Interview With Kevin Gutzman On Natural-Born Citizen And Republican Hypocrisy

Mandeville, LA – Exclusive Transcript – Just like with the incorporation doctrine, after I share it, then I am hectored and heckled.  My integrity is assailed.  Vattel is said to have been some sort of an 18^th century quack that no one ever referred to in the United States and you and Gutzman can’t prove that.  Then the subject of natural-born citizen is that nobody really cares about this unless it applies to Obama, so you and Kevin need to shut up.  That’s basically what I was told yesterday after I read Section 212 from Vattel’s Laws of Nations and it was revealed that Senator Ted Cruz may not be a natural-born citizen and the hopes and dreams of thousands of Cruz well-wishers were dashed on the rocks, so they took it out on me.  Check out today’s transcript for the rest…

Begin Mike Church Show Transcript

Mike:  Headline at TheBlaze.com “Ted Cruz Releases Birth Certificate – And Is Apparently A Canadian Citizen (But…).”  We’ll get into that in a moment.  I invited Professor Dr. Kevin Gutzman, author of James Madison and the Making of America, The Politically Incorrect Guide to the Constitution, two books that you should have on your coffee table at all times and refer to them often.  Kevin, good morning, sir.  How are you my friend?

Kevin Gutzman:  I’m doing well.  How are you?

Mike:  I’m fantastic.  As usual is the case with you and my lengthy correspondence, I ask you a question of historical significance, late 18^th, early 19^th century, and as you usually do, provide me with some sort of fact and researchable-based answer.  Then I go and seek the answer out or the material you provide and I share it on the airwaves.  Just like with the incorporation doctrine, after I share it, then I am hectored and heckled.  My integrity is assailed.  Vattel is said to have been some sort of an 18^th century quack that no one ever referred to in the United States and you and Gutzman can’t prove that.  Then the subject of natural-born citizen is that nobody really cares about this unless it applies to Obama, so you and Kevin need to shut up.  That’s basically what I was told yesterday after I read Section 212 from Vattel’s Laws of Nations and it was revealed that Senator Ted Cruz may not be a natural-born citizen and the hopes and dreams of thousands of Cruz well-wishers were dashed on the rocks, so they took it out on me.  Can you get to the bottom of this?  Let’s start with the easy stuff.  Why Vattel and why did the framers choose natural-born citizen?

Gutzman:  Well, first of all, Vattel.  Before World War II, there was no such thing as international law.  Currently we work under this international network of treaty arrangements called international law that was created after World War II mainly by the victorious powers to outlaw to outlaw, first, aggressive war.  Having created this idea, they set about trying and executing the leading Nazi and Japanese political and military figures.  So, for example, Tojo was hanged as a war criminal after World War II and so were several leading German military officers.  Before that, however, there was, as I said, no international law because there weren’t these treaty arrangements.  What there was instead is what was called law of nations.

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The way to understand the distinction between international law and the law of nations is analogous to the difference between civil law and common law.  In Europe, for example in France or Germany, you have what is called civil law, which is essentially law that is code of rules adopted by a legislative body or legislative authority at some particular time saying these books are the rules about family law, or these six books are the rules about property law.  On the other hand, if you live in English-speaking countries such as England or United States of America, you live instead under a system that’s descended from the common law.  The common law was not handed down by legislative authority at one particular time, but instead was a big body of precedents established by courts over a long period of time.  In the American iteration of this common law, essentially the American colonists insisted this is what made them free.

Before World War II, you had common law of international relations that was called the law of nations.  The leading authority on this subject in the late 18^th century was Emmerich de Vattel, who was a Swiss citizen, who wrote among other things a book called Law of Nations.  He was largely cited by founders on the question of what does the law of nations mean, so that’s why he’s important….

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Mike:  So Emmerich de Vattel, Law of Nations is very important, 18^th century, Constitution written and ratified 18^th century.  As you told me in our correspondence, Jefferson, Randolph, Madison and others of the founding era were familiar with Vattel.

