Posted on 07/04/2008 9:10:39 AM PDT by David
This is to summarize the law on two issues: One, Citizenship of a person, one of whose parents is a Citizen, the other an alien; and, two, eligibility of a person born outside the geographical limits of the fifty states to serve as President of the United States under Article II, Sec. 1, Par. 4 of the U S Constitution.
This is addressed to Obama's status if he was born in Kenya and to John McCain's status on the record birth in Panama.
I do not intend to address any of the collateral factual issues. I take it as a given that it has been established that the Birth Certificate for Obama published on the several sites of his supporters is fraudulent. I have assumed that it will be established factually that Obama was born in Kenya although that is a developing factual inquiry. I also accept the factual analysis with respect to McCain that he was born in a hospital outside the limits of the U S Base in Panama.
Both issues, with respect to Obama, are limited by this proposition: If he was in fact born in Hawaii, he is a citizen; and he is eligible to serve under the Constitution.
The current relevant statute is Title 8 of the United States Code, Chapter 12, Sub-Chapter III, Part I, Sec. 1401. The specific provision in the current code is now (g) of the current Sec. 1401. However, as set forth below, essential elements of the current provision are not applicable to Obama.
Currently, Sec. 1401(g) provides: The following shall be nationals and citizens of the United States at birth: . . . (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years . . . .
This provision was modified to its present form in 1986 by Section 12 of Public Law 99-653 which substituted "five years, at least two" for "ten years, at least five".
Section 23(d) of Pub. L. 99-653, provided that: "The amendment made by section 12 shall apply to persons born on or after November 14, 1986."
Obama was born prior to November 14, 1986 (presumably sometime in late July or early August, 1961) so the amendment provided by Pub.L. 99-653 is not applicable to him.
So the law in place prior to November 14, 1986 provided that a person born "born outside the geographical limits of the United States . . . of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years . . . . "
Assuming Obama was born in Kenya, his mother, who was 18 at the time of his birth, could not have met the "prior to the birth of such person . . . five years . . . after attaining the age of fourteen". [Note: My copy of the US Code does not contain the legislative history of the "age . . . fourteen" provision. I have a 1990's copy of the code that says age sixteen; in my other office, I also have an early copy that says age twenty-one. I now believe that the statute in place in August of 1991 said "age sixteen" however the effective date of the change from 16 to 14 would be relevant if Ms. Dunham had been 19 but since she was not, Obama does not qualify even if the applicable law is in fact age 14 and thus we have not addressed that question.]
Thus, with respect to Obama, the answer is clear on the face of the statute--if he was born in Kenya, he is not a citizen at birth under the statute because his mother flunked the five years of residence prior to birth after age 14. Further, there is no doubt that he is not eligible to serve as president under Article II, Sec. 1, Par. 4 of the U S Constitution.
I also want to note that (g) continues with the language: "Provided, That any periods of honorable service . . . " which concludes with a separate effective date clause making the provision retroactive: ["This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date . . . . "] The retroactive date applies only to the "periods of honorable service" clause and has no application to the Obama issue.
McCain is a little more straightforward. He was born (we have not confirmed but understand from sources we view as credible) to two U S Citizen parents in a hospital in Panama not on the U S Military base.
Sec. 1401 provides "[t]he following shall be nationals and citizens of the United States at birth . . . (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person . . . . "
I understand but again have not confirmed, that McCain's mother met the residence qualification and thus McCain would be a citizen under that statute.
We have had considerable discussion regarding McCain's eligibility to serve as President under Article II, Sec. 1, Par. 4 of the Constitution and I do not intend to revisit all of it here.
The Constitutional eligibility question is separate from the citizenship question. Absent an amendment of the Constitution, Congress does not have the power to tell the Supreme Court what the Constitution means. It is doubtful that a birth in Panama, in the United States only under the Congressional fiction of the sovereign territory doctrine, would pass--and it appears (although again we have not confirmed) that McCain was not born in the sovereign territory in any event and thus does not qualify. Our own view, based on the facts as I understand them, is that it is likely that if the Supreme Court is faced with this issue, it would hold McCain is not eligible to act as President.
To summarize: It is clear law that if Obama was in fact born in Kenya as appears likely, he is not a citizen (absent a naturalization proceeding); and he is not eligible to serve as President. McCain, although he became a citizen of the U S under the two citizen parent rule, faces a legitimate Constitutional objection to his eligibility to serve as President.
“while it would make a person a citizen at birth, it would not make a person a “Natural Born” Citizen. “
A citizen at birth *IS* a natural-born citizen. They are one and the same.
“First of all, if it gets far enough, this has to be settled by the Supreme Court. Period.”
It will never get that far because the law is so clear that McCain is a natural-born citizen that a lower court would suffice to reach and conclude.
Your wiki quote is not really important (dont rely on wiki anyway), as the 14th amendment is not the issue. It doesnt matter where McCain was born, on base, off base, in the jungle. He’s the son of two U.S. citizens and that suffices.
