I’m not breaking any new ground here because I am sure others have noticed this before me; however, I think it should be mentioned because those people who believe that only persons born in the United States to two US citizen parents claim that this view is not novel.
A commenter at Birther Report named “BornTexas” said recently that objections to Obama’s eligibility based on his non-citizen father were made before Barack Obama was nominated as the Democratic Party’s candidate in 2008.
I challenged that assertion, and now 4 weeks later there has still been no response.1 It certainly seems that if there were any widespread belief in the two-citizen-parent theory, that someone would have raised the objection the moment Obama announced as a candidate.
In my reply to BornTexas, I noted that Leo C. Donofrio had written on his blog, NaturalBornCitizen, about the two-citizen-parent theory in December of 2008, the month the blog started.
When Donofrio wrote of it on December 19, 2008, he talked about Minor v. Happersett, and said that the Court “punted the issue.” Donofrio wrote:
For the purposes of Minor and Wong Kim Ark, the Supreme Court didn’t need to reach the “natural born citizen” issue as neither person was running for President, so they rightfully punted by limiting their holdings to the issue of whether each person was a “citizen”….
Those “doubts” mentioned in Minor needed to be discussed and adjudicated by the current supreme court.
Shortly after, as we know, Donofrio was to assert that the Minor decision definitively defined natural born citizen, and even developed a conspiracy theory surrounding the first US President with a non-citizen father, Chester A. Arthur.
By the time that Donofrio v. Wells reached the Supreme Court, Donofrio included in his brief:
That being said, petitioner regretfully submits that since candidate Obama was born to a Kenyan father, he also is not eligible to the office of President since he is not a “natural born citizen” by the Constitution.
By March of 2009, Donofrio had incorporated his argument from Vattel’s work, titled in English, The Law of Nations. Donofrio wrote:
Yesterday, I had a revelation as to what Vattel meant and what the framers intended “natural born citizen” to mean in the Constitution. It’s obvious that the framers drew a distinction between the meaning of “citizen” and the meaning of “natural born citizen”. A “citizen” can be Senator or Representative, but in order to be President one must be a natural born citizen. …
When Vattel wrote this in 1758, he wasn’t arguing for its inclusion in a future US Constitution as a qualification for being President. But the framers did read his work. And when it came to choosing the President, they wanted a “natural-born citizen”, not just a citizen. That is clear in the Constitution. Vattel doesn’t say that “natives or natural-born citizens” have any special legal rights over “citizens”. He simply described a phenomenon of nature, that the citizenship of those who are born on the soil to citizen parents (plural) is a “natural-born citizen”.
Donofrio’s argument had further evolved by January 2012 to include a religious twist that rejects an English Common Law source for the term “natural born citizen.” In an amicus brief in the Farrar et al. cases in Georgia, he wrote:
Additionally, the English common law term, “natural-born subject”, being a uniquely spiritual designation, was only granted to members of the Christian faith, and cannot govern the definition of “natural born Citizen”, because such a construction would be repugnant to the 1st Amendment of the United States Constitution.
So we can see an evolution in Donofrio’s view2, but what were his views prior to December 2008?
I had forgotten that Donofrio’s “Natural Born Citizen” WordPress blog, was not his first. Previously he had a blog at blogtext.org under the same title. It is comprised of 15 entries starting on November 10, 2008 through December 1, around the day that the WordPress blog was installed.. It picks up after the denial of his case by the New Jersey Supreme Court and the distribution of his application for a stay of the national election at the US Supreme Court.
Interestingly, we can see the “two citizen parent” phrase in his November 3 Supreme Court brief, which he quotes from on November 29, 2008. He wrote:
Appellant respectfully submits to this Honorable Court, once again, that had the legislature intended to grant "natural born citizen" status to all who were born on US soil, then the 14th Amendment would contain the words "natural born citizen", but it doesn’t.
And so this proposition leads to the logical conclusion that a natural born citizen is a citizen born in the United States to parents, neither of which is an alien. Having an alien parent would tie such person at birth to the possibility of other loyalties and laws. And such a person, even if he be as loyal and devoted to this country as Senators Obama and McCain have proven to be, is not eligible to hold the office of President of the United States.
On November 12, Donofrio was responding to an article by Jeff Schreiber of the America’s Right blog disagreeing with Donofrio’s November 3 Supreme Court brief. That discussion focuses on the term “jurisdiction” in the 14th Amendment as in:
… The "anchor babies" issue deals with whether those children are "citizens", not whether they are"natural born citizens" eligible to hold the office of President of the United States. They are not eligible since, at birth, they are also subject to the jurisdiction of the countries their parents were citizens of.
We can glimpse even earlier views from court documents he filed in the New Jersey state briefs for Donofrio v. Wells. The documents in that case became unavailable when Donofrio took down his site and I don’t think they came back when he restored the site. I was unable to find them at one time and thought they might be lost. Fortunately for us, Loren Collins saved one of the documents and published it at Scribd. The document is an emergency application for relief to the New Jersey Supreme Court dated October 27, 2008, just over a month before he started his blog. Donofrio was trying to force New Jersey Secretary of State Nina Wells to make a determination of Obama’s eligibility, and also that of John McCain.
There is a section where Donofrio states his objections to the two candidates. First McCain (underlines replace italics in the original):
Republican candidate John McCain was born in Panama and is therefore not a natural born citizen. There is a long body of statutory and case law which establishes his ineligibility, but for the purposes of this fact sheet I would ask his Honor to review the Naturalization Act of 1790 which was the only Congressional act to confer the status of natural born citizen on anyone born abroad. … However, the Naturalization Act of 1795 specifically repealed the act of 1790 and replaced it with virtually the same act as that of 1790, except the words natural born citizen were deleted and have never been replaced by Congress. …
After making that ineligibility argument, Donofrio moves to Barack Obama, saying:
As to Democrat candidate Barack Obama, a whole other set of factual issues have been raised regarding whether he is a natural born citizen. I believe there are at least 8 cases pending in State and Federal Courts on just this issue requesting that Candidate Obama produce a valid birth certificate and/or other evidence to establish whether he is a natural born citizen.
Citizens of New Jersey have been asked to provide their birth certificates for many different Government agencies, so I do not believe it’s too much to ask for SOS Wells to request Obama to provide his original birth certificate and whatever other evidence might be necessary to establish with certainty his eligibility to hold the highest office in the land. Such a request would not be a burden on either SOS Wells or Candidate Obama.
There’s not a word about Obama’s father. Donofrio apparently hadn’t invented his two-citizen-parent theory yet.
1It would be very difficult for BornTexas to come up with a link to commentary at Birther Report about Obama’s ineligibility prior to his nomination, since Birther Report / Obama Release Your Records content only goes back to 2011, and the domains weren’t even registered until 2010.