Is the president in fact a natural born citizen (NBC) as stipulated by the Constitution, or is he not? The president says he is and has offered a copy of a birth certificate to support his claim. A great many dispute his claim and have offered much evidence in support of their contentions. For the good of the nation, this issue needs to be settled so that the upcoming presidential election will not be under this troubling cloud.
In collaboration with an attorney, I have examined the subject matter in depth. I am reporting the finding so that, the reader, can either accept the president’s document or reject that documentation for more compelling evidence.
The Pravda article reported the Press conference several weeks ago of the Arizona Sheriff in which details were released of a study by a group of Adobe Software experts after examining the “Long Form Birth Certificate” released by the President. The exact details and the analysis by the experts clearly raise issues which should become the subject of an Independent Study demanded by a Federal Court. The opinions of the experts are that the Birth certificate has been doctored and it is not a copy of an original Hawaiian Long Form Birth Certificate.
The Pravda article also included a story, which appears highly speculative, about an alleged plot by the President to erase certain data from a Legal Search data base, which includes all citations to an old Supreme Court case which bears on the question of whether Obama is a “natural-born” citizen of the US. This story inspired me to launch my own search for the Supreme Court cases which bear on the meaning of the term now denominated as “NBC” for natural-born citizen. If President Obama’s parents were married at the time of his birth, and his father is a British subject (as a citizen of Kenya), then the argument can be made that the President was not eligible for the Presidency because he did not meet the eligibility requirement of being a “natural born citizen.”
The US Constitution states in Article two, Section 1, paragraph 5, “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...” Unfortunately, there is no definition of the term “natural born citizen” in the Constitution. The mnemonic NBC is also used to stand for the term “natural born citizen” in this paper.
I found on the Internet at “whatsyourevidence.com” a large list of a collection of cases which have been filed against President Obama on the grounds of ineligibility as required by Art. 2 of the Constitution. Most of the cases have been dismissed on formal grounds but several are still pending. Since the web site is clearly a product of a Democratic team, I decided to try to locate and study the most relevant early Sp. Ct. cases cited as precedence in those cases rather than rely on the Democratic commentary. I searched for the record in a few cases in an effort to find the citations being cited by the Parties as precedents so I could independently evaluate the issues.
My task is to determine the meaning of NBC in Art. Two, Sec. 1, Clause 5 at the time of the signing of our Constitution in 1787. The cases cited below are cited as precedents in one case against President Obama that I had found on the Internet.
I found it initially very confusing that none of the cases which were used as precedent, so far as I could initially determine, are an example of an identical or similar case relating to a determination of the meaning of the term NBC as used in Art. II, Section 1, par.5 in the context of a litigation regarding a candidate for the US Presidency. Accordingly, in my initial opinion there was no Supreme Court precedent for this issue. Accordingly, this situation would usually mean that if the case gets to the S. Ct., the meaning of the term “natural born citizen” in Article 2 of the Constitution will be an issue of first impression.
Since the term “NBC, includes the word Citizen, the issues in the cases below could be considered similar in some sense to the NBC issue; but these cases deal with the question of the meaning of the words “Citizen” and “subject to the jurisdiction (of the US) in the 14th Amendment as it applies to statutory construction in immigration and naturalization law, or inheritance laws, or suffrage voting laws or Indian Treaty laws. The 14th Amendment is almost 100 years later than the Constitution and the comparison of the Constitution Article Two, Sec.1, clause 5 and the 14th Amendment, Sec. 1 makes it questionable whether the two types of cases are similar or related on the issue. However, after carefully studying the cases cited as precedents, I came to realize that there is a very strong connection as stated below.
This, at first glance, will appear strange but the connection between the two cases is based on the concept involved in both types of cases as to the potential effect of a father’s allegiance to a foreign power at the time that his child is born in the US. It is known that during the Constitutional Convention in 1788, in the discussions relating to the restrictions that should be imposed on a citizen’s eligibility to become President that a nominee should have a strong love of country that ordinarily is stronger in a person that is born in a country to a parent that is also a citizen. It is clear that they did not want a person to be eligible if at the time of his birth that he had an allegiance to a foreign power, such as might occur if his father were a citizen of a foreign country. This same issue is raised one hundred years later in litigation under the 14th Amendment, when persons born in the US had been denied citizenship on the grounds that their father had allegiance to a foreign power at the time of their birth.
The resolution of the issue of the meaning of the term “subject to the jurisdiction” in Section 1 of 14th Amendment has been the critical question in all of the cases below. Only the dissent, in the Wong Kim Ark-case contains an analysis of Article Two, Section 1, clause 5 of the Constitution of the term “natural born citizen.” Since this discussion is in the dissent it is not a binding precedent, because it was not employed in the final determination by the Court. However, since there is a meaningful connection between Article 2 and the 14th Amendment cases relating to the Allegiance issue, the Wong case below is a proper precedent on the issues of “natural born citizen.” As explained below, the opinion of the dissent is the only part of the case which deals with the meaning of “natural born citizen” and it is a properly cited Supreme Court precedent although not a binding precedent because it was in the dissenting opinion.
