Wednesday, November 26, 2008

Another View Of The Meaning Of Natural Born: Obama Fails The Requirement

P.A. Madison examines over at the Federalist Blog the question of what the phrase "natural-born citizen" means under Article 2, Section 1 of the U.S. Constitution, a requirement a person must satisfy in order to serve as president of the United States. His conclusion is not going to be comforting to the former University of Chicago Senior Lecturer on constitutional law. Madison concludes:

Therefore, we can say with confidence that a natural-born citizen of the United States means those persons born whose father the United States already has an established jurisdiction over, i.e., born to father’s who are themselves citizens of the United States. A person who had been born under a double allegiance cannot be said to be a natural-born citizen of the United States because such status is not recognized (only in fiction of law). A child born to an American mother and alien father could be said to be a citizen of the United States by some affirmative act of law but never entitled to be a natural-born citizen because through laws of nature the child inherits the condition of their father.

There you have it. Barack Obama, Sr. was undeniably a Kenyan citizen. The fact that the President-elect's mother was a U.S. citizen makes him a U.S. citizen by virtue of law enacted by Congress; however, Obama could only inherit natural-born status from his father. A person born under a double allegiance, as Obama himself acknowledges he was until he reached the age of 21, cannot be a natural-born citizen.

Everyone agrees that Gov. Arnold Schwarzenegger can never be president because he became a U.S. citizen through naturalization, an affirmative act of law. Similarly, because Obama was not born the son of a U.S. citizen, he cannot be our president according to Madison's analysis. The U.S. Supreme Court must act and enforce our Constitution. I don't care what the result of the November election was. We are a nation of laws, not of men. If the rule of law is not enforced, then our Constitution will cease to have the respect and primacy it is entitled to have under our constitutional form of governance. Perhaps our Supreme Court will interpret the "natural-born citizen" requirement differently than P.A. Madison and others. Nonetheless, it is a question that must be answered. It's just too important to ignore. Obama can keep hiding his original birth certificate from us as long as he wants. Under this interpretation, it is irrelevant because his father was a Kenyan.


pickett168 said...

And the basis for this bizarre interpretation of the law...? Like most conservatives, I believe that the United States Constitution says what it means and means what it says. Since the constitution is otherwise silent on the definition, the most obvious interpretation of a "natural born citizen" is a person who is a citizen by virtue of their birth in the United States.

But I guess I shouldn't bring up the facts. It's clear that your mind is made up already without them.

Gary R. Welsh said...

"Bizarre?" Like you would know because there has actually been a challenge and a previous court decision on the subject? I think not. It's open to interpretation. I'm not satisfied that he's qualified. He's lied and cheated on so many levels throughout his political career that I frankly am not inclined to give him the benefit of the doubt.

jbargeusa said...

This is a weak argument.
If Obama was born on US soil (or to parents serving overseas in the US military - see John McCain), he is a "natural born" US citizen and eligble to be the President. Period. Regardless of who his parents are.
It is my belief that this precedent has been set in stone, and for quite a long time in US history and law.
The only hope for the right wingers is that Obama was born in Kenya, as alleged, and they registered him in Hawaii after the fact.
Now that would be an earthquake!
As for Rep. John A. Bingham's opinion, quoted in the link, that "natural born" includes the nationality of the father, that outdated and sexist view is fine for the 19th century congressman to hold, but it holds no great standing in a court of law.
You can find many different opinions by various worthies and not one of them is worth a dime legally speaking.
Another dry hole.

Gary R. Welsh said...

Being born on U.S. soil makes you a citizen as a result of an affirmative act of Congress. The Immigration and Naturalization Act has nothing to do with the natural born requirement found in Article 2, Section 1 of the Constitution. It has always had a separate and distinct meaning. Under your scenario, a client of mine who was born in San Diego to Saudi parents while they were here on business but immediately returned to Saudi Arabia where she was raised as a Saudi citizen and later returned to the U.S. at the age of 29 would be eligible to be president. That is a complete absurdity and would totally undermine the purpose behind the requirement--to prevent foreign influence over the election of our presidents.

