Posted on 12/05/2009 11:07:08 AM PST by betty boop
President Obama under the Lens of the Citizenship Question
By Jean F. Drew
The Preamble to the Constitution of the United States of America declares:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
So, who are these “People,” beyond the fact that they are the sovereign power that “ordained and established” our fundamental rule of law? In other words, in what is their sovereignty actually rooted that is capable of legal cognizance? And how are people in succeeding generations — “our Posterity” — to be qualified as members of this sovereign People?
Such questions draw us to the meaning of citizenship, and how citizenship has been defined and understood over the course of U.S. history. Taking stock now, we find that citizenship is something intuitively understood by most Americans; i.e., a citizen is a fellow member of the We the People of the Preamble. A person could be a member of this class by virtue of American birth or via the naturalization process. Precise legal guidance at the definitional level is still insufficient, since the Constitution itself does not explicitly address these particulars. We feel this lack of explicit guidance most keenly today in the question of whether the currently sitting president is a “natural-born citizen of the United States,” as he is required to be under Article II, Section 1, Clause 6 of the U.S. Constitution.
For the Framers, U.S. citizenship admits from only two possible classes: natural born or naturalized. The first class pertains to citizenship acquired from the moment of birth; the second to natural-born citizens of a foreign state who have satisfied the statutory eligibility requirements of becoming a United States citizen.
What remains ambiguous is whether “natural born” status depends on the geographical place of one’s birth (doctrine of jus soli — the “law of the ground,” or “of the soil”), the citizenship status of the parents one is born of (jus sanguinis — the “law of the blood,” or of natural inheritance), or some combination thereof.
The Constitution itself nowhere defines “natural born.” Our earliest nationalities act — the Naturalization Act of 1790 — is the only instance of statutory “natural born” language that we have. Just five years later, the term “natural born” was removed, with passage of the Nationalities Act of 1795. This act recognizes foreign-born children of two American parents as citizens of the United States from the moment of birth. This would be an application of the doctrine of jus sanguinis. Thus, John McCain was a citizen of the United States from the moment of his birth. Even though he was born on foreign soil, i.e., in the Panama Canal Zone, he is a natural-born citizen of the United States, by virtue of his double American-citizen parentage. This contrasts with the cases of, for example, ex-Secretary of State Henry Kissinger, a natural-born citizen of Germany who became a U.S. citizen in 1943; or of California’s current governor, Arnold Schwarzenegger, a natural-born Austrian citizen who became a U.S. citizen in 1983. Or of the case of my favorite modern philosopher, the natural-born German Eric Vöegelin who, having fled Hitler in 1937, became a naturalized American citizen in 1942.
Under the original Constitution, it was up to each of the several sovereign states to determine who its own citizens were. Indeed, the very idea of state sovereignty would be diminished, were this not the case.
The great complication of state sovereignty in determining citizenship was, of course, that some states refused to acknowledge the citizenship of the “three-fifths-of-a-person” persons born within their respective geographical boundaries. Then, on July 9, 1868, the Fourteenth Amendment was ratified — taking care of that problem by nationalizing U.S. citizenship. In so doing, there was an effective move away from the doctrine of jus sanguinis, to that of jus solis: “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.”
Now the federal government determines who a state’s citizens are, and forbids the states to transgress the privileges or immunities of these newly-minted citizens of the United States. In short, the Fourteenth Amendment turned tradition on its head.
Thus the emphasis shifts from “natural born” — birth to American citizen parents (as formerly determined by the states), jus sanguinis — to “native born” — the geographical location of one’s birth (i.e., within U.S. territory), jus solis.
With the result that today a poor expectant Mexican woman has every incentive to illegally enter the United States for the purpose of bearing her child in an American hospital (at public expense), on American soil — which instantly confers U.S. citizenship on her child. And thus the widespread phenomenon of the “anchor baby” occurs. This issue is beyond the scope of the present article. We merely note here for present purposes that this anchor baby has zero U.S.-citizen parents.
More to the point would be to ask: What kind of citizen is President Barack Hussein Obama? It does not appear that he is “natural born,” at least not under the original understanding of that term, as being the child of two American-citizen parents, irrespective of physical location of birth. For we know his father, Barack Obama, Sr., was a natural-born Kenyan, and a British citizen under the British Nationalities Act of 1947.
If BHO was in fact born in Hawaii, then at best he would be “native-born.” But even this is uncertain; the alleged records attesting to his Hawaiian birth are under seal. A Certificate of Life Birth allegedly issued by the State of Hawaii was posted on his campaign website last year. But had to be quickly taken down, after it was discovered to be a forgery. His school records from Indonesia characterize him as a citizen of Indonesia. He has Kenyan family members who are on record as saying they were present at his birth — in Kenya. A Kenyan birth certificate has surfaced; to the best of my knowledge, its authenticity has not been verified. It’s all terribly confusing; and the Obama Administration is expending tremendous amounts of taxpayer funds ($1.4 million and counting) on lawyer fees, trying to keep these matters as “dark” as possible. So much for the campaign promise of “transparency” from this administration.