The 14th Amendment was passed in 1868, almost 100 years after the signing of the US Constitution. The 14th Amendment was written to define national Citizenship and to convert former Negro slaves into US Citizens. The term “natural born citizen” is not found in the 14th Amendment but in the 14th Amendment cases, there are background discussions that on several instances use the term “natural born” but not in conjunction with a discussion of Art 2 of the Constitution.
In the case US vs. Wong Kim Ark169 US 649 (1898), a Chinese man who was born in the US, and who had visited China several times, had been denied entry to the US upon his return from a trip. He claimed US Citizenship under the 14th Amendment because he was born in US and the 14th Amendment says “All persons born in US…subject to jurisdiction thereof are citizens...” Immigration had claimed that since his parents were Chinese citizens and Chinese law automatically required his allegiance to the Emperor of China, he was subject to Chinese law and was not “subject to US Jurisdiction” as required under 14th Amendment.
Since it had been stipulated that Wong, the Plaintiff, was born in the US, the only issue to decide was to determine the meaning of “subject to the jurisdiction thereof.” The Court decided that British common law at the time of the signing of the Constitution would control the decision that it was the same as US common law and they cited several hundred British cases and several British texts that the Court interpreted to mean that a child born to a non-British citizen in England, was a British citizen (unless his father was a Ambassador or diplomat for another Country or England was at War and the land on which the child was born was occupied by another Sovereign.) The Court used the terms “natural born and native born” to describe a child born in the British Territory. The term is used simply as an expression that being born on British territory rendered the child subject to the jurisdiction of Britain. Applying the British common law, the majority of the Justices found that the Plaintiff was a US citizen.
In the dissenting opinion, starting at 169 US 705, Chief Justice Fuller and the distinguished Justice Harlan took issue with the majority opinion based on their different understanding of the US common law at the time of the Constitution.
The arguments by the dissenting Justices are very powerful but they are also very complicated, and IMHO were poorly presented. More simply stated their argument was:
1. (a) The majority erred when it selected British common law as the authority for determining the meaning of “natural born citizen” in Art 2 of the Constitution.
1(b) The US common law should be the source of authority for interpretation.
1(c) There was no US common law because the States each had their own common law.
1(d) Although reference to British common law in prior state litigation in civil matters in the States was not unusual, but the meaning of NBC was a national political question and since the British government system was completely different from the US government system, the decision to employ British common law as the reference source was erroneous.
1(e) English law was completely abrogated by the revolution and there was no compelling reason to employ British common law as a reference.
1(f) The British common Law re-citizenship was based on feudal law which attached an irrevocable allegiance requirement for any person born on British Territory (excluded diplomats, etc). This is unacceptable for Americans that demanded freedom to emigrate.
2.(a) An examination of the legislative history of the Constitution regarding the eligibility requirement for the Presidency showed that the framers required an emotional attachment to the US that was greater than likely existing for all citizens especially since US citizenship includes naturalized persons. The founders felt strongly that birth of a child on US soil coupled with 14 years of residency as well as 35 years of maturing would engender a citizen with an affectionate appreciation for the American system. These restrictions are all in the Art.2, Sec.1, clause 5 of the Constitution.
2(b) As evidence that the Founders considered it critical for US high office holders to be more than mere citizens, the Constitution also includes greater eligibility requirements than citizenship for Senators and Representatives (Art. 1, sec.1, clause 2; Art 1, sec 3, clause 3)
3. The very powerful argument of the dissenters at 169 US 715, states:
“It is unreasonable to conclude that the term “natural born citizen” applied to anyone born within…the US, irrespective of the circumstances, and that children born to foreigners, happening to be born to them while they are passing through the country…were eligible for the office of the Presidency, while children of our citizens, (applying British common law) born abroad were not (eligible).”
Based on the above reasoning, the dissenting Justices were of the opinion that American common law states that a child born in the US whose father has an allegiance to a foreign power, such as citizenship in the foreign nation when the child was born, then the child had the same allegiances and the child was therefore not “under the jurisdiction of the US.” J. Harlan believed foreign allegiances of the child at the time of its birth were determinative of citizenship under the 14th Amendment.
