Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
one derived from what has been described as a “philosophical treatise”[1] on the law of nations by a Swiss legal philosopher in the mid-1700s.[2] This particular treatise, however, in the editions available at the time of the drafting of the U.S. Constitution, did not actually use, either in the original French or in English interpretations at that time, the specific term “natural born citizens.”[3] It was not until after the adoption of the Constitution in the United States did a translator interpret the French in Emmerich de Vattel’s Law of Nations to include, in English, the term “natural born citizens” for the first time, and thus that particular interpretation and creative translation of the French, to which the Vattel enthusiasts cite, could not possibly have influenced the framing of the Constitution in 1787.[4]
Furthermore, and on a more basic level, the influence of the work of Vattel on the framers in employing the term “natural born” in relation to domestic citizenship within the Constitution is highly speculative at best, is without any direct historical evidence, and is contrary to the mainstream principles of constitutional interpretation and analysis within American jurisprudence. Although it appears that there is one single reference by one delegate at the Federal Convention of 1787 to Vattel (in reference to several works of different authors to support an argument for equal voting representation of the states in the proposed Congress),[5] there is no other reference to the work in the entire notes of any of the framers published on the proceedings of the Federal Convention of 1787,[6] and specifically there is no reference or discussion of the work at all in relation to citizenship at the Convention, in the Federalist Papers,[7] or in any of the state ratifying conventions.[8]
- ↑ Craig v. United States, 340 Fed. Appx. 471, 473 (10th Cir. Okla. 2009), cert. denied, 130 S.Ct. 141 (2009).
- ↑ Emmerich de Vattel, The Law of nations, or Principles of the Law of nature, Applied to the Conduct and Affairs of nations and Sovereigns (London 1760) [hereinafter The Law of nations]. The 1760 Volume is an English translation of the original French, E. De Vattel, Droit des Gens: ou, Principles de la loi naturelle, appliques a la conduct & aux affaires des nations & des souverains (1758) [hereinafter Droit des Gens].
- ↑ In the original French, the sentence reads: “Les naturels ou indigenes font ceux qui font nés dans le pays, de Parens Citoyens.” (Droit des Gens, supra at Ch. XIX, p. 111). In the English translation available at the time of the framing of the Constitution, translated in English in 1760 and in 1787, the terms “naturels or indigenes” were simply interpreted as “natives or indigenes:” “The natives, or indigenes, are those born in the country of parents who are citizens.” The Law of nations, supra at Vol. I, Book 1, Ch. XIX, §212, at p. 92 (1760), and at p. 166 of the 1787 edition. The English phrase “natural born citizen” in early French translations of the U.S. Constitution’s Article II, §1, cl. 5, however, was interpreted as either “citoyen-né” ([a “born citizen”] John Stevens or Warren Livingston, Examen Du Gouvernement D’Angleterre, Compare Aux Constitutions Des État-Unis,” at 257 (Paris 1789)), or “citoyen né dans les États-Unis,” ([a “citizen born in the United States”], L.-P. Conseil, Mélanges Politiques et Philosphiques, “Constitution Des États-Unis,” at 160 (Paris 1833), and M. Du Ponceau, Exposé Sommaire de la Constitution Des États-Unis D’Amérique, at 45 (Paris 1837)), or in more recent French translations, “citoyen de naissance” (“citizen at birth”). None of these French expressions for the English term “natural born citizen” were used by Vattel.
- ↑ Compare the 1760 London edition of Vattel’s Law of Nations, to the 1797 English translation (London 1797), at Book 1, Ch. XIX, p. 101 (Lib. of Congress No. JX2414 .E5 1797).
- ↑ I Farrand at 437–438 (Mr. Martin, of Maryland).
- ↑ Farrand’s work, The Records of the Federal Convention of 1787, includes the personal notes of the following framers: Robert Yates of New York, James Madison of Virginia, Rufus King of Massachusetts, James McHenry of Maryland, William Pierce of Georgia, William Paterson of New Jersey, Alexander Hamilton of New York, and George Mason of Virginia, as well as the Journal kept by the Secretary of the Convention, Major William Jackson. I Farrand, supra at xi–xxii.
- ↑ The Federalist: A Collection of Essays, Written in Favour of the New Constitution, as Agreed Upon by the Federal Convention, September 17, 1787 (New York 1788).
- ↑ There were only two apparent references in all of the state ratifying debates to Vattel: one by a delegate in South Carolina in relation to a nation’s duty to honor treaties (4 Elliot’s Debates at 278), and one in Pennsylvania mentioned with other “political writers” to support the notion that not all of the rights of the people of a nation could be
