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Thursday, December 11, 2008

To the Manor Born

Is Barack Obama a natural born citizen?

Donofrio says no, as does Wrotnowski, and their argument is both quite clear and quite clearly supported by the legal history.

According to their argument, you are a citizen if any ONE of the following conditions pertain:
a) you were born of US parents or
b) you were born on US soil or
c) you were naturalized as a citizen.

However, none of these by themselves make you a "natural born citizen."

According to the definition of "natural born citizen" as understood by the Founding Fathers, as used in the Constitution and as understood by the framers of the 14th Amendment, you are a "natural born citizen" ONLY IF BOTH of the following conditions obtain:
(a) you were born of US parents AND
(b) you were born on US soil.

If either condition fails, they you are a citizen, but not a natural born citizen.

If this is so, how did George Washington or any of the other Founders win eligibility?

For the first several decades, US citizens were eligible for the Presidency only if they were residents of the United States for the 14 years preceding the ratification of the Constitution.

Since the Constitution was ratified on March 4, 1789, that meant you had to have resided in the United States. i.e., owed it your sole authority to the United States, from March 4, 1775 onwards. This was two months before the Second Continental Congress convened in May, 10 1775. It was the night General John Thomas emplaced the cannons from Fort Ticonderoga on Dorchester Heights, the hills overlooking South Boston. This maneuver forced the British to evacuate their positions two weeks later; an event still celebrated as Evacuation Day.

In short, you had to have been there at the beginning of the Revolution.

This is rather like the rule for holding the office of Apostle - only those who had "accompanied us during all the time that the Lord Jesus went among us, beginning from the baptism of John..." were eligible for that office. Even today, bishops are considered apostolic successors holding apostolic authority, but are not considered apostles themselves, since they do not fulfill all the conditions.

So, while senators and congressmen can be nothing more than citizens, the line of succession which is the Presidency must have an unbroken connection to the land both through location of birth and fealty of blood. The President's parents can be naturalized citizens, but the President himself (or herself) must be part of the unbroken line.

Given the strong Biblical background of the Constitutional Framers, and the legal documentation brought forward in both Donofrio's post and the comments subsequent to the post, I find the case quite compelling.

Which would mean that neither Barack Obama nor John McCain are eligible for the Presidency.

And, assuming the Supreme Court is willing to follow precedent instead of popular opinion, it also means we get Nancy Pelosi as President pro tem.

Sigh.

Update:
Diane West has joined the fray on a separate issue, the question of Barack Hussein Obama's birth certificate. This question - which has essentially nothing to do with the Donofrio assertions - has been raised by Philip Berg, Dr. Alan Keyes and several others.

In short, BHO's eligibility is being questioned on two completely separate grounds:
1) Was he born in the United States? That is, did he fulfill the "soil" requirement? (Berg, Keyes, et. al.)
2) Assuming he was born in the US, but given his father's British nationality, can he be considered a "natural born citizen"? That is, did he fulfill the "blood" requirement? (Donofrio, Wrotnowski).

The second question has essentially no case law on the issue, because it only really becomes an issue when the office of President is at stake. It does, however, engage quite a lot of discussion among the Founding Fathers as they considered exactly how to phrase the qualifications for President.

UPDATE
Now one of Barack's own cabinet members is saying BHO is an immigrant.

12 comments:

Jordanes said...

The big problem with their argument, of course, is that it has not been the practice in law for a long, long time to say that only those are "natural born citizens" who are both born on U.S. soil AND born of U.S. parents. As far as U.S. immigration law is concerned, anyone born on U.S. soil is a U.S. citizen -- the U.S. Constitution is silent about a requirement that one's parents both be U.S. citizens, so although such a requirement may have been understood by the authors of the 14th amendment, that understanding is extraconstitutional and thus subject to statutory or judicial modification. That is exactly what happened in the 20th century, and that is why, if the Supreme Court were to follow prior judicial precedent (stare dicesis), they probably would not rule in favor of Donofrio or Wrotnowski -- assuming they were to accept their appeals, that is. They already declined to take Donofrio's, and tomorrow they'll probably come out of conference and decline Wrotnowski's too.

Steve Kellmeyer said...