Since 1790, ie, throughout American history, those children of US citizens born abroad, including children of diplomats and servicemen, have been considered natural born citizens:
“And the children of citizens 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”. —First Congress, Act of March 26th, 1790, 1 Stat. 103.
“Since natural born is no way explained in the Constitution or Federalist Papers, it would appear that the Founding Fathers saw no particular need to explain a phrase whose meaning at the time was so well understood.” In such matters, the courts defer to the Congress to fill in the details. The Congress, as cited above, has done so, and the 1790 law is fully in keeping with original Constitutional understanding and intent, as it followed the common law understanding of how citizenship was acquired.
It’s a slam dunk that McCain is eligible.
“I’ll post this again. This is the law when McCain was born. I think it’s pretty clear. He was a citizen right from birth.”
Yes, the law is clear. Some are trying to fuzz and obscure and complicate the obvious, simple and clear, for reasons of their own invention.
“No doubt McCain is a citizen. Question is whether he is a “natural born” citizen under Article II, Sec. 1, Par. 4 of the U S Constitution.”
Since one can aquire US citizen only as either natural-born citizen or via naturalization, and McCain was never naturalized from another country, he is a natural-born US citizen.
“Although there is disagreement, the usual consensus among the Constitutional lawyers is that he is not because the usual interpretation view is that “natural born” means born in the geographical U S.”
Again with that canard. No, that’s *not* the usual interpretation, it’s an incorrect interpretation that most legal experts reject handily. ‘Natural-born citizen’ in English common law was a citizen at birth. see previous cites. Natural-born citizen in 1790 law was equated to citizen at birth. Explicit laws that extend citizenship at birth beyond citizen based on place-of-birth have been in place since before our country was founded.
“A far more logical and reasonable meaning, however, is one who became a citizen naturally, through the circumstances of birth, and not through being naturalized, the lengthy and onerous process by which aliens become United States citizens.” -Kresge
This is why the 1790 law was written thusly:
“And the children of citizens 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”. —First Congress, Act of March 26th, 1790, 1 Stat. 103.
Now why would the FIRST LAW on this matter EXPLICITLY refer to ‘natural born citizens’ who acquire citizenship from being born ‘beyond the sea’ if natural-born means born on US soil only? It’s an absolute and utter contradiction.
Clearly, the members of Congress, many of whom WROTE the Constitution, had in their original intent to mean natural-born citizen to equate to those who were citizens at birth, where-ever they were born.
“I suppose then that we would have to look at the Framers’ intent with regards to this provision, as the Constitution does not clearly define “Natural Born.” I think if we just look at the plain-meaning of those words, the conclusion should be that natural born means a citizen at birth.”
That is correct, and the 1790 law confirms that view of the Constitutional intent.
“So if you want to sit here and argue the world is flat, you are welcome to do so. “ - David.
Rich irony coming from a guy pushing the bogus fairy tale that Barack was born in Kenya.
The ‘evidence’ for this out-of-africa claim thus far?
1. Claims (refuted) that Obama’s birth cert. is forged (it’s not).
2. A 1971 photo that is claimed to be from 1961, because someone remembers the airport facilities to look like that in 1961. Never mind the other side evidence that recalls it looked that way in 1971. Or the fact that aged 10 Barack is in the photo set; that is waved away by various means, like “I know its not Barack”. “I know, its Malik” (Malik was only 2 years older than Barack, so that was judged ‘proof’ until that reality intruded, then dropped). bizarre attempts to contort facts to fit the theory.
3. Claims that Kenyan family members recall the birth. We are pointed to ‘sources’ that are just more claims-of-claims. No real evidence, quote, etc. Never mind that it would have been in “Dreams of My Father”, or the press would have picked up on it massively. Somehow this is a secret that only leaks out to the masters of the conspiracy theory.
Then we have to add on a whole bunch of bizarre scenarios, known acts of fraud, and a bio that has been a lie from day one. The simple reality that Barack was born in Hawaii where his Mom was living is rejected for more and more elaboration and artifice in this conspiracy theory.
Its a big fat bogus fairy tale. Bogosity built on wisps of BS. The world is flat, indeed!
Thank you. Now I know there’s someone else out there sane on this subject.
“Which would be the act passed in 1952. According to that Obama would still be a citizen. But this whole line of discussion is really pointless because Obama was born in Hawaii and therefore he is a natural born U.S. citizen under the 14th Amendment. “
Correct.
But you have to understand the background. An attempt to ‘prove’ or ‘show’ Barack wasnt born in Hawaii:
http://www.freerepublic.com/focus/f-news/2040486/posts
Presumably, Obama's mother didn't plan for him to run forPresident from the day he was born. If that was the case, and if he was in fact born on Kenya, that fact would have been made known to friends or family members at some time during Obama's life before he decided to run for President. It would be impossible for him to go back and try to cover that fact up after 40 some years.
Put another way, Obama and his family would have had no reason to hide his supposed Kenyan birth from anyone. The simplest answers are usually the right ones- Oabma was born in Hawaii in 1961 and he is a natural-born citizen under any possible interpretation of the Constitution.
