Time We All Re-Focus on the Eligibility Issue

[Jim Delaney]

I believe it's well past time for us all to re-focus like a laser on what could well be a constitutional issue of calamitous historical proportions. Toward that end, I have carefully written this post. And please note that this is not an Obama witchhunt. Not at all. It is nothing less nor more than a battle for the Constitution itself.

Despite my 22 years of immigration counseling experience, trying to accurately, briefly and clearly summarize the issue of Obama's eligibility--or ineligibility--for the Presidency has been especially challenging and time-consuming. Though I have managed to compact much within this summary, I apologize in advance for the unavoidable length. I hope it proves to be a useful exercise and that it will stir wider, fearless and more objective discussion of the subject. Why? Nothing less than what remains of our Constitution is at stake.

CONTENTION: Obama, born in 1961 of a US Citizen mother and a British Citizen (born in Kenya), was born a "US Citizen" by virtue of his mother's US Citizenship; however, since Obama's father was not a US Citizen, thus not "attached to the US", Obama, even if born of a US Citizen mother within the jurisdiction of the US, is not, by definition and Constitutional intent, a "natural born citizen" as is specifically required by Artile II, Sec 1 (Presidential Clause) of the US Constitution, and is, therefore, ineligible to assume the Office of the President.

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

Art II, Sec 1 of the Constitution, the so-called Presidential Clause, 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 the Framers' express purpose (intent 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. Vitel-1758 which which profoundly influenced the Framers' intent when fashioning the Constitution) which assumes that citizenship is inherited from one's father's citizenship. To wit, Vatel 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 right." Again, the accent is on the father's citizenship status at the time of the child's birth.

The intent of the Framers with respect to the meaning of "natural born citizen" (vs "born in the US" or US 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 US" 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", this to insure future leadership's freedom from foreign influences.

This correspondence directly influenced how Art II, Sec 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 the Constitution, shall be eligible to the Office of the 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 statu--even if both parents were US 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 geograhic requirement as well.)

Also, we should note that the primary author of the citizenship clause in the 14th Amendment, Sen. Jacob Howard, declared that the citizenship 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 US Citizen father was "natural born.)

In 1871, Rep. John Bingham, a Framer of the 14th Amendment, stated that a child is a US 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.(So, born of US Citizen parents within the jurisdiction are the overriding factors in determining "natural born citizenship.")

Note too that US Title 8 Sec 1401 provides that US 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.

In 1800, Charles Pinkney, a Framer of the Constitution and, later, the S.C. Governor, said that the Presidential Clause was designed to firmly "insure attachment to the country." (No dual loyalties on the part of either parent.)

Art IV, Sec 2 provided that no act of Congress was required to make citizens of the individual states citizens of the US; only State Legislatures had authority to grant State citizenship which, in turn, conferred upon them US 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 US 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."

And what does the 14th Amendment have to say about this?

The primary author of the citizenship clause in the 14th, Sen. Jacob Howard, declared that the citizenship clause of the Amendment was, again, by virture of "natural law" and not by "act of law". This would mean that a child born to a US Citizen father is, therefore, "natural born".

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

In 1871, Rep. John Bingham, a framer of the 14th, stated that a child is a US Citizen if born of naturalized parents inasmuch as a naturalized father as part of the naturalization oath "absolutely renounces and abjures all allegiance and fidelity" to other sovereignties, thus establishing his firm "attachment to the United States" as well. So, it would seem that born of US Citizen parents within the jurisdiction of the US are the overriding and defining factors in determining "natural born citizenship".

On Sec. 1992, Rep. John Bingham, stated that "every human being born within the jurisdiction of the US 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 US 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 US 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 US." Similary, and more obviously, a child born within US jurisdiction of two US citizen parents is also considered a "natural born citizen".

So, it appears that there is no better way to insure "attachment to the US" then to require the President to have inherited his American citizenship from his US Citizen father or, at the very least, from both his parents. The Framers' rationale for this would be that any child born in the US 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 US Citizen parents, and 2) a "US 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 recent Wrotnowski vs Bysiewica stay request which was denied by SCOTUS on 12/15/08 asserts that Pres. 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 Art II, Sec 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 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 US, he is a US 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 Pres. 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 much smarter than I 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 US from his US Citizen parents, a child born of US Citizen parents within the jurisction of the US, inclusive of those US parents who were naturalized US citizens at the time of the child's birth, is very clearly a "natural born citizen".

Finally, this form Thomas Jefferson 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 probably intent in which it was passed."

And this from Pres. 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 governements are destroyed."

Absent the Electors' denying Certification of the Election or individual lawmakers demanding verification of a presidential candidate's eligibility, it is properly left to SCOTUS or the amendment process to determine the constitutional eligibility of anyone who wishes to assume the Office of the President. Allowing this constitutional issue to fester will surely have unintended and very unsettling consequences for our country in the future. For if the Constitution is to be ignored or cavalierly misinterpreted, our Republic is irretrievably doomed.

Despite the fact that the political elite and our politicized judicial system have, so far, effectively dodged this issue and Obama devotees and fearful media talking heads on the left and the right have successfully shut down honest public discussion of this issue by their dismissive and derisive attacks on the so-called "birthers", this issue is simply not going away. Nor should it. From my perspective as a retired INS-accredited immigration counselor, it is a serious, fundamental constitutional issue which screams for objective and judicious scrutiny and resolution. And until this issue is authoritatively, constitutionally and satisfactorily resolved, the very soul of this constitutional republic remains in serious jeopardy.

Finally, this: if my analysis is correct--and I sincerely believe it is--then I ask that we not exacerbate this constitutional quandary or otherwise further muddy the waters by our urging Sen. Rubio to run for either the Presidency or Vice Presidency. While Mr. Rubio is a stellar and principled patriot and leader for whom I have nothing but the deepest of respect and admiration, it is my understanding that he was born on US soil, yes, but born of permanent resident alien parents--not of US citizens. So, unless SCOTUS renders a ruling--God-willing in keeping with the clear meaning and intent of the framers for a change--that "natural born citizenship" does, indeed, apply to children born of non-citizens on US soil, then, sadly but properly, Sen. Rubio is clearly ineligible. And unless someone has better information than I, I believe Gov. Jindal of Louisiana is likewise ineligible.

So, let's keep it simple, on point and void of emotions. No matter how we want to slice and dice, no matter what our political leanings may be, one plus one must always equal two. SCOTUS, we need a rigidly constitutional ruling.