Posted on 01/01/2009 3:39:54 PM PST by Jack Black
One of the confusing issues around the Obama "Natural Born" citizenship issue is that while many people feel that O is not eligible they do not agree, at all, on the reasons for this.
Many of these differences are based on different interpretations of the term "Natural Born Citizen", the qualifier in the US Constitution that Obama must meet.
To help clarify what we mean I have created a taxonomy of definitions based on the more than 50 articles I have read on this, as well as some basic logic.
Many of these have strong supporters here on Free Republic, and some have strong detractors. In the taxonomy section I have tried to present these in a logical order, with all possible cases presented. In the taxonomy section I have limited comments to only relevant court cases and how it effects Obama, without going into my particular views on the merits of the argument.
I'm hoping that this might prove useful to others, as well as for discussion purposes.
TAXONOMY
NB1:"Natural Born" means child was a citizen at time of birth and father did not hold foreign citizenship (regardless of mothers citizenship) at the time of birth AND person born on US Soil.
Apparently rejected by SCOTUS already.
Obama would not qualify under this case due to fathers citizenship regardless of whether he was born in Kenya or Hawaii.
NB2: "Natural Born" means child was a citizen at birth AND father did not hold foreign citizenship at time of birth, regardless of birth location.
Obama would not qualify under this due to his fathers British citizenship.
NB3: "Natual Born" means child was a citizen at birth and both father and mother were citizens AND person born on US soil.
Tenatively floated by liberals as a definition that might have denied McCain the Presidency, him failing the third test of "born on US soil."
Obama would not qualify due to his fathers citizenship, regardless of birth location.
NB4: "Natural Born" means means child was a citizen at birth AND BOTH father and mother were citizens regardless of birth location.
Definition preferred by activists at Restore the Republic
NB5:"Natural Born" means child was a citizen at birth because EITHER father or mother were citizens AND child was born in USA.
Obama qualifies under this one if Born in Hawaii. This one is used by Obama supporters are the "obvious" answer but doesn't seem to have much support in law. It's what those who haven't looked into it think the law SHOULD say.
NB6: "Natural Born means EITHER father or mother were citizens regardless of birth location.
Obama qualifies under this one even if born in Kenya.
NB7: "Natural Born means the child was a citizen at birth because EITHER the father or the mother were citizens, AND that parent met the legal requirements for imparting citizenship at the time of birth IF child was born outside US Territory.
This is the definition used by Berg in his lawsuit, which is apparently still under discussion at the SC.
Obama fails this if born in Kenya, but if born in Hawaii he is eligible.
NB8:"Natural Born" means the child was a citizen at birth by virtue of birth on US Soil, regardless of the status of their parents.
This is the "soil absolutist" argument. This says "as long as citizen was born on US Soil nothing else matters". This interpretation seems to be the most popular in the media, and will eventually allow anchor babies to run for POTUS.
It is the test commonly used in most other areas of law to determine citizenship. 14th Amendment often sighted in support of this interpretation.
Frequently used by Obama supporters as the ultimate "proof". eg: "he was born in Hawaii, it doesn't matter where his father was from". Detested by opponents of citizenship for "anchor babies", but still the law.
Obama qualifies under this one regardless of any questions about his parents citizenship IF as he claims he was born in Hawaii. If he wasn't then this doesn't help him.
Here it is in table form:
| Father Key | Both Parents Key | Either Parent Key | US Soil Required? | 2 or 3 Cit. Types | O Born in USA, eligible? | O Born in Kenya, eligible? | ||
| NB1 | YES | YES | 3 | NO | NO | |||
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| NB2 | YES | NO | 3 | NO | NO | |||
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| NB3 | YES | YES | 3 | NO | NO | |||
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| NB4 | YES | NO | 3 | NO | NO | |||
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| NB5 | YES | YES | 3 | YES | NO | |||
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| NB6 | YES | NO | 2 | YES | YES | |||
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| NB7 | YES, limited* | NO | 2 | YES | NO | |||
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| NB8 | YES | 2 | YES | NO |
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Notes:
NB 7 acknowledges that there were some circumstances where citizenship ITSELF (not "Natural Born", just of any type) is not automatically imparted to the child if born abroad when only one parent is a citizen. Berg takes this view.
Two or Three types of citizenship? test explained.
Many of these definitions claim, implicitly and explicitly, that there are three types of citizens. These are: "Natural Born" "Naturalized" and what some have taken to calling "Native Born".
According to the "three type" advocates "Native Born" citizens are citizens by virtue of birth but lack some crucial requirement (birth on US soil) or have some crucial disqualification (father a non-citizen) that does not allow them to run for POTUS.
One practical problem for any of the "Three Type" advocates is that there are no other places in US Law where this distinction is made. Thus, in a real sense, advocates of these "Natural Born" definitions are asking POTUS to define this for the first time in the context of the Obama election. This seems unlikely from a pragmatic point of view.
The "Two Types" advocates have an easier time fitting in with existing law, and most people's common understanding of the law.