The so-called “Truthers” are all over Obama’s supposed origins in Hawaii, on which his “natural-born-status” seemingly wholly depends in their minds. But this is to follow a course leading down into a rabbit hole that offers nothing definitive at the end of the search. The reason being: Hawaii issues Certificates of Live Birth (COLB) to any person born within its geographical jurisdiction, without regard to, or taking any position on, the parental citizenship of the child, or what the child may naturally inherit therefrom such to be qualified as a natural born citizen of the United States. The Hawaiian birth record — if it exists — can only attest to the geographical location of Obama’s birth; it cannot address issues regarding whether he acquires citizenship from his father (British) or from his mother (American) or both. Hawaii — post Fourteenth Amendment — has no power to determine the citizenship status of our sitting President.
In Schneider v. Rusk, 377 U.S. 163 (1964), the Supreme Court held “We start from the premise 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.”
And thus presumably, the native-born anchor baby will never be eligible to be President, on “natural born” grounds. For he is the child of non-citizens.
Now let us presume that what the Hawaiian Secretary of State has under seal (i.e., Obama’s “long-form” birth record) really exists. So what? It, by itself, cannot speak to the question of whether BHO is a “natural born citizen.” It could only attest to native-born status.
Of course, what the Framers were mainly worried about was captured in a 1789 letter John Jay sent to George Washington, who was then presiding over the Constitutional Convention in Philadelphia:
“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.”
Especially in the case where we clearly have an inordinately “internationally-minded” POTUS in office right now, I for one would like to know exactly what kind of citizen he is. But he and his team are doing everything in their power to prevent me from finding out. Which just naturally leads to the question: WHY?
The question is particularly urgent, for President Obama is on record as saying he finds the U.S. Constitution —which he (twice) swore an Oath to preserve, protect, and defend — wanting. He finds it wanting because it is not a statement of positive federal government powers, but is rather a negative prescription of what government may not do. That being the case, as an “activist-minded individual,” evidently he simply ignores it, and seemingly violates it every day before breakfast as if it were a matter of principle with him.
Of course, if he is not a “natural born citizen,” and knows it, then he violated his presidential oath of office in the very act of taking it.
If he is not a “natural born citizen,” then we need to recognize that his successful acquisition of Presidential Office has been aided and abetted by the Democratic National Committee, which certified his eligibility for office; and by Nancy Pelosi, who again certified him, before the Electoral College.
We the People of the United States of America have a few questions. And we want answers. Maybe a good place to start would be to examine the “due diligence” records of the DNC and Ms. Pelosi, which led to their respective certifications of Obama’s eligibility to serve.
If we can’t get answers from the Obama people, maybe we need to start querying the DNC and/or Ms. Pelosi: What did they know, and when did they know it?
Just some food for thought.
Thank you ever so much for posting it!
Au contraire, Madame!
You missed the "power" of my point: They recognized and acknowledged that they, themselves were not natural born (and never could be...) -- therefore, they "grandfathered themselves in" -- to "get around" the "natural born" requirement they had just codified in the Constitution.
If we can determine the birth status of our earliest Presidents, we will have some de facto examples of what "natural born" IS NOT.
And, if one of them matches Øbama's situation, then the case is closed; he is not qualified -- no matter how many fools voted for him and "gave him a pass".
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I agree with you on Arthur. However, IIRC, his "natural born" status was not questioned until after he had served his one term...
His father: Augustine Washington was born at Mattox Creek, in Virginia, in 1694.
His mother: Mary Ball Washington (1708 – 1789) was the second wife to Augustine Washington (after the first wife, Jane Butler, died) and was also the mother of George Washington. Mary Ball Washington was born as Mary Ball in 1708 in Lively, Lancaster County, Virginia.
Bottom line: George Washinton was a "Natural Born" Citizen, both Jus Sanguinis and Jus Solis.
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As they say in the military, "No joy with George"... :-(
No I didn't; not necessarily. I thought I was just enlarging it, expanding it. :^) Metaphorically, so to speak. The Muse was speaking.... LOL!
I had not, of course, done any of my "homework" on the geneologies of the Framers at that time. I'm tickled to learn that George Washington was a natural-born citizen of the United States of America. And I daresay, so was Benjamin Franklin, John Adams, Thomas Jefferson, and a bunch of the others. :^)
Maybe we need to narrow our search to those who did not have two American citizen parents, and see if any one of those persons ever became president.
I figure: That sort of thing does not happen.
Except for "the exceptions that prove the rule": Chester A. Arthur and BHO.
