Obama’s Eligibility Remains Serious Constitutional Issue

I believe it’s well past time for us all to re-focus like a laser on what could well be a constitutional issue of calamitous historical proportions. Toward that end, I have carefully written this post. And please note that this is not an Obama witchhunt. Not at all. It is nothing less nor more than a battle for the Constitution itself.

Despite my 22 years of immigration counseling experience, trying to accurately, briefly and clearly summarize the issue of Obama’s eligibility–or ineligibility–for the Presidency has been especially challenging and time-consuming. Though I have managed to compact much within this summary, I apologize in advance for the unavoidable length. I hope it proves to be a useful exercise and that it will stir wider, fearless and more objective discussion of the subject. Why? Nothing less than what remains of our Constitution is at stake.

CONTENTION: Obama, born in 1961 of a US Citizen mother and a British Citizen (born in Kenya), was born a “US Citizen” by virtue of his mother’s US Citizenship; however, since Obama’s father was not a US Citizen, thus not “attached to the US”, Obama, even if born of a US Citizen mother within the jurisdiction of the US, is not, by definition and Constitutional intent, a “natural born citizen” as is specifically required by Artile II, Sec 1 (Presidential Clause) of the US Constitution, and is, therefore, ineligible to assume the Office of the President.

British citizenship was conferred to Obama at birth by act of British law. Thus, he is born of dual citizenship.

Art II, Sec 1 of the Constitution, the so-called Presidential Clause, stipulates that “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 the President; neither shall any Person be eligible to that Office who shall not have attained the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

Within the context of the Framers’ actual meaning (letter of the law) and the Framers’ express purpose (intent of the law), being a “natural born citizen” requires that citizenship must be passed on by the constitutionally pertinent principle of natural law (see Law of Nations by E. Vitel-1758 which which profoundly influenced the Framers’ intent when fashioning the Constitution) which assumes that citizenship is inherited from one’s father’s citizenship. To wit, Vatel stated that “natives”, or natural-born citizens, are those born in the country of parents who are citizens”, and that “as 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 right.” Again, the accent is on the father’s citizenship status at the time of the child’s birth.

The intent of the Framers with respect to the meaning of “natural born citizen” (vs “born in the US” or US Citizen”) within the context of the Presidential Clause specifically takes into account the father’s allegiance and citizenship at the time of a child’s birth. Thus, the father’s citizenship and, thus, his “attachment to the US” at the time of the child’s birth, carried more weight than merely the geographic location of the child’s birth. Why? Still reeling from British rule, the Framers, as represented by the words of John Jay in a July 1787 letter to George Washington, who presided over the Constitutional Convention, wanted to avoid dual citizenship or dual loyalties of any future Commander-in-Chief by declaring expressly “that the Commander-in-Chief…shall not be given to nor devolve on, any but a natural born citizen”, this to insure future leadership’s freedom from foreign influences.

This correspondence directly influenced how Art II, Sec 1 was subsequently written, which holds that “no person except a natural born citizen, or a citizen of the United States at the time of the Adoption of the Constitution, shall be eligible to the Office of the President.” (Notice the distinction.)

The first Nationality Act in 1790 declared that “the children of citizens [plural]of the United States, that may be born beyond the sea, or out of the limits of the United 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.” (Notice what appeared to be the central importance of the father’s statu–even if both parents were US Citizens at the time of the child’s birth.)

However, the Naturalization Act of 1795 stated that children born to citizens beyond the seas are citizens of the United States but are not legally considered “natural born citizens” of the United States. ( A more exclusionary definition which adds the geograhic requirement as well.)

Also, we should note that the primary author of the citizenship clause in the 14th Amendment, Sen. Jacob Howard, declared that the citizenship clause of the Amendment was, again, by virtue of “natural law” and not by “act of law.” (This would mean that a child born to a US Citizen father was “natural born.)

In 1871, Rep. John Bingham, a Framer of the 14th Amendment, stated that a child is a US Citizen if born of naturalized parents inasmuch as a naturalized father as part of the naturalization oath “absolutely renounces and abjure all allegiance and fidelity” to other sovereignties, thus establishing his firm “attachment to the United States” as well.(So, born of US Citizen parents within the jurisdiction are the overriding factors in determining “natural born citizenship.”)

