Obama Presidential Eligibility – An Introductory Primer
http://people.mags.net/tonchen/birthers.htm ^ | 06/05/2009 | Stephen Tonchen
Posted on Friday, June 19, 2009 8:16:14 PM by BuckeyeTexan
Obama Presidential Eligibility – An Introductory Primer
Last revised: June 5, 2009
Despite the mainstream news media’s silence regarding this matter, an increasing number of Americans are concerned that Barack Obama might not be eligible, under the Constitution, to serve as President.
According to the U.S. Constitution, an individual born after 1787 cannot legally or legitimately serve as U.S. President unless he or she is a “natural born citizen” of the United States.
Among members of Congress and the mainstream news media, the consensus of opinion is that anyone born in the United States is a “natural born citizen”. However, when we researched this issue a bit more carefully, we found that the consensus opinion is not consistent with American history.
In Minor v. Happersett (1874), the Supreme Court said that, if you were born in the United States and both of your parents were U.S. citizens at the time of your birth, you are, without doubt, a natural born citizen. In the same case, the Supreme Court also said that, if you were born in the United States and one of your parents was not a U.S. citizen when you were born, your natural born citizenship is in doubt. So far, the Supreme Court has not resolved this doubt because, until now, there has never been any need to do so.
With only two exceptions, every American President, who was born after 1787, was born in the United States, to parents who were both U.S. citizens. The two exceptions were Chester Arthur and Barack Obama. When Chester Arthur ran for office, the public did not know about his eligibility problem. Only recently did historians learn that, when Arthur was born, his father was not a U.S. citizen. The 2008 election was the first time in history that the United States knowingly elected a President who was born after 1787 and whose parents were not both U.S. citizens.
Barack Obama publicly admits that his father was not a U.S. citizen. According to Minor v. Happersett, there is unresolved doubt as to whether the child of a non-citizen parent is a natural born citizen. This doubt is not based on the imaginings of some tin-foil-hat-wearing conspiracy theorists on the lunatic fringe of society. This doubt comes from what the Supreme Court has actually said, as well as a variety of other historical and legal sources which are presented and discussed here.
This Primer introduces and explains the Obama Eligibility Controversy, in question-and-answer format, for a non-technical general audience. We’ve double-checked the facts presented here, and we’ve cited the sources of each fact.
Questions and Answers
1. What is a “birther”?
1. What is a “birther”?
News commentators and Internet bloggers invented the word “birther” as a term of derision and contempt towards people who question Barack Obama’s presidential eligibility. Ironically, many birthers accepted the label and adopted it as their own. See, for example, The Birthers Web Site.
In this paper, “birther” does not refer to any particular group or organization. Rather, it refers respectfully to people who think Barack Obama is not eligible to serve as U.S. President.
2. What are the eligibility requirements for President?
Article II, Section 1, Clause 5 of the Constitution states:
This means that, in modern times, you cannot legally or legitimately serve as President of the United States, unless you are:
Regarding the third requirement (“natural born citizen”), the Constitution made a special exception for people who were citizens when the Constitution was adopted. Such people did not need to be natural born citizens. Their pre-Constitution citizenship, by itself, was sufficient to meet the third requirement.
Today, this special exception is no longer applicable. No one alive today was a citizen when the Constitution was adopted. In modern times, if you wish to be President, it is not enough to be a U.S. citizen. You must be a natural born citizen in order to be “eligible to the Office of President”.
3. Why do birthers think Barack Obama is not eligible to be President?
Birthers believe Barack Obama is not a natural born citizen and, for that reason alone, he is not eligible to serve as President. They say that, in order to be a natural born citizen, you must meet two requirements:
According to birthers, it does not matter how your parents became U.S. citizens. They could have acquired citizenship at birth. They could have been immigrants who became citizens through naturalization. At one time in American history, a woman’s citizenship was that of her husband. A woman became a U.S. citizen automatically when she married a man who was already a U.S. citizen. For you to be a natural born citizen, your parents had to be citizens at the time of your birth, but they did not have to be natural born citizens.
There is some question as to whether President Obama meets the first requirement. Unsubstantiated rumors suggest he might have been born in Kenya (Affidavit of Reverend Kweli Shuhubia, Affidavit of Bishop Ron McRae, and Interview with Kenyan Ambassador).
But far more importantly, Obama publicly admits he does not meet the second requirement. His father was a British subject who never became a U.S. citizen. (FactCheck.org: Does Barack Obama have Kenyan citizenship?)
At the time of this writing, to the best of our knowledge and belief, Barack Obama has referred to himself as a native born citizen but has never publicly claimed to be a “natural born citizen”.