As far as U.S. immigration law is concerned, anyone born on U.S. soil is a U.S. citizen

No one denies that a person born on US soil is a citizen.

he U.S. Constitution is silent about a requirement that one's parents both be U.S. citizens

On the contrary - the US Constitution is careful to distinguish the "natural born citizen" which includes as part of its definition a description of the parents' citizenship.

Arguing otherwise is like saying we don't know what the word "citizen" means because the Constitution doesn't include a dictionary.

Now, the Supreme Court may still turn it down or ignore the facts - it has done that with the status of unborn children, for instance - but that doesn't mean Donofrio has no point or that he's crazy.

He's right.

Jordanes said...

On the contrary - the US Constitution is careful to distinguish the "natural born citizen" which includes as part of its definition a description of the parents' citizenship.

The constitution reads, “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,” and, “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.” That’s all it says. The distinction is between “natural born” and “naturalised,” not “natural born,” “born,” and “naturalised.” Nothing at all about the parents’ citizenship, and it has been a long, long time since any court has held that “subject to the jurisdiction thereof” excludes dual citizenship or excludes persons born in the U.S. who have one or more non-citizen parents.

Anyway, as I’ve said before, Obama may have once held dual citizenship, but he hasn’t for quite some time – so we have someone born on U.S. soil who is subject to the jurisdiction of the U.S. Therefore Donofrio and Wrotnowski don’t have a case that a court can adjudicate, even if the courts were to agree that they had standing to bring suit.

Arguing otherwise is like saying we don't know what the word "citizen" means because the Constitution doesn't include a dictionary.

But we know what “citizen” means because the 14th Amendment says so. The amendment confirmed the full citizenship rights of African slaves: even those born in the U.S. but whose parents were not naturalized: those slaves born in the U.S. were natural born citizens and therefore subject to U.S. jurisdiction according to the constitution.

If the constitution did not define “citizen,” it would be a matter to be defined by federal law and the federal courts. Looking there, we find no support for the arguments made by Donofrio and Wrotnowski.

Now, back then to be subject to U.S. jurisdiction required sole citizenship in the U.S., but last century the courts abandoned that requirement: one only need pledge allegiance to the U.S. and not formally denounced one’s U.S. citizenship to be a U.S. citizen. Holding secondary citizenship in another country is no longer proscribed. Nor are there any current statutes or viable judicial decisions that require U.S. parents for a person to qualify as a natural born citizen. So, there’s nothing in the constitution, nothing in the statutes, and nothing in any judicial decision that upholds the argument Donofrio and Wrotnowski have made. They’re wrong.

Steve Kellmeyer said...

It doesn't matter if Barack Obama is no longer a dual citizen. The legal question concerns his parents, not him.

The quote from the Constitution you use does not contain the word "naturalized" so your point is incorrect. You are conflating terms.

The 14th Amendment does NOT contain the phrase "natural born" so it is incorrect to say slaves became natural born citizens via the 14th Amendment. They became "citizens," but there is no evidence that all of them were immediately considered "natural born citizens."

Was anyone born in the United States a citizen regardless of the parents' nationality? In the case of Elk v. Wilkins, 112 U.S. 94 (1884), where the parents were Native American, the Supreme Court held that the children of Native Americans were not citizens despite the fact that they were born in the United States.

Conversely, consider the decision of the United States Court of Appeals for the District of Columbia on August 1, 1938, Perkins v. Perkins, 99 F.2d 408 (D.C. Cir. 1938). The Supreme Court did affirm the decision.

In this case, a woman was born in the US of a naturalized father and mother, both of whom subsequently renounced their US citizenship when they moved back abroad. When the daughter - who had been born in the US of naturalized parents - came through customs, she was admitted as a US citizen, but Immigration subsequently tried to have her deported as an illegal.

She fought back, arguing that she was a "natural-born citizen." The courts agreed, because she fulfilled both conditions of soil (US birth) and blood (both parents were citizens of the US at the time of birth).

Jordanes said...

It doesn't matter if Barack Obama is no longer a dual citizen.

It does matter, because Donofrio and others have argued that since Obama used to have dual citizenship, therefore the constitution bars him from becoming president. There is, of course, nothing in the constitution, or in U.S. law, barring persons who do not have dual citizenship from becoming president, and Obama does not have dual citizenship.