Note too that US Title 8 Sec 1401 provides that US Citizenship alone is not sufficient to qualify one for President or Vice President, the clear inference being that he or she must be natural born.

In 1800, Charles Pinkney, a Framer of the Constitution and, later, the S.C. Governor, said that the Presidential Clause was designed to firmly “insure attachment to the country.” (No dual loyalties on the part of either parent.)

Art IV, Sec 2 provided that no act of Congress was required to make citizens of the individual states citizens of the US; only State Legislatures had authority to grant State citizenship which, in turn, conferred upon them US Citizenship.

Further, in Savage vs Umphries (TX) 118 S.W. 893, 909, the court ruled that “as a man is a citizen of the country to which his father owes allegiance, it is incumbent on one alleging in an election contest that a voter is not a citizen of the US to show that such voter’s father was not a citizen thereof during his son’s minority.”

In 1820, Rep. A. Smith (VA), stated that “when we apply the term citizens to the inhabitants of States, it means those who are members of the political community. The civil law determined the condition of the son by that of the father. A man whose father was not a citizen was allowed to be a perpetual inhabitant, but not a citizen, unless citizenship was conferred on him.”

And what does the 14th Amendment have to say about this?

The primary author of the citizenship clause in the 14th, Sen. Jacob Howard, declared that the citizenship clause of the Amendment was, again, by virture of “natural law” and not by “act of law”. This would mean that a child born to a US Citizen father is, therefore, “natural born”.

In 1866, per the 14th Amendment, the terms “subject to the jurisdiction of the US” was defined as meaning “not owing allegiance to any other sovereignty.” In the same year, Sec 1992 of US Revised Statutes declared that “all persons born in the US and not subject to any foreign power, exluding Indians not taxed, are declared to be citizens of the US.”

In 1871, Rep. John Bingham, a framer of the 14th, stated that a child is a US Citizen if born of naturalized parents inasmuch as a naturalized father as part of the naturalization oath “absolutely renounces and abjures all allegiance and fidelity” to other sovereignties, thus establishing his firm “attachment to the United States” as well. So, it would seem that born of US Citizen parents within the jurisdiction of the US are the overriding and defining factors in determining “natural born citizenship”.

On Sec. 1992, Rep. John Bingham, stated that “every human being born within the jurisdiction of the US of parents [plural] not owing allegiance to any foreign sovereignty is, in the language of the Constitution itself, a natural born citizen.” (Very definitive for purposes both of the 14th Amendment and the Presidential Clause.)

*See Perkins vs ELG, US 325 (1939) ruling which provides the two criteria expressed by Rep. John Bingham must exist before one can be called a “natural born citizen.”

On June 22, 1874, Congress issued a joint resolution that stated the “United States has not recognized a double allegiance.”

Of contemporaneous interest is that according to the US State Department’s Foreign Affairs Manual (7 FAM 1131.6-2 Eligibility for Presidency), “the fact that someone is a natural born citizen pursuant to a statute [“natural born citizen” and “by statute” is incongruous) does not necessarily imply that he or she is such a citizen for Constitutional purposes.” The incongruity created by the statement’s use of “natural born citizen” and “by statute” notwithstanding, it appears that a naturalized citizen (by law/statute) is not eligible to assume the office of the President, but it seems to be generally agreed that children born within the jurisdiction of the US of naturalized parents are considered to be “natural born citizens” since that child’s parents are, as part of the naturalization process, required “to renounce and abjure any allegiance or fidelity to any foreign sovereignty” and, thus, are, at the time of the child’s birth, “attached to the US.” Similary, and more obviously, a child born within US jurisdiction of two US citizen parents is also considered a “natural born citizen”.

So, it appears that there is no better way to insure “attachment to the US” then to require the President to have inherited his American citizenship from his US Citizen father or, at the very least, from both his parents. The Framers’ rationale for this would be that any child born in the US of an alien father, or a father of dual allegiance, can be removed by their father to be raised in another country only to be returned later in life bringing with him/her foreign influences. Thus, for purposes of complying with the Presidential Clause, a person born of dual citizenship/allegiance cannot be said to be a natural born citizen. Again, and within the context of the Presidential Clause, the child inherits natural born citizenship from the father alone because, through the laws of nature, the child inherits the condition of the father.