4. How is “natural born citizen” defined?
4.1 “Natural born citizen” is not defined in the Constitution or in any existing Federal law
The U.S. Constitution, and the Naturalization Acts of Massachusetts (1776-1790), use the term “natural born citizen” but do not define it.
So far, Congress has not passed any law that defines “natural born citizen”. In 1790, Congress passed the Naturalization Act of 1790, which extended the meaning of “natural born citizen” to include the foreign-born children of U.S.-citizen parents:
Five years later, Congress repealed the 1790 Act and replaced it with the Naturalization Act of 1795. The wording of the 1795 Act was essentially the same as the 1790 Act, except that the term “natural born citizens” was deleted and replaced with “citizens”.
Thereafter, Congress has passed laws that convey American citizenship to certain people at birth, but Congress never again passed any law that explicitly clarified, defined or extended the meaning of natural born citizenship. Senate Bill S.2128 was supposed to define “natural born citizen”, but it was never enacted. The bill was referred to the Judiciary Committee in 2004, where it has remained ever since. In 2008, the Senate passed Resolution 511 regarding Presidential candidate John McCain’s natural born citizenship, but the resolution was nonbinding and had no legal effect.
4.2 A similar term, “natural-born Subject”, appeared in British Common Law
In 1736, Matthew Bacon defined “natural-born Subject” as:
The “parental obedience” requirement does not appear in later definitions of “natural-born Subject”.
In 1765, William Blackstone defined “natural-born Subject” as anyone born in British territory, regardless of the parents’ allegiance or citizenship. A child born in England, for example, was a natural-born subject, even if the child’s parents were aliens:
Sir Alexander Cockburn, Lord Chief Justice of England, leaves little doubt that, under British Common Law, a “natural-born Subject” was someone born in British territory, regardless of parental nationality:
When the Constitution was written, British natural-born Subject status was determined by birthplace alone. If you were born in British territory, you were automatically a British natural-born Subject. The nationality or citizenship of your parents didn’t matter.
But did the same principle also apply to natural born citizen? If natural born Subject status was determined by birthplace alone, was natural born citizen status also determined by birthplace alone, without regard to parental citizenship?
4.3 “Natural born citizen” appeared in English-language Literature
In 1774, Patsall translated Institutio Oratoria from Latin to English. Patsall’s work might be the earliest English-language writing in which the term natural born citizen appears (What is a Natural Born Citizen of the United States?).
Institutio Oratoria is a twelve-volume classic written by Marcus Fabius Quintilianus during the first century AD. It contains this Latin sentence:
Patsall translated this sentence as:
Other English translations of Institutio Oratoria, such as Guthrie’s translation in 1756, use “native” instead of “natural born citizen”.
In Patsall’s work, natural born citizen is an English rendering of alumnum urbis.
Thus alumnum urbis — the “natives” or “natural born citizens” of a city — are those who were not merely born in the city, but were raised or parented by the city — specifically, by residents or citizens of the city.
In 1797, an English translation of Emmerich de Vattel’s Law of Nations gave this definition of “natural born citizen”:
In both Patsall and Vattel, “natural born citizen” meant much more than someone who was born in a particular place. Parentage, upbringing and education also contributed to the meaning of “natural born citizen”.
4.4 “Natural born citizen” appeared in Supreme Court decisions
In 1874, the U.S. Supreme Court affirmed Vattel’s definition of “natural born citizen”:
The Supreme Court said, in effect:
In 1898, in the Wong Kim Ark case, the Supreme Court reexamined the “citizenship-by-birthplace-alone” theory, but did not decide whether it applied to natural born citizenship. The Court ruled that Mr. Ark was a citizen, but did not rule that he was a natural born citizen (SCOTUS in ‘Wong Kim Ark’).
To summarize, we know for sure that persons born in the U.S., of parents who are U.S. citizens, are definitely, without doubt, natural born citizens. So far, the Supreme Court has not decided whether natural born citizenship also includes U.S.-born children of non-citizen parents.
5. In a nutshell, what is the Obama eligibility controversy?
The following information comes directly from Barack Obama’s website:
The main controversy boils down to this one question:
Obama apologists say “Yes”. They believe there are only two kinds of American citizens: naturalized and natural born. A naturalized citizen is someone who becomes a citizen after his or her birth, through a legal process called “naturalization”. A natural born citizen is anyone who is a U.S. citizen at birth. Since President Obama was born in the United States and was consequently a U.S. citizen at the time of his birth, he is a natural born citizen, regardless of his parents’ citizenship.
Birthers say “No”. They believe that, when the Constitution was written, a “natural born citizen” was someone who was born in the United States and whose parents were both U.S. citizens at the time of his or her birth. You cannot be a Constitutional natural born citizen unless both of your parents were U.S. citizens when you were born. If you are not a Constitutional natural born citizen, you are not eligible to serve as President.