As noted above, the dissenters made comments directed to the interpretation of the term “natural born Citizen” in the context of Art. 2, Sec. 1, clause 5 of the Constitution. These are the only remarks found in any of these S. Ct. cases which address the eligibility requirements to be President and they conclude that there is a requirement for a type of emotional connection to the country such as comes from a generational citizenship that comes from being born in the US to citizens of the US as well as having no allegiance to a foreign power at the time of birth. The dissent adds the observations reported of the discussions at the 1788 Constitutional Convention on Presidential eligibility which voiced the desires for a love attachment as comes from generational citizenship. The dissent also reasoned that the requirement for non-allegiance to a foreign power at the time of birth should be included in the requirement to become a citizen under the 14th Amendment but they don’t seem to require the emotional empathy and love for the country, as they wanted under the Article Two eligibility provisions for Presidency. They limit the citizenship requirements under the 14th Amendment to merely require that there be no allegiance to a foreign power at the time of birth in this country, but for eligibility for the Presidency there must be an emotional connection of more than being born on this soil but also someone who also loves the country such as a generational love of nation connection–for them, since a citizenship could be obtained through naturalization, there is less likelihood of empathy for the country from a naturalized citizen whose parent may have no strong love for America.
These desires of a love for country requirement for eligibility for the Presidency was obviously impossible to set forth in any objective manner capable of proof, but the concept is that mere citizenship is inadequate for eligibility for the Presidency.
The terms ‘natural born’ and “native born” in the Wong majority opinion were not used with recognition of the concept that the Presidency eligibility requires a binding empathy or loyalty to the country that comes from birth here. Since the majority opinion is based on 14th Amendment citizenship as a result of birth on US soil under British common law, the use of ‘natural birth” has no connection to the Article 2 requirement for love of country. As such, the citation of that term “natural born” is dictum, in that the use of the term could just as well have been “born in US” and as such is not an essential part of the decision even in respect to the 14th Amendment, and therefore is not a precedent with respect to the meaning of NBC in Art. 2 of the Constitution.
In another even earlier 14th Amendment case, Elk vs. Wilkins112 US 94 (1884), J. Harlan was consistent with his Wong Kim Ark decision above. Elk, an American Indian, had moved off the reservation and was living in a Nebraskan city for several years and claimed citizenship under Art. 14. The state took the position that Elk had not “fully and completely surrendered himself to the jurisdiction of the US, or been naturalized” and Indians could not decide on their own to become citizens without consent of the US by Treaty or naturalization. The issue is whether Elk was within the 14th Amendment terms of being “born in the US and subject to the Jurisdiction thereof…”
J. Harlan took the position that Elk was not under the jurisdiction of the US at the time of his birth since his parents were Tribal members and he was born on tribal land and had an allegiance to the tribe. However, J. Harlan made the decision that since the Plaintiff had subsequently moved to the city and resided apart from the tribe for years, that he had broken the allegiance to the tribe and since he was born in the United States he might be a Citizen under the 14th Amendment. Since he had no allegiance to a foreign power and the 14th amendment had no other requirement to become a Citizen of the US for one that was born here. This opinion also made no reference to the term “natural born” or “native-born” to decide the case, although it is clear that Elk was born within the territory of the US. It follows logically that the term “natural born” is not necessary for the decision under the 14th Amendment in Elk or in the Wong Kim Ark case and as such those terms used in Wong Kim Ark majority opinion are dictum and have no precedence authority.
In a still earlier 14th Amendment case, Minor v. Happersett 88 US 162 (1874), a woman born in the US claimed a right to vote under the 14th Amendment as a citizen of the US.
Minor was entitled to Citizenship but the Constitution did not include the suffrage right to vote as an aspect of Citizenship since the right to vote was controlled by the states and each state had their own rules on entitlement to vote at the time of the signing of the Constitution or the 14th Amendment.
In the dictum of this Minor case there was an interesting background explanation of the Court’s opinion as to the common law. The Judge stated, “The Constitution does not, in words, say who shall be natural born. At common law…was never doubted that children born to citizens are citizens. There were natives or natural born citizens as distinguished from aliens and foreigners. Some authorities go further and include as citizens the children born within the jurisdiction without reference of the citizenship of the parents. As to this second class, there is doubt but never re the first class.”
This S. Ct believed that the common law of the US at the time of the signing of the Constitution had not yet been determined by a Court decision as to the meaning of “natural born.” Since this opinion is to whether 14th Amendment citizenship includes suffrage rights it cannot be considered to be a precedent on meaning of NBC.
The only Supreme Court precedent for the meaning of the term “natural born citizen” in Article Two of the U.S. Constitution–appears to be the Judge Harlan dissent in the Wong Kim Ark case. In my opinion, Judge Harlan’s dissenting opinion would strongly assist the Plaintiffs against President Obama in the challenge to his eligibility.
Amil Imani also contributes Posts at FamilySecurityMatters.org where he is a Contributing Editor. Amil Imani is an Iranian-born American citizen and a pro-democracy activist residing in the United States of America. Imani is a columnist, literary translator, novelist and essayist who has been writing and speaking out for the struggling people of his native land, Iran. He maintains a website at www.amilimani.com. Amil Imani is the author of the riveting book Obama Meets Ahmadinejad and the upcoming thriller Operation Persian Gulf.