PRESIDENTIAL ELIGIBILITY, PART 1
by Joseph DeMaio
(May 30, 2011) — Sherlock Holmes once noted that the perfect crime is the one that is never detected. Those who are now finally discovering the unsolved mystery of Barack Obama’s eligibility under the Constitution as a “natural born Citizen” should read more Sherlock Holmes.
In reality, there is no mystery. Day-by-day, week-by-week and revelation by revelation, the empirical evidence accumulates that the man now occupying the White House may very well be plainly ineligible to do so. It only remains for the truth to finally catch up to him, as the truth always does. And yet legions of his supporters and sycophants are doing all they can to delay and postpone that day of reckoning.
1. In order for a person to be born a “natural born Citizen” under Art. 2, Sec. 1, Cl. 5 – the “eligibility clause” of the Constitution as it was understood by the Founders under The Law of Nations by E. de Vattel, a legal scholar during the years the Constitution was conceived, drafted and executed – both such person’s parents must be, at that time, United States citizens and no U.S. Supreme Court case has held otherwise;
2. An April 3, 2009 Congressional Research Service (“CRS”) Memorandum authored by one Jack Maskell, a Legislative Attorney in the CRS American Law Division and entitled “Qualifications for the Office of President of the United States and Legal Challenges to the Eligibility of a Candidate” and intended for distribution to members of Congress either (a) innocently, but substantively, misreads, misconstrues and/or misapplies federal appellate and U.S. Supreme Court precedent, or (b) intentionally, and thus improperly (and possibly illegally), alters the meaning of precedent through substantive editing by grammatical ellipsis omission of material words, and thus facts, in two federal documents, to arrive at its conclusion that Barack H. Obama is, purportedly, eligible to be president as a “natural born citizen;”
3. A June 5, 2009 Congressional Research Service “Transmittal” message to a member of Congress from one Jerry Mansfield, an “Information Research Specialist” in the CRS “Knowledge Services Group,” misinforms the congressman by stating that questions about Mr. Obama’s birth certificate have been “ultimately resolved” in favor of his eligibility based on a series of biased and badly-skewed Internet postings;
4. A second Congressional Research Service memorandum, dated March 18, 2010 and authored, again, by Mr. Jack Maskell, and entitled “Birth Certificates of Presidential Candidates and Standing to Challenge Eligibility,” but without mentioning or referencing the April 3, 2009 memo, commits the same conceptual errors of the prior April 3, 2009 memo and thus merely compounds and perpetuates the problem;
5. The issue of Barack H. Obama’s eligibility to serve as president under the “natural born citizen” clause of the Constitution thus far remains unaddressed on the merits by the U.S. Supreme Court and, accordingly, remains unresolved as well.
As frequently noted in postings at various Internet websites, including, notably, The Post & Email – most recently in the posts appearing here (http://www.thepostemail.com/2011/05/08/too-hot-to-handle/), by one by one Tracey M. Grissom and which includes a link to an extensive work on presidential eligibility by one Stephen Tonchen first appearing in 2009 (http://people.mags.net/tonchen/birthers.htm), as well as in a post by one Antoine Francisque appearing here (http://www.thepostemail.com/2011/04/14/how-could-obama-not-be-a-u-s-citizen-if-his-mother-was-an-american/) – the core issue regarding Mr. Obama’s eligibility is not properly confined to his actual birthplace, be it Honolulu, Mombasa or elsewhere, although that is a related issue. Rather, the central focus in addition must be on the citizenship status of his mother and, in particular, his father.
The Tonchen “Eligibility Primer” is particularly comprehensive and easy to read. While it does acknowledge the existence of the April 3, 2009 CRS Memo, it does not address the various unexplained anomalies examined in the following memorandum.