Thus we have two opposing viewpoints regarding the meaning of “natural born citizen”. Which one is correct? So far, the Supreme Court has not answered this question because, until now, there was no reason to. Now, the Supreme Court needs to do its job and answer the question.
6. Does the birthers’ viewpoint have any historical or legal merit?
Birthers believe that, in order to be a natural born citizen, you must be born in the United States and both of your parents, at the time of your birth, must be U.S. citizens. The birthers support their viewpoint with the following information:
These sources do not prove the birthers’ case. But they show that birthers have a rational basis for requesting a public inquiry into Barack Obama’s presidential eligibility.
7. What was the original purpose of the presidential “natural born citizen” requirement?
The presidential natural born citizenship requirement originated with John Jay, who recommended it in a letter to George Washington. The letter said:
John Jay believed, and the Founding Fathers agreed, that anyone who is subject to foreign influence should be barred from the presidency. St. George Tucker (1752-1827) explained why:
The Founding Fathers undoubtedly understood that natural born citizenship is acquired only at birth. Thus the presidential natural born citizenship provision was limited in scope. It could not protect the presidency from all possible forms of foreign intrusion. It could not exclude, from the presidency, people who had developed foreign sympathies or allegiances after their birth. At most, it could only bar, from the presidency, persons who were subject to foreign influence at birth — specifically, persons who were foreign citizens at birth or were, at birth, subject to the laws of a foreign country.
When the Constitution was written, there were only two ways that a child could acquire foreign citizenship at birth or fall under foreign legal jurisdiction at birth:
At the time, the United States did not recognize dual citizenship. No one could become a U.S. citizen without completely renouncing all foreign allegiance.
Therefore, in 1787, if you were born in the United States and your parents were U.S. citizens at the time of your birth, you were, without doubt, completely free of foreign influence at birth — you were, without doubt, not a foreign citizen at birth and not subject to foreign legal jurisdiction at birth. On the other hand, if you were born outside of the United States or your parents were not U.S. citizens when you were born, you might have been, at birth, subject to foreign legal jurisdiction to some extent.
Thus the Founding Fathers undoubtedly understood that, in order for the presidential natural born citizen provision to be effective, the term “natural born citizen” had to mean “U.S.-born of U.S.-citizen parents”. Otherwise, the provision would not work in all cases. It would occasionally allow, into the Office of President, individuals who were foreign citizens at birth or subject to foreign legal jurisdiction at birth — the very kind of situation that the Founding Fathers had undoubtedly hoped to prevent, given their abhorrence of foreign influence in general.
8. What is the difference between a “Constitutional” and a “statutory” natural born citizen?
“Constitutional natural born citizen” refers to the term “natural born citizen” when it appears in the Constitution or in a Constitution-related document such as a Supreme Court decision. It refers to the meaning of “natural born citizen” in the Constitution, whatever the Supreme Court ultimately decides such meaning to be.
“Statutory natural born citizen” refers to someone who is deemed a “natural born citizen” as a result of a Federal or State law.
Currently, there is no Federal law that explicitly defines “natural born citizen” or explicitly conveys “natural born citizenship” to anyone. However, existing laws are sometimes understood or interpreted as conveying natural born citizenship to certain individuals at birth. At this point, we do not pass judgment on these understandings and interpretations. We merely say that, if someone is deemed to be a “natural born citizen” pursuant to a law or statute, we refer to such person as a “statutory natural born citizen”.
A statutory natural born citizen is not necessarily the same thing as a Constitutional natural born citizen. The U.S. State Department warns against confusing the two concepts:
If we were to define “natural born citizen” to mean anyone who is a “citizen at birth”, our definition of “natural born citizen” would be statutory because it would depend on the statute or law which defines “citizen at birth”. Under existing law, all children born in the United States (except the children of foreign diplomats) are “citizens at birth”. Therefore, under existing law, almost all children born in the U.S. — including children of illegal immigrants — could be regarded as statutory natural born citizens.
However, H.R.1940, also known as the Birthright Citizenship Act of 2007, would change the existing law so that it would no longer grant “citizenship at birth” to children of illegal immigrants. If Congress were to pass H.R.1940, it would alter the meaning of “citizen at birth”, and therefore would alter our statutory definition of natural born citizen. If H.R.1940 were enacted, the U.S.-born children of illegal immigrants could no longer be regarded as statutory natural born citizens.
9. Wouldn’t the most recent modern-day statutory meaning of “natural born citizen” take precedence over the original Constitutional meaning?