They claim there are only TWO types of citizens recognized in law: Natural Born and Naturalized.
For advocates of this position the term "Natural Born" and "Native Born" are equivalent and identical.
This position has a simple test for determining "Natural Born" status: was the person a citizen at birth? If the answer to this is "Yes" then that person is "Natural Born" and eligible to run for POTUS.
This definition fits in with most peoples understanding of their citizenship. Everyone in the USA knows they are either: 1) a born citizen 2) a naturalized citizen or 3) not a citizen. Few people have thought about the "Three Types" classifications, or even heard of it before this lawsuit.
NB7 advocates claim that Obama is ineligible for POTUS because he is NOT A CITIZEN (unless he has secretly been naturalized and is hiding that fact.)
It is both the most disturbing claim (he's not even a CITIZEN!!!) and the most understandable (not requiring reference to obscure 18th century books defining "natural born" or acceptance of three classes of citizenship.
No, McCain was born in a Panama hospital. He derived his American citizenship at birth - even though on foreign soil - because both parents were American citizens at the time, and they took the proper steps to register his birth with Consular authorities. Something very similar happened to me in 1939.
I have all kinds of pro and con thoughts on the issue. One is that the elections poges that verify such stuff have done so properly and they are just stringing us out orrrrrrrrrrrrrrrrr as you state , they don’t give a rats ass what we think or do anymore and fear the violent city burning race cards versus the quiet no protest conservatives that sit and bitch more than they act.
They keep pushing us wabbits into the corner with no way out they will wish all they had was “just” a LA style riot !
Just my opinion of course.......:o)
They either know who he is and from whence he came or they do not know who he is and don’t care to know any personal history.
Quite frankly, they simply just don’t give a damn about his identity.
We see him as a BOGUS POTUS.
Government views him as a player of their machine that has become beholden to foreign UNAMERICAN interests.
The ignoramuses that chose him over a well-seasoned Senator and the ‘war-hero’ view this man as a hip dancing American Idol that babbles about Change and promises a hand out.
Many of them want pure Socialism & could care less about America.
America’s welfare is NOT their consideration.
First of all, he was not born on a base, nor even in the canal zone, but rather just outside of both, in Panama. He is a natural born citizen because *both* of his parents were US Citizen. Secondly being born on a US base is not sufficient for either citizenship by law or natural born citizenship. However under current law, almost all citizen service members would qualify to pass on citizenship to their children, even if the other parent is a non citizen.
If some local woman who works at the Airman's club gives birth on an overseas base, the child will not be a US citizen, unless of course the father is a citizen and acknowledges paternity or is married to the woman.
Natural born had a particular meaning at the time the Constitution was written, for purposes of Constitutional requirements, it must retain that meaning. If Congress could change it, they could change a lot of other things in the Constituion, such as the menaing of "keep" and of "bear" and even of "arms".
Since Congress was not given the power to define Natural Born Citizen, but was given the power to define uniform rules for *naturalization*, it must be this power that Congress was exercising whenever it defined who shall be a citizen at birth. Thus such persons must be considered "naturalized at birth", rather than natural born, *unless* they also meet the requirements to be Natural born, as many, even most, do.
His BC, actually both long and short forms, has been posted here many times, it says he was born in Colon, Panama, which is neither on a US base, nor in the Canal Zone. But since he was born of two US Parents, he's natural born by all but the definition(s) that requires the birth be on US soil.
But that doesn't conform with the Common law definition in use at the time the Constitution was written. It also does not conform with the general practice of most nations *other than England* at the time, which went strictly by the parent's citizenship, regardless of birth location, and in "split" cases, by the father's citizenship. The English were more "liberal" and also made anyone born "in the realm" a natural born subject, with a few exceptions such as the children of ambassadors or of an occupying military force. That's per "Blackstone's Commentaries on the Laws of England". (Blackstone makes note of the difference between English and French practice in this regard).
The problem with all previous Supreme Court rulings is that they dealt with citizenship, not natural born citizenship.
Certainly both the "Law of Nations" and "Blackstone's Commentaries" have been cited many, many times in courts at all levels.
If there is a conflict, and there is in this case, I would tend to go with Blackstone, rather than "Law of Nations", because it was more familiar to and more often cited by the founders and framers of the Constitution.
But, AFAIK, the Court has not ruled against *any* of the theories, since they have only refused cert or dismissed requests for injunctions/temporary restraining orders. They have not heard any arguments on the merits of any of the cases so far.
All Hell Breaks Loose?
Seriously, no one knows. Some say the Supreme Court can't touch him once he's "seated". They maintain Congress would have to impeach and "convict" him to remove him from office, and that's not likely given the makeup of the next Congress.
I disagree, if they rule he's not eligible, then he would never even have been President, rather than just ceasing to be President" since he wasn't eligible to the office.
