Regent University Law Professor Pryor Plays Birther Then Bails

Professor Scott Pryor

Last month Regent University School of Law * professor Scott Pryor published a glowing review of Regent student John Ira Jones’s paper on the meaning of the term “natural-born citizen”. The article was posted on Professor Pryor’s blog “Pryor Thoughts”. The paper that Jones published was titled “Natural Born Shenanigans: How the Birther Movement Exacerbated Confusion Over the Constitution’s Natural Born Citizen Requirement”.  Referring to the paper Pryor wrote:

No simple-minded birther controversy here but a well-reasoned article looking at a frequently-forgotten Founding-era resource, Emmerich Vattel and his 1758 book, The Law of Nations. Download and read Regent law student John Jones’s piece, Natural Born Shenanigans: How the Birther Movement Exacerbated Confusion Over the Constitution’s Natural Born Citizen Requirement.

Just what does “natural-born citizen” mean? Born anywhere in the world to American citizens? Of course. Born in America to non-citizens? Seems so. But might there be more to the constitutional phrase than the obvious? And would the Framers of the Constitution have intended to convey the “more”?

As for the latter question, Jones asserts a strong conclusion:

Contrary to the popular impulse toward a historically uninformed view of the term ″natural born citizen,″ a cursory reading of Vattel coupled with an understanding of its significance to the Framers suggests that the requirement is not a novel term invented by the Framers, but rather a term of art with a fixed meaning which would have been known to scholars and statesmen of the day. Indeed, this understanding seems to comport with what one would expect of a group of learned men convening to lay out a framework for government–the Framers did not invent terms when invention was improper. They used accepted, established terms to convey meanings in ways that would not be subject to later arbitrary revision.

While Jones’s paper properly portrays the Birther claims that President Obama was born in Kenya as nonsense he veers into the ditch by accepting the argument that 18th century Swiss philosopher Emer de Vattel in his treatise The Law of Nations provided a definition of the term “natural-born citizen” as used in Article II of the US Constitution in the presidential eligibility clause.

Rather than get into a lengthy discussion on the fallacy of his claim about de Vattel and the paper in detail I provide a comment left by Kevin Davidson, aka Dr. Conspiracy on the Pryor blog post:

Groucho Marx is quoted: “I refuse to join any club that would have me as a member.” I refuse to take any academic article seriously that cites me (“Dr. Conspiracy”) as a source.

I find Mr. Jones argument to be “warmed over birther with footnotes,” and I found nothing that I hadn’t seen a dozen times on birther blogs and in birther lawsuit briefs. It exhibits the same bias in selecting sources, ignores the same primary sources, and glosses over the same problems. It is the same argument explicitly rejected by the courts since 2008.

Mr. Jones writes: “It would be difficult to overstate the influence of Vattel’s treatise on the Framers,” but I think he succeeds quite well in doing so, relegating the elephant in the room–the lack of the phrase “natural born citizen” in any English language edition of Vattel in 1789 to a footnote, and there dismissing the translation problem with a wave of the hand. James Kettner in his 350-page book, “The Development of American Citizenship, 1608-1870,” cites Vattel not once. And indeed, I have been able to find but a single citation from the founding generation of Vattel on the acquisition of citizenship, and that was in a letter to the editor of a Charleston, SC, newspaper by a loser in the race to be a member of the first Congress. No one in the founding generation that I know of ever talked about parentage as a criterion of citizenship or allegiance. All of the eligibility debates in the Constitutional Convention centered around how long a person must be a citizen. If the Convention were following Vattel, the United States would have had a king and mandatory state religion.

Mr. Jones cites dicata in a legal decision to support the claim that “Vattel was the most widely cited international jurist in the fifty years following the Revolutionary War,” but a legal citation is hardly an appropriate way to demonstrate a historical fact. In an actual study by Mr. Lutz of the works from the founding generation, the most often-cited jurist was Sir William Blackstone (as any lawyer should have guessed). Vattel lags behind John Locke, David Hume, Plutarch, Pufendorf, Sir Edward Coke, Rousseau and Machiavelli. (Vattel is number 29 on the most-cited list). Vattel cannot be discarded, but Mr. Jones discards Blackstone!

The complete omission of the interchangeable usage of “natural born citizen” and “natural born subject” in various state naturalization acts both before and after the ratification of the Constitution is a serious hole in the discussion. I find the complete omission of the Supreme Courts’ reasoning in US v. Wong, and its citations on the equivalence of natural born citizen and natural born subject to be inexcusable.
And to bring into the question the 6-2 decision in Wong by saying that Justice Gray was appointed by President Arthur (who the article suggest might not be eligible either) is guilt by insinuation. That bit is pure conspiracy theory right out of the birther playbook. Let me point its absurdity by exposing the contradiction. In order to say that Justice Gray was biased because he was appointed by an ineligible Arthur, one must deny the second premise of that argument: that Arthur hid his father’s naturalization status.

The highest court in Arthur’s state had said in Lynch v. Clarke (1844), that the children of aliens born in the United States could become president. Vice Chancellor Sandford also said that this was the universal opinion of the legal community and the public. Sandford gives an extensive historical survey, much broader and far more balanced that we get from Mr. Jones, even to the point of examining Vattel.

I agree with Mr. Jones, that birthers have muddied the waters and sown confusion on the question of presidential eligibility; however, I do not see that the works of Mr. Jones can be distinguished from the birthers in any way, and I am one of the nation’s foremost experts on birthers.

The crazy Birther blog Birther Report also found the article by Professor Pryor and of course ate it up in an article published there recently.

The comments on Pryor’s article began to come in on both sides (including a couple left by this author) and then the other night Professor Pryor pulled the plug on further comments and suggested that the discussion be taken elsewhere:

I’ve never received the number of comments that this post. has generated. And to think, most have come in a flood three weeks after the fact. I appreciate the many insights and thoughtful comments posted by some. Indeed, I appreciated the others that seem to have wandered a bit afield. I am, however, bringing the comments to an end. It’s time for all of us to move on to more fruitful pastures or at least to take this conversation elsewhere.

At the time of Pryor’s closing of the comments a grand total of 11 comments had been approved. Wow, such a work load! I still had at least one comment in moderation and strangely enough this comment left earlier by French attorney and frequent commenter  at Obama Conspiracy Theories “Lupin”was not approved:

Lupin:

“Perhaps when commenting upon a law text written in French, Mr Jones would be well advised to first consult a French lawyer? I am such a thing, with the added bonus that I have actually edited translations of Vattel’s text into English, and am more than familiar with the subject.

“The short version of it is that, even if you agree that Vattel’s term “indigene” or “naturel” is equivalent to your own term “natural born citizen” (which is a highly debatable point), Vattel clearly stated that citizenship was transmitted by the father only.

“The notion that father and mother had both to be citizens in order for their child to be a “naturel” is total rubbish, born of ignorance of basic syntax, and contradicted in the text itself.

“As you may or may not know, Vattel’s (amongst other legal texts) was the basis for Napoleon’s Civil Code of 1804, and there is extensive jurisprudence on the subject. FWIW, the position of the mother was finally acknowledged in the 1860s and of course both sexes were made equal before the Law in that respect in the mid-20th century.

“Finally, I’ll add that while Vattel was concerned with jus sanguinis (the term “parens” actually means all blood relatives and not merely the two parents), he also acknowledged that England used jus soli for the basis of citizenship and had no problem recording the fact.

“I don’t mean to lecture about this but Mr Jones’ paper is, at least as far as his understanding of Vattel is concerned, total rubbish and unworthy of the institution to which he belongs.”

(Lupin reposted his comment at the open thread article at OCT.)

I can only speculate why Professor Pryor chose to shut down discussion on the article. Perhaps he didn’t want it to turn into a dragged out flame war between Birthers and Anti-Birthers. We all know that can happen. Just look at Greg Contario’s article on Ted Cruz’s eligibility at Western Free Press which now has almost 5000 comments and has turned into a platform for Obama haters like Mario Apuzzo, Rambo Ike, and ksdb (Joe Montgomery who filed a losing ballot challenge in Kansas), and others to push their discredited and losing theory that President Obama is usurping the office because his father was a British subject and not a US citizen at the time of his birth.

Perhaps, Professor Pryor after reading the comments like the ones I quoted above decided his glowing praise of Jones’s paper was given without doing proper research into the subject and was misplaced. Rather than embarrass a student with a retraction he would just end the discussion. I can understand if that is the case.

Of course comments here are welcomed as long as they do not violate the blog comment policy. I know handling all those comments is a real work load but I think I am up to the task.

*Regent University was founded by televangelist Pat Robertson in 1978 the School of Law  opened in 1986. Both are located in Virginia Beach, Virginia. Regent School of Law was ranked 287th overall by US News and World Report. According to Regent’s web page “our students receive rigorous legal training plus the added benefit of a Christian perspective through which to view the law.” Its most famous faculty member is form US AG John Ashcroft.