Within the meaning of the Presidential Clause, one can accurately say that there are essentially two types of citizenship: 1) “natural born citizenship” meaning one who, by operation of nature (descent), was born of an American citizen father, or, as further expanded upon in successive legislation and opinion, was born of two US Citizen parents, and 2) a “US Citizen” meaning one who, through operation of law (statutory) was granted citizenship through naturalization, either automatically at time of birth or voluntarily some time after birth. (See John Bingham opinion above.)

The recent Wrotnowski vs Bysiewica stay request which was denied by SCOTUS on 12/15/08 asserts that Pres. Chester A. Arthur’s father was a British citizen at the time of Chester’s birth–and the facts appear to clearly substantiate that assertion–and that, therefore, Chester A. Arthur was ineligible under Art II, Sec 1 to assume the office of President. And since the facts of the Arthur case were very similar to that of Obama’s, it was plantiff’s hope to force the Court to review Obama’s eligibility to be President as well.

So, even if Obama verifies his birth within the jurisdiction of the US, he is a US Citizen by virtue of his mother’s American citizenship, but he is not a natural born citizen because he was born of an alien father and is, therefore, not, by definition and intent of the Presidential Clause, a natural born citizen.

And if Pres. Chester A. Arthur was ineligible to be President because his father was a British citizen at the time of Chester’s birth, should the Supreme Court rule Chester Arthur’s breach of law a defensible precedent for granting Presidential eligibility to Obama since his father too was a British citizen at the time of Obama’s birth in 1961? On this question, the Framers’ method for repairing the breach is per constitutional amendment. Clearly, the Framers did not want a President at birth to be born of dual citizenship. As someone much smarter than I said, “making errors in the past does not mean that we need to repeat them in the future.”

From this summary of law, I think it can be most reasonably concluded that since a child derives his attachment to the US from his US Citizen parents, a child born of US Citizen parents within the jurisction of the US, inclusive of those US parents who were naturalized US citizens at the time of the child’s birth, is very clearly a “natural born citizen”.

Finally, this form Thomas Jefferson in a letter to Judge Wm. Johnson in 1823: “On every question of construction of the Constitution, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probably intent in which it was passed.”

And this from Pres. George Washington in his Farewell Address in 1796: “If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular way wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by ursurpation; for through this, in one instance, may be the instrument of good, it is the customary weapon by which free governements are destroyed.”

Absent the Electors’ denying Certification of the Election or individual lawmakers demanding verification of a presidential candidate’s eligibility, it is properly left to SCOTUS or the amendment process to determine the constitutional eligibility of anyone who wishes to assume the Office of the President. Allowing this constitutional issue to fester will surely have unintended and very unsettling consequences for our country in the future. For if the Constitution is to be ignored or cavalierly misinterpreted, our Republic is irretrievably doomed.

Despite the fact that the political elite and our politicized judicial system have, so far, effectively dodged this issue and Obama devotees and fearful media talking heads on the left and the right have successfully shut down honest public discussion of this issue by their dismissive and derisive attacks on the so-called “birthers”, this issue is simply not going away. Nor should it. From my perspective as a retired INS-accredited immigration counselor, it is a serious, fundamental constitutional issue which screams for objective and judicious scrutiny and resolution. And until this issue is authoritatively, constitutionally and satisfactorily resolved, the very soul of this constitutional republic remains in serious jeopardy.

Finally, this: if my analysis is correct–and I sincerely believe it is–then I ask that we not exacerbate this constitutional quandary or otherwise further muddy the waters by our urging Sen. Rubio to run for either the Presidency or Vice Presidency. While Mr. Rubio is a stellar and principled patriot and leader for whom I have nothing but the deepest of respect and admiration, it is my understanding that he was born on US soil, yes, but born of permanent resident alien parents–not of US citizens. So, unless SCOTUS renders a ruling–God-willing in keeping with the clear meaning and intent of the framers for a change–that “natural born citizenship” does, indeed, apply to children born of non-citizens on US soil, then, sadly but properly, Sen. Rubio is clearly ineligible. And unless someone has better information than I, I believe Gov. Jindal of Louisiana is likewise ineligible.

So, let’s keep it simple, on point and void of emotions. No matter how we want to slice and dice, no matter what our political leanings may be, one plus one must always equal two. SCOTUS, we need a rigidly constitutional ruling.

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13 thoughts on “Obama’s Eligibility Remains Serious Constitutional Issue

  1. Who told you that Vattel influenced the Natural Born Citizen definition? Who told you that he had profound influence? Vattel was not even mentioned ONCE in the Federalist Papers, while the common law–in which the term Natural Born had been used for 300 years before the US Constitution was written–was used about twenty times. The overwhelming majority of the writers of the Constitution were lawyers (as was John Jay), and when they used a term, they referred to the law–not to the speculations of a Swiss philosopher (whose book, by the way, recommends that every nation should have a state religion, and they certainly did not follow him in that).

    Rubio, Jindal, and Obama were all born in the USA. Obama’s birth in the USA has been proven overwhelmingly.

    The definition of Natural Born Citizen is:

    ““Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad.” — Black’s Law Dictionary, Sixth Edition.”

    All US-born citizens are Natural Born Citizens. That is why such prominent conservative Senators who are also lawyers as Orren Hatch and Lindsay Graham say that a Natural Born Citizen is simply one who was born in the USA:

    Senator Lindsey Graham (R-SC), said:

    “Every child born in the United States is a natural-born United States citizen except for the children of diplomats.” (December 11, 2008 letter to constituent)

    Senator Orrin G. Hatch (R-UT), said:

    “What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.” (Senate Judiciary Committee hearing hearing on OCTOBER 5, 2004

    The Wall Street Journal put it this way:

    “Some birthers imagine that there is a difference between being a “citizen by birth” or a “native citizen” on the one hand and a “natural born” citizen on the other. “Eccentric” is too kind a word for this notion, which is either daft or dishonest. All three terms are identical in meaning.”

    “Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President…..”—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]

    “What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.” (Senate Judiciary Committee hearing on OCTOBER 5, 2004)–Senator Orrin G. Hatch (R-UT).

    “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)

    “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)

  2. Re: “And if Pres. Chester A. Arthur was ineligible to be President because his father was a British citizen at the time of Chester’s birth,”

    Answer. Pres. Chester A. Arthur WAS eligible despite his father being a British citizen. The citizenship of one or even two parents has no effect on the Natural Born Citizen status of a person born in the USA.

    Here is an example of how the term Natural Born Citizen was used in 1803, shortly after the US Constitution was written:

    “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)

    As you can see, the term Natural Born Citizen refers only to the place of birth. Natural Born Citizens were “those born within a state.”

  3. Re dual citizenship. There is no mention of it being a barrier to Natural Born Citizen status in any of the writings of the founders, nor is it a barrier to Natural Born status in the common law. And both Thomas Jefferson and James Madison actually were dual citizens at the time that they were president, having been named full voting citizens of France by the French National Assembly during the French Revolution.

  4. Re: “In 1800, Charles Pinkney, a Framer of the Constitution and, later, the S.C. Governor, said that the Presidential Clause was designed to firmly “insure attachment to the country.” (No dual loyalties on the part of either parent.)”

    The Pinkney quote is false. There is no such Pinkney quote, and no writer of the US Constitution, and no American writer at the time, said anything about dual loyalties. Nor is there are shred of a hint that the writers of the US Constitution considered that the US-born children of foreigners were of lesser quality than the US-born children of US-citizens.

  5. Oh, gee, Ellen, I’m trembling with self-doubt.
    Your incisive half-truths, shoddy so-called research, and your deliberate misrepresentations reveal an earnest dissembler of the first order. But, trust me on this one, dear. I’ve seen it all before from your ilk and it remains as stultifying and hilarious as ever.
    But, alas, you did nail me on my typo (Pinckney vs Pinkney), so I guess you won the argument. So on the strength of your spellcheck acumen, let’s say you won the day. Feel better now?

