“Most Constitutional lawyers think it requires birth in the geographical limits of the 50 states. Neither McCain nor Obama qualify.”
OK you had me ready to concede the point to you got this part. I don’t think there’s any question McCain is a natural born citizen. Not only was he born to American parents in a US Naval hospital but he was only overseas because his father was a Naval officer stationed there on orders. If “most constitutional lawyers” are right, then you’ve effectively barred thousands of military brats from ever being eligible for the job of commander in chief.
Beyond that, I just read the code again (yes I’m a lawyer) 1408 says nothing about “wedlock” being broadly defined. What’s more you’re confusing voidable marriage with void marriage. Voidable marriages (one party is below the age of consent or is of unsound mind or, my favorite, has a loathsome disease unknown to the other party) can be dissolved by the “wronged” party if they choose. But if they choose to stay married after they’ve learned of the voidable condition (or reach the age of consent) then they’ve ratified the marriage and its no longer voidable.
Void marriages (bigamy, incest, same-sex in most states) are a legal nullity from day one and there is nothing either party can do to save the marriage. Since bigamy is in the category of void (and not voidable), Obama was born out of wedlock.
Finally, if a marriage is illegal under US law (even if legal under, say, Kenyan law), then it doesn’t count as a valid marriage under the US immigration code. Otherwise a Muslim immigrant could bring his 4 wives with him under a green card visa, and for now at least, that ain’t happening.
OK you had me ready to concede the point to you got this part. I don’t think there’s any question McCain is a natural born citizen. Not only was he born to American parents in a US Naval hospital but he was only overseas because his father was a Naval officer stationed there on orders. If “most constitutional lawyers” are right, then you’ve effectively barred thousands of military brats from ever being eligible for the job of commander in chief.
Beyond that, I just read the code again (yes I’m a lawyer) 1408 says nothing about “wedlock” being broadly defined. What’s more you’re confusing voidable marriage with void marriage. Voidable marriages (one party is below the age of consent or is of unsound mind or, my favorite, has a loathsome disease unknown to the other party) can be dissolved by the “wronged” party if they choose. But if they choose to stay married after they’ve learned of the voidable condition (or reach the age of consent) then they’ve ratified the marriage and its no longer voidable.
Void marriages (bigamy, incest, same-sex in most states) are a legal nullity from day one and there is nothing either party can do to save the marriage. Since bigamy is in the category of void (and not voidable), Obama was born out of wedlock.
Finally, if a marriage is illegal under US law (even if legal under, say, Kenyan law), then it doesn’t count as a valid marriage under the US immigration code. Otherwise a Muslim immigrant could bring his 4 wives with him under a green card visa, and for now at least, that ain’t happening.
Well first, as to McCain, let's get the facts straight.
No, he wasn't born in a US Naval hospital; no he wasn't even born in a place where his Naval Officer father was stationed (the Canal Zone--if that made a difference which I believe it does not).
Unlike Obama, McCain is an honest man and his birth story is posted on line--his birth certificate says clearly that he was born in a private hospital in another country.
So then you want to argue what the term "natural born" means. Under relatively clear principles of international law, a person is subject to the sovereign of the place where he is born. That sovereign dictates his responsibilities and duties--when he can leave; how he can act; and what he has to do to come back. The founders put the term "natural born" in the constitution to preclude a person who was subject to another sovereign from serving as President of the United States.
Having been around when the argument came up with respect to Goldwater, Barry was viewed as eligible because no foreign sovereign ever controlled the territory of Arizona in the time between the date he was born and the time it was incorporated in the US.
It's not fair to bar McCain or other military offspring? Maybe. Their parents had control and could have shipped stateside for the birth. But, ok, it's not fair--amend the Constitution. That's what the Supreme Court usually says in response to this kind of argument.
Wedlock? No. All Sec. 1408 says is "wedlock". Look at the annotations. The issue in 1408 is whether the person (born an alien) gets citizenship.
We've been through the issue of the Muslem with four wives--not a substantive question but rather the legal issue is whether he gets a visa to bring more than one wife along if he enters the US; or, in your hypothetical, would be, would we let him immigrate with more than one wife. Answer (when State doesn't make a mistake which has happened frequently) No. He can't come in until he dumps all his wives except one (or he can only bring one with him on a temporary visit).
And observe, he doesn't fail to get his visa or his immigration papers because he is not in wedlock for the reason that he has more than one wife which would be an arguably voidable bigamous relationship under US law; he fails to get in because he has four wedlocks which are all viewed as valid legally effective wedlocks for purposes of US immigration law.
My point about the loose interpretation of "wedlock" (look at the annotations) is that it means a de facto marriage arrangement. A common law marriage would suffice. For the most part, validity and efficacy of a marriage is a local law question. But in most jurisdictions, Stanley Ann's marriage to Obama would have been valid for most purposes until terminated, even though he had another wife, and even if the other wife was a US wife and the marriage was clearly criminally bigamous under US law. Some states, bigamous marriages are void; some states, only voidable; many states have conflicting cases on the question.
It looks most likely to me that they were married in Kenya at the end of the term break in the winter of 1961 (February 2) and that is where she remained until after the birth. It appears they went to Kenya to get married because Obama Sr. knew that the marriage would constitute the crime of Bigamy in the US and would be legal and meet societal norms in Kenya. Thus the marriage would be legal where contracted.
But for immigration law purposes, the federal court makes a decision on whether the purported marital relationship is "wedlock" or not for purposes of the specific statute under which the question is presented.