Because a colleague of mine asked for it, so that I have already put in the time and effort, I’m going to post this. It’s a brief primer on the birther arguments against Obama being eligible for the presidency and law-based rebuttals to those arguments.
Natural Born Citizenship
“Birthers” make several arguments.
- Obama wasn’t born in the U.S.
- This is false. The State of Hawaii has verified and attested to the validity of his birth certificate. As a matter of the “Full Faith and Credit Clause” in the Constitution, all other states are obligated to accept that documentation. Because it is a state’s official record, the courts must treat it as prima facie evidence of having been born in the U.S.
- This is false, as demonstrated by both the 14th Amendment and the U.S. Code (see appendix A below), which both state that any person born in the U.S. is a citizen. Father’s status is irrelevant.
- This is false. This argument tries to distinguish between “birthright citizenship” and “natural born” citizenship. First, this is illogical: citizenship from birth=being a citizen from the moment of being born=born a citizen=natural born citizenship. Second, no such distinction between birthright citizenship and natural born citizenship exists in American law.
- The term “natural born citizen” is never defined in the Constitution, and as the U.S. adopted to continue the legal tradition of the British common law, those common law principles adhered to at the time of the Founding are the guide for understanding what the Founders intended by otherwise undefined phrases.
- That common law principles treat birthright citizenship as legally equivalent to natural born citizenship is demonstrated explicitly in the leading Supreme Court case on citizenship, United States v. Wong Kim Ark (see appendix B below).
- This is false. It is unclear whether Obama actually received Indonesian citizenship or not (it is only speculated that he must have had, in order to attend school), but it does not matter in U.S. law.
- The U.S. does not recognize dual citizenship, so the U.S. does not recognize any citizenship one of its citizens may have with another country. You don’t lose U.S. citizenship if another country grants you citizenship—it just doesn’t have any legal meaning in the U.S.
- The U.S. Constitution is silent on dual citizenship for a president, but to disallow a dual citizenship president would have perverse consequences that could cripple the U.S. government. A hostile country, such as North Korea or Iran, could simply grant citizenship to every U.S. presidential candidate and thereby deny the U.S. the ability to elect a president. This would never be allowed as a matter of U.S. law.
- Most importantly, children cannot lose their citizenship. You cannot either renounce your citizenship or have it taken away before age 18. To lose it you must, as a legal adult, either renounce it through a specific action or commit a specific action that would cause the U.S. government to strip it from you (see appendix C below).
Appendix A: U.S. Code Title 8, Chapter 12, Subchapter III, Part 1, §1401. Nationals and Citizens of United States at Birth
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(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:
Appendix B: Excerpts from United States v. Wong Kim Ark (1898)
…The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” By the original Constitution… “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 President.” …
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution… The language of the Constitution, as has been well said, could not be understood without reference to the common law. (Kent Com. 336; Bradley, J., in Moore v. United States)…
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King…
Lord Chief Justice Cockburn, in , reviewing the whole matter, said:
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality. (Cockburn on Nationality, 7.)
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:
…”Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.” … any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject…
… III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
…In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:
It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.
…. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones…and saying:
…Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.
… Again, in Levy v. McCartee (1832, … this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,
and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”
In Dred Scott v. Sandford, (1857), Mr. Justice Curtis said:
The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.
…In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England… We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
…The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens… Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign State; … British subjects in North Carolina became North Carolina freemen; … and all free persons born within the State are born citizens of the State… The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.” (State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26.)
…Chancellor Kent, in his Commentaries, speaking of the “general division of the inhabitants of every country under the comprehensive title of aliens and natives,” says:
…And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary… Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land. (2 Kent Com. 258.)
… The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. …
Appendix C: U.S. Code Title 8, Chapter 12, Subchapter III, Part III, § 1481. Loss of Nationality by Native-born or Naturalized Citizen; Voluntary action; Burden of Proof; Presumptions
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense;