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1: The US Constitution requires the President to be a “natural born citizen”
The US Constitution was adopted on September 17, 1787. Presidential candidates who became US citizens before that date were exempt from the “natural born citizen” requirement. Some early Presidents – John Adams, Thomas Jefferson, etc. – were not natural born citizens. They could serve as President because they were citizens when the Constitution was adopted. However, if you were born after Sept. 17, 1787, you must be a “natural born citizen” in order to be eligible to serve as President.
2: The purpose of the “natural born citizen” requirement was to exclude “foreigners” (specifically, persons born with foreign nationality) from the presidency
In Alexander Hamilton’s first draft of the US Constitution, a person must be “born a citizen” of the United States in order to be eligible to serve as President (Works of Alexander Hamilton, p.407).
Someone who is “born a citizen” might acquire foreign nationality at birth. For example, in 1787, if a British couple gave birth on US soil, their child was both “born a citizen” of the US and a British subject.
In August 1787, the Constitutional Convention changed the presidential eligibility requirement from “born a citizen” to “natural born citizen”. The sole purpose of this wording change was to exclude “foreigners” from the presidency (see John Jay’s Letter to George Washington dated 25 July 1787, and Joseph Story’s Commentaries on the Constitution, Section 1473).
Since the terms “born a citizen” and “natural born citizen” pertain only to one’s status at the time of one’s birth, the “natural born citizen” provision cannot exclude persons who became “foreigners” in later life. The provision can, at most, only exclude persons who were “foreigners” when born. The change from “born a citizen” to “natural born citizen” does not provide any additional protection against foreign influence in the presidency – it does not exclude anyone not already excluded by the “born a citizen” requirement – unless “natural born citizen” means the absence of foreign nationality at birth.
3: Barack Obama was born with foreign nationality.
Regardless of where he was born, President Obama acquired British/Kenyan citizenship at birth by descent from his father:
"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. ... 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." (FactCheck.org: Obama's Kenyan Citizenship)
4: Foreign nationality at birth is unprecedented among US Presidents who were born after 1787.
With only two exception, every US President who was born after 1787 (a) was born in the United States, of parents who were both US citizens, and (b) was a citizen of the United States exclusively at the time of his birth. The two exceptions are Chester Arthur and Barack Obama. In 1880, Chester Arthur hid his British nationality from the public (Historical Breakthrough: Chester Arthur). The year 2008 was the first time in history that the United States knowingly elected a post-1787-born President who (a) was born of a non-citizen parent, and (b) was, at birth, a citizen of a foreign country (Natural Born Presidency).
5: The 1797 English translation of Law of Nations defines “natural born citizen” in a manner that precludes foreign nationality at birth.
The 1797 English translation of Vattel’s Law of Nations defines “natural born citizens” as individuals born in a country, of parents who are citizens of that country. Such individuals, when born, are citizens of their native country exclusively; they do not acquire any foreign nationality at birth:
The natives, or natural born citizens, are those born in the country, of parents who are citizens (Law of Nations, Book I, Section 212)
Since his father was not a US citizen, President Obama is not a US “natural born citizen” according to the 1797 English-language version of Law of Nations.
6: In 1874, the Supreme Court understood “natural born citizen” as US-born of US-citizen parents.
In Minor v. Happersett (1874), the Supreme Court described two groups of people. One group consists of persons who were born in the United States, of parents who are US citizens. The other group consists of persons who were born on US soil, but whose parents were not necessarily US citizens. The Supreme Court applied the term “natural born citizen” only to members of the first group, not the second.
"…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." (Minor v. Happersett, 1874)
Since his father was not a US citizen, President Obama does not conform to the Minor v. Happersett understanding of “natural born citizen” (Obama Cannot Be A "Natural Born Citizen" Under Minor v. Happersett ; see also Minor v. Happersett is Binding Precedent).
7: The 14th Amendment does NOT say that everyone born on US soil is a “natural born citizen”.
The widely-held notion – that the 14th Amendment confers “natural born citizen” status to all persons born on US soil – is factually incorrect. The 14th Amendment citizenship clause mentions citizens; it does not mention natural born citizens. The term “natural born citizen” does not appear anywhere in the 14th Amendment.
The 14th Amendment citizenship clause declares:
"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."The citizenship clause defines a particular group of people. You are a member of this group if:
· You were born or naturalized in the United States, and
· You were subject to US jurisdiction at the time of your birth or naturalization.
If you belong to this group, the 14th Amendment guarantees your US citizenship. If you do not belong to this group, you might receive citizenship from laws enacted by Congress, but you do not receive citizenship from the 14th Amendment.
During the 1866 Congressional debates, the framers of the 14th Amendment explained that the word “jurisdiction”, as used in the 14th Amendment, means sole and complete jurisdiction, i.e., not subject to any foreign power (What 'Subject to the Jurisdiction Thereof' Really Means).
Emancipated slaves were subject to sole and complete US jurisdiction; consequently, their US-born children were US citizens according to the 14th Amendment.
Native Americans belonged to tribes which the US government recognized as sovereign nations. Their children, even if born on US soil, were subject to tribal jurisdiction; they were not subject to sole and complete US jurisdiction and consequently were not 14th Amendment citizens.
Since his citizenship status at birth was “governed” by the laws of a foreign country, President Obama was not subject to sole and complete US jurisdiction at birth. He may have acquired US citizenship from laws enacted by Congress, but he did not receive US citizenship from the 14th Amendment.
8: In U.S. vs. Wong Kim Ark, the Supreme Court did NOT rule that all US-born children are “natural born citizens”.