In addition, the recent publication by Dr. Jerome Corsi of a new book on these issues, “Where’s the Birth Certificate? The Case That Barack Obama is Not Eligible to be President,” touches upon, but does not directly address or analyze, the noted anomalies in the CRS Memo. Thus, while the Corsi book reaches the correct conclusion – that Barack Obama is very likely ineligible to the presidency under the “natural born Citizen” clause of the Constitution – it does so without addressing the more serious problems with the CRS Memo. Accordingly, Dr. Corsi’s book, if anything, understates the severity of the problem. And, to be clear, Dr. Corsi and/or his researchers cannot be faulted for the oversight, because the anomaly in the CRS Memo is extremely difficult to discern, at best, unless one is specifically looking for it.
Although the Constitution itself does not define the term “natural born Citizen,” these exists a wealth of information and authority (for those willing to review and consider it) bearing upon what the Founding Fathers understood the meaning of the term to be and what their intent was through its incorporation into the Constitution between 1776 and 1789, the years leading up to the drafting, signing and ratification of the Constitution.
Specifically, the writings of the Swiss-German legal philosopher, Emmerich de Vattel in his 1758 tome on international law – The Law of Nations – in particular bear heavily on the issue. In the preface to the 1999 digital edition of The Law of Nations, and commenting on the 1883 edition by Joseph Chitty, Esq. (http://www.constitution.org/vattel/vattel.htm), is found the following:
“This 1758 work by Swiss legal philosopher Emmerich de Vattel is of special importance to scholars of constitutional history and law, for it was read by many of the Founders of the United States of America, and informed their understanding of the principles of law which became established in the Constitution of 1787. Chitty’s notes and the appended commentaries by Edward D. Ingraham, used in lectures at William and Mary College, provide a valuable perspective on Vattel’s exposition from the viewpoint of American jurists who had adapted those principles to the American legal experience.” (Emphasis added)
In Book I, Chapter XIX, § 212 of The Law of Nations, addressing the issue of what constitutes the citizens and natives of a country, de Vattel notes as follows:
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. 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. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, 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.” (Bold/emphasis added)
It is thus clear that the proper analysis in the determination as to whether one is (or even can be) a “natural born citizen” – at least under de Vattel’s articulation of the principles of law distinguishing “natural born citizens” from “native born citizens” – is immutably fixed in time as of the moment of birth, and not at some subsequent time.
Indeed, as noted here (http://www.thepostemail.com/2010/05/03/jefferson-used-vattels-the-law-of-nations-to-write-our-founding-documents/), the Founding Fathers, including Thomas Jefferson, relied upon de Vattel in drafting both the Declaration of Independence and the Constitution. And since Jefferson as well as many other Founding Fathers were conversant, if not fluent, in French – including Benjamin Franklin, who served as our Ambassador to France from 1776 to 1785 – it is generally acknowledged that they knew exactly what was being stated by de Vattel in The Law of Nations.
Moreover, even the U.S. Supreme Court has recognized that de Vattel’s tome was of critical influence on the Founding Fathers, stating, for example, that “[t]he international jurist most widely cited in the first 50 years after the Revolution was Emmerich de Vattel. 1 J. Kent, Commentaries on American Law 18 (1826). In 1775, Benjamin Franklin acknowledged receipt of three copies of a new edition, in French, of Vattel’s Law of Nations and remarked that the book ‘has been continually in the hands of the members of our Congress now sitting…. ‘” 2 F. Wharton, United States Revolutionary Diplomatic Correspondence 64 (1889)…” (emphasis added) See U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 462, n. 12 (1978).
And one of the Founding Fathers, John Jay – a contributing author, along with Alexander Hamilton and James Madison, to The Federalist Papers and serving as the first Chief Justice of the U.S. Supreme Court – suggested in a July 25, 1787 letter to then-serving Presiding Officer of the Continental Convention of 1787, George Washington that it would be prudent to include, in the nation’s new Constitution, a specific restriction on who might be eligible to the national presidency. (http://www.familytales.org/dbDisplay.php?id=ltr_joj4101&person=joj). He advised Washington:
“Permit me to hint whether it would not 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 command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.” (Emphasis added)
Thus, while a child born of alien parents in this country may be deemed under the Fourteenth Amendment to the Constitution to be a “native born citizen” – as the Supreme Court has frequently noted (see, e.g., United States v. Wong Kim Ark, 169 U.S. 649 (1897)) – the child cannot, by definition, be at that time or at any other time a “natural born citizen” unless its parents are, at the time of the birth, also citizens. While the child may later voluntary renounce his or her citizenship upon reaching majority status, it cannot be involuntarily taken away.
Stated otherwise, consistent with Jay’s advice to Washington, and under de Vattel’s analysis, with which the Founders were familiar and which “… informed their understanding of the principles of law which became established in the Constitution…,” unless at the time of birth, a child’s parents both were citizens, although the child would be a “native born citizen,” the child could by definition not be a “natural born citizen.”
Against this backdrop, the putative current President of the United States (a) confirms in his autobiography, corroborated as well through the newly-released Internet “picture” of what is claimed to be his original birth certificate, that his father, Barack Obama, Sr., was a Kenyan and not a U.S. citizen; (b) refuses to release or allow the release of the “hard copy” his original Hawaiian “long form” birth certificate (assuming one exists) while contending that the image of a “certification of live birth” posted on the internet in 2009 and now, on April 27, 2011, proves he was born there, an issue only indirectly related to the legal question of whether he is a “natural born Citizen” under the Constitution; (c) ignores as irrelevant the many reports in newspapers, both here and abroad, that he was born in Kenya or even Indonesia; and (d) dismisses all questions on the point of his constitutional eligibility as “distractions.”
THE CRS AND THE BEGINNING OF THE PROBLEM
Equally troubling, however, is how the issue has been managed and manipulated by Obama’s supporters and defenders, from the mainstream media to left-wing Hollywood sycophants. The entire issue has been morphed by the left (and even by many on the not-left) into a conspiracy theory on a par with Roswell UFO’s. By metastasizing legitimate questions over his eligibility into Saturday Night Live skits, the machine thus far has succeeded in trivializing, marginalizing and, in many cases, demonizing those having the audacity to even think of asking the question. In true Orwellian form, the Thought Police are alive and well in America.
Even more disturbing, though, is the way the specific issue of the putative president’s eligibility has been addressed and seemingly – unless otherwise plausibly explained – manipulated and misrepresented by what should otherwise be an unbiased and objective arm of the United States Congress, the Congressional Research Service (“CRS”). The Congressional Research Service is a legislative agency within the Library of Congress. Its website (http://www.loc.gov/crsinfo/) asserts that it
“…works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. As a legislative branch agency within the Library of Congress, CRS has been a valued and respected resource on Capitol Hill for nearly a century. CRS is well-known for analysis that is authoritative, confidential, objective and nonpartisan. Its highest priority is to ensure that Congress has 24/7 access to the nation’s best thinking.”
Let us test those assertions.
First, what follows is a brief analysis of a “memorandum” prepared by the CRS and issued April 3, 2009 intended, according to the memorandum’s introductory statements, to address questions “… from congressional offices…” which had been posed to the agency regarding the issue of Mr. Obama’s constitutional eligibility. The memorandum is not an indexed “report” which might otherwise be located at the CRS website (http://www.loc.gov/crsinfo/) or a parallel repository maintained by the State Department (http://fpc.state.gov/c18185.htm).
On the other hand, the full text of the CRS Memorandum has been posted on the internet and can be found here: (http://www.scribd.com/doc/41197555/41131059-MoC-Memo-What-to-Tell-Your-Constituents-in-Answer-to-Obama-Eligibility). Whether the title in the website address originated with the CRS or somewhere else is unknown, but it should give some hint of the purpose underlying the memo. It will be hereafter referenced as the “CRS Memo.”
The CRS Memo begins by stating that, without regard to its distribution to the specific but unidentified “congressional offices” requesting guidance, it was “… prepared to enable distribution to more than one congressional office,” presumably in anticipation that more than one or two members of Congress might want to become enlightened on the topic. This is a prophetic observation, given the fact that the putative president’s intransigence in refusing to put the controversy to rest by simply releasing a “hard copy” – as opposed to another image of a hard copy posted April 27, 2011 to the Internet – of his original birth certificate, assuming, again, that an original Hawaiian long-form certificate exists, has served only to attract more and more attention to the issue, and, lately, from persons of higher and higher profile.
