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The following discussion assumes President Obama was born in Hawaii and is a United States citizen.

The purpose of this article is to highlight judicial and historical evidence suggesting that a “natural born citizen” must be born in the United States to parents who are citizens.  By that definition, Obama is not eligible to be president.  Therefore, his presidency and official administrative acts remain subject to being rendered void by the Supreme Court.

The relevant Obama admission

At the official Obama campaign website – Fightthesmears.com – just below the Certification of Live Birth (COLB) – the following admission was also published:

When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.’s children.

This was republished from a Factcheck.org, article which further stated:

In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC.

The constitutional question presented is whether a person born with citizenship in and allegiance to a foreign nation can be considered a “natural born citizen” of the United States as required by Article II, Section 1.

The U.S. State Department’s Foreign Affairs Manual discusses problems associated with dual citizenship:

7 FAM 081: U.S. Policy on Dual Nationality:

(e)While recognizing the existence of dual nationality, the U.S. Government does not encourage it as a matter of policy because of the problems it may cause. Dual nationality may hamper efforts by the U.S. Government to provide diplomatic and consular protection to individuals overseas. When a U.S. citizen is in the other country of their dual nationality, that country has a predominant claim on the person.

This helps explain why the definition of “natural born citizen” as one born in the nation to parents who are citizens makes perfect sense in that such a person will not be infected by dual-allegiance problems.  If the parents are citizens, neither will confer allegiance to a foreign nation.  Additionally, if one is born on soil foreign to the parents, that nation is likely to recognize the person as a citizen.  Owing allegiance to more than one nation is an unnatural circumstance of citizenship. 

While the Constitution requires representatives, senators and presidents to be citizens, Article II, Section 1, additionally requires that the president’s citizenship be “natural born.” A natural born citizen is not a higher level of citizen.  “Natural born” simply describes a circumstance of citizenship.

Now watch the red-hot eligibility story on DVD: “The Question of Eligibility: Is Barack Obama’s presidency constitutionally legitimate?”

There are multiple circumstances that create “citizens at birth.” Some require a federal statute for citizenship while others rely on the 14th Amendment.  Had the framers of the 14th Amendment sought to deem every person born in the United States a natural born citizen, they certainly could have included such plain, unequivocal language.  But they didn’t.

In 1790, the first Congress deemed all persons born of two United States citizen parents abroad to be “natural born citizens,” but the words “natural born” were repealed in 1795.  Congress never again legislated the definition of “natural born citizen,” and no United States statute currently defines the term or even mentions it.

The citizenship of a person born in the United States to parents who are citizens is self-evident and has never required naturalization, a federal statute or an amendment, and the Supreme Court has indicated that such persons are the only citizens who satisfy the natural born citizen requirement of Article II, Section 1.

Origin of the natural born citizen clause

The strict constitutional requirements were enacted to exclude citizens for the sake of national security in safeguarding the office from inexperience and from persons who may not have sole allegiance.  It appears the clause was first introduced for constitutional consideration in a letter from John Jay to George Washington dated July 25, 1787:

Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.

Jay underlined “born” which signifies the importance of allegiance from birth.  The “natural born” requirement renders irrelevant that a person – born to foreign or dual allegiance – may not have renewed his foreign citizenship upon reaching maturity.  One is either eligible to be president at birth, or one will never be eligible.

An important historical definition of “natural born citizen” comes from a 1797 translation of the “Law of Nations,” a 1758 text by Emerich de Vattel, which summarized that body of international law known also as the “Law of Nations”:

The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.

Note that a child of former aliens can be a natural born citizen under this standard if born in the United States to parents who were naturalized prior to the child’s birth.  That was made clear by the Supreme Court’s opinion in Perkins v. Elg.

It appears from James Madison’s notes of August 1787 that the delegates used the terms “native” and “natural born citizen” synonymously.  Additionally, Ben Franklin stated that the framers frequently consulted Vattel’s text.  Also consider that Article I, Section 8, grants Congress the authority to “punish … offenses against the Law of Nations.”

In the case of The Venus 12 U.S. 253, 289 (1814), Chief Justice John Marshall stated:

Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. …”

Chief Justice Marshall relied upon a pre-1797 edition of Vattel’s text.  The 1797 translation was adopted by the Supreme Court in Minor v. Happersett, 88 U.S. 162 (1874), where Chief Justice Waite stated:

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. …

It’s significant that this decision was issued six years after the 14th Amendment was enacted.  As such, Minor illustrates that the 14th Amendment simply defines who is a citizen, not which citizens are natural born.

If Obama had run for president in 1874 – six years after the 14th Amendment went into effect – he wouldn’t have been eligible since he doesn’t fit the Minor Court’s standard for a natural born citizen.