Not necessarily. The only proper and legitimate means of changing the Constitution is the Constitutional Amendment process. Congress cannot change the Constitution by simply passing a law. Nor can the Constitution be changed by someone’s understanding or interpretation of an existing law.
Neither Congress nor society can change the meaning of the Constitution by redefining a word or term that the Constitution uses. As the U.S. State Department has warned (see question 8), we cannot assume that “natural born citizen” by modern-day statute or modern-day word usage is the same thing as “natural born citizen” in the Constitution.
10. If Obama is not a “Constitutional natural born citizen”, so what? Why should anyone care?
Understandably, some Americans question the wisdom of “enforcing the law” and “upholding the Constitution” when the specific requirement being upheld or enforced seems to be an antiquated technicality. As long as Barack Obama is doing his job as President, why should his parents’ citizenship matter? Obama was elected President, not his parents. His parents passed away many years ago, so how is their citizenship relevant? Is enforcing a parental citizenship requirement really worth the horrific political chaos and unimaginable governmental disruption that might result if Obama were found to be ineligible?
Birthers respond in this way… If the Constitution contains something that is no longer appropriate for modern-day society, the proper remedy is a Constitutional Amendment. If we want to be a nation that is ruled by law and the Constitution, we cannot just ignore a Constitutional requirement, merely because it is inconvenient or we think it doesn’t matter. If any one part of the Constitution doesn’t matter, why would any other part of the Constitution matter?
Many of our rights — free speech, freedom of religion, privacy, trial by jury, and so on — come from the Constitution. If we say it’s OK to ignore the Constitution regarding Obama’s eligibility, we open the door for someone else to say it’s OK to ignore the Constitution regarding issues which may directly affect our rights as citizens.
11. Why has every birther lawsuit been dismissed?
So far, every lawsuit challenging Obama’s presidential eligibility has been dismissed on a technicality — lack of standing, lack of jurisdiction, mootness, etc. So far, neither the Supreme Court nor any other court has considered, in an open hearing, the actual substance or merit of any of these cases. As of this writing, no court has ruled on whether or not Barack Obama is a Constitutional natural born citizen.
12. What is a 14th Amendment natural born citizen?
Some Obama apologists argue that the 14th Amendment, adopted in 1868, had implicitly redefined “natural born citizen”. They say that, under the new definition, Barack Obama qualifies as a natural born citizen.
The 14th Amendment citizenship clause states:
The 14th Amendment was enacted at a time when citizenship was, to some extent, managed and controlled by individual states. Each state had its own citizenship laws. Anyone who became a citizen of a state immediately and automatically became a citizen of the United States.
The 14th Amendment defined a certain class of people, which we call the “14th Amendment Citizen” (14AC) class. This 14AC class consists of every person who is both (a) born or naturalized in the United States, and (b) subject to U.S. jurisdiction at the time of his or her birth or naturalization.
The 14th Amendment required every state to accept, as a citizen, anyone belonging to the 14AC class. Each state could grant or deny citizenship to non-14AC people. But the 14th Amendment prohibited any state from denying citizenship to 14AC-class members.
Even though the citizenship clause of the 14th Amendment only mentions citizens and never mentions natural born citizens, Obama apologists argue that the 14th Amendment implicitly redefined “natural born citizen” to mean anyone who meets two requirements:
The argument goes as follows: Barack Obama was born in Hawaii, which was, in 1961, a part of the United States. Therefore he met the first requirement. His mother was a U.S. citizen; and his father, though not a U.S. citizen, was nevertheless in the United States legally. Since both of his parents were subject to U.S. law, Barack Obama himself was under U.S. jurisdiction at the time of his birth. Consequently the President meets both requirements of natural born citizenship, as redefined by the 14th Amendment.
This “14th Amendment natural born citizen” argument depends heavily on the meaning of “jurisdiction”, which is discussed next.
13. In the 14th Amendment, what does “jurisdiction” mean?
During the debates over the 14th Amendment’s citizenship clause, both of its primary framers, Sen. Jacob Howard and Sen. Lyman Trumbull, made it clear that the word “jurisdiction”, as used in the 14th Amendment, means sole, complete, absolute, exclusive U.S. jurisdiction and the absence of any other jurisdiction or allegiance.
In 1884, the Supreme Court said:
Sole U.S. jurisdiction was a core requirement for 14th Amendment citizenship. The 14th Amendment granted citizenship to emancipated slaves and their descendants, because they were, and have always been, under sole U.S. jurisdiction. Native Americans were subject to tribal jurisdiction and thus were not under sole U.S. jurisdiction. That’s why the 14th Amendment did not grant citizenship to American Indians, even though virtually all American Indians were born in the United States.