Moreover, given the “release” by the White House on April 27, 2011 of an Internet “image” of a document now purporting to be the “original long form birth certificate,” and the contents of a second CRS memo, discussed herein later, the controversy is only exacerbated.
Second, after a brief introductory discussion about the “vetting” of candidates for the office and the purported impropriety of lawsuits seeking to challenge the eligibility of presidential candidates as lacking “standing” and being premised on “non-justiciable political questions,” the CRS Memo delves into what it terms a “Legal Analysis of [the] Natural Born Citizenship Requirement.”
It is this section of the CRS Memo dealing with the “vetting” issue which Dr. Corsi’s book seizes upon. While the issue is significant, as Dr. Corsi points out, because it confirms that candidate (and now president) Obama was, in effect, “given a pass” by the system and those charged with operating it because no federal law required the “vetting” of a presidential candidate’s eligibility under the “natural born Citizen” clause of the Constitution, it is not the end of the inquiry.
To state the obvious: just because something is not “required” does not mean that it would be unwise or imprudent to do it anyway. Dr. Corsi characterizes (at p. 295) the paragraph on the first page of the CRS Memo containing the statement that no “vetting” of presidential candidates is “required” (and which first page is included as Exhibit 124 at p. 234 of the book) as “… the most important paragraph in the document.” Respectfully, there may be an even more important paragraph farther into the document, as discussed hereafter.
The “analysis” portion of the CRS Memo is thereafter subdivided into sections addressing “Background/Summary,” “Constitutional History,” “Common Understanding of the Legal Term ‘Natural Born’ in [the] 1700’s” and “Legal Challenges Brought in 2008,” with subsections addressing challenges involving the presidential eligibility of both Senator John McCain and then-Senator Barack H. Obama.
Indeed, while the CRS Memo goes to great lengths to expound upon the fact that, for example, a well-known legal treatise popular in England in colonial times, Blackstone’s Commentaries, was “… widely known in the Colonies…” and that certain commentators believed that the “… Framers had a broad view of the term ‘natural born’ and considered all foreign-born children of American citizen parents eligible for the Office of the Presidency…,” (see CRS Memo at fn. 44 and accompanying text), the CRS Memo is devoid of any reference at all to the teachings of de Vattel, even in a dismissive way. Unlike the CRS Memo, even Blackstone’s Commentaries and the United States Supreme Court recognize de Vattel and the impact and influence of his writings on the Founding Fathers.
Moreover, the citation by the CRS Memo (fn. 44) to a law review article for the broad statement regarding the purported ambivalence of the Founders to foreign-born persons being eligible to the presidency is plainly inconsistent with the advice John Jay – clearly, a Founder – to George Washington in 1787.
On the other hand, the CRS Memo does mention and discuss Jay’s letter to Washington, but ultimately concludes that the concern over the “natural born citizen” and “eligibility” issues related to a desire to ensure the requisite chief executive fealty and allegiance to the nation and “… to prevent wealthy foreign citizens, and particularly wealthy foreign royalty and their progeny or relations, from scheming and buying their way into the presidency, or creating an American monarchy.” See CRS Memo at 6-7.
This conclusion, of course, seems to be inconsistent with the “broad view of the term ‘natural born citizen’…” espoused elsewhere in the CRS Memo. In any event, since The Law of Nations was plainly available to the Founders and “… informed their understanding of the principles of law which became established in the Constitution of 1787…,” (see U.S. Steel v. Multistate Tax Commission, ante, and Preface Comments, 1999 digital edition, The Law of Nations, ante), this omission from the CRS Memo’s “analysis” of any reference to de Vattel’s tome, substituting primary reliance on Blackstone’s Commentaries, is one that stands out like the proverbial “empty room… except for that elephant in the corner,” or, to quote Sherlock Holmes, “the dog that didn’t bark.”