The strange case of Chester Arthur

The holding in Minor v. Happersett must have given Chester Arthur nightmares when he ran for vice president in 1880, six years after Minor.  Arthur, a prominent New York lawyer, managed to conceal from public view that his father didn’t become a naturalized citizen until 14 years after he was born.  Therefore Chester Arthur was a British subject at birth.

Arthur’s deception in concealing this fact involved numerous lies to the Brooklyn Eagle newspaper concerning his father’s heritage, immigration and age.  He also quite famously burned most of his papers and lied about his own age.

Historical records bear witness that this issue was never discussed in relation to Chester Arthur’s eligibility until recently.  Helping to cloud the issue all these years was a famous conspiracy theory expounded by a New York lawyer named Arthur Hinman who alleged  Chester Arthur was born in Canada and was therefore not eligible.  This sensational and unfounded conspiracy theory took the spotlight and unfortunately provided a smokescreen to conceal the true eligibility defect.

Chester Arthur is the only president prior to Obama who – after the grandfather clause of Article II, Section 1, expired – was not born in the United States of two citizen parents.  As such, Obama supporters have sought to use Chester Arthur as precedent for justifying Obama’s eligibility.  Such reliance is unfounded because it wasn’t known at the time Chester Arthur held office that he was born with dual nationality.  That this was concealed from the general public is confirmed by two important law review articles.

In the September/October 1884 issue of The American Law Review, George C. Collins discussed the citizenship status of persons born on U.S. soil to foreign parents.  In the concluding paragraph, Collins stated:

Birth, therefore, does not ipso facto confer citizenship, and it is essential in order that a person be a native or natural born citizen of the United States, that his father be at the time of the birth of such person a citizen thereof, or in case he be illegitimate, that his mother be a citizen thereof at the time of such birth.

It’s ridiculous to imagine the sitting president wouldn’t be mentioned when the article concerns the issue of whether a person born of an alien father is even a United States citizen.

Chester Arthur’s true eligibility defect doesn’t appear to have been mentioned in any historical record until December 2008 when it was exposed at my blog.  Clearly, Chester Arthur’s deception cannot serve to validate anyone’s presidential eligibility.  He got away with it, but that doesn’t make it right.

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)

In 1898, Justice Horace Gray wrote one of the most controversial opinions in Supreme Court history wherein a man born in the United States of Chinese alien parents was held to be a citizen.  Wong Kim Ark is the precedent relied upon for the assertion that any person born on United States soil, regardless of parentage, is a citizen.  But that’s not accurate.  The holding in Wong Kim Ark appears to require for citizenship that a person be born on United States soil to parents who are permanently domiciled here.  If the domicile requirement is upheld in future cases, anchor babies will no longer be assumed to be United States citizens.

Regardless, the holding in Wong Kim Ark did not state that such a citizen was “natural born.” In fact, Justice Gray reiterated the definition of natural born citizen as one born on United States soil to parents who are citizens when he favorably discussed Minor v. Happersett:

That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: “Allegiance and protection are, in this connection (that is, in relation to citizenship), reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. … 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. …”

While the dissent feared the majority holding would make Wong Kim Ark eligible to be president, Justice Gray’s restatement of the Minor Court’s definition of a natural born citizen as one born in the United States to parents who are citizens stands in direct contrast to the dissent’s fear.

A few years after Wong Kim Ark was decided, the Albany Law Journal published an article by Alexander Porter Morse entitled, “NATURAL-BORN CITIZEN OF THE UNITED STATES: ELIGIBILITY FOR THE OFFICE OF PRESIDENT” (Albany Law Journal Vol. 66 (1904-1905)):

If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. It may be observed in passing that the current phrase “native-born citizen” is well understood; but it is pleonasm and should be discarded; and the correct designation, “native citizen” should be substituted in all constitutional and statutory enactments, in judicial decisions and in legal discussions where accuracy and precise language are  essential  to intelligent discussion.

The term “native born citizen” has been erroneously substituted for “natural born citizen” by numerous commentators.  Mr. Morse correctly points out that the two are not synonymous.  His article also proves once again that Chester Arthur’s dual nationality was hidden from the public.  There would have been no point in writing the article – which doesn’t mention Chester Arthur – had the nation previously condoned a president born with dual allegiance.

The argument against Obama being eligible rests on multiple Supreme Court cases that define a “natural born citizen” as one born in the United States to parents who are citizens.  This is not a political issue.  It’s a legal issue faced by a nation where nobody is supposed to be above the law.  As such, it deserves judicial review.

[For the most comprehensive etymological deconstruction of the term "natural born Citizen," I strongly recommend, “What Is A Natural Born Citizen Of The United States?” by John Greschak.

 


Leo Donofrio is an attorney with 20 years’ experience.  He is a partner in the law firm of Pidgeon & Donofrio and he authors the Natural Born Citizen blog.

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