Some Arguments Refuted
In my experience, there are some (usually birthers) who object very strenuously to the idea that merely being born in the United States, even to alien parents, is sufficient to confer natural born citizenship.
Some of their line of reasoning is outright absurd. Some even go so far as to claim that the only way one can become a natural born citizen is to be born to two citizen parents on U.S. soil, a standard that has never existed in the U.S., or any other nation, for that matter.
Their motivation in advancing these erroneous ideas is, of course, to deny the eligibility of former President Barack Obama, something they’ve been arguing for since before Obama’s inauguration.
It is therefore necessary to take the most frequent arguments I’ve heard, and address them here. The various arguments I have been collecting since the inception of the birther movement will be presented in boldface, my response is in normal typeface.
The common law standard doesn’t apply here; they have subjects and we have citizens and the two are vastly different.
This might be a viable argument if it dealt with a subject’s/citizen’s duty to their respective heads of state, for example. In the United States, the head of state is the President, while in England, they have a monarch, two very different offices.
But the only thing we’re addressing here is how someone may be made a natural born subject or a natural born citizen. It has nothing to do with the various rights or obligations extended to either of them.
This objection, by the way, was also addressed in United States v. Wong Kim Ark, again referencing Commentaries on American Law by Chancellor James Kent:
Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.
2 Kent Com. 258, note.
In short, for the purposes of determining nothing more than how someone acquires membership in a society at birth, the difference between subject and citizen is irrelevant.
The definition of natural born citizen doesn’t come from common law; it comes from Emmerich de Vattel’s “The Law of Nations.” And according to Vattel, a person can only become a natural born citizen if both his parents are citizens.
The answer will come in several parts; there is a serious amount of disinformation here.
It is regrettable that this calculated lie has gained the momentum it has. This false standard created by the birthers was intended, of course, to instill in the minds of the American people that Barack Obama was ineligible to serve as President.
As most of us already know, Obama was born to a U.S. citizen mother and a Kenyan father, who, while never a U.S. citizen, was in the U.S. on a student visa; therefore, if a natural born citizen truly required both parents to be citizens, then Obama would have been ineligible. But as we saw in Part I of this article, no such standard exists, nor did ever exist in the United States.
Obviously, this ploy was unsuccessful and Obama completed two terms as President, despite the obsessive determination of the birthers have him declared ineligible and forcefully removed from office.
But let us turn our attention to Vattel, and find out how much influence he truly had. And it may take some time to cover it all. The intricacy and magnitude of this deception created by the birthers, all because of their determination to end the Obama presidency, is really quite beyond belief, and rather disturbing.
Emmerich (Emer) de Vattel (1714–1767) was an international lawyer whose most famous contribution was his four-volume treatise on international law, The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns (which will hereafter be referred to simply as The Law of Nations). The greatest influences on his work were probably Dutch jurist Hugo Grotius and German philosopher Christian Wolff.
If you’ve never heard of Vattel before, that’s not surprising. I have to find a book on American history or civics that even mentions him once. Frankly, I doubt any of the birthers had heard of him, either. But once someone discovered that there was a sentence in Vattel’s writings that could be misconstrued in such a way as to declare Obama ineligible, suddenly Vattel became the most profound influence on our Founding Fathers and the framers of the Constitution.
Do not expect birthers to admit they’ve never heard of Vattel. I have debated these people online since Obama was battling Hillary Clinton to become the Democratic nominee for Presidential candidate. And, regrettably, they are a dishonest bunch, to put it mildly. If you were to confront a birther about Vattel’s conspicuous absence from textbooks on American history and civics, they would doubtless respond with fanciful tales about their grade school teachers regaling an enthralled class with lectures on Vattel and his profound influence on the Founding Fathers.
They will have written term papers about him, I’m sure. And taken college courses dedicated to Vattel. Though most of them don’t seem to know a single thing about him beyond a sentence he wrote, which they have twisted like a balloon animal to convince the gullible that Obama is not a natural born citizen and that his presidency presented a constitutional crisis.
The reason that Vattel is promoted by the birthers is a single sentence from his work which the birthers aver is the true definition of “natural-born citizen” and conclusively proves Obama’s ineligibility. This sentence reads, “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” (Emer de Vattel, The Law of Nations, Book I, chapter 19, section 212, translated from the original French.)