At minimum, one would expect a thorough evaluation of the issues from as “…authoritative, confidential, objective and nonpartisan…” an entity as the CRS to include at least a passing reference to § 212 of The Law of Nations, with whatever explanatory, distinguishing or dismissive comments might in the author’s mind be appropriate. But the complete omission of any reference whatsoever to de Vattel is not only problematic from an objective, intellectual perspective, but could also presage a less benign motivation underlying the ultimate conclusions of the CRS Memo itself.
It would take far more time and energy than this writer presently possesses to dissect all of the components of the CRS Memo and explain why, at the end of the day, its ultimate conclusions are highly questionable and suspect, thus demanding far more examination than has thus far been expended on the issues. Suffice it to say, however, that there are certain aspects of the memo which are extremely problematic and troubling and which thus both invite and necessitate more scrutiny. Whether that scrutiny should come from official or unofficial sources or whether it should be addressed through legal action is a matter left for others to decide.
THE CORE OF THE CRS MEMO ATTACK
Specifically, in the first subsection of the “Legal Analysis” portion of the CRS Memo, it is contended that, based on the common law principle of “jus soli” or the “law of the soil” which existed in England and the Original Colonies in 1776, as well as under statutes and constitutional amendments coming into effect thereafter:
“… all persons born ‘in’ the United States and subject to its jurisdiction are citizens of the United States ‘at birth.’ As such, any person physically born ‘in’ the United States, regardless of the citizenship status of one’s parents (unless such parents are foreign diplomatic personnel not subject to the jurisdiction of the United States) would appear to be a ‘natural born’ citizen eligible to be President of the United States [fn. 25].” (Emphasis in original)
Footnote 25 of the memorandum cites “specifically” – meaning as a primary source for the assertion being made – as the authority for that contention the 1939 U.S. Supreme Court decision in a case called Perkins v. Elg, 307 U.S. 325 (1939) and its reliance on an 1875 “letter of advice” by U.S. Attorney General Edwards Pierrepont in a matter called Steinkauler’s Case. As will be seen shortly, not only is that reference misleading – the original statement of law coming from a different case involving a different fact situation – even if not misleading, it arrives at exactly the wrong legal conclusion.
Even before going through its “analysis,” the CRS Memo thus gives one a preview of the ultimate conclusion that, without regard to the citizenship status of one’s parents, if a person is born here, that person is a “natural born” citizen eligible to be President of the United States.
Stated otherwise, the CRS Memo posits for example, that if an illegal alien (some might prefer the term “undocumented immigrant”) pregnant woman, with or without an accompanying father, lawfully or unlawfully crosses the border – whether from Canada into North Dakota, Mexico into Texas, the Pacific Ocean into San Francisco, the Atlantic Ocean into New York City or the Gulf of Mexico into New Orleans – and gives live birth here, the child will, without more, meet the “natural born Citizen” criterion of the Constitution. In effect, the CRS Memo thus eradicates any distinction between a “native born citizen” and a “natural born citizen,” conflating the two into a single, “one-size-fits-all” principle.
This point is recognized by Dr. Corsi at pp. 203-204 of his book, but without the additional analysis of why the eradication of the two concepts by their conflation into a single one is not only exactly what the Founders did not intend, but why it is something that cannot be supported under Perkins v. Elg as originally issued by the Supreme Court…, as opposed to how the Court’s opinion is paraphrased through ellipsis, yet offered up as a quote, in the CRS Memo and as discussed hereafter.
Indeed, that the “eligibility” distinction still exists between, on the one hand, a “native-born citizen” or a “naturalized citizen,” and on the other hand, a “natural born citizen” is confirmed by the Supreme Court decision in Schneider v. Rusk, 377 U.S. 163 (1964). There, Justice Douglas opined for the majority (yes, there was a dissent), 377 U.S. at 165:
“We start that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President. Art, II, s [§] 1.” (Emphasis added).
Although the CRS Memo includes – oddly – several references to Schneider v. Rusk in support of its conclusions (see, e.g., CRS Memo fns. 24, 49 and its quote from Hollander v. McCain, 566 F. Supp. 2d 63, 66 (D. N.H. 2008), and fns. 51 and 66, referencing Rusk), nowhere in the CRS Memo is there an attempt to distinguish or explain away the statement (albeit denoted dictum) that “… only the ‘natural born’ citizen is eligible to be President.”
