Why Obama cannot be a natural born Citizen

A LEGAL ANALYSIS OF U.S. CITIZENSHIP

by Jim Delaney

(Apr. 5, 2010) — Obama, born in 1961 of a U.S. Citizen mother and a British Citizen (born in Kenya) father, was born a “U.S. Citizen” by virtue of his mother’s U.S. Citizenship; however, since Obama’s father was not a U.S. Citizen and thus not “attached to the U.S.,” Obama, even if born of a U.S. Citizen mother within the jurisdiction of the United States, is not, by definition and Constitutional intent, a “natural born Citizen” as is specifically required by Article II, Section 1 (the Presidential Clause) of the U.S. Constitution, and is, therefore, ineligible to serve as President.

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

Article II, Section 1 of the Constitution 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 express purpose (spirit 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. Vattel, 1758, which consistently and profoundly influenced the Framers’ intent when fashioning the Constitution), which assumes that citizenship is inherited from one’s father’s citizenship.

The intent of the Framers with respect to the meaning of “natural born Citizen” (vs. “born in the U.S.” or U.S. 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 U.S.” 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,” thus to insure future leadership’s freedom from foreign influences.

This correspondence directly influenced how Article II, Section 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 this Constitution, shall be eligible to the Office of 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 status — even if both parents were U.S. 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 geographic requirement as well.

Per the 14th Amendment, wherein the distinction between “natural born” and “U.S. Citizen” is never defined, a person born within the jurisdiction of the United States to non-citizens who “are employed in any diplomatic or official capacity” is automatically (by law) a U.S. Citizen. The prevailing view regarding citizenship was again drawn from E. Vattel’s Law of Nations, which 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 rights.”

Further, the primary author of the citizenship clause in the 14th Amendment, Sen. Jacob Howard, declared that the  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 U.S. Citizen father was “natural born.

In 1871, Rep. John Bingham, a Framer of the 14th Amendment, stated that a child is a U.S. 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. Therefore, born of U.S. Citizen parents within the jurisdiction are the overriding factors in determining “natural born citizenship.”

U.S. Title 8, Sec 1401 provides that U.S. 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.

Additionally, the 12th Amendment states that “No person constitutionally ineligible to the Office of President shall be eligible to that of Vice President of the United States.”

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

Article IV, Section 2 provided that no act of Congress was required to make citizens of the individual states citizens of the U.S.; only State Legislatures had authority to grant State citizenship which, in turn, conferred upon them U.S. 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 U.S. 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.”

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

John Bingham, commenting on Sec. 1992, stated that “every human being born within the jurisdiction of the U.S. 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 U.S. 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 U.S. 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 U.S.” Similarly, and more obviously, a child born within U.S. jurisdiction of two U.S. citizen parents is also considered a “natural born citizen.”

So it appears that there is no better way to insure “attachment to the U.S.” than to require the President to have inherited his American citizenship from his U.S. Citizen father. The Framers’ rationale for this would be that any child born in the U.S. 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 U.S. Citizen parents, and 2) a “U.S. 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 Wrotnowski vs. Bysiewica stay request which was denied by SCOTUS on December 15, 2008 asserts that President 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 Article II, Section 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 the 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 U.S., he is a U.S. 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 President 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  once 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 U.S. from his U.S. Citizen parents, a child born of U.S. Citizen parents within the jurisdiction of the U.S., inclusive of those U.S. parents who were naturalized U.S. citizens at the time of the child’s birth, is very clearly a “natural born citizen.”

Finally, Thomas Jefferson wrote 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 probable intent in which it was passed.”

And this from President 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 governments are destroyed.”