IndyPaul said...

Yes, bizarre. The writer of this piece, Madison, makes numerous faulty or overly simplistic generalizations. His main source of this interesting interpretation is an argument he says the principal framer of the fourteeth amendment, Rep. Bingham, made to Congress relating to the status of one's parents. Bingham, however, did not write the first sentence of the amendment, in which citizenship is clearly defined as "All persons born or naturalized in the United States, and subject to the jurisdiction thereof". The status of the parents (unless they are foreign diplomats) is not relevent. The Supreme Court has ruled, in United States v. Wong Kim Ark, 169 U.S. 649 (1898), that children of Chinese citizens born in the US were citizens. It is not "open to interpretation" - Madison's argument was rejected by the Supreme Court 110 years ago.

IndyPaul said...

Incidentally, Chester Arthur's father was born in Ireland, and initially migrated to Quebec. There has long been speculation that Arthur was actually born in Canada, and this was raised during the 1880 election, but could not be proved, and no proof (or disproof) has emerged since. Regardless, his father was a Canadian, which apparently caused no concern whatsoever.

Bluegrass Pundit said...

Here is a video that explains why some people think Obama's posted COLB is a fraud.

jbargeusa said...

Interesting point. If Obama had been spirited away to Kenya as an infant then perhaps this would be germane. So you have to be both a "citizen" and you have to be "natural born" and thus you are eligible to be President. Again, the precedent in court has nothing to do wtih the status of the parents.

Gary R. Welsh said...

IndyPaul, again, the qualifications clause in the U.S. Constitution for president has nothing to do with the citizenship clause in the 14th Amendment.

M Theory said...

Reverend Manning: "I'm gonna make that long legged Mac Daddy tell me where he was born!".

Here's the video:

Gary R. Welsh said...

Arthur's father was actually born in Ireland. He immigrated to Canada and then the U.S. where he became a U.S. citizen. Obama's father never became a U.S. citizen. If you check out Arthur's biographical information, you will also learn that he was conflicted over the year of his birth. By some accounts, he was born in 1829, while by other accounts he was born in 1830. There is a real possibility he hid his birth in Canada and lied to the American people. Remember, he was first elected VP and then became President when Garfield was assassinated. If he had run for president straight up, this issue may have been resolved. In those days, the President and VP was picked at their respective nominating conventions in smoke-filled, backrooms and the people had virtually no role in the process.

Anonymous said...

Eight years of Bush and only NOW are people like you worried about the "constitution being weakened", just because a candidate you don't like is about to take office.

Phil Berg is an idiot, whoever came up with that idiocy that the Constitution doesn't mean what it says is a liar.

Barack Obama was born in a US state, in US jurisdiction, and raised by a mother that has US citizenship, he's even had a social security number since birth.

So, you're saying that the Republicans can run Bobby Jindal in 2012 (they plan to I promise you), and Barack Obama can't be president?

This is just sheer partisan lunacy.

Anonymous said...

Oh, and you're wrong, and even if we lived in an alternate universe where you were right, you'd still be wrong.

But giving you the benefit of the extremely large doubt, and the Supreme Court ruled against the Obama presidency, the Electoral College would just cast their Presidential ballots for Joe Biden, and their Vice Presidential ballots, most likely for someone he picked in the last week before the College met.

So it's not like they'd just install John McCain against the will of the voters or have a re-vote or whatever you were hoping for.....

Anonymous said...

IndyPaul: Why all the attention on what Rep. Bingham said and not Sen. Howard, hmmmm? Absolutely the 14th amendment controls the interpretation of natural born citizen because it removes the possibility of dual allegiance being created from birth. If everyone is a natural born citizen due to birth alone then you are going to have millions of dual allegiances created. Joint declaration of Congress in 1874 made it impossible for courts to say you can be a citizen and have multiple allegiances at the same time. Heck, Congress shot down the Wong Kim Ark ruling in 1868 with their Expatriation Act. With the many documented errors found in Wong Kim Ark, it will be very difficult for any honest justice not to discard it.

