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The months of arguments over President Obama’s eligibility to occupy the Oval Office – based on the U.S. Constitution’s requirement that the chief executive be a “natural-born” citizen – have been fueled both by the president’s decision to withhold his original long-form birth certificate, thereby leaving some questions unanswered, and by arguments over just exactly what is a “natural-born” citizen.
Some argue that since Obama’s father was a citizen of Kenya and thus a British subject in 1961, his son’s birth in Hawaii that year would have granted Obama dual British-U.S. citizenship. Obama’s campaign website admitted as much prior to the election.
Attorney Mario Apuzzo, one of several lawyers filing lawsuits over Obama’s eligibility to serve as president, believes the double claim on Obama’s citizenship disqualifies him from fulfilling the requirement of Article 2, Section 1, of the Constitution, which states no person except a “natural-born” citizen shall be eligible to the office of president.
“‘Natural-born citizen’ status requires not only birth on U.S. soil but also birth to parents who are both U.S. citizens,” Apuzzo asserts on his website. “It is only by combining at birth in the child both means to inherit these two sources of citizenship that the child by nature and therefore also by law is born with only one allegiance and loyalty.”
According to Apuzzo, regardless of where Obama was born, regardless of whether he ever releases his long-form birth certificate, his father’s citizenship status disqualifies him from being president.
Apuzzo’s definition of “natural born,” however, has its critics, even among those challenging Obama’s eligibility on other grounds.
“There’s nothing that I’m aware of that says you have to have two American parents,” said the executive director of the United States Justice Foundation, Gary Kreep, whose lawsuit alleges Obama was born in Africa and thus is constitutionally ineligible. “My understanding of it is if you’re born in the United States, you’re a natural-born citizen, period.”
Indeed, a consensus on the correct definition of “natural born citizen” has eluded lawyers and scholars for more than 200 years. The Constitution’s failure to offer any definition of the phrase whatsoever, the absence of definitive Supreme Court rulings and a wide array of opinions through the centuries have only further confused the question of what “natural born” actually means.
In trying to understand what the Founding Fathers meant by the phrase, some have turned to prominent legal tomes of the day.
According to the Constitution Society, “The Law of Nations,” a 1758 work by Swiss legal philosopher Emmerich de Vattel, “was read by many of the Founders of the United States of America and informed their understanding of the principles of law which became established in the Constitution of 1787.”
Vattel writes in Book 1, Chapter 19, of his book, “The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. … In order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Apuzzo also points to Vattel’s work as the framework for the Founders’ intent and the justification for requiring a president not only be born on American soil, but also to American parents.
The first Congress, however, began clouding the issue only two years after the Constitution was ratified.
In the Naturalization Act of 1790, Congress passed a law that disregarded the idea of being born on U.S. soil, and referred only to parentage:
“The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States,” the Act states, “shall be considered as natural born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
Parker Shannon of the Obama File highlighted excerpts from the 1st U.S. Congress in his effort to demonstrate a natural born citizen must be the child of two U.S. citizens.
Five years later, however, Congress repealed the Act and never again drafted a legally binding definition of “natural born citizen.”
Herb Titus, a one-time vice presidential candidate considered an expert on the U.S. Constitution, says it was probably the responsibility of the electors from the 50 states or members of Congress to make the determination whether President Obama is a “natural born” U.S. citizen. Congress does have the option of challenging the results of the election, but it was not used in the 2008 contest.
Titus also said, however, the likely most important factor in the argument should be the president’s loyalties.
“The reason for the concept of natural born citizens is so a country can’t just throw you out willy-nilly,” Titus told WND. “Your citizenship is in God’s sovereign decision-making. You were born of certain parents.
“If you follow that kind of reasoning, Obama cannot be a natural-born citizen, even if he’s born in Hawaii,” because of his parents, he said. “One was Kenyan and one American.”
Furthermore, if the Founders wrote “natural born citizen” to ensure a candidate’s loyalty, Titus suggested, Obama’s dual citizenship would create a dilemma:
Citing Obama’s major writing work, “Dreams From my Father,” Titus asked, “Did he write a book about his [American] mother?”
John Eidsmoe, another recognized authority on the U.S. Constitution, said the circumstances are a little complicated, but not unclear.
If a baby was born to U.S. citizens in the U.S., there would be no question of being a “natural born” citizen, he said. For a baby born outside the U.S. to U.S. citizens, likewise. But being born in the U.S. to non-citizens, Eidsmoe said, doesn’t count.
“If he was born outside the U.S. to one citizen and one non-citizen, particularly the father, it is very doubtful that he qualifies for ‘natural born’ citizenship,” said Eidsmoe, who works with former Judge Roy Moore’s Foundation for Moral Law.
Eidsmoe said in many circumstances the citizenship follows the father.
“My conclusion if Obama was, in fact, born in Kenya, he is in all probability not a ‘natural born’ citizen,” he said.
