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Washington reinterprets constitutional eligibility
Posted By -NO AUTHOR- On 09/26/2011 @ 9:26 am In Front Page | Comments Disabled
|Barack Obama and Kenyan Prime Minister Raila Odinga|
A Guyana-born naturalized American citizen fits the Federal Elections Commission’s requirements to run for president, the FEC announced in a ruling.
The case involves New York lawyer Abdul Hassan, who was born in the South American country in 1974. Hassan argues it is discriminatory to not allow him to run for office.
Responding to criticism of possible dual-loyalty issues, Hassan said in a radio interview that a person’s place of birth should not determine his patriotism or presidential eligibility.
“I am an attorney,” he said. “When I undertake the representation of a client, I have to act in the best interests of my client,” Hassan stated on “Aaron Klein Investigative Radio” on New York’s WABC Radio.
Continued Hassan: “If I represent someone in my community … and I undertake your representation, I owe you 100 percent loyalty and my duty is solely to protect and to advance your interests.”
“It would be no different if I were to be president of the United States,” he contended. “If I believe that I cannot act in the best interests, I wouldn’t be doing this.”
Petitioned further by Klein about the Constitution’s concerns regarding those born overseas, Hassan argued many U.S. citizens have loyalty issues, as well.
“Look at all these fellows, these FBI agents, natural born Americans, who were spying for Russia,” he said.
“You have to judge each individual based on his own merits,” he added.
Hassan, meanwhile, petitioned the FEC to allow him to run for president, arguing the Federal Election Campaign Act does not bar naturalized citizens from running.
In its official response earlier this month, the FEC agreed with Hassan’s logic.
The FEC’s ruling, which did not receive any news media attention, concluded that a naturalized citizen is not prohibited by the Federal Election Campaign Act from becoming a “candidate” as defined under the act.
However, a naturalized citizen is not eligible to receive federal matching funds under the FEC’s Presidential Primary Matching Payment Account Act.
Stated the FEC ruling: “In regard to the definition of ‘person,’ the act defines that term as including ‘an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons,’ excluding the federal government. There is no reference to natural born or naturalized citizens. As an individual, Mr. Hassan is a ‘person’ under the Act.”
While the FEC’s own rules now allow Hassan to run for high office, the attorney must still clear judicial hurdles before his eligibility could become official.
At issue is the constitutional stipulation that only a “natural born” citizen can be for president.
Article 2, Section 1, Clause 5 of the U.S. Constitution stipulates presidential eligibility, requiring the nation’s elected chief to be a “natural born citizen.”
The clause states: “No person except a natural born citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”
The Fourteenth Amendment to the Constitution specifically defines “citizen” but not “natural born citizen.”
A “citizen” is defined as: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are Citizens of the United States and of the State wherein they reside.”
However, no definition of “natural born citizen” – which is only used in the presidential requirement clause – was provided anywhere in the Constitution, and to this day the precise meaning of the term is still being debated.
In his legal argument, Hassan contended the constitutional eligibility clause discriminates against naturalized citizens.
He cites Supreme Court rulings that interpret the Constitution as providing “equal protection” to naturalized citizens. Other rulings cited by Hassan guarantee against the discrimination of naturalized citizens.
“The natural born requirement, that was adapted in the 1780s at a time when slavery was also a part of the constitution,” Hassan told Klein.
Hassan added the eligibility requirement should be reinterpreted in a way that would allow naturalized citizens to run for president.
‘Natural born’ argument
The issue of defining “natural born” could have implications for President Obama’s 2012 bid. Many have argued Obama is not eligible since his father was born in Kenya.
According to the framers of the Constitution as well as Supreme Court rulings, Obama may not fit the eligibility requirements.
There are no records of any definitive discussion on the “natural born” matter during the Constitutional Convention. That – coupled with the absence of definitive Supreme Court rulings and a wide array of opinions throughout the centuries – has only further confused the question of what “natural born” actually means.
Still, many constitutional legal arguments lean heavily toward the definition of “natural born” meaning both parents were citizens in the U.S.
The legislative and judicial bodies of the U.S. government have held no formal discussions, nor did they conduct a single formal investigation into whether Obama is eligible to serve under the Fourteenth Amendment.
Congress did, however, question the “natural born” qualifications of Obama’s 2008 presidential opponent, Republican Sen. John McCain.
The scion of distinguished U.S. naval officers, McCain was born to two American parents in the Panama Canal Zone. On April 30, 2008, the U.S. Senate sought to answer the question by passing a nonbinding resolution, 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.”
The resolution clearly determined “natural born” to mean born of two parents who are U.S. citizens.
‘Natural born’ defined
The first U.S. Congress passed a law that began to define “natural born.” The Naturalization Act of 1790 rejected the condition 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.”
Five years later, however, Congress repealed the act.
It was clear that the intention of the Constitution’s “natural born citizen” qualification was to ensure the country would not be led by an individual with dual loyalties.
On July 25, 1787, John Jay, one of the three authors of the Federalist Papers, wrote to George Washington, who was at the time presiding over the Constitutional Convention in Philadelphia.
Jay discussed the dual-loyalty concern, writing: “Permit me to hint, whether it would 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, however, also did not define “natural born.”
Representative John Bingham of Ohio, a principal framer of the Fourteenth Amendment, offered some definition for presidential qualifications in a discussion in the House on March 9, 1866: “[I] find no fault with the introductory clause [S. 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”
To try to understand what the Founding Fathers meant by “natural born,” some have turned to prominent legal tomes of the day.
The Law of Nations, a 1758 work by Swiss legal philosopher Emmerich de Vattel, was read by many of the American Founders and informed their understanding of the principles of law, which became established in the Constitution of 1787.
De Vattel writes in Book 1, Chapter 19, of his treatise, “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.”
Supreme Court casts doubt
Numerous Supreme Court decisions have yielded conflicting views of citizenship and what it means to be a “natural born citizen.” In Dred Scott v. Sandford, in 1857, for example, the court ruled that citizenship is acquired by place of birth, not through blood or lineage.
But much of that decision – which had notoriously excluded slaves, and their descendants, from possessing constitutional rights – was overturned in 1868.
Another case, Minor v. Happersett, in 1874, mentions the “natural born” issue.
“At common law, with the nomenclature of which the framers of the Constitution were familiar,” the decision states, “it was never doubted that all children born in a country, of parents [plural] who were its citizens [plural], 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. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.”
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