For sake of argument, if the 14th Amendment had redefined “natural born citizen” to mean anyone “born in the U.S. and subject to the jurisdiction thereof” (where “jurisdiction” is understood to mean sole U.S. jurisdiction), Obama would still fail to meet the natural born citizen requirement. Here’s why…
On his web site, Obama claims that his father was a British subject and that, in 1961, the citizenship status of children of British subjects was “governed” (that’s Obama’s word) by the British Nationality Act of 1948. Thus Obama’s citizenship status, at birth, was “governed” by British law, in addition to U.S. law.
If Obama’s citizenship status at birth was “governed” by the laws of a foreign country, how could he, at birth, be subject to sole U.S. jurisdiction, which is an essential requirement for 14th Amendment citizenship?
14. Doesn’t the Wong Kim Ark decision make Obama a “natural born citizen”?
Wong Kim Ark was born in the United States sometime between 1868 and 1873. When he was born, his parents were Chinese immigrants and were permanent legal residents of the United States; but they were not U.S. citizens. In the Wong Kim Ark (1898) case, the Supreme Court ruled that Mr. Ark was a U.S. citizen, even though his parents were not.
The Wong Kim Ark case does not directly apply to Barack Obama’s presidential eligibility, for two reasons:
Obama apologists argue that the reasoning of the Wong Kim Ark decision, when carried to its logical conclusion, supports the viewpoint that natural born citizenship is determined by birthplace alone:
The Wong Kim Ark reasoning was based largely on the assumption that the “rule” of British Common Law “continued to prevail” under the Constitution. In its dissenting opinion, the minority in the Wong Kim Ark case argued that the majority’s assumption was factually incorrect. On this one point, the minority and majority disagreed, not over a matter of law, but over a matter of historical fact:
According to the Federalist Blog, the minority in the Wong Kim Ark case was correct. As matter of American history, some States retained certain aspects of British Common Law for their own purposes, but overall, British Common Law did not “continue to prevail” at the Federal level (Why U.S. v. Wong Kim Ark Can Never Be Considered Settled Birthright Law; see also discussion of Wong Kim Ark in Amicus Curiae Brief in Hamdi v. Rumsfeld).
George Mason, called the “Father of the Bill of Rights” and considered one of the “Founding Fathers” of the United States, is widely quoted as saying:
In a recent speech to the Federalist Society, Supreme Court Justice Antonin Scalia confirmed that British Common Law had little, if any, “control” in the USA after the USA gained its independence from Great Britain:
Wong Kim Ark’s circumstances, though different from Barack Obama’s, were virtually identical to those of President Chester Arthur. Mr. Ark and President Arthur were born in the United States. When each was born, his parents were permanent legal residents of the United States, but were not U.S. citizens; the parents were, in both cases, citizens of a foreign country. Under the laws in effect at the time (prior to the Wong Kim Ark decision), neither Wong Kim Ark nor Chester Arthur was a U.S. citizen at birth.
The Wong Kim Ark decision was written by Justice Horace Gray. Justice Gray was appointed to the Supreme Court by President Chester Arthur. At the time, the general public did not know that, when Chester Arthur was born, his father was a British subject and not a U.S. citizen; therefore Arthur was not a U.S. citizen at birth under then-existing laws.
In Wrotnowski v. Bysiewicz, the plaintiff (Cort Wrotnowski) argued that the Wong Kim Ark decision was not based on an impartial objective reading of history and the law, but was designed to grant U.S. citizenship retroactively to Chester Arthur, so as to legitimize Chester Arthur’s presidency and thereby legitimize Horace Gray’s own appointment to the Supreme Court (Wrotnowski supplemental brief regarding Chester Arthur).
15. Doesn’t the Julia Lynch case show that Barack Obama is a “natural born citizen”?
Julia Lynch was born in New York in 1819. At the time of her birth, her parents were not U.S. citizens — they were Irish citizens visiting the United States. Shortly after Julia’s birth, the Lynch family returned to Ireland, where Julia remained until adulthood.
In the Lynch v Clarke (1844) case, the First Circuit Court (not the U.S. Supreme Court) ruled that Julia was a U.S. citizen at birth. In the opinion of Vice-Chancellor Lewis Halsey Sandford, the judge who presided over this case, there is “no doubt” that Julia Lynch was also a natural born citizen:
An article in the New York Legal Observer elaborated:
Later in American history, the Opinion of Lincoln’s Attorney General Edward Bates (1862) and the dissenting opinion in Dred Scott v. Sandford (1856), echoed the same viewpoint — that you are a U.S. citizen (and presumably a U.S. natural born citizen as well) if you were born in the United States, regardless of your parents’ citizenship.