In United States v. Wong Kim Ark (1898), the Supreme Court ignored (deemed “not admissible”) the 1866 Congressional records explaining the intended meaning of “jurisdiction” in the 14th Amendment (Was U.S. vs. Wong Kim Ark Wrongly Decided?). In the Court’s opinion, the United States has “jurisdiction” over US-born children of alien parents if said parents “have a permanent domicil and residence in the United States”. The Court ruled that such children were US citizens. The Court did NOT rule that such children were natural born citizens.
Even under the Court’s liberalized definition of “jurisdiction”, President Obama still does not qualify for 14th Amendment citizenship. President Obama may have received US citizenship by US law; but since his father was never permanently domiciled in the US, the President did not receive US citizenship from the Wong Kim Ark ruling.
9: There is no Federal statute which defines “natural born citizen”.
In 1790, Congress passed the Naturalization Act of 1790, in which foreign-born children of American parents were “considered as” natural born citizens. In 1795, Congress replaced the 1790 Act with the Naturalization Act of 1795, in which the words “natural born” were deleted, leaving just citizens.
After 1790, Congress never again passed any law containing the term “natural born citizen”. (In 2008, the US Senate passed Resolution 511 declaring John McCain to be a “natural born citizen”, but the resolution was non-binding and had no legal effect). Today, US law confers citizenship to persons who meet certain criteria, but the term “natural born citizen” does not appear in any existing federal statute. (See Critique of Wall Street Journal article).
10: No court has ruled on whether Barack Obama is a “natural born citizen”.
Except a handful of cases which are still in progress, all lawsuits challenging Obama’s eligibility have been dismissed on technicalities or have been denied without comment. Although some jurists have expressed dicta, no court has ruled on whether President Obama is, or is not, a natural born citizen.
11: No branch or agency of the federal government has vetted Obama’s eligibility.
Neither Congress nor any Federal agency has considered whether Obama is, or is not, a natural born citizen. According to a Congressional Research Service memo, “there is no specific federal agency or office that ‘vets’ candidates for federal office as to qualifications or eligibility prior to election.”
12: In 18th-century England, only those persons born on English soil, of parents owing actual allegiance to the king, were “natural-born” in fact; all others were deemed “natural-born” by law.
All 18th-century English subjects – regardless of whether they acquired subjecthood by birth, statute or naturalization – were called natural-born subjects. (Persons made subjects by letters patent issued by the king were the exception). Natural-born subjects by birth were persons who were born on English soil, to parents who were under the actual obedience (allegiance) of the English king:
"All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions." (Timothy Cunningham, A New and Complete Law Dictionary, 1771, p.95; also, Matthew Bacon, A New Abridgement of the Law – Vol. 1, 1736, p.77)
In 1604, Parliament granted “denizen” status to children born in England, of alien parents (House of Commons, April 1604). Such children were naturalized at birth and were deemed to be natural-born by law, but they were not natural-born in any actual or literal sense. As Judge Yelverton explained in 1608, Parliament does not have the power to turn anyone into a real natural-born subject. Parliament may deem someone to be natural-born, but cannot cause anyone to be a natural-born subject in fact:
"A parliament may make a man to be accompted as naturalised, and conclude every man to say but that he is so, but it can never make a man to be so indeede." (Yelverton, as quoted by Bruce Galloway, The Union of England and Scotland, 2003, p.157)
Naturalization – whether by private act of Parliament or by statute enacted by Parliament – is a “fiction of law” which has no effect except in countries consenting to that fiction (Timothy Cunningham, A New and Complete Law Dictionary, 1771, “Naturalization”).
All persons born on English soil (except children of foreign ambassadors and alien enemies) were called natural-born subjects, regardless of whether their parents were subjects or aliens. English-born children of alien parents were “denizens”; such children were natural-born subjects by law. Only those persons born in the country to which their parents owed actual allegiance were natural-born in fact.
13: It is possible to directly challenge Obama’s eligibility and indirectly challenge his executive actions.
The Department of Justice, Presidential candidates, and possibly others, could file a “direct” challenge to Obama’s eligibility in the DC District Court. A direct challenge, if successful, would immediately remove Obama from office (Quo Warranto Legal Brief). A person, company or state which has suffered a particularized harm or injury as a result of a law or executive order signed by Obama could file an “indirect” or “collateral” challenge against that specific law or action. For example, persons convicted of breaking a law enacted during Obama’s presidency could ask a court to overturn their convictions on the basis that the law was signed by an ineligible president (Standing to Challenge). A collateral challenge, if successful, would not remove the President from office (it would merely invalidate a law or order that Obama had signed) but would nevertheless make it difficult for Obama to remain in office.
14: President Obama bears the burden of proof concerning his eligibility to hold office.
All candidates for federal office bear the burden of proof concerning their eligibility to hold office. They have an obligation to conclusively establish their eligibility before taking office (see third paragraph in Dr. Edwin Vieira: Obama Must Stand Up Now or Step Down).
Presidential candidates that were born in the United States, to US-citizen parents, are definitely, without doubt, natural born citizens. The eligibility of all other presidential candidates is in doubt. These “in-doubt” candidates have an obligation to ask the Supreme Court for a declaratory judgment resolving the doubts concerning their “natural born citizen” status. If “in-doubt” candidates refuse to do so, each state has a right (if not a duty) to exclude them from the state ballot.
"Additionally, the relevant election official in the state, such as the Secretary of State, may have authority to exercise discretion to challenge a self-certification or a certification by a political party of a candidate whom the election official believes is not eligible for the office." (Congressional Research Service memo)
For a more thorough and detailed examination of the above facts, see Eligibility Primer.
Copyright © 2011 Stephen Tonchen