The quote from the Constitution you use does not contain the word "naturalized" so your point is incorrect. You are conflating terms.

Read more carefully, Steve -- there's no conflation of terms in my comment, there's a distinguishing and highlighting of the different terms. The first quote does not contain the word naturalised, but the second quote does. My point is correct because the first quote says the president must be a "natural born citizen" or a citizen at the time the constitution was adopted, whereas the second quote says those "born" in the U.S. or "naturalized" are U.S. citizens. The constitution distinguishes between two kinds of citizens, not three kinds. That is my point.

The 14th Amendment does NOT contain the phrase "natural born" so it is incorrect to say slaves became natural born citizens via the 14th Amendment.

The fact that it doesn't say "natural born" strengthens the argument that one's parents do not have to be at least naturalised citizens to qualify to become president.

In the case of Elk v. Wilkins, 112 U.S. 94 (1884), where the parents were Native American, the Supreme Court held that the children of Native Americans were not citizens despite the fact that they were born in the United States.

That decision was erroneous and is now defunct.

She fought back, arguing that she was a "natural-born citizen." The courts agreed, because she fulfilled both conditions of soil (US birth) and blood (both parents were citizens of the US at the time of birth).

That was a case from 1938. The state of the question changed after that. See the following (emphasis added):

http://www.usconstitution.net/consttop_citi.html

Currently, Title 8 of the U.S. Code fills in those gaps. Section 1401 defines the following as people who are "citizens of the United States at birth:"

ANYONE BORN INSIDE THE UNITED STATES
Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person's status as a citizen of the tribe
Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.
Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national
Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year
Any one found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21
Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)
A final, historical condition: a person born before 5/24/1934 of an alien father and a U.S. citizen mother who has lived in the U.S.
Anyone falling into these categories is considered natural-born, and is eligible to run for President or Vice President. These provisions allow the children of military families to be considered natural-born, for example.

Steve Kellmeyer said...

"Donofrio and others have argued that since Obama used to have dual citizenship"

That is not their argument.
Their argument is that he does not pass the two-pronged test of "natural born citizen" because his father was not a US citizen. Now, one of the side effects of this is that he at one point had dual citizenship.

I agree that the Constitution distinguishes between "citizen" and "natural born citizen." Being born in the US is sufficient to make you a citizen, but it is NOT sufficient to make you a "natural born citizen." If it were, the Constitution wouldn't distinguish between the two.

The US Code title you refer to discusses "citizen" not "natural born citizen."

Jordanes said...

That is not their argument.

Not in the filed paperwork it wasn’t.

Their argument is that he does not pass the two-pronged test of "natural born citizen" because his father was not a US citizen.

More accurately, one must call it a defunct two-pronged test – unless the Supreme Court decides to revive it, or Congress passes a new law resurrecting it.

I agree that the Constitution distinguishes between "citizen" and "natural born citizen." Being born in the US is sufficient to make you a citizen, but it is NOT sufficient to make you a "natural born citizen." If it were, the Constitution wouldn't distinguish between the two.

Actually no, that’s not the reason for the constitutional distinction. One reason is because the president was supposed to be a natural born citizen of the U.S., but in 1789 there weren’t any natural born citizens old enough to assume the presidency – so they included an exception to the “natural born citizen” clause. In that context the constitution is concerned with qualifications for becoming president, not qualifications for being a natural born citizen. The other reason for the constitutional distinction is because U.S. citizenship is not tribal or hereditary, but can also be granted through naturalization. Distinguishing between natural born citizens and those who are not natural born has got nothing to do with how to qualify as a citizen – it’s about how to qualify to be elected president.

The US Code title you refer to discusses "citizen" not "natural born citizen."

Yep: citizens in general, including who is and isn’t a natural born citizen. U.S. law at this time recognizes no requirement that both parents be citizens. Now, one may argue that the law is unconstitutional, and one may be right (though I don’t think so), but the state of the law at this time is such that Obama is not barred from becoming president.