Birther Response: Birthers do not deny that, throughout American history, various “authorities” (judges, attorney generals, legal experts, etc.) have expressed the opinion that birth within the United States is, by itself, sufficient to convey U.S. citizenship and perhaps natural born citizenship as well.
However, throughout history, other authorities have expressed the opinion that citizenship at birth properly belongs only to children whose parents are U.S. citizens. For example:
Thus we have an ongoing debate between (a) “authorities” who believe that natural born citizenship is determined by birthplace alone, and (b) “authorities” who believe that parental citizenship is a requirement for natural born citizenship. So far, the Supreme Court has not decided the issue, one way or the other. However, in 1874, the Supreme Court said there were “doubts” regarding the citizenship status of U.S.-born children of non-citizen parents:
The Supreme Court has yet to resolve these doubts.
British Common Law: Prior to the Declaration of Independence in 1776, the thirteen colonies were under British rule and were governed by British Common Law. Under British Common Law, if you were born on British territory, you were automatically, at birth, a British natural-born Subject, even if your parents were aliens. This principle — that one’s citizenship is derived from one’s place of birth — is called jus soli (“the right of soil”):
When the thirteen colonies gained their independence and became States, they were no longer bound by the jus soli principle of British Common Law. Each State was free to enact its own birthright citizenship laws. When a state enacted its own laws, such laws replaced the citizenship provisions of British Common Law in that particular state.
For example, Virginia enacted this law, written by Thomas Jefferson in 1779:
The Virginia law made citizenship available to all white people who were born in Virginia. If you were born in Virginia and you were not already a citizen, you could, in adulthood, become a citizen by taking an oath. But the Virginia law did not grant immediate and automatic citizenship, at birth, to every white baby born in Virginia. Under Virginia law, automatic citizenship at birth was controlled by the principle of jus sanguinis (“the right of blood”), whereby the citizenship of a child, at the moment of its birth, is the citizenship of its parents. (What ‘Subject to the Jurisdiction Thereof’ Really Means)
New York State law: New York State made a choice to retain the jus soli principle of British Common Law. Anyone born in New York was, at birth, automatically a citizen of New York, regardless of parental citizenship.
The Lynch v. Clarke (1844) case, and other cases such as Munro vs. Merchant (1858), were decided in accordance with British Common Law, not because British Common Law was the national law of the United States, but because it was the applicable State law in New York State. Under New York State law, Julia Lynch was a citizen at birth and therefore she was deemed to be a statutory natural born citizen.
Her natural born citizenship was “statutory” because it depended on the State law that was in effect in the State in which she was born. Had she been born in Virginia instead of New York State, she would not have been a U.S. citizen at birth, and she would not have been a statutory natural born citizen.
The fact that Julia Lynch was deemed to be a statutory natural born citizen in New York State does not necessarily mean that she was a Constitutional natural born citizen (see Question 8), especially since the Supreme Court has, so far, not decided whether Constitutional natural born citizenship extends to children of non-citizen parents.
16. Could “natural born citizen” be based on the British Common Law principle of jus soli?
Not likely, for two reasons:
First, if the British Common Law principle of jus soli (citizenship by birthplace alone) had been adopted at the national level, what would have been the point of granting each state the right to enact its own birthright citizenship laws?
After the Constitution was adopted, every State had the right to enact laws that deny citizenship at birth to some children born in that State, such as children of African or Native-American descent, and children whose parents were not U.S. citizens. How could the States have acquired or exercised such a right if the nation, as a whole, had embraced the doctrine that “everyone born in the U.S. is a U.S. citizen”? (Defining Natural Born Citizen).
Second, all States were unanimous in granting citizenship at birth to children who met both the jus soli criterion (they were born in the United States) and the jus sanguinis criterion (their parents were U.S. citizens). Some states routinely denied citizenship at birth to children who met only one of these criteria but not both.
A more inclusive definition of “natural born citizen” — which required either jus soli or jus sanguinis but not necessarily both — is unlikely because it would have included people whom some states were denying citizenship to. It is improbable that the Founding Fathers would have permitted states to deny citizenship to natural born citizens. More likely, “natural born citizen” referred to a class of people that all states were already recognizing as undeniable U.S. citizens.
U.S. citizenship is undeniable only in individuals who, at birth, meet both the jus soli and the jus sanguinis criteria. Consequently, the only plausible definition of an undeniable U.S. citizen is the birthers’ definition of “natural born citizen” — a U.S.-born individual whose parents are both U.S. citizens.
17. What’s the “beef” with President Obama’s birth certificate?
President Obama has published, on the internet, a digital photograph of a computer-generated short-form Certification of Life Birth. The President has not published a copy of his original 1961 typewritten long-form birth certificate containing the names and signatures of people who actually witnessed his birth.