You wrote:
I agree with you on Arthur. However, IIRC, his "natural born" status was not questioned until after he had served his one term....Well if that's so, then all I can say is: better late than never!
However, some sources suggest that this issue was publicly topical during his presidency. Jury's still out for me.
You wrote:
If we can determine the birth status of our earliest Presidents, we will have some de facto examples of what "natural born" IS NOT.Call me a blockhead, but on preliminary findings, I'd say our earliest presidents are de facto examples of exactly what "natural-born" actually, really IS. So how can they show you what it IS NOT?
Jeepers, I must be missing something here.
Thank you so very much, dear brother in Christ, for your scintillating and thought-provocative essay/post!
I was overly optimistic there; should have use the conditional "might" instead of "will".
I failed to take into account how long it took to get around to the Constitution. By that time, most of the prime actors (and their parents) were, indeed, "natural born". That makes me especially curious as to who they were "grandfathering in" -- at that late date...
'Twas worth a look, anyhoot (to paraphrase one or two of my favorite folk...)
;-)
It used to say simply "The Secretary may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect."
But it now reads:
Except as otherwise provided in this subsection, no temporary, proposed, or final regulation relating to the internal revenue laws shall apply to any taxable period ending before the earliest of the following dates:
(B) In the case of any final regulation, the date on which any proposed or temporary regulation to which such final regulation relates was filed with the Federal Register.
(C) The date on which any notice substantially describing the expected contents of any temporary, proposed, or final regulation is issued to the public.
Paragraph (1) shall not apply to regulations filed or issued within 18 months of the date of the enactment of the statutory provision to which the regulation relates.
(3) Prevention of abuse
The Secretary may provide that any regulation may take effect or apply retroactively to prevent abuse.
(4) Correction of procedural defects
The Secretary may provide that any regulation may apply retroactively to correct a procedural defect in the issuance of any prior regulation.
(5) Internal regulations
The limitation of paragraph (1) shall not apply to any regulation relating to internal Treasury Department policies, practices, or procedures.
(6) Congressional authorization
The limitation of paragraph (1) may be superseded by a legislative grant from Congress authorizing the Secretary to prescribe the effective date with respect to any regulation.
(7) Election to apply retroactively
The Secretary may provide for any taxpayer to elect to apply any regulation before the dates specified in paragraph (1).
(8) Application to rulings
The Secretary may prescribe the extent, if any, to which any ruling (including any judicial decision or any administrative determination other than by regulation) relating to the internal revenue laws shall be applied without retroactive effect.
The #7 item, IMHO, gives the Secretary way too much authority to be biased in favor of select taxpayers.
For a history of the changes to this section of the tax code: US Code (Cornell)
Thank you so much for sharing your insights, dearest sister in Christ!
I too am curious to know who was being grandfathered in by the language they used. Evidently they would not bother to include the language without reason. So if we discover the biography of their target we would have insight to what they meant was excluded with the term "natural born."
This is what John Hemenway pointed out in the opening brief in Hollister v. Soetoro as it was posted here from Scribd. He asks why this Supreme Court precedent would not apply to Colonel Hollister as a member of the Individual Ready Reserve. If if the law is upheld and applied in that case it would seem to apply to Colonel Hollister and to many other members of the reserves as well. Colonel Hollister has challenged Soetoro a/k/a Obama as being only de facto and not de jure before he has been called back to active duty. That is why the Hollister case should now be the focus of a good deal of attention -- because of the Ryder case.
It wouild be good not to represent that Ryder says more than it says because the de facto officer doctrine does not apply to decisions as yet unmade which is the point of Ryeder after all where Coastguardsman Ryder brought up the point before the decision was made as does Colonel Hollister in his case.
This seems to be the only case not dismissed for want of standing but for another reason going to the merits. I wonder why this has not been taken note of on Free Republic. it does not seem unimportant. The defendants Soetoro a/k/a Obama and Biden did not appeal that finding although they will raise it on appeal. As an issue it was not put before the Court of Appeals by the parties although the Court of Appeals is likely to raise it on its own.
Yes, but here's the thing: they were natural-born Americans, but still British subjects/citizens up to the Revolution. In effect, the Revolution was (among other things) about repudiating the British doctrine of perpetual citizenship. It was a transfer of sovereignty from King George III to the American people themselves, under their already well-developed system of local self-government. Finally, this boils down to the question of one's principal loyalty.
The Revolution hit the "reset button" of citizenship. Had it failed, there would have been a whole lot of dead (American-born) British subjects. Our Founders were men with a price on their head. But miraculously, it all worked out. George eventually beat a retreat, and for the first time there was such a thing as United States citizenship.
The loyalty issue was a problem even during the war. There were two camps: the Loyalists (identifying as British subjects/citizens) and the revolutionaries (who of course wanted to separate from the British Crown). Benedict Arnold ended up being an inadvertent Loyalist....