A commentary on the Federalist Blog wrote that an early definition of “natural born” citizen was never produced because one of the framers of the Constitution, James Wilson, wrote that a citizen of a state was a citizen of the union, “thus, no act of Congress was required …”
That would mean only states can determine “natural born” status.
But the same commentary pointed out that if being born on U.S. soil alone was enough, there would have been no need to reference “natural born.” Instead, the “native born” reference would have been sufficient.
The commentary argued for citizenship inherited from a father.
“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 fathers who are themselves citizens of the United States,” it said.
James Taranto, writing at the Wall Street Journal, said Obama’s place of birth is important, unlike what some Obama supporters have proclaimed – but it isn’t important because of his American mother.
Citing the U.S. State Department, he writes: “A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) INA provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the child’s birth (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child).”
“Obama was born before 1986 to married parents, and his father was an alien,” Taranto wrote. “Thus if it were an overseas birth, his mother would have to have lived in the U.S. for 5 years after age 14 in order for her child to be a natural-born American. Mrs. Obama was only 18 when Barack was born, so she had not even lived 5 years after age 14.”
But, he said, Obama already has documented his birth, with the release of the online “Certification of Live Birth.”
The U.S. Supreme Court, for its part, has admitted the Constitution does not define what is meant by “natural born citizen” and hasn’t offered a ruling to solve the dispute.
“The Constitution does not in words say who shall be natural born citizens. Resort must be had elsewhere to ascertain that,” wrote the Court in the 1874 Minor v. Happersett case. “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. For the purposes of this case, it is not necessary to solve these doubts.”
Through history, different scholars and officials have offered up their opinions, which have varied widely.
In 1862, Attorney General Edward Bates wrote a 27-page opinion paper to answer whether or not “colored men” can be citizens of the United States, and in the process threw out the issue of parentage altogether in the “natural born” debate, requiring only birth on American soil.
“Our Constitution, in speaking of natural born citizens,” Bates writes, “recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.”
Even recently, the issue reared its head again when Congress questioned whether John McCain, who was born to two American parents, but in the Panama Canal Zone, qualified as a natural born citizen.
Ted Olson, the former solicitor general under Bush, told NBC News, “Although I am continuing to research the matter, there is little doubt in my mind that Senator McCain fully meets the Constitution’s qualifications to be President of the United States. In my view, the plain meaning of ‘natural born citizen’ includes persons who become citizens of this nation ‘naturally,’ that is by virtue of their birth to parents who are citizens.”
But Jill Pryor, who 20 years previously wrote in the Yale Law Journal about the “Natural Born Enigma,” told NBC, “Whether a person born abroad of American parents … qualifies as natural born has never been resolved. … Some have taken the view that ‘natural born’ means native born, that is, born in the United States, and there is no authority expressly to the contrary.”
Sarah H. Duggin, an associate law professor at Catholic University, also warned the question is “not so simple.” She told the Washington Post the matter can be fully resolved only by a constitutional amendment or a Supreme Court decision.
“The Constitution is ambiguous,” Duggin told the Post. “The McCain side has some really good arguments, but ultimately there has never been any real resolution of this issue.”
On April 30, 2008, the U.S. Senate sought to answer the question by passing S. Res. 511, which states, “Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be it resolved, that John Sidney McCain, III, is a ‘natural born citizen’ under Article II, Section 1, of the Constitution of the United States.”
S. Res. 511 took the position two American parents qualify a child as natural born regardless of the soil of birth, but the resolution is neither a legally binding document nor an amendment to the Constitution. Notably, the Senate did not address Barack Obama’s natural born citizen status.
Peter J. Spiro, professor of law at Temple University and author of “Beyond Citizenship: American Identity After Globalization,” argues in an opinion piece in the Philadelphia Inquirer that the whole controversy ought to just be thrown out to allow any American citizen – whether natural born or native born or even naturalized – to be president.
“The natural-born provision is an artifact of a time when one’s birthplace was fraught with consequences,” Spiro writes. “In the feudal conception of natural law, one was born into the protection of a territory’s sovereign, for which one was thought to owe an indissoluble duty of allegiance. The Framers of the Constitution worked in an era when such bonds were taken seriously. It made sense, then, to protect against a sleeper at the top.
“Today, birthplace is hardly so meaningful,” Spiro writes.
But to many Americans, including Apuzzo, Kreep, and the several attorneys representing dozens of clients demanding the American president meet the constitutional requirements to serve, birthplace – and, for some, birth parentage – is extremely important.
“The Founding Fathers emphasized that, for the sake of the survival of the constitutional republic, the office of president and commander in chief of the military be free of foreign influence and intrigue,” Apuzzo writes. “It is the ‘natural born citizen’ clause that gives the American people the best fighting chance to keep it that way for generations to come.
“American people do not have the constitutional right to have any certain person be president,” he continues. “But … they do have a constitutional right to protect their liberty by knowing and assuring that their president is constitutionally eligible and qualified.”
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