Gutzman:  Not only were they familiar with him.  For example, the idea of a federal republic, the leading late 18^th century definition of the term “federal republic” is found in Emmerich de Vattel.  If you ask the question: What does it mean for Massachusetts to be a member of a federal republic called the United States of America?  What are its relations to the other states within that federal republic?  What obligations does it have to them?  Then you might look to the U.S. Constitution.  You might also look to Emmerich de Vattel’s description of the relations among the constituents in a federal republic.  Your listeners might be thinking: Did anybody care about this in the late 18^th century, that is did any actual American statesmen politicians rely on Emmerich de Vattel?  The answer is yes.

For example, when Edmund Randolph was the attorney general for George Washington, of course Edmund Randolph was the first United States Attorney General, he was faced with the question of the extradition of a supposed lawbreaker from one state to another.  He ended up telling the governor of one of the states: You’re not under any obligation to render this person to the other state according to Vattel.  We know from Vattel that you don’t have to turn this guy over.  The U.S. Constitution seems to indicate that you’re supposed to indicate reported lawbreakers, but Vattel gives us a contrary indication.  Attorney General Randolph, on behalf of the Washington administration, concluded: No, I don’t think you’re really under this kind of obligation here.

This was a common way that people used Vattel in the late 18^th century.  Not only in the Philadelphia Convention did they use his definitions, but in the general life of people who were involved in running the governments of the state and running the federal government in the late 18^th century, early 19^th century, Vattel was the first place people looked.  So what difference does this make?  Well, when it comes to defining terms that are used in the Constitution, the first place we would look would be English common law.  If we didn’t find a definition there, and we probably wouldn’t when it comes to something like a federal republic because England didn’t have a federal republic, then the next place you would go would be Emmerich de Vattel.

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It happens that Emmerich de Vattel, unlike English common law where any of the law of the colonies in North America, Vattel, in the book Law of Nations, Chapter 19, Section 212, defines the term natural-born citizen.  If somebody wanted to say there’s an alternative definition in another leading authority in the late 18^th century of the term natural-born citizen, I would be willing to consider that as an alternative explanation of what the founders meant when they wrote and ratified the Constitution by using the phrase “natural-born citizen.”  It happens that there is no other equally prominent authority in the late 18^th century who defined the term natural-born citizen.

Generally American courts have said: Where do we have a term that was in common legal use in the late 18^th century?  We’ll take that definition and assume that it was the one that the framers and ratifiers had in mind when they adopted the Constitution.  What difference does this make?  What it means is, we look to Vattel’s definition of the term natural-born citizen.  We do not get if he had one American parent and was born in Hawaii then he’s a natural-born citizen, or if he was born in the United States he’s a natural-born citizen, but as you’ve explained before, Book I, Chapter 19, Section 212, “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”  Notice parents, not a single parent.  Notice born in the country.  Notice this seems to exclude various people who have been considered — I’ve been saying for over a year now that it seems obvious to me that by Vattel’s definition, Senator Rubio from Florida is not eligible to be president.

One funny thing about looking to Vattel, as you and I privately discussed, and have privately discussed on and off for years, is that while the birthers stupidly got caught up in the question of whether President Obama was born in Hawaii, which seems totally irrelevant, they missed the obvious point that his father was not an American citizen and therefore, by Vattel’s definition, he’s not a natural-born citizen.  Similarly, apparently Senator Cruz, like Senator Rubio and now President Obama, is not the American-born son of two people who were citizens at the time of his birth, so he’s not a natural-born citizen either.

I posted to this effect on Facebook and people said to me: Gutzman, are you a birther?  Well, you may notice that I have not been making a lot of noise about Obama being a natural-born citizen or not, even though I have known he is not ever since the question first came up.  I’m not a birther.  I think this is of antiquarian interest and I don’t think anything practical will come from pointing out that these guys aren’t natural-born citizens.  Why?  Because the ruling elite doesn’t care what the Constitution means.  They don’t really care.  The bottom line is Cruz is not a natural-born citizen, Rubio is not a natural-born citizen, and Obama is not a natural-born citizen.

