I have come to realize that there are two debates on the question of presidential eligibility and the definition of “natural born citizenship,” and some of the more thoughtful people on each side are debating different things. One debate thesis may be summed up this way:
The Constitution does not define “natural born citizen,” nor is it defined in legislation. The U. S. Supreme Court has never decided the question of the relationship of parentage to natural born citizenship. The uncertainty should be resolved.
The second debate thesis might be summed up this way:
Based on common law principles, and supported by numerous authorities, one may conclude with a high degree of certainty that natural born citizens of the United States are those born within its borders except the children of ambassadors.
Folks like Ken Dunbar and Stephen Tonchen (the author of the piece to be discussed here) are debating the former, and this web site is largely geared towards investigating the latter. If debating the first question, then one might say that Barack Obama’s eligibility is “unproven,” but when debating second one will conclude that it is “proven.”
I have no strong objection to the first thesis, but because I affirm the second, I don’t find that there is any urgency towards a judicial resolution of a question that has already been decided by force of argument, the same argument that would be made to the Court and that would certainly prevail. Whichever the case, I find language like “usurper” to be totally irresponsible.
Free Republic published on June 5, 2009, an article titled Obama Presidential Eligibility – An Introductory Primer by Stephen Tonchen that argues the first thesis from a historical perspective. In an introductory comment Tonchen says:
Among members of Congress and the mainstream news media, the consensus of opinion is that anyone born in the United States is a “natural born citizen”.
I find this bit of honesty refreshing. This is the consensus opinion (except in regard to the children of ambassadors). In the context of that consensus opinion Tonchen then sets out his task:
However, when we researched this issue a bit more carefully, we found that the consensus opinion is not consistent with American history.
The rest of the Tonchen article primarily deals with that historical research. While I would not call Tonchen’s article fair and balanced, I would say that that it is far more fair and far more balanced than what has gone before.
This web site already has over 40 articles addressing the meaning of “natural born citizen” in the Constitution, and I do not propose to repeat what has already been said or to answer one massively vertical argument with another. What I intend to do is offer a “reality check” to Tonchen’s article, to identify unsupported assertions and to balance some one-sided views. This article cannot be understood in isolation from Tonchen’s article. Backup evidence to all of the assertions I make below are contained in those other articles on the site, some of which are linked and some of which are not.
With only two exceptions, every American President, who was born after 1787, was born in the United States, to parents who were both U.S. citizens. The two exceptions were Chester Arthur and Barack Obama. When Chester Arthur ran for office, the public did not know about his eligibility problem…
Only recently did historians learn that, when Arthur was born, his father was not a U.S. citizen. The 2008 election was the first time in history that the United States knowingly elected a President who was born after 1787 and whose parents were not both U.S. citizens.
There are two “reality checks” here. First, one cannot be sure that the public was unaware that Arthur’s father was not a US Citizen at the time of Arthur’s birth. There is a contemporary newspaper reference to Arthur as being “Irish born” (his father was Irish). It may well be that historians “re-discovered” his father’s emigration status. There is strong evidence that opponents of Arthur (in particular A. P. Hinman) were aware of the fact. But I think it important that Tonchen acknowledges that the American voters did elect Barack Obama in the full knowledge that his father was not a US citizen. There are also remarks from Theodore Roosevelt suggesting he know that Arthur was born a British subject.
The second check is the assumption that there was an eligibility “problem” in the first place. Arthur was from New York, and just a few years earlier the highest court of New York (Lynch v Clarke, 1844) had stated that the child born in the United States to aliens was eligible to be president, and declared this to be the universal view of the public and the legal community. So just as today where the consensus view is that birth in the United States is sufficient to make one a “natural born citizen,” so it was in the time of Chester A. Arthur. Given that fact, it seems quite a misrepresentation to describe the situation as a “problem” since the consensus at the time (just as it is today) is that it was not.
Tonchen then comments:
According to Minor v. Happersett, there is unresolved doubt as to whether the child of a non-citizen parent is a natural born citizen.
It is true that a comment in this Supreme Court opinion says this and says that it was not necessary to resolve this doubt for the purposes of that case. However, no reason for this doubt is given; no authority is cited. The comment’s context remains a mystery. That someone had a doubt does not imply that the Minor court could not have resolved that doubt should it have chosen to. One must be careful not to rephrase the comment in Minor to say that Obama’s eligibility is “doubtful.”
Tonchen then goes into an balanced discussion of the fact that in England, its “natural born subjects” where those born in the territory, without regard for the citizenship of the parents. What arises then is the question of whether one can rightly say that the American phrase “natural born citizen” is a close analog to the English “natural born subject.” Tonchen then jumps into a literary pool borrowing from the work of Mr. Greshak. After citing the historical example, Tonchen concludes:
In both Patsall and Vattel, “natural born citizen” meant much more than someone who was born in a particular place. Parentage, upbringing and education also contributed to the meaning of “natural born citizen.” [Conclusion to section 4.3].
From the historical examples, I would not arrive at this conclusion. Tonchen’s own sources state the equivalence of “natives” and “natural born citizens.” And of course, de Vattel, writing in French, did not use the words “natural born citizens,” nor was de Vattel translated into English as “natural born citizens” at the time of the ratification of the US Constitution. I have a concern when Tonchen says:
Thus alumnum urbis –” the “natives” or “natural born citizens” of a city –” are those who were not merely born in the city, but were raised or parented by the city –” specifically, by residents or citizens of the city.
My objection is to the choice of the word “parented” here. While it is technically correct, it could be easily misunderstood to refer to birth parents, not to who raised the child. The emphasis in the original text is to language and manners. In the case of Barack Obama, he was not “parented” by Barack Obama Sr. and so this text raises no objection to the particular case of Barack Obama being a natural born citizen. I don’t think anyone would say that Barack Obama talks like a foreigner.
I have an overall objection to both the literary examples, because the translation “natural born citizen” is not a literal rendering of the original in either case. In both cases “natives” is a better translation for our time and our purposes in this discussion.
The next remark from Tonchen came as a surprise, when he said:
In 1874, the U.S. Supreme Court affirmed Vattel’s definition of “natural born citizen”:
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.
For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens (Minor v. Happersett, 1874)
First, de Vattel was arguing from the point of view of natural law, not common law. Second, English translations of de Vattel that existed at the time of the ratification of the Constitution did not use the phase “natural born citizen.” So, I find it difficult to say that de Vattel has been affirmed either by definition or by results (since de Vattel’s natural law definition of “natives” by “parentage only” is also brought into doubt).
Tonchen then fairly describes the historical record:
Throughout American history, various “authorities” (judges, district attorneys, legal experts, etc.) have expressed support for the “citizenship-by-birthplace-alone” theory. According to this theory, U.S.-born children of non-citizen parents are citizens at birth and presumably natural born citizens as well.
I can give dozens of citations in support of this statement. However, Tonchen states that it is “unproven.” That is correct at least from the point of view that no court has made the definitive ruling specifically on the question. However, I would say that it is proven based on the weight of authorities cited here and elsewhere.
For more, check out Part 2.