In the main, citizenship entails the idea of loyalty to one's sovereign. We the People are the sovereignty. I wonder whether such an idea can move a BHO....
And that's the problem I have with him in a nutshell.
p.s.: I'm scratching my head, too, over who the Framers might have been "grandfathering in."
Two categories in Article II, Section 1, Clause 6: (1) natural born citizen; (2) or "a Citizen of the United States at the time of the adoption of this Constitution."
It seems to me that (2) refers to the post-Revolutionary period, when the nation was still organized under the Articles of Confederation. Perhaps many people came over from Europe after the war, and became naturalized United States citizens in the pre-Constitution period? Anyhoot, category (2) is strictly time-delimited: "at the time of the adoption of this Constitution."
It appears neither category applies to our sitting POTUS.
Thank you so very much for sharing your thoughts, TXnMA!
The ones excluded would evidently be those who did not become citizens upon inception, e.g. non-residents temporarily "in" the country and slaves who were seen as property.
Interesting but it still leaves us with their intent - evidently that henceforth all presidents must be natural born citizens.
If I understand that correctly, then a non-resident newborn could not become president. McCain arguably would have been a resident at birth because the U.S. was the legal residency of his parents who were on temporary duty outside the U.S.
I do not venture a guess whether Obama's mother's legal residency changed to Kenya upon her marriage based on the laws at the time.
Thank you so much for all your wonderful insights, dearest sister in Christ!
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It seems to me the Framers' intent MUST have to do with the loyalty issue: The POTUS — the CEO, CIC, and CLO of the United States — must be someone about whom there can be no doubt whatsoever as to his devotion and loyalty to the nation. There can be no suspicion of "divided loyalties" on behalf of another sovereign state or interest, overt or concealed.
Thus the language of "natural-born": birth from two American parents (wherever they are in the world at the time of birth) instantly confers American "natural-born" citizenship on the child. A child born to Americans could be presumed to have no "divided loyalties." This is, again, the doctrine of jus sanguinis in action.
Trying to straighten everything out, it seems there are three basic categories of American citizenship: (1) natural-born (jus sanguinis doctrine — which is why John McCain is a natural-born citizen of the United States irrespective of his Panamanian birth); (2) native-born (14th Amendment, jus solis doctrine — place of birth determines citizenship; e.g., the "anchor baby" phenomenon); and (3) Naturalized (foreign-born individuals who have chosen to become U.S. citizens). Presumably, children born in America to naturalized citizens are themselves not only "native-born," but also "natural-born" [My mother would be in this category since both her parents were American citizens, albeit naturalized ones, at the time of her birth.]
Just trying to figure out all this stuff! :^) This is where I am at the moment....
If I'm right, then I can happily report that I am a natural-born and native-born American citizen! :^)
Thank you so much, dearest sister in Christ, for your wonderful insights!
Well that would be nice. Seriously.
Most would-be serious writers do not realize how very much a good copy editor helps. This one actually does. Just haven't found one yet.
Stupid avoidable mistakes can kill you.
A most astute insight, syc1959!
The Fourteenth Amendment says:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.... [bold itals added: There are TWO criteria to be satisfied here, as you so astutely note syc1959.]Question: How can a minor tyke born on American soil to non-U.S.-citizen parents be "under the jurisdiction of the United States?" As a minor, the child is under the (natural law) jurisdiction of its parents — who owe their principal allegiance to a foreign nation/state and are therefore not themselves subject to the jurisdiction of the United States.
It seems the Fourteenth Amendment, with its jus solis doctrine, has vastly complicated the citizenship issue! JMHO, FWIW.
Thank you so much for your great observation, syc1959!
At the moment, I'm wondering if and how Obama's dual citizenship at birth - as a result of his father's domicile - ended. Surely he is not still a citizen of the U.K. or else he would be paying taxes to them (visions of Al Capone's oversight.)
On this criterion, where was Stanley Ann Dunham's "domicile?" She seemed to find "domicile" wherever her third-world, Marxian-socialist husband of the time happened to be. And under international law as traditionally understood, "the domicile of the husband and father determines that of wife and children."
Tracing BHO's citizenship status through his mother seems fraught with difficulty, on legal minority, jurisdictional, and domicile grounds. On the other hand, there are potentially two fathers (natural and step) that clearly are not citizens of the United States: One a Kenyan (British citizen); the other an Indonesian (Indonesian citizen).
Whatta mess....
Whatta relief!!!! LOLOL!!!! There is "JUSTICE" in the world! (I.e., the world according to the IRS.)
The problem is you have to catch the anchor baby raking in the income before you can tax it. Not that anchor babies typically do much raking in of income in the first place. Rather more typically, they siphon income off from everybody else.
Arrrgggghhhhh!
This stuff will drive you crazy!
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