore, as we all really know, deep down is our hearts, Obama is a British Subject and therefore an illegal alien. Since there is no evidence he ever renounced his British Subject status at the age of majority. And even if by some miraculout illustions he could provide certifiable documentation of the renouncement he may be a man without a country unless he applied for and was Naturalized. His mother, depending on where and how she gave birth may not have had the capacity to bestow US Citizenship on her son. The more you look into this mans history, past, ect. the less anyone knows about him; there is, right now no track record of anything he has done or accomplished other than the things he tells us be has done; which is suspect at best. Conspiracy you bet; but the legal system will need to play this out and force his hand. On August 3, 2009 we will see if the New Jersey Federal District Court tosses Kerchener, etal v. Obama, etal; my belief the court will not dismiss this case the Obama, etal MTD is weak and fragmented, poorly written; but we will see, stand by.

  6. Re: “For the sake of argument, even if you were right on two US citizen parents; and only one was required, under English Common Law as you pretend is the correct interpertation, the Natural Born Subject follows the father's citizenship. “

    No. Natural Born Citizen merely means born in the USA. Natural Born refers to the PLACE of birth. A person is Natural Born if she or he is born in the USA regardless of the number of parents. Natural Born includes NO parents being citizens. It is the place that determines Natural Born.

    This is because the term Natural Born comes from the laws in the colonies before the Revolution in which someone who was born in the colony was considered a Natural Born Subject of Britain and a Natural Born Subject of the colony.

    This was the law at the time of the writing of the Constitution. The writers of the Constitution never changed the definition of Natural Born to mean Two Citizen parents, or One Citizen parent. They said Natural Born Citizen, and at the time that referred to birth in the colony, and now it means birth in the USA.

    Under the common law the Natural Born Subject is simply someone who was born in the country.

    Here is what Blackstone said: The children of aliens, born here in England, are, generally speaking, natural-born subjects and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is alien.”

    (And the minor exceptions referred to in “generally speaking” refers to the children of foreign diplomats.)

    And in the Wong Kim Ark case, this is confirmed with such quotes as this:

    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. . . . “

    Re: “man without a country unless he applied for and was Naturalized. His mother, depending on where and how she gave birth may not have had the capacity to bestow US Citizenship on her son.”

    Since he was born in the USA, in Hawaii, his mother is irrelevant. He has both US citizenship and Natural Born Citizenship because he was born in the USA. He never lost his citizenship. He never renounced his citizenship. He was never naturalized. He was born and remains a Natural Born Citizen.

    Re: “On August 3, 2009 we will see if the New Jersey Federal District Court tosses Kerchener, etal v. Obama, etal; my belief the court will not dismiss this case the Obama, etal MTD is weak and fragmented, poorly written; but we will see, stand by.”

    Most likely this case will be thrown out too. But if the court asks for proof that Obama is president, the proof is the results of the election. If it asks him to prove that he is a Natural Born Citizen, the proof is the legal birth certificate of Hawaii, which is the Certification of Live Birth.

  7. Wong was a decision based on foriegn nationals having a son on soil of the US; his travel to an from china, without domiciling there, and returning to the US, the place of his birth. In that decision it was determined he was in fact a citizen of the United Statesl; that is all it determined; the case did not determine "Natural Born Citizen" status, which the courts are not impowered by the constitution to establish how a "Natural Born Citizen" is determined, since the founding fathers reserved that right to the constitution as written. The courts may interrpret the founding fathers meaning, but that is only on interrpretation per justice so interrpreting. As John Jay and others have stated TWO US Citizen PARENTS not ONE since lineage is improtant in the constitution to separate the interlopers from the real "Natural Born Citizens". No foreign influence unless it inter-bred into the US population over the succession of years necessary to do that. The people of the United States have made good headway in that effort over the years by liberalizing the colleges and universities accross the nation in the very attempt to change the Constitutional Republic of the Untied States of America. Fortuneately there are more of us than them and not all of the offsprings of TWO US Citizens have bought into the libera/socialist leanings of the academics how support and teach that philosophy.

    Remember the proof on the election is not the majority rule, we are a Constitutional Republic, and therefore there are laws to be upheld first before the majority can have their say.

    Remember Nixon and his inner circle, how many of them went to jail for corruption and obstruction of justice? Nixon would have been impeached had he not resigned, and by resigning he left is inner circle to take the heat.

    Obama fortuneately will not have that option once this all plays out, simply because he has been involved in this coverup from day one and before. This man is an illegal alien; and he cannot prove otherwise or he would have already produced the documents to quiet all of this controversy that swirls around him.

    Article II "Natural Born Citizen" will stand as Vatell discribed it, and founding fathers using Vatell as their reference had intended.

    You and I can argue this point for eternity; but the bottom line is what is our philosophies and what do we know in our constitutional hearts it says.

  8. All this discussion may be moot as to Obama eligibility status (if) the now posted Kenyan Birth Certificate is proved to be a Certified Copy of his original long form birth certificate.

    That does not take leave of the meaning of Natural Born Citizen as setforth in Article II of the constitution which is from further research based again in the founding fathers belief in God and Nature. There are many references and writings available in libraries, journals and debates all published and available to the researcher. Let's see how my first point above plays out over the next few days.

    Keep your eye on the MTD hearing in the New Jersey Federal District Court tomorrow.

  9. If Obama was born in Kenya, you would be right. But Obama was born in Hawaii.

    Still, while we are on the subject of two USA parents being needed. You said that John Jay said two USA parents were needed. He did not. He never said how many parents are needed. He said Natural Born. That at the time referred to the place of birth. If you find Jay or any other US leader at the time of the writing of the Constitution actually saying "two US parents," that would be different. But none did.

    Natural Born was used at the time as a synonym for born in the colony regardless of the number of parents.

    A thought exercise: An American woman is raped while traveling overseas. She comes home and has her baby. More than 35 years passes and the child runs for president. Should the child be eligible? If not, why not?

    Another thought experiment. Two children are born in the USA of fathers from other countries. Both fathers become naturalized US citizens. One is naturalized before the child is born. One is naturalized after the child is born. What makes the first child better than the second child?

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  11. Obama born in Hawaii, how do you prove that?

    John Jay in his letter to George Washington did infer, based on his deep religious leaning, that Natural Born Citizen was a mean by which to protect the nation from foreign influence. The Founding Fathers, not all of them but most, were ordained clergy, and had a deep religious understanding of government and religon from their theologic studies. The Constitution, although there are some who do not believe it, is a Christian influenced document. So if you take the thinking and thoughts of the time it was written and ratified; use the thinking of the framers at that point in time you can understand and interpret the meaning of Natutal Born Citizen. I am providing to you, and any others. a cite below, from the Michigan Law Review by Larry Solum titled Originalism and the Natural Born Citizen Clause. Larry and I have dialoged in the past, I find him engaging and can tell you he sent me back to the law books for a refresher; I think you find his paper interesting.