Absurdly, the birthers claim that since the word “parents” is rendered in the plural, that means that in order to be considered a natural born citizen of the United States, both parents must be citizens. This, of course, would disqualify Obama, since Obama was born of a citizen mother and an alien father.
But the purpose here is not to defend Obama’s status as a natural born citizen, something that hardly needs to be addressed since Obama completed two terms and is now out of office, his legacy intact, despite the efforts of the birthers. It is mentioned here only to explain why this lunatic fringe group felt it necessary to promote this lie.
First, and most ridiculous, is the idea that Vattel’s standard required both parents to be citizens because “parents” is rendered in the plural. This would violate the commonsense rules of grammar, for one thing. “Parents” is plural because “natives” and “natural born citizens” is plural.
Imagine a tour guide, for instance, addressing a group of children and adults, trying to discourage children from wandering off, saying, “Children, remain with your parents at all times.”
Would you assume that all children are expected to remain with both parents at all times because the tour guide said, “parents,” the plural form of the word? Would this mean that the children who came on the tour with only one parent, for whatever reason, would be in violation of the tour guide’s instructions?
Another example: imagine a program director addressing a group of children at a family fitness center, saying, “If your parents are members of this facility, you are certainly free to use this pool.”
Would you assume that the program director was saying that permission to use the pool was granted only to those children with two parents, both of whom were members of the facility? Would this mean that the children of single parents or with only one parent who is a member of the facility are not allowed to use the pool?
Not even the children themselves would assume anything so dumb! Even they would understand that this applies to those children with one parent who’s a member of the facility and to those with both parents who are members.
Yet, laughably, even professed lawyers are making this argument that because “parents” is plural, Vattel required both parents to be citizens for the child to be considered a natural-born citizen of the U.S.
And should there remain any doubts, Vattel himself puts them to rest with his very next sentence (which birthers conveniently ignore), making it abundantly clear that he required only the citizenship of the father, not both parents. “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.”
That should end any and all questions on the subject, but the birthers continue to promote this asinine reasoning to this day. And it is for this reason that this disingenuous line of reasoning needs to be refuted.
Further, Vattel continues, “The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. …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 de Vattel, The Law of Nations, Book I, chapter 19, section 212.)
The doctrine that citizenship is inherited from the parents is known as jus sanguinis (Latin for “law of blood”). This is distinguished for jus soli (“law of soil”; the doctrine that citizenship at birth depends upon place of birth rather than parentage.)
At this point, it is necessary to point out that Vattel only wrote about the law of nations as they existed at his time. An international lawyer is not a dictator. Vattel did not create the standards, somehow compelling entire nations to comply with his guidelines. He merely wrote about international law as he observed it. The law-makers of sovereign nations are free to create whatever standards they want in establishing who will be natural-born citizens of their own nations.
And they did. At various times in the early twentieth century, every nation mentioned by Vattel that observed the standard of jus sanguinis had revised their laws, allowing the children to inherit the citizenship of their mothers as well as their fathers. There is no reason to believe that the United States, even if we did have the standard of citizenship determined by parentage rather than place of birth, would not have followed suit with the European nations, and also allowed children to inherit citizenship from their mothers as well as their fathers.
Moreover, even Vattel recognized that England was an exception to this rule of citizenship being inherited from the fathers. “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.” (Emer de Vattel, The Law of Nations, Book I, chapter 19, section 214.)
It should be pointed out that the United States does observe jus sanguinis as well as jus soli (the latter meaning “right of soil,” or the doctrine that citizenship at birth depends upon the place of birth, rather than parentage). But the United States allows citizenship to be inherited by the parents only in those cases in which a child is born to citizen parents outside the U.S. Within the U.S., the citizenship of the parents is irrelevant. If a child is born outside the U.S., it may inherit the citizenship of its U.S. citizen parent. From the United States v. Wong Kim Ark, with added emphasis:
Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport, and they have never been considered in either country as affecting the citizenship of persons born within its dominion.
While the law is in a constant state of change and the laws determining natural born citizenship are no exception, the standard today is that a child is a natural born citizen of the U.S. if at least one of the parents has been a citizen of the U.S. for at least five years, with at least two of those years occurring after the 14th birthday.
The laws regarding who shall be considered a natural-born citizen are covered by U.S. Code > Title 8 > Chapter 12 > Subchapter III > Part I > § 1401 — Nationals and citizens of United States at birth. Part (g) covers those children born outside the U.S. to citizen parents.