Why Obama cannot be a natural born Citizen

A LEGAL ANALYSIS OF U.S. CITIZENSHIP

by Jim Delaney

John A. Bingham, author of the 14th Amendment to the U.S. Constitution, which was intended to confer U.S. citizenship to the children of slaves born in the U.S.

(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.”

16 Responses to "Why Obama cannot be a natural born Citizen"

  1. IceTrey   Tuesday, April 6, 2010 at 11:56 PM

    Last time I checked this was America not Britain. British law has no authority here. Obama and Dunham were apparently given a legal divorce in the US so they must have been legally married in the US. That is all that matters.

  2. btw   Tuesday, April 6, 2010 at 8:55 PM

    Clarence says: “…In their minds you can debate all you wish. They simply disregard you as insignificant.”

    They’ll certainly win if we do NOTHING. Please go “To Fellow American Citizen!” (or – for some fun before that – to my message below of yours):

    http://www.thepostemail.com/2010/04/03/faux-first-lady-admits-obama-born-in-kenya/comment-page-2/#comment-7270

  3. E Glenn Harcsar   Tuesday, April 6, 2010 at 5:42 PM

    Joss, good catch and good extended thinking here. However, SAD and BO Sr. divorce papers surfaced over a year ago. How does this color into your original legal theory? Also, to be thorough, show the case law about natural born citizenship through the mother only in case of wedlock. Then re post. It could knock down the current easiness of non-NBC by a British dad.
    Cheers.

  4. Clarence   Tuesday, April 6, 2010 at 5:42 PM

    Unless someone gets serious this all amounts to so much chewed up grass. Obama and his minions are effectively ignoring all this research. They won’t even discuss the matter – what’s the point – for them it serves no purpose. In their minds you can debate all you wish. They simply disregard you as insignificant.

  5. btw   Tuesday, April 6, 2010 at 1:42 PM

    Dear friends,

    Let me invite you to an analysis in “The ultimate proof of Obama’s Ineligibility to be President Of The United States (POTUS) according to Constitution” (and a related stuff too) made by an old buddy, Common Sense, who despite premature rumors (remember Mark Twain) about
    OBITUARIES

    http://www.resistnet.com/profiles/blogs/obituary-3?xg_source=activity

    found a way to appeal (address) “To Fellow American Citizen!”:

    http://www.thepostemail.com/2010/04/03/faux-first-lady-admits-obama-born-in-kenya/comment-page-2/#comment-7270

  6. jtx   Tuesday, April 6, 2010 at 11:14 AM

    ‘pologies for the typos … “Quo Warranto” and “ONE”, of course!

  7. jtx   Tuesday, April 6, 2010 at 11:12 AM

    Joss Brown:

    Could this be yet another case of Obama lying??? Could be!! And until more cognizable evidence is available, we have only Obama’s own words both in his “Dreams …” fictional novel and on his “FightTheSmears” political website to tell us that “Daddy was an alien …”. Of course, that also may be a lie as well but the only way we’ll know is to have a case such as the Kerchner et al action heard on merit.

    That case, BTW, has Quo Wattanto as ONWE of the arguments embedded within it. It is a very encompassing action that everyone should find out about.

  8. Joe The Blogger   Tuesday, April 6, 2010 at 10:14 AM

    Is there a typo here? This doesn’t make sense;

    “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”.

  9. Benaiah   Tuesday, April 6, 2010 at 9:25 AM

    Even if Obama was born out of wedlock, and born in Hawaii, he isn’t an Article II natural born citizen, as his father was a foreigner.

    Article II, Section 1, Clause 5: No person except a natural-born citizen …shall be eligible to the office of President.

    The issue of whether or not Obama is “eligible to the office of President” depends upon whether or not he is an Article II “natural born citizen” of the United States.

    The phrase “natural born citizen” “must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution”.

    United States v. Wong Kim Ark., 18 S. Ct. 456, 169 U.S. 649 (U.S. 03/28/1898)

    [1] SUPREME COURT OF THE UNITED STATES

    [16] The Constitution nowhere defines the meaning of these words [“citizen of the United States,” and “natural-born citizen of the United States”], either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this, as in other respects, it [The Constitution] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162 [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. Minor v. Happersett, 88 U.S. 21 Wall. 162 (1874]; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274.

    The “common law, the principles and history of which were familiarly known to the framers of the Constitution” was plainly expressed by the Supreme Court of the United States in the Separate Opinion of Justice Daniel in Scott v. Sandford, which quoted Vattel, and explicitly stated, “The natives or natural-born citizens are those born in the country of parents who are citizens…”

    Scott v. Sandford, 60 U.S. 393 (U.S. 01/02/1856)

    [1] UNITED STATES SUPREME COURT

    [418] …The natives or natural-born citizens are those born in the country of parents who are citizens…

    Furthermore, the Supreme Court of the United States in 1814 relied upon Vattel’s “Law of Nations” as the authority on citizenship issues, and stated in The Venus, “The natives, or indigenes [natural-born citizens], are those born in the country, of parents who are citizens.”

    The Venus, 12 U.S. (8 Cranch) 253, 1814

    “Vattel, …is more explicit and more satisfactory on it [CITIZENSHIP ISSUES] than any other whose work has fallen into my hands, [Vattel] says, ‘…The natives, or indigenes [natural-born citizens], are those born in the country, of parents who are citizens.’ ”

    Vattel’s Law of Nations: § 212. Citizens and natives

    …The natives, or natural-born citizens, are those born in the country, of parents who are citizens.

