Wednesday, March 02, 2011

Notre Dame Law Professor Wants Congress To Investigate Obama's Natural Born Status

A well-respected law professor at Notre Dame University Law School becomes one of Indiana's first constitutional scholars to weigh in on the debate over whether President Barack Obama is a natural born citizen as required by the U.S. Constitution to serve as president. Dr. Charles Rice, Professor Emeritus, believes enough facts surrounding Obama's birth status are in question to warrant an investigation of Congress to put the matter to rest once and for all. Most notably, Dr. Rice agrees with the point I've been making for almost two years that based on what we know for certain there is legitimate doubt as to whether Obama is a natural born citizen.

In an original article republished on The Steady Drip blog, Dr. Rice cites the Minor v. Happersett case decided by the Supreme Court in 1875 as sufficient to cast doubt on Obama's natural born status based on the Kenyan citizenship of his father. While this involved a case on which it was not necessary to determine whether a person is a natural born citizen as that term is used in the U.S. Constitution, the Court's opinion made clear there was disagreement on its meaning:

In Minor v. Happersett, in 1875, the Supreme Court, made an incidental reference to the issue: "[N]ew citizens may be born or they may be created by naturalization. The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first." 88 U.S. 162, 167-68 (1875).
Critics of the so-called birthers, as they are derisively referred by persons ignorant of the U.S. Constitution, continue to misinform the public and insist that numerous court challenges have decided in favor of Obama's eligibility. "The rejections have been based on various grounds, including the plaintiff''s lack of standing to sue and other specified and unspecified procedural grounds," Rice writes. "No court has agreed to decide any of those suits on the merits," he adds. Responding to the inability of plaintiffs to prove standing to pursue their cases challenging Obama's eligibility, Rice says "it is fair to say that the Obama controversy involves significant issues of fact and law that deserve some sort of official resolution" without offering a "conclusion as to whether Obama is eligible or not."

Dr. Rice is troubled by Obama's unwillingness to put the issue to rest by producing records to satisfy those who doubt his eligibility. He believes the so-called "birthers" have raised legitimate issues. "That legitimacy is fueled by Obama''s curious, even bizarre, refusal to consent to the release of the relevant records," he observes. "If it turns out that Obama knew he was ineligible when he campaigned and when he took the oath as President, it could be the biggest political fraud in the history of the world," Rice says. "As long as Obama refuses to disclose the records, speculation will grow and grow without any necessary relation to the truth." He adds, "The first step toward resolving the issue is full discovery and disclosure of the facts."

We should not only be looking to the courts to resolve this issue according to Dr. Rice. He believes a congressional inquiry would be entirely appropriate under the circumstances. "A committee of the House of Representatives could be authorized to conduct an investigation into the eligibility issue," he suggests. Rice quotes from former President Woodrow Wilson's book "Congressional Government" authored in 1884:

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct . . .

Rice suggests three matters for possible investigation by a committee looking at Obama's eligibility, including legislation on the subject. He notes the stunning fact there is currently no law that requires a presidential candidate to establish their eligibility to serve as president:

1. To ascertain the facts, compelling by subpoena the production of all the available records relevant to Obama''s eligibility, including the complete Hawaiian records of his birth; his passport records to ascertain whether he traveled to Pakistan in 1981 on an American or other passport; the records from Occidental College, Columbia University and Harvard Law School to determine whether Obama described himself as a foreign student; and such other records as may be relevant. The disclosure of such information to the public would be an appropriate exercise of Congress'' "informing function."

2. The consideration of legislation to require candidates for a federal elective office to produce, at an appropriate time, evidence of their eligibility for that office. There is now no federal law or regulation that requires such disclosure.

3. The consideration of legislation to define the constitutional term, "a natural born Citizen."
Dr. Rice concludes his blog post: "The American people do not know whether the current president achieved election by misrepresenting, innocently or by fraud, his eligibility for that office. I neither know nor suggest the answer to that question. But it would be a public service for the House of Representatives to employ its authority to determine those facts and to recommend any indicated changes in the law or the Constitution."