A cynic might be thus tempted to conclude that the only way of accomplishing the predetermined objective sought would be to turn to Perkins v. Elg, with its discussion of U.S. Attorney General Edwards Pierrepont’s “letter advice,” and “reverse engineer” a concocted result re-characterizing Marie Elg – who from birth was a natural born citizen – as being merely a ‘native born’ citizen, and then conflate that misleading and restrictive conclusion into what she actually was all along: a natural born citizen eligible to the presidency.
The principle to be kept in mind is simply this: all natural born citizens are also native born citizens, but not all native born citizens are natural born citizens. Stated otherwise, since Rusk notes that only a natural born citizen is eligible to serve as president, if Barack H. Obama is not a “natural born citizen,” the only way for the CRS Memo to otherwise “fudge” or “concoct” his eligibility is to morph his status as a “native born citizen” (which, if in fact he was born in Hawaii would be the case under the Wong Kim Ark decision) into a “natural born citizen” through the conflation of the two concepts. This, as the opinion in Rusk confirms, cannot be done, at least with any intellectual propriety.
Moreover, does anyone believe that the CRS Memo’s main conclusion – that a child of foreign-born, non-U.S. citizens would be eligible to the presidency – is what Alexander Hamilton, James Madison or, in particular, John Jay had in mind when writing The Federalist? Go back in this memo and read Jay’s advice to George Washington in 1787. Does anyone really believe that the Founding Fathers who signed the Constitution would have agreed that, despite the teachings of de Vattel in § 212 of The Law of Nations with which they were familiar, this was what was intended through their careful selection of the words used in Art. 2, Section 1, Cl. 5 of their newly-minted Constitution?
Does anyone who reads the unanimous decision in Perkins v. Elg as originally written – as contrasted with how it is altered and paraphrased in the CRS Memo – really believe that the Founders intended that a child born here of a mother impregnated by an al Qaeda Pakistani father would, could or should be eligible to become president? Yet that is the result posited by the CRS Memo.
Some who read the words of the CRS Memo – again, to be distinguished from the actual words of the Supreme Court decisions upon which it purports to rely for its conclusions, a matter addressed, post – might conclude in the affirmative. On the other hand, a growing segment of the population might conclude that such a result is decidedly not what the Founders of this nation intended. And yet, this clearly appears to be the logical import of the product of a federal agency touting itself as Congress’ repository of “… the nation’s best thinking.”
Stated otherwise, since the teachings of de Vattel articulated in § 212 of The Law of Nations stand in such stark contrast to the conclusion of the CRS Memo – i.e., that the “natural born citizen” status of a person may exist regardless of the citizenship status of both parents, and in particular that of the father – it is at best inaccurate to contend that only the common law principles found in Blackstone’s Commentaries should inform the debate. At worst, it is intentionally misleading.
And yet, the foregoing is not the worst problem with the CRS Memo.
The core problem with the CRS Memo takes the form of what seemingly is a conscious effort on the part of the memorandum drafters to “adjust” or “tweak” the actual language of two critical federal documents in order to arrive at a predetermined, targeted result. The documents thus victimized in the CRS Memo are (1) the U.S. Supreme Court decision in Perkins v. Elg, 307 U.S. 325 (1939) and (2) the U.S. Attorney General’s “opinion” in Steinkauler’s Case, 15 Op. Atty. Gen. 15 (1875), accurately quoted in Elg, but altered and thus misquoted in the CRS Memo. Let us hope this is an innocent mistake, for if it is not, it is a matter which should concern everyone, and in particular, 535 members of Congress.
Editor’s Note: The second CRS memo, dated March 18, 2010, is entitled “Birth Certificates of Presidential Candidates and Standing to Challenge Eligibility” does not appear to be available to the public at the Open CRS website. The Post & Email was made aware of it by a citizen researcher. Why has the public not been informed of this additional memo which seeks to provide further cover for Obama to occupy the Oval Office?