    Finally, the Supreme Court of the United States, in Minor v. Happersett, confirmed the definition of a “natural born citizen” as “children born in a country of parents who were its citizens”.

    Minor v. Happersett, 88 U.S. 21 Wall. 162 (1874)

    “ ‘No person except a natural-born citizen …shall be eligible to the office of President’… 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.”

    Simply put, Article II “natural born citizens” are those citizens who are “born in the country, of parents who are citizens.”

    Hence, Obama is not an Article II “natural born citizen” of the United States, even if he was born in Hawaii, or born out of wedlock, as his father was a foreigner…

    To reiterate, Obama’s father was not a citizen of the United States.

    Therefore, Obama is not an Article II “natural born citizen” of the United States.

    Thus, Obama is not “eligible to the office of President”.

  10. Sallyven   Tuesday, April 6, 2010 at 9:04 AM

    Jim, outstanding article. The excellent Undead Revolution blog noted the principle of partus sequitur patrem (children following the nationality of their fathers) in the case Barry v. Mercein. They said: “There is a main theme among the many cases we found. Both parents needed to show and demonstrate the desire to make the United States their permanent residence…”

    Joss, it will be interesting to see if Obama claims this as his defense. Even if the marriage was not “legal”, Obama has claimed his father’s citizenship, participated in Kenyan politics, etc. British law notwithstanding, I would hope that common sense would prevail by SCOTUS in the application of Article 2 to Obama’s situation. Obama clearly has never contended pure allegiance at birth.

    I have never seen any historical documents pertaining to the “natural born” citizen clause that addressed this particular situation. Aristotle’s Politics, Book 3, does contain this quote when discussing citizenship:

    “Part 2: But in practice a citizen is defined to be one of whom both the parents are citizens…

    Part 5: … At Thebes there was a law that no man could hold office who had not retired from business for ten years. But in many states the law goes to the length of admitting aliens; for in some democracies a man is a citizen though his mother only be a citizen; and a similar principle is applied to illegitimate children; the law is relaxed when there is a dearth of population. But when the number of citizens increases, first the children of a male or a female slave are excluded; then those whose mothers only are citizens; and at last the right of citizenship is confined to those whose fathers and mothers are both citizens…”

    Common sense tells us that if the framers were seeking to define the highest and purest form of citizenship possible for our country’s CIC, they would require US citizenship of both the mother and the father. If what you are saying is true, Joss, then a child born of a US citizen mother, but out of wedlock to even a father of an enemy country, would be more eligible for the Presidency than a child born here from a legal marriage to an alien father who naturalized immediately after the child’s birth.

  11. BillCutting   Tuesday, April 6, 2010 at 8:44 AM

    Joss Brown

    When Barky disavows his Kenyan/British heritage from the Oval office. I will believe him.
    He says on his website that he is a British subject by birth. I believe him.
    If he wants to stop the speculation, than he can release his records.

    Until then, he is British/Kenyan by his own admission.

  12. Joss Brown   Tuesday, April 6, 2010 at 8:41 AM

    I should add that it is still necessary to legally define natural born citizen once and for all: according to the Framers it would mean sole allegiance to the US plus US citizenship alone. Even if Obama is eligible (under whichever weird circumstances), such a constitutional catastrophe should not be repeated, such a legal uncertainty must not be perpetuated. Therefore I think it is important to initiate a quo warranto against Obama in the DC District Court, even if it might eventually fail. Otherwise the “birthright citizenship” detraction will only grow stronger. Native born is not natural born. Never was.
    ——————-
    Mrs. Rondeau replies: Orly Taitz issued a Quo Warranto in March 2009 which went unanswered, and my understanding is that she has either issued another or intends to in the near future. Also, lawyers Leo Donofrio and Stephen Pidgeon have included a QW in their case brought by the Chrysler dealers whose dealerships were closed due to BO’s signing of the Chrysler sale to Fiat. “We the people” have been demanding QW for some time now, and our government refuses to address it.

  13. BillCutting   Tuesday, April 6, 2010 at 6:02 AM

    Great article Jim!

    It is no longer in dispute that Chester Authur broke the law by hiding the status of his birth and his ineligibility to office. If SCOTUS ruled the Constituional requirement for NBC status now void because of this. They might as well legalize murder or theft because surely some one some where got away with one of these crimes.

  14. Dan   Monday, April 5, 2010 at 11:36 PM

    I constanty write my Senator and Congressman and they ignore me. and they are repubs. I am sick of this. The usurper needs to go. We now only have 1 branch of government and it is going up sheeet creek without a paddle

  15. Joss Brown   Monday, April 5, 2010 at 11:25 PM

    The marriage of Obama Sr. and Stanley Ann Dunham was not valid, because Obama Sr. already had a wife. British law clearly states that customary (tribal) marriages are equal to civil marriage if the second marriage is to be sealed in a civil ceremony, i.e. a previous divorce is necessary. Obama Sr. never divorced his first wife. Therefore Obama Jr. was legally born out of wedlock, and his citizenship at birth only followed SA Dunham, i.e. there is a unity of citizenship and allegiance in his case. Therefore he is a natural born citizen under the accepted definition of that term at the time of the framing of the Constitution. The only way for him to not be natural born is birth abroad.

  16. Bob1943   Monday, April 5, 2010 at 9:56 PM

    Obama has yet to prove he is a U.S. citizen, let alone a “natural born citizen”.

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