more McCain

[Edward A Hartnett]

The dissent in Wong Kim Ark relied on section 212 of Vattel, stating:

"Before the Revolution, the views of the publicists had been thus put by 
Vattel: ‘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.’ Vatt. Law Nat. bk. 1, c. 19, § 
212. ‘The true bond which connects the child with the body politic is not 
the matter of an inanimate piece of land, but the moral relations of his 
parentage. * * * The place of birth produces no change in the rule that 
children follow the condition of their fathers, for it is not naturally 
the place of birth that gives rights, but extraction.’"

But the majority rejected this Vattel approach.  While it did not cite 
Vattel by name, it observed that "It was contended by one of the learned 
counsel for the United States that the rule of the Roman law, by which the 
citizenship of the child followed that of the parent, was the true rule of 
international law as now recognized in most civilized countries, and had 
superseded the rule of the common law, depending on birth within the 
realm, originally founded on feudal considerations."

Perhaps Vattel and the dissent in Wong Kim Ark were correct, but adopting 
that view now would mark a seachange in our law -- and a political 
firestorm, no?

Edward A. Hartnett
Richard J. Hughes Professor
     for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8842
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335



Francisco Forrest Martin <ricenter at igc.org> 
Sent by: conlawprof-bounces at lists.ucla.edu
02/17/2008 01:03 PM
Please respond to
Francisco Forrest Martin <ricenter at rightsinternational.org>


To
conlawprof at lists.ucla.edu
cc

Subject
RE: more McCain







I strongly urge folks to take a look at Vattel’s 1758 treatise for  
answers to whether McCain is a natural born citizen and eligible to become 
president. Short answer: He is a natural born citizen by virtue of his 
father being a U.S. citizen; therefore he is eligible. Naturalized 
citizens are not natural born citizens; they can only hold public office 
if the fundamental national law allows it. See Emmerich de Vattel, 1 The 
Law of Nations or Principles of the Law of Nature Applied to the Conduct 
and Affairs of Nations and Sovereign, secs. 212-16 et passim (1758). 

Francisco Forrest Martin
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