Anyway at this point the arguments of Donofrio and Wrotnowski are looking more and more moot. No mention of Wrotnowski’s case was included in the order after the Justices came out of conference today. That happened with Donofrio’s case too, and on the following Monday Donofrio’s appeal was rejected. That will probably happen this time too, though there is still a very, very slim chance that the Justices will announce on Monday that they’re taking Wrotnowski’s appeal. That’s not a realistic hope, though, since his petition for an injunction to keep the Electors from voting this Monday has been turned down: if they were going to take the case, they’d have to step in to stop the Electoral College from voting.

Steve Kellmeyer said...

The refusal of the SC to take the case is not necessarily a commentary on the merits of the argument being presented, nor is the refusal to stop the electors from voting a commentary on the case merits.

All it means is the procedural problems with the case kept it from being considered, e.g., if they didn't think Donofrio or Wortnowski had standing, they couldn't take the case, even if all nine justices agreed with the arguments presented in the case.

I think Donofrio has a strong argument, and it is not really dealt with anywhere in case law.

Jordanes said...
This comment has been removed by the author.
Jordanes said...

The refusal of the SC to take the case is not necessarily a commentary on the merits of the argument being presented, nor is the refusal to stop the electors from voting a commentary on the case merits.

Yep. If Wrotnowski's case was rightly dismissed by the lower court, the Supreme Court would not accept his appeal even if he happened to be right about the meaning of "natural born citizen."

I think Donofrio has a strong argument, and it is not really dealt with anywhere in case law.

In the abstract or in theory, his case is interesting and is cogently argued, but in the practical world of applied law in the courts I doubt he has a leg to stand on. But it doesn't seem likely we'll ever find out what the Supremes think.

By the way, I took a look at Diane West's column on Obama's birth certificate. One thing that leaped out was her comment about "a computer-generated short form that is not even accepted by the Hawaii Department of Home Lands as adequate verification of Hawaiian identity. (The Home Lands Department requires 'information that is found only on the original Certificate of Live Birth,' or long form.)" I'd come across that statement before among the Obama-wasn't-really-born-in-Hawaii crowd. At first glance it sounds like his COLB is dubious or wouldn't be sufficient to legally establish where he was born . . . until we find out that the Home Lands Department deals with Native Hawaiians bestowing land grants to them. To qualify for a grant of a Native Hawaiian Home Land, you have to prove you are a fullblooded Native Hawaiian, and for that they want the long-form. Obama doesn't have to prove he's a Native Hawaiian, though, so it doesn't matter what the Home Lands Department's requirements are to prove Native Hawaiian blood descent.

Jordanes said...

Well, Wrotnowski's appeal was turned down today by the Supreme Court. No surprise.

The Electors vote today. I'm not sure what recourse those who don't believe Obama is a U.S. citizen will have after Obama is elected president today.

Jordanes said...

I need to correct my previous comment. Looking at the Supreme Court’s online docket report on Wrotnowski’s case, it seems that his “appeal” was not denied today after all. In fact it looks like Wrotnowski hasn’t even filed an appeal with the Supreme Court! Here is a comment I posted at the “Investigating Obama” weblog:

However, nowhere to be found is it stated that the actual case is denied. I.O. expects it and other cases to go to the "Cases Pending" file, until the Electoral College vote is certified (or not, theoretically) by Congress.

True, Wrotnowski’s online docket report does not say his case was denied. Rather, his application for a stay or injunction preventing the Electoral College from voting today was denied. But nowhere to be found in the docket report is any application petitioning for a writ of certoriari – that is, a request that the Supreme Court take his appeal. Could that explain why the Supreme Court has not denied certoriari to Wrotnowski: because he hasn’t asked them to accept his appeal? Did he forget to file an application petitioning for a writ of certoriari?? Obviously they can’t deny an appeal that hasn’t even been filed, and the record only shows an application for a stay or injunction, not an application for certoriari. That’s what was referred to conference on Friday, and that’s what was denied today.

Berg filed a petition for writ of certoriari AND a petition for an injunction, but the record shows that Wrotnowski only filed a petition for an injunction, but not a petition for writ of certoriari. Therefore Wrotnowski’s case is for all intents dead and over with: the Supremes won’t stop the Electors from voting, and as far as I can tell they never got any request for an appeal from Wrotnowski for them to consider.