In Hawaii, the contents of an original long-form birth certificate are private and confidential information, protected by State law. The Aloha State will not release a copy of an original birth certificate without permission. So far, President Obama has not given his permission for the release of his original long-form birth certificate.
If you were born in Hawaii and you ask for a copy of your Hawaiian birth certificate for a routine everyday purpose such as applying for a drivers license or passport, the State of Hawaii will not send you a copy of your original long-form birth certificate.
Instead, the State will send you a computer generated short-form Certification of Live Birth, which shows only minimal information — your name, date of birth, place of birth, name and race of each of your parents, and so forth. A Certification of Live Birth can be used, instead of an original long-form birth certificate, for most everyday purposes.
A Certification of Live Birth shows an individual’s birth information but does not show the source of that information. In Hawaii, the identity of the source of one’s birth information — whether it be a hospital, a doctor, or a parent’s or relative’s affidavit — is deemed to be private and confidential. Thus the name of a source is found only on an original long-form birth certificate, and is not found on a Certification of Live Birth.
Barack Obama’s Certification of Live Birth confirms two facts:
Birthers do not dispute either of these two facts. Birthers merely want to know the extent, if any, to which the information on Barack Obama’s original 1961 long-form birth certificate came from or was verified by someone other than an immediate family member.
18. Didn’t the State of Hawaii recently verify that President Obama was born in Hawaii?
On October 31, 2008, Dr. Chiyome Fukino, Director of Health for the State of Hawaii, released this public statememnt regarding (then Senator) Barack Obama’s birth certificate:
Dr. Fukino confirmed that Barack Obama’s original 1961 long-form Hawaiian birth certificate exists, and the Hawaii State Department of Health has possession of it. But she did not confirm or verify any information contained in the birth certificate itself.
Under Hawaii State law, the contents of a birth certificate are private and confidential. Consequently, Dr. Fukino could not legally disclose or confirm any information contained in Barack Obama’s birth certificate.
Nonetheless, there is little doubt that President Obama’s original Hawaiian birth certificate says he was born in Hawaii. Under the laws that were in effect in Hawaii when Barack Obama was born, the State of Hawaii would not have knowingly issued a Hawaiian birth certificate to anyone born outside of Hawaii.
Act 96 of Laws of the Territory of Hawaii was adopted in 1911. Under this Act, Hawaiian birth certificates were issued only to individuals who were believed to be born in Hawaii:
A subsequent law, enacted in 1955, reaffirmed the fact that Hawaiian birth certificates were given only to individuals who were believed to be Hawaii-born.
Under the 1955 law, the State of Hawaii could issue Hawaiian birth certificates in cases in which the birth was not independently confirmed by an attending physician or midwife. In such cases, a judicial or administrative body or official must determine the birth certificate’s probative value:
Hawaiian Statute 338-17.8, Certificates for children born out of State, allowed Hawaiian birth certificates to be issued to foreign-born children of Hawaii-resident parents. But Statute 338-17.8 was not enacted until 1982, well after Barack Obama was born.
In 1961, the State of Hawaii would not have issued a birth certificate to Barack Obama unless the State believed he was born in Hawaii. Barack Obama’s original 1961 typewritten birth certificate undoubtedly says he was born in Hawaii.
But questions still remain. When Barack Obama was born, was his birth attended by a doctor or midwife? If not, who testified regarding his birth? His mother? His grandmother? Were any of these people interviewed? Was there a judicial or administrative hearing to determine the birth certificate’s probative value? Who recorded the date and time of Barack Obama’s birth? Could his actual date of birth have been a week or two earlier?
Barack Obama’s birth in Hawaii cannot be regarded as “verified” until these questions are answered.
19. Doesn’t the mere existence of Barack Obama’s original Hawaiian birth certificate prove that he was born in Hawaii?
Barack Obama’s original Hawaiian birth certificate, by its mere existence, shows that the State of Hawaii believed he was born in Hawaii. His birth certificate would prove that he was born in Hawaii only if his birth in Hawaii was witnessed and confirmed by someone other than an immediate family member. For example:
But consider this hypothetical scenario: Suppose Stanley Ann Obama (President Obama’s mother) had been a resident of Hawaii since June 1960. Suppose that, in November or December 1960, upon learning of her pregnancy, she received prenatal care from a local doctor in Hawaii. Suppose that, on Monday August 7, 1961, she walked into her doctor’s office, carrying a recently-born baby in her arms. Suppose she told her doctor that the birth took place, suddenly and unexpectedly, on Friday evening, August 4, 1961. Suppose she said that, when she gave birth, no one else was present, except Madelyn Dunham, the baby’s maternal grandmother, who assisted with the delivery. Suppose the doctor examined this baby and found nothing that conclusively disproved Stanley Ann’s story.