Downtown Indy said...

What I can't get past is, if Obama believed his citizenship is valid then why not address the matter forthright and square-on? It then would have NEVER been an issue, had he immediately and proudly displayed that birth certificate he found tucked away in a book.

I less than a day, he could have permanently and completely put the question to rest.

But he didn't. Now I wonder if he's going to be just as stubbornly resistant to simple solutions to simple problems for the next four years.

Is his agenda goint to be one of making progress, or is it goin to be a test of wills with those who dare to question him on even the most basic things?

"Because I said so" as an explanation is especially disconcerting to me if it comes out of the highest office in the land.

IndyPaul said...

Mr. Madison's argument is to the contrary: "The adoption of the Fourteenth Amendment obviously affects how we view natural-born citizens because for the first time there is a national rule of who may by birth be a citizen of the United States." That rule states that those born in the US are citizens, and the Supreme Court confimed this in its 1898 decision. Your argument is that historical usage indicated that only if the father was a citizen could the child be born a citizen, or a natural born citizen. If true prior to the adoption of the 14th Amendment and the S.Ct. decision in 1898, it was no longer the case thereafter.

The reason that the date of Chester's birth is an issue is because his father originally immigrated from Ireland to Canada, and only move across the border into the US between 1829 and 1830. It is unlikely that his father became a citizen in such a short span of time, and I am aware of no documentation that he did.

Happy Thanksgiving!

Gary R. Welsh said...

How would the Almighty know that Obama has held a social security number since birth? He didn't get a U.S. passport until he became a U.S. Senator according to some accounts. What country's passport did he travel to Pakistan on back in the 1980s. Well, an Indonesian passport, of course. That's where he was a citizen. IndyPaul, in those days there was such a thing as "landed immigrants." Arthur's father would not have had to undergo a naturalization process like we have today. He simply had to land here and declare his intent to become a U.S. citizen.

jbargeusa said...

Fascinating stuff.
As near as I can see, the argument is that you can't be a "natural born" citizen if your parents are not American citizens.
The theory is that if your parents are, for example, Saudi citizens living here during your birth, they simply spirit you back to the "homeland".
Thus you are not a natural born US citizen - you are a Saudi citizen, though apparently not a "natural born" one.
Fair enough.
But what if your parents are genuine immigrants who live out the rest of their lives in the US? They immigrated from Iceland, for example, but never became naturalized citizens.
You are born here, and end up settling and living out your adult life here. Are you a natural born US citizen?
In my humble, but constitutionally protected opinion, yes you are, unless you take official action to negate to forsake that.
After all, you are not a citizen of Iceland. You are a citizen of the USA and you are "natural born".
But apparently Advance Indiana and others disagree. Fair enough.
Now what about the Barack Obama situation?
We have the Kenyan father, an immigrant and a temporary one at that.
That does raise the specter of example number one.
But then we slam into the American citizen mother.
In today's day and age, unlike the 18th century, men and women, and mothers and fathers, have equal legal status.
If an individual is born to an American (& US citizen) mother on US soil, is he a "natural born" citizen, even if the father is a citizen of another country?
It is my belief that the US citizenship of the American mother is sufficient to ensure this.
Indeed, in mulling it over, the 9 month in utero and the fact that a father could theoritically be absent after conception, would lend weight to the importance of the mother in determining nationality - though I suppose that would not be an obvious legal argument.
And the mother's role practically cries out "natural born".
So Barack Obama is a "natural born" US citizen, equal to all other citizens who have 2 US citizen parents (instead of only one) in all legal rights and thus eligible to be President.
For me that settles the argument.
As for the Indonesion citizenship, the passport issue, the Kenya dual citizenship issues, all of these will have to wait for another day.

IndyPaul said...