    • Readers will notice that the above is not an answer. It is simply calling names. It does not respond to such quotations as:

      “What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.” (Senate Judiciary Committee hearing on OCTOBER 5, 2004)–Senator Orrin G. Hatch (R-UT).

      Nor does it respond to this:

      “There is no such Pinkney quote, and no writer of the US Constitution, and no American writer at the time, said anything about dual loyalties. Nor is there are shred of a hint that the writers of the US Constitution considered that the US-born children of foreigners were of lesser quality than the US-born children of US-citizens.”

      It just calls names.

      Nor does it respond to this:

      “Who told you that Vattel influenced the Natural Born Citizen definition? Who told you that he had profound influence? Vattel was not even mentioned ONCE in the Federalist Papers, while the common law–in which the term Natural Born had been used for 300 years before the US Constitution was written–was used about twenty times.”

      Those are the FACTS. If you do not like them, you can continue your fantasies. But others who read this blog will respect the facts.

  6. Well, Ellen, I was willing to let you win the day over your spellcheck acumen, but it looks like you’ve yielded the field of battle back to me. This time YOU misspelled Pinckney. Isn’t this fun?

  7. The issue is whether or not Obama is a Natural Born Citizen, and he is. He was born in the USA, in Hawaii, as has been proven overwhelmingly. And every US citizen who was born in the USA is a Natural Born Citizen. The only kind of US citizen who is not a Natural Born US citizen is a naturalized US citizen.

  8. Absolutely, incontrovertibly untrue. On this subject, it looks like you and Ellen vs the FRAMERS. Note: it’s avoidably short-sighted, altogether tendentious and fraught with intellectual peril to soley rely on revisionist case law to authoritatively and accurately draw one’s conclusions about the original constitutional meaning of “natural born citizen”. All I can say is that If I, but a lowly immigration counselor with no particular ideological ax to grind, can somewhat effortlessly and objectively determine orginal meaning and intent, anyone can. Give it a try. It’s extremely rewarding and illuminating.

    • There’s no problem in determining original meaning. The meaning of Natural Born Citizen is the WAY THAT IT WAS USED. The original meaning of it was the way that it was used when the US Constitution was written.

      Here is an example of how it was used in 1803, shortly after the US Constitution was written:

      “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)

      As you can see, the quotation refers only to the place. There is no mention of parents at all. Natural Born Citizens were “those born within a state.”

      And here is an example of how it was used in 1829:

      “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)

      Notice that Rawle says that it does not matter whether the parents were citizens or aliens? And notice that he refers only to birth within the USA????

      That was the original meaning of Natural Born Citizen, and that is why Ronald Reagan’s attorney general had this in his book:

      “Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President…..”—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]

  9. Ellen,
    My final comment: it clearly appears that you have cavalierly dismissed the very words of the 14th Amendment’s framers in order to advance your pre-conceived political predilection? I stand solidly behind the framers’ words, as should any serious student of the Constitution. It is unelightening at bests, and a great disservice at worst, to yourself and to the readers to be so very dismissive of Sens. Bingham and Howard, et. al.framers. Finally, relying on revisionist and incompetent case law to somehow authoritatively negate orginal meaning and intent is the way of a self-serving attorney, not the way of a Constitution-first adherent.

    • It is true that ONE of the 14th Amendment’s framers, Bingham, said that he thought that two citizens were required. But he was the writer of the Equal Protection Clause, not the Citizenship clause. He was not an expert on citizenship, and in fact he did not believe that WOMEN were US citizens. A strange man. His view was ONE man’s view in the debate, and MANY other Congressmen and Senators said that the 14th Amendment is based on the Common Law.

      And Bingham spoke before the Wong Kim Ark ruling, while Edwin Meese spoke after it:

      “Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President…..”—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]

      The US Supreme Court has turned down every single birther case. It only takes four justices to call a case, and there are four conservative and one swing justice, but not one of the birther cases has been called. It only takes ONE of the nine justices to require a side to respond to the brief of the other side, but in none of the birther cses did the justices require the Obama side to respond.

      The Meese definition of Natural Born Citizen is correct, and you are wrong.

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