Birther/Anti-Birther Debate: Is Obama a "Natural Born Citizen"?

Obama Presidential Eligibility - An Introductory Primer

Last revised: June 5, 2009

Abstract

Despite the mainstream news media's silence regarding this matter, an increasing number of Americans are concerned that Barack Obama might not be eligible, under the Constitution, to serve as President.

According to the U.S. Constitution, an individual born after 1787 cannot legally or legitimately serve as U.S. President unless he or she is a "natural born citizen" of the United States.

Among members of Congress and the mainstream news media, the consensus of opinion is that anyone born in the United States is a "natural born citizen". However, when we researched this issue a bit more carefully, we found that the consensus opinion is not consistent with American history.

In Minor v. Happersett (1874), the Supreme Court said that, if you were born in the United States and both of your parents were U.S. citizens at the time of your birth, you are, without doubt, a natural born citizen. In the same case, the Supreme Court also said that, if you were born in the United States and one of your parents was not a U.S. citizen when you were born, your natural born citizenship is in doubt. So far, the Supreme Court has not resolved this doubt because, until now, there has never been any need to do so.

With only two exceptions, every American President, who was born after 1787, was born in the United States, to parents who were both U.S. citizens. The two exceptions were Chester Arthur and Barack Obama. When Chester Arthur ran for office, the public did not know about his eligibility problem. Only recently did historians learn that, when Arthur was born, his father was not a U.S. citizen. The 2008 election was the first time in history that the United States knowingly elected a President who was born after 1787 and whose parents were not both U.S. citizens.

Barack Obama publicly admits that his father was not a U.S. citizen. According to Minor v. Happersett, there is unresolved doubt as to whether the child of a non-citizen parent is a natural born citizen. This doubt is not based on the imaginings of some tin-foil-hat-wearing conspiracy theorists on the lunatic fringe of society. This doubt comes from what the Supreme Court has actually said, as well as a variety of other historical and legal sources which are presented and discussed here.

This Primer introduces and explains the Obama Eligibility Controversy, in question-and-answer format, for a non-technical general audience. We've double-checked the facts presented here, and we've cited the sources of each fact.

I have come to realize that there are two debates on the question of presidential eligibility and the definition of “natural born citizenship”, and some of the more thoughtful people on each side are debating different things. One debate thesis may be summed up this way:



The second debate thesis might be summed up this way:



Folks like Ken Dunbar and Stephen Tonchen (the author of the piece to be discussed here) are debating the former, and this web site is largely geared towards investigating the latter. If debating the first question, then one might say that Barack Obama’s eligibility is “unproven”, but when debating second one will conclude that it is “proven”.

§ 4. Citizenship.

That all persons who were citizens of the Republic of Hawaii on August twelfth, eighteen hundred and ninety-eight, are hereby declared to be citizens of the United States and citizens of the Territory of Hawaii.

The framers of the Act of Congress providing a government for the Territory of Hawaii approved April 30, 1900, intended to refer to the geographical limits of the Hawaiian Islands rather than to any political conditions existing therein; and that the Hawaiian and American citizenship was to be extended to all persons born in the Islands, excepting only those born of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence by a fiction of public law is regarded as the place of their own country. United States v. Sai, 1 U.S.D.C. Haw. 118 (1901).

§ 5. United States Constitution.

That the Constitution, and, except as otherwise provided, all the laws of the United States, including laws carrying general appropriations, which are not locally inapplicable, shall have the same force and effect within the said Territory as elsewhere in the United States; Provided, That sections 1841 to 1891, inclusive, 1910 and 1912, of the Revised Statutes, and the amendments thereto, and an act entitled "An act to prohibit the passage of local or special laws in the Territories of the United States, to limit Territorial indebtedness, and for other purposes," approved July 30, 1886, and the amendments thereto, shall not apply to Hawaii. Annotations

What people seem to have forgotten is that in the 19th Century, Congress was faced with a very similar situation in the Election of President Hayes. We can observe how Congress approached matters in those days, their reasoning and the outcome. For instance, Congress considered a bill in which the title of the President Elect could be challenged in Court, either the Supreme Court, or the Circuit Court if the Supreme Court lacked original jurisdiction. Senators strongly opposed this and argued that having the outcome of the elections decided by the judiciary was counter to the idea of the Founders, that the title of President could only be addressed by Congress via the 12th Amendment (the 20th Amendment did not exist yet) and that once a President was elected, his election was to last 4 years, even if errors were made as the decision to elect a President would be final and irrevocable.

What history shows is that when Congress had to deal with a similar situation as to whether or not a duly elected President’s title could be tried. And they clearly show that

1. Congress is the final arbiter per 12th amendment and its decision is final, and irrevocable, even if later found to be in error.

2. There is no place for the judiciary to decide on Presidential election. This means that the use of Quo Warranto to try the title for Presidency is not provided for.

The New York Times, on June 20, 1882, published an article explaining that an attempt by Congress to allow the title of the President to be tried by Quo Warranto had been defeated. Most relevant are the comments by Mr. Hewitt who “did not approve the bill, and he remarked that be was satisfied that no man installed in the office of President could be ousted before the expiration of his four years by any method except revolution.”

The Steinkauler case, which I discussed before, is very relevant. First it established that the term ‘native born’ is equivalent to the term ‘natural born’ and that a ‘native born American citizen … can become President of the United States’. Furthermore, his native born nationality can be supplemented with an acquired nationality without him losing his native born status as long as he decides when reaching the age of majority to take his nationality of birth. The logical consequence is that since Obama was born on US soil, he was a native/natural born citizen of the United States, even though his status was also governed by the British Nationality Act of 1948. Since Obama chose to not pursue his secondary nationality which he ‘acquired’ through his father and since noone can deny him his birthright, Obama had the right to determine when reaching the age of majority, if he wanted to continue his birthright US citizenship. In addition, even if Obama acquired Indonesian citizenship, in contradiction of Indonesian laws, his parents cannot deprive him of his birthright US citizenship and since Obama returned to the US well before reaching the age of majority, has never abandoned his birthright citizenship.