For Redneck: the video must be dated, as these claims of forgery have been debunked. For a point by point reftation, see:

Almighty makes a good point. If Obama were disqualified by virtue of birth to a non-citizen father, then Jindal, born of two non-citizen parents, is certainly disqualified as well. Yet he is consistently mentioned as a contender for the 2012 nomination, and there has been no mention of any disqualification. This is, of course, because the common meaning of 'natural born citizen', one born in the US, is widely accepted to be the meaning of that qualification.

Downtown, Obama addressed this matter forthrightly when he released his COLB. To go further would only indicate that he is effected by non-sensical arguments and fantastic idealogues.

Bandit, Wong Kim Ark was decided in 1898, so it overturned any contrary laws passed in 1868 and 1874, not vice versa. It is settled law from the highest court in the land, and has stood for 110 years. It would be very difficult for any sensible justice to overturn.

AI: Obama would not have qualified for an Indonesian passport in 1991, as (even assuming he was ever an Indonesian citizen) he had not resided in that country for over five years (as of the early 70s) and had no intent to return.

A landed immigrant at common law was considered a permanent resident, but not a citizen. Chester Arthur's father would have had to been naturalized, a process he was unlikely to have undertaken within the period of less than a year between the family's move from Canada and the birth of the future president, Chester Arthur. The Democrats raised the possibility that Arthur was born in Canada, but there was no mention or apparent concern about the fact that his father was Canadian.

IndyPaul said...

Here is the direct rebuttal of the "findings" of "Dr. Polirak":

Gary R. Welsh said...

The mother's whereabouts at the time of Obama's birth are a bit of a mystery as well. We are led to believe that she met and married Obama's father at the University of Hawaii. Yet, University of Washington school records show she was enrolled as a student there immediately after Obama's birth and for the next year. A friend in Washington gives an account of having to teach Obama's mother how to change his diaper during a visit at her home in Washington state a few weeks after his birth. This is the same mother who married an Indonesian citizen and immigrated to that country with him and allowed her son to take his last name. IndyPaul, Obama would have obtained the passport while he was still living in Indonesia as an Indonesian citizen. His passport may have still been valid if he had been considered a student studying abroad.

IndyPaul said...

I understand that she visited Washington, where her parents still lived, after Barack, Jr. was born, perhaps on her way to visit his father at Harvard. She returned to Washington after the visit, and her folks attempted to have her enrolled there, but she returned to Hawaii instead. I don't see the significance of any of that to the question of natural born citizenship.

Obama only lived in Indonesia until he was 10. You base your asumption that he was a citizen there to begin with upon an elementary school application, pretty tenuous. Even assuming he had, as a child, Indonesian citizenship, once he had no longer been a resident for five years that would have expired, absent an expressed intention to return. Again, this is not relevent to whether or not he is a natural born US citizen. His US citizenship would have remained, as he never renunciated it.

Gary R. Welsh said...

I think you have it backwards, IndyPaul. Dunham's parents moved to Hawaii with their teen-age daughter before she met Obama, Sr. According to her Wiki entry:

In 1960, after she graduated from high school, the Dunham family moved to Hawaiʻi to pursue further business opportunities in the new state, and she enrolled at the University of Hawaiʻi at Mānoa. She met Barack Obama, Sr., a student from Nyang’oma Kogelo in Kenya and the school's first African student, in a Russian language class at the University.[4] She married him on February 2, 1961 in Maui, Hawaiʻi despite some parental opposition to the marriage from both sides.[13][5] Obama Sr.'s other wife, Kezia, granted her consent for him to marry a second wife, in keeping with tribal custom,[14] though Ann would not find out that her new husband was already married until later.[15] Ann was three months pregnant at the time of her marriage.[5][16]

On August 4, 1961, at age 18, she gave birth to her first child, in Honolulu, named Barack Obama II.[17] Later that month, she visited old friends in Washington state with her new baby.[18][19][20][21][22]