Hats off to Dr. Rice for having the courage to stand up and say what so many constitutional legal scholars in this country are thinking under their breath but are afraid to say aloud for fear of being labeled a racist, a nut job or, as the Left loves to call us, a "birther."

UPDATE: Sen. Mike Delph's legislation, SB 114, would have established requirements for presidential candidates to establish their constitutional eligibility to gain access to the Indiana ballot. While Sen. Sue Landske, who chairs the Elections Committee, did not schedule the bill for a hearing before the bill deadline, she has offered SR 30, which urges the Legislative Council to study the issue during the interim period before next year's legislative session. Sen. Delph is co-authoring the resolution.


Marco said...

Anybody want to bet an over/under as to how many anonymous screen names who have never posted on this blog before will suddenly pop up on this thread? I'll say 4.

Advance Indiana said...

Yeah, Marco, and half of them typically log in from IP addresses located outside the U.S.

Ellen said...

"Americans have never fully appreciated what a radical thing we did — in the eyes of the rest of the world — in electing an African-American with the middle name Hussein as president."

And yet there is a vocal minority convinced that his election is a fraud. Undoing that historic move is not only a slap in the face to Americans, but to all of those in the world who look to us for inspiration.

I'm ashamed of you, Gary.

Advance Indiana said...

Well I'm ashamed of you, Ellen, for putting a political correctness agenda ahead of the U.S. Constitution. We're sick and tired of the rules that are applied to everyone else not applying to Barry. He was exempt from all of the intense public disclosure and vetting process that every white male candidate in my lifetime has been subjected to, as well as Geraldine Ferraro, Hillary Clinton and Sarah Palin, and even Jesse Jackson for that matter. Nobody can ask any questions about where the hell he came from or any basic information that forms the biography of a person elected to the highest office in the free world without being deemed a racist who opposes him because some people mistakenly believe he is an African-American. He is not. He had a white American mother and an Arab-African father. There is no African-American blood in that man. He was born a Muslim, given a Muslim name and raised a Muslim, but we are told we are religious bigots if we point out this fact. The double standards have to got to end. We will not accept the fabricated auto-biography Bill Ayers ghost wrote for this man that has been thoroughly discredited as being replete with false accounts of his life story.

Sam Sewell said...

Just a Reminder - Before he was nominated AKA Obama Signed Resolution Describing Him As Ineligible
Obama Signed Resolution Describing Him As Ineligible

This is an oldie, but it needs to be revisited, since the Obots still argue that Obama is eligible to serve as Commander-in-Chief.

On April 10, 2008, Sens. Patrick Leahy (D-VT) and Claire McCaskill (D-MO) introduced a resolution expressing the sense of the U.S. Senate that presidential candidate Sen. John McCain (R-AZ) was a 'natural born Citizen,' as specified in the Constitution and eligible to run for president. Sen. McCaskill knew Obama was not a U.S. Citizen, that’s why she introduced this bill -- dressing it up to look like it was in Sen. John McCain's cause.

It was during the bill's hearing that Sen. Patrick Leahy, Chairman of the Senate Judiciary Committee, made the following statement:

"Because he was born to American citizens, there is no doubt in my mind that Senator McCain is a natural born citizen," said Leahy. "I expect that this will be a unanimous resolution of the Senate."

At a Judiciary Committee hearing on April 3, Leahy asked Homeland Security Secretary Michael Chertoff, himself a former Federal judge, if he had doubts that McCain was eligible to serve as President.

"My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen," Chertoff replied.

"That is mine, too," said Leahy.

What's interesting here is that Sen. Leahy, the Chairman of the Senate Judiciary, confirms that a "natural born" citizen is the child of American citizen parents.

Parents -- that's two. That's BOTH parents.

Advance Indiana said...