Given the mother’s testimony, her history of prenatal care in Hawaii, her Hawaii residency, and the absence of contravening evidence from her doctor, the State of Hawaii would have probably issued a birth certificate for her baby, even though NO ONE outside of the baby’s immediate family had actually witnessed the baby’s birth in Hawaii.
The birth certificate would show no independent corroboration of the baby’s birth in Hawaii. The Hawaii State Department of Health officials would have believed that the baby was born in Hawaii because the mother had said so and they had no compelling reason to believe otherwise. But the birthplace indicated on the birth certificate would be based solely on the mother’s unsubstantiated testimony.
What if Stanley Ann and her recently-born baby had arrived, on an overseas flight, at Honolulu International Airport, on Sunday, August 6, 1961? In the absence of an original birth certificate, such theoretical possibilities, however implausible and far fetched, cannot be entirely ruled out.
Until President Obama releases an original birth certificate showing independent corroboration of his birth in Hawaii, no one can say for sure whether the President meets the first requirement of natural born citizenship — birth within the United States.
20. Do birthers actually believe that President Obama was born in a foreign country?
Birthers are divided over this issue. Some believe President Obama was born overseas. Others believe that, when the President’s birth certificate is released, it will show conclusively that he was born in Hawaii. Until the President’s original 1961 typewritten long-form birth certificate is published, no one can say for sure, one way or the other, where he was born.
Among the various attorneys and plaintiffs who have filed lawsuits challenging the President’s eligibility and/or seeking the release of his original long-form birth certificate, there is no consensus of opinion regarding the President’s actual place of birth.
Despite widely differing opinions on the birthplace question, birthers are unanimous in advocating (a) the release of the President’s original 1961 long-form Hawaiian birth certificate, and (b) an open public judicial hearing regarding the President’s Constitutional eligibility.
21. If President Obama’s birth certificate shows conclusively that he was born in Hawaii, would it end the eligibility controversy?
Definitely not! President Obama has stated publicly that his father was not a U.S. citizen. According to the birthers’ understanding of history and law, if his father was not a U.S. citizen, President Obama cannot be a Constitutional natural born citizen, regardless of where he might have been born. If President Obama was born in Hawaii, he could be regarded as a statutory natural born citizen, but he would not necessarily be a Constitutional natural born citizen.
Regardless of what his birth certificate says, Obama’s presidential eligibility will never be settled or resolved, until the Supreme Court decides whether the U.S.-born children of non-U.S.-citizen parents are Constitutional natural born citizens.
22. Where do we go from here?
2008 was the first time in history that the United States knowingly elected a post-1787-born President whose parents were not both U.S. citizens at the time of his birth.
In Minor v. Happersett, 1874, the Supreme Court stated that there is a legitimate unanswered question, or “doubt”, as to whether a U.S.-born child of a non-citizen parent is a Constitutional natural born citizen. Until the Supreme Court answers this question, it is by no means “settled” that Barack Obama is Constitutionally eligible to be President of the United States.
The DC District Court has the authority to investigate the eligibility of a sitting President. The DC District Court received this authority from Congress when Congress passed the Federal Quo Warranto Statute in 1901 and revised it, in 1963, to its present form.
The Federal Quo Warranto Statute is thoroughly explained in this three-part series:
A Quo Warranto inquiry is not a prosecution. It does not accuse Barack Obama of breaking any law. The inquiry is a civil proceeding, not a criminal one. In a Quo Warranto inquiry, the DC District Court would say to Barack Obama something to this effect (loosely paraphrased):
The DC District Court would determine (by jury, if necessary) the relevant facts of the case — Obama’s birthplace, his parents’ citizenship, etc. The Supreme Court would then decide the Constitutional legal issues, such as what a Constitutional natural born citizen is and whether Barack Obama is such a citizen.
If you believe there is enough doubt about Obama’s eligibility to warrant a public inquiry, please consider writing, in your own words, a letter to the proper authorities, politely and respectfully asking them to bring (or permit a third party to bring) the matter before the DC District Court. Attorney Leo Donofrio suggests writing to U.S. Attorney Patrick Fitzgerald, since the U.S. Attorney in the District of Columbia Jeffrey Taylor has resigned.
By writing, you would show that (a) you care about the Constitution, (b) you believe there are reasonable doubts about the President’s Constitutional eligibility, and (c) faithfulness to the Constitution requires a proper and timely investigation and resolution of these doubts.
Copyright © 2009 Stephen Tonchen