Meanwhile, if he was ineligible, and thus not President, every law he signed, every executive order he penned, and every appointment he made would be subject to legal challenge by anyone affected by the law, order or appointment (and by the actions of those appointees!). It would be one smell of a hess, a real legal nightmare.
Please provide link to original source material.
This explanation seems a bit tortured to me. It would seem less so if you could site the specific material from the founders that defines "natural born citizen". Despite many saying such exists, no one has yet published it on an FR thread, a very simple low overhead thing to do.
Why?
The Berg theory does *NOT* require belief in the "three types" theory advanced by others on FR and in the SC.
This is the UB4 position. Both parents citizenship is a requirement, place of birth is incidental. It is no the same as the theory based on the 18th century book cited above.
Which is it?
sorry should say NB4 not UB4. Typo.
Yes! One of the most amazing dodges I've ever seen in history! Truly pathetic in every way. Supreme MICE!
“If there is a conflict, and there is in this case, I would tend to go with Blackstone, rather than “Law of Nations”, because it was more familiar to and more often cited by the founders and framers of the Constitution.”
This is interesting. How do you suppose the founders and framers dealt with the allegiance ties to a king in a monarchy? e.g. They could lean more towards the french way of doing things, or lean towards englands’ ways. I suppose those are the two options.
Have you not read the John Jay letter to Washington, or the quotes from the 1866 congressional record where Bingham defines natural born (Bingham of fourtienth amendment authorship)? Such words help us to realize that the framers of our Constitution intended to not have someone with divided loyalties become president and CIC. Now, the obamanoids will shoot back ‘that’s not worded int he Constitution’, but your question was in regards to the thinking of the framers when the Constitution was fashioned.
All of our Presidents were born on the North American continent, even those that were born prior to the Constitution and "grandfathered" in. If they were born here, why did they not consider themselves natural born? The only thing different between them and those born later was their "allegiance" by birth (and that of their parents) to Britain. I think the key to understanding the intention and application of "NaturalBornCitizen" can be found in discovering why they did not confer NBC status on themselves. Just being born here was not enough for them; should just being born in America be enough for us?
The key to understanding “natural born citizen” for purposes of being eligible to serve as President lies in the way the Founding Fathers were “grandfathered in”. You can see the distinction right there, The FF were born British same as Obama (Kenyan-British actually, through his father). The only born British (or foreign) people who qualify to be President are those who were US citizens at the time of the adoption of the US Constitution. This is written into the Constitution in the exception clause. Unless Barack is more than 200 years old, he doesn’t qualify under the exception clause and remains a British citizen via the allegiance his father held to Britain/Kenya.
. . .
Three classes of citizenship, not just twobr> Perkins v. Elg's importance is that it actually gives examples of what a Citizen of the U.S. is; what a native born American Citizen is; and what a natural born citizen of the U.S. is. THERE ARE 3 CLASSES of "CITIZEN" IN THE CASELAW. A natural born citizen is a person who is born of two U.S. citizen parents AND born in the mainland of U.S.
. . .
“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. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.’ Minor v. Happersett (1874) 21 Wall. 162, 166-168.”
. . .
Consulting the Constitution, the OPERATIVE phrase of the 14th Amendment expressly states:
“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 ...”
It says “citizens” NOT “natural born citizens”.
In situations like this, SCOTUS has USUALLY devolved to ascertain what the “original intent” of the framers was ... What does the 14th Amendment mean and what is its intended scope, as introduced the United States Senate in 1866?
Sen. Jacob M. Howard (MI), who introduced it in the Senate, tells us (as it was being debated):
“The first amendment is to section one, declaring that all “persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country ... I concur entirely with the honorable Senator from Illinois [Senator Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now ...”
Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment, inserted the phrase:
“... All persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means ... Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn’t make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens ...”
Senator W. Williams further stated:
” ... In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, ‘subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States ...”
Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:
” ... I find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents [plural, meaning two] not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen...”
. . .
Thomas Jefferson wrote Virginia’s birthright law of 1777 requiring the father to be a citizen. “We can say with confidence that a natural-born citizen of the United States means those persons born whose father the United States already has an established jurisdiction over, i.e., born to father’s who are themselves citizens of the United States. “ ~~~~~~~~~~~ The “natural born” Clause’s origins have been traced to a July 25, 1787 letter from John Jay to the presiding officer of the Constitutional Convention, George Washington. Jay wrote, “Permit me to hint, whether it would 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 Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”
. . .
"However, in 1795 the Congress passed the Naturalization Act of 1795 which removed the words "natural born" from this statement to state that such children born to citizens beyond the seas are citizens of the U.S., but are not legally to be considered "natural born citizens" of the U.S. This was done to clarify for those living at that time who was and who was not a "natural born citizen" per the framers intent at that time, since the 1790 Act had introduced confusion into that subject in regards to the use of those words in the Constitution. George Washington was also President in 1795, and thus he was aware of this change. And if he disagreed with the clarification and change in the wording in the new act in 1795, he would have vetoed the Naturalization Act of 1795."
. . .
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