Obama also wrote in his book, "Dreams From My Father" that he had in his possession his original birth certificate but the only document he has been willing to produce is a Certification of Live Birth issued by the state of Hawaii in 2007. As has been pointed out many times, Hawaii law allows a person to register a birth with the state regardless of where the child was born as long as the parent who registers the child's birth claims residency in the state. John McCain willingly produced his original birth certficiate showing his birth at a hospital in Panama knowing that some would contest his eligibility. Indeed, there were lawsuits filed against his candidacy as well based on his birth in a foreign country, and some legal scholars have argued he is not a natural born citizen because he was not born on American soil. During the first Congress, a law was enacted as part of the Immigration & Nationalization Act that deemed the term "natural born citizen" to include children of U.S. citizens born abroad while in service to their country. That law was later repealed, but it codified at the time Congress' belief that NBC status was limited to the children born of U.S. citizens. It does not mean other children born of alien parents on U.S. soil are not citizens; only that they are not natural born citizens. That term is used but once in the U.S. Constitution and that's as it related to eligibility to be president.

Concerned Taxpayer said...

Why has Obama spent almost $$1MILLION to pay lawyers to keep any of his papers, etc. from being released?

Ellen said...

He was born a Muslim, given a Muslim name and raised a Muslim

Well, actually, no. He was "born" with NO religion. His name is not Muslim, but Arabic. Whether he was "raised" a Muslim is debatable.

But, in any case, all of that has NOTHING to do with whether he is a natural born American.

There are millions of Americans who are Muslim.

Why conflate the irrelevant with your belief that he was not born in Hawaii to an American mother? It just makes you look like (as you said) a religious bigot.

Advance Indiana said...

Ellen, a black African doesn't give an Arabic name to their child unless they are Muslim. Barry's father, grandfather and adopted father were all Muslims. Under Islam, a child is born with the religion of his father, just like a Jew is born with the religion of the child's mother. Barry admits he attended mosque with his adopted father in Indonesia, and he was enrolled in schools where he had access to Islamic teachings and a mosque at which the children could play. I'm not conflating anything. The people need to know the facts about who the man is who holds the most important elected office in this country. How many times are we told that a child is a reflection of the values he is taught or not taught by his family? Knowing who the real Obama is explains so much of why he is pursuing the policies he is as president whether you choose to believe that or not.

Robert said...

I LOVES me some birthers!!

Just curious why the distinguished law professor quotes Minor but fails to even metion Perkins v. Elg, and Wong which clarified the issue of who is and who is not a Natural Born Citizen?

Advance Indiana said...

Native born and natural born citizens are not synonymous terms, Robert. You're probably one of those folks who think the 14th Amendment, which doesn't even use the term "natural born citizen", resolves the issue. Any historical interpretation of the term favors the view that a person born with dual citizenship as Obama was could never be considered a natural born citizen.

Robert said...

I have never seen a credible argument that "Native Born" is not the same as "Natural Born." I think it fairly obvious that there are only two classes of citizens, 1-Natural Born and 2- Naturalized.

As far as your reading of history, I will stick to Supreme Court cases. See Perkins v. Elg- which upheld a lower court ruling that clearly and concisely laid out that the US follows English Common Law- "jus soli," not "jus sanguinus."

Advance Indiana said...

Robert, There has never been a federal court decision that has decided the meaning of "natural born citizen" as that term is used in the Constitution. It is used but one place--the eligibility clause for president. None of the cases you or others cite had anything to do with what an NBC is within the meaning of that single constitutional provision. Native born would include anyone born on U.S. soil; natural born only includes those born to U.S. citizen parents over whom the U.S. has sole jurisdiction. Native born citizens can be dual citizens; therefore, they are not capable of being natural born citizens. Obama could have moved to Kenya with his father or any other British commonwealth and taken up residency there as a British citizen. This is something NBCs are not capable of doing without acquiring naturalized citizenship to another country.

Robert said...

I'm not sure why you would say such a thing, Indiana. Perkins v. Elg clearly stated that a child born in the US of alien parentage is a citizen, and in the case declared that Ms. Elg is a "Natural Born Citizen."

Advance Indiana said...

Again, Robert, NBC as used in the Constitution was never the issue in that case. It has no precdential value at all in this discussion. What matters is what the framers intended by the inclusion of those words. Contemporary discussions at the time point strongly to the belief that the framers meant it applied only to children born of U.S citizen parents. Further, Congressman Bingham, the author of the 14th Amendment, confirmed this same understanding of the term during the debates over its adoption.