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Mike:  You say the elites don’t matter.  I’ve got news for you.  The boosters of those two men don’t care either.  That’s the rub.  All those people running around flashing Constitutions at tea parties, they don’t give a rat’s hoo-hoo dilly about this either.  I was accused yesterday: That’s your definition.  I go: No, that’s not my definition.  I sent it to you in quotation marks so it’s not my definition.  Professor Dr. Kevin Gutzman is on the Dude Maker Hotline with us.  Now we come to the other part of this.  Having dealt with Vattel and the 18^th century definition, which was never an issue with me, but if you read further down that list, there are some other distinctions of how and where people can be born.  Senator McCain was born of U.S. citizens but he was not born in the country.  If we just use Section 212 as I explained to one guy who will just not leave me alone and continues to badger me, using Section 212 I would conclude that Senator McCain is not a natural-born citizen.  That does not mean that if I read further down and read Section 214 about those that are born in armies, then there is not an exception here.  Do I read too much into this or is McCain also on the list?

Gutzman:  I am pretty sure that, I don’t remember a date, but I’m pretty sure when this question came up in the last election cycle, you and I laughed over the fact that likely not only was Obama not a natural-born citizen but McCain wasn’t either.  I think this question came up on your show once before.

Mike:  It did

Gutzman:  I think we kind of concluded it was kind of amusing that both parties were going to nominate people who weren’t natural-born citizens.  Nobody was going to do anything about it.  The question of whether the Panama Canal Zone was the United States of America, I think, is an interesting question.  I’m not aware that Vattel says anything to define the term in the country.  You might argue, I suppose, that a territory of the United States or an overseas possession of the United States is part of the country.  But, on the other hand, if what you’re talking about is territory being rented by the United States outside of the United States, which is the status of the then-Canal Zone, which by the way I lived in for three years when I was a kid, or Guantanamo Bay today, it does seem to me that those are not part of the United States.  As I say, I don’t know if Vattel gives an answer to the question how we decide what the term “in the country” means.  That’s a longwinded way of saying I’m not sure what to think about that.  If you wanted to be a real stickler for it, you’d say it was foreign territory being rented by the United States, therefore it’s not the United States.

Mike:  I’m going to go with kind of like when you’re looking at other clauses in the Constitution, that one clause does not undo another, unless you’re going to by amendment say I’m changing the verbiage of that clause because it’s got people’s heads spinning around in circles, so we’re going to redefine this one to mean this by amendment.  That has been done.  As I explained to the audience yesterday, you people that want Ted Cruz to be your president, fine.  Get an amendment.  My only suggestion is get an amendment.  The qualifications to elect the president have changed by the amendatory process three times, by my count, over the years, haven’t they?

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Gutzman:  Let me think about that.

Mike:  The 12^th Amendment altered it, right?

Gutzman:  That changed the system for choosing the president.  Did it change the qualifications?

Mike:  You’re right, it didn’t change the qualifications.  The 18^th Amendment changed who could vote for, the 24^th Amendment was the term-limit amendment.

Gutzman:  Changed who could vote.  I don’t think any of them actually changed the qualification for being elected.

Mike:  But you could alter it by amendment.

Gutzman:  Sure you could.

Mike:  If that’s what you want to do, if you want Marco Rubio to be your president, then convene an Article V Amendment Convention, which I think if you’re successful in convening that, it probably shouldn’t be to elect Marco Rubio.  I have some other suggestions of what you may want to do with that convention were you able to actually call it.

Gutzman:  I do, too.  I think there are other changes that are imperative at the moment.  Frankly, one aspect of this whole discussion that really bothers me is, why is it that people are always excited about brand-new faces?  We’ve got this guy Cruz who’s been in the Senate for a few months, and Rubio’s been in the Senate a couple of years.  Republicans rightly made the argument in 2008 that Obama is not really qualified.  He’d been senator for less than two years and he hadn’t done anything.  Their response to that is turn around and pick a similar guy?

Mike:  Right, exactly.

Gutzman:  Their response to the fact that Obama is not a natural-born citizen is to want to nominate some such person of their own, really?  To me this doesn’t make a lot of sense.  It is typical of the phenomenon that Tom Woods and I described in Who Killed the Constitution where you end up with a bipartisan agreement that we’ll ignore every single provision of the Constitution because it’s there.  I don’t think it makes any sense to want to be nominating Rubio or Cruz or Mrs. Palin or somebody else you’ve never heard of or has no experience or record or reason to be expecting to be elected to this high office.  People seem to like novelty.  I guess that’s your explanation.

Mike:  Boy do they.

End Mike Church Show Transcript

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