Regardless of the shell game surrounding the certified record from the State of Hawaii, and even supporters claim is a forgery, where is the 1961 "original"? That's still an interesting subject. Laser printers did not exist in 1961, and SOMEONE has the "original" or a real copy on microfiche. Where is it?
Techdude is an expert. AJ is a name-calling crank. See other thread, these points about the document are not appropriate for this. My fault for that. I misposted a reply to you about them on this thread when I meant the other.
The question was bringing it to court prior to the election. Even if it turns out that it can’t be proven there was fraudulent intent, he could be charged with it.
Please look at the part I put in bold. It highlights what you asked.
“McCain is a natural-born citizen because both his parents were citizens.”
I agree with this conclusion, both because of all the English history you cite (thanks for that: I’d never seen it) and because so many Framers were part of the first Congress that enacted the 1790 statute that essentially codified this same notion.
David’s correct in the technical sense that Congress can’t just change the Constitution using a statute. Moreover, they never have directly ruled on this issue, so it’s not “settled law.” So if a case reached them, I don’t think they would pass on the case on grounds that no ruling was necessary. But I can’t conceive of any circumstances in which they could credibly decide that children born abroad of 2 American citizens were ineligible to become president.
“A citizen at birth *IS* a natural-born citizen. They are one and the same.”
I guess I would agree WRT current statutes. But for purposes of discussion, imagine that Congress inserted a clause into the Naturalization Statute to the effect “All individuals who become citizens under the provisions of this statute before the age of 35 will be deemed citizens at birth. As natural-born citizens, they therefore will be eligible to serve as President of the United States.”
If the above became law, then Congress will have defined a certain category of individuals “citizens at birth.” Moreover, they would have clarified their intention to equate citizen at birth with natural-born citizen, so they can be no quibbling about congressional intent. But the mere fact that they have declared these individuals citizens at birth (which is their prerogative to do) and presumable entitled to all the rights of citizenship (which presumably no one can legally deny them) doesn’t mean that what they have done is constitutional. Were Arnold Schwarzenegger, for example, to run for president based on this hypothetical statute, you can be sure it would be challenged and I’m pretty sure the Supreme Court would rule that the statute’s claim that such citizens be made eligible for the presidency was unconstitutional.
Thus, as a general matter, Congress has wide berth to statutorily draw a line between citizens at birth and those who must be naturalized. But that line is not infinitely elastic and someone could misconstrue your claim to imply otherwise.
“Laser printers did not exist in 1961, and SOMEONE has the “original” or a real copy on microfiche. Where is it?”
“Vital records (birth, death, marriage, and divorce certificates) for events that occurred in Hawaii are received and preserved by the Office of Health Status Monitoring, a unit of the Department of Health. In Hawaii, access to vital records is restricted by statute (HRS §338-18).” http://hawaii.gov/health/vital-records/vital-records/index.html
The original paper copy, if it still even exists, is held by OHSM. It may well have been converted to microfiche at some point, but it also wouldn’t surprise me if such records were held exclusively in digital form either as digital records or digital images of records previously stored on paper. This original has FAR more information than the COLB we have seen.
It is not even clear whether Barack could get that full original record: “A certified copy of a vital record (birth, death, marriage, or divorce certificate) is issued only to an applicant who has a direct and tangible interest in the record.” http://hawaii.gov/health/vital-records/vital-records/elig_vrcc.html
As we’ve seen by several posted examples, when people request copies of their BC, all they get back is the COLB, NOT the full record. Presumably law enforcement could get to the complete record if there were a legitimate reason, but even that might require some sort of search warrant, i.e., court approval.
Who “owns” your birth data? Well, a lot of people think they “own” their medical records and are shocked to discover their doctors own them (except in states that have legislated something different). It may well be that the state collects and maintains these records for THEIR purposes in keeping law and order, maintaining public health. And that so long as they make available the limited COLB so that they are not denying you whatever information you need to run your life, they may have no legal compulsion to make the full record available. Maybe some legal eagle can substitute some facts for my speculation on this point.
As for laser printers, no one is contending that any of the posted COLBs are ORIGINAL records. They are certified copies that were actually printed out on whatever date was stamped on the back (June 6, 2007 in BO’s case). So you can’t draw any legitimate inferences about the authenticity of the copy based on the fact that it was laser-generated. The form it was printed onto specifically states it was modified 11/2001 etc.
Let me think positive..
They’re both ineligible and the Primary process has to start all over again.
I’m still quite confused on the out of wedlock stipulation - i have always had a suspicion because of obama’s “murky” remarks - i figured it was because of the marriage back in kenya
However have you seen this:
http://www.google.com/search?hl=en&q=%22very+young+and+very+single+when+she+had+him.%22+&btnG=Google+Search
If they are looking for a loop hole in the law - then they just set it up in an interview.
Obamas mom was very young - and very - single
Married and divorced 2 years later- yet Michelle now tells us she was - single...when bammy was born
everything about this guy smells crooked.
not sure.
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