Dunham left school to care for the baby, while Obama Sr. completed his degree. He graduated from the University of Hawaiʻi in June 1962 and was offered a scholarship to study in New York City[23] with which he could have supported his family, but he declined it preferring to attend the more prestigious Harvard University.[13] He left for Cambridge, Massachusetts, where he would begin graduate study at Harvard in the fall.[15]

Mother and son returned to Seattle, where she enrolled in the University of Washington either before[15] or after[21] her husband left Hawaiʻi. Subsequently, Dunham moved back to Hawaiʻi[21] and filed for divorce in Honolulu in January 1964. Obama Sr. did not contest, and the divorce was granted.[16] Obama Sr. received a Masters degree (MA) in economics from Harvard in 1965[24] and only saw his son again once, in 1971, when Barack was 10 years old.

The Wiki entry gets it wrong on the timing of her Washington college attendance. School records there confirm she was a student in the fall of 1960.

Brenda said...

Why is it that the Ambassador in Kenya and Grandma Sara in Kenya both say (because I have heard the audio) that Obama was born in Kenya? If Lolo Soetoro adopted him in Indonesia, he would be an Indonesian citizen and his name would not even be Barack Obama. He has gone by many different names. If he doesn't have something to hide, why doesn't he just show his birth certificate (not the forged one) or his admission records to Columbia, Occidental, or Harvard? It would be so easy. Obama has lied for so long about everything he wouldn't know the truth if it bit him in his backside. Obama wouldn't be able to be in the FBI or the Secret Service just because of the people he as associated with, but he can be POTUS. It doesn't make sense. I hope that everyone that voted for him wanting "change" doesn't get the "change" that Hitler gave his people. Happy Thanksgiving and hope you have a Merry Christmas because I understand Obama does not celebrate Christmas so I wonder if he will announce Jesus wasn't born.....and the little sheep will follow the Annointed One.bkw

IndyPaul said...

I stand corrected, AI. It has no bearing on the fact that Obama is a 'natural born citizen', though.

Brenda - the forgery claim has been disprooved. Please read the previous posts. Obama is a Christian, and celebrates Christmas. He did say that they (Mom & Dad) don't give Christmas presents to their kids to teach limits, and because gift giving has more ties to pagen traditions than Christian, but according to Michelle: “Malia says, ‘I know there is a Santa because there’s no way you’d buy me all that stuff.’ (wink). This is merely a cute way the family is protecting their child's innocent belief in Santa Claus. Your bitterness no this issue is misplaced.

IndyPaul said...

James Buchanan's father was a Scotch-Irish immigrant, yet there were no questions raised as to his qualification for the presidency, having been born in the United States. He was elected in 1856, at a time when at least some of the founders were still alive. Madison's is a fringe theory, without any real basis in fact.

Unknown said...

Get hip folks.

Donofrio has since researched Chester A. Arthur's case and learned that his father was not a U.S. citizen at the time of the future president's birth. CAA was born in Vermont in 1829. I have a copy of CAA's father's naturalization document recorded in Washington County, New York, which shows he became a U.S. citizen in 1843. CAA was a British subject at birth, same as Obama was. The difference is, CAA managed to hide this from public knowledge until last week, while Obama openly admits this condition.

So a ruling that Obama is not qualified for POTUS due to his father's foreign citizenship will necessarily implicate the Arthur presidency.

FWIW, CAA caused the majority of his presidential and personal papers (occupying four 4 foot tall barrels) to be burned a few days before he died, causing his next of kin much heartache when they finally realized the loss.

Also of note, CAA appointed Horace Gray to the Supreme Court. Justice Gray authored the 6-2 majority decision in Wong Kim Ark, which granted citizenship to one whose parents were both non-citizens. Many Obama supporters are citing the Wong Kim Ark decision as legal precedent for the proposition that the sole determining factor of whether you are a natural born citizen is whether you were born on U.S. soil or not. If this argument ends up holding sway, don't look for CAA or Horace Gray to be turning over in their graves anytime soon.