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What is a “natural born citizen” and is Barack Obama one of them?

Attack of the liberal Ted Cruz birthers

I am always offended by conservatives excusing themselves with the excuse that “liberals do it too.” On the Ann Coulter discussion forum, there is a thread on liberal Ted Cruz birthers. It doesn’t matter if a million conservatives and one liberal does it—the smear works just as well. The Coulter discussion sprang from an article at Tea Party News Network, “Liberal Birthers Beginning their Attacks on Ted Cruz.”

The iconic liberal in the story is Representative Alan Grayson (D-FL), who is quoted as saying on MSNBC:

When discussing 2016 presidential prospects, Rep. Grayson stated, “Since Ted Cruz is a Canadian, and our Constitution requires that an American win, I’m pretty sure that it’s not going to be Ted Cruz.”

In fact, according to a recent YouGov poll, only 30% of Americans think someone like Cruz (born overseas to only one US Citizen parent) is eligible to be president. One can debate the Constitutional validity of that opinion, but as long as it stands, Cruz in not electable.

WND resurrects two-citizen parent eligibility issue

Aaron Klein, in a WND article yesterday, “Impeach Obama? Presidency Likely Illegal,” suggests that impeaching Obama for allegedly ignoring the Constitution is to ignore the basic problem:

According to correspondence from the original framers of the Constitution as well as Supreme Court rulings, the legal writings that helped establish the principles of the Constitution and even a Senate resolution affirmed by Obama himself, Obama likely does not qualify for the constitutional requirement that stipulates only a “natural born” citizen can serve as U.S. president.

The statement is, of course, blatantly false and it’s beating a dead horse as nearly a dozen birther lawsuit filers could tell you. If you enjoy hacking and slashing birthers, there’s easy pickings in the comments section of that article.

New “natural born citizen” paper: sorry Ted

Mary Brigid McManamon, professor of law at Widener University School of Law has an upcoming paper in the Catholic University Law Review titled, “The Natural Born Citizen Clause as Originally Understood.”

The paper argues for a strict jus soli (born in the country) interpretation of the words “natural born Citizen” in the US Constitution, but explains:

This article, however, is not a comprehensive treatment of all the questions presented by the clause. It addresses only the issue that Governor Romney and Senator Cruz present: In the eyes of early Americans, would someone born in a foreign country of American parents be a “natural born Citizen” and therefore eligible to be President of the United States?

Why the disconnect on “natural born citizen”?

There are polar opposite views on what the phrase “natural born citizen” in the Constitution means. One pole is the legal community and the other the birthers. How can reasonable people come to such different opinions?

Obviously one answer is that the birther side isn’t being reasonable; however, there is a little more to it. The fact of the matter is that our country has not always been of one mind on citizenship, and that there have been periodic bouts of anti-immigration sentiment in the population, sentiment reflected in the statements of politicians and sometimes in the courts and occasionally in statutes (like the Chinese Exclusion Act). Like it or not, the Dred Scott decision was the law of the land until it was supplanted by the 14th Amendment, no matter how bizarre and racist its conclusions sound today.

I was digging through some bookmarks last week and re-discovered a 2006 Congressional Research Service report, “U.S. Citizenship of Persons Born in the United States to Alien Parents.” I found the report valuable in understanding the historical context. They wrote on page 4 (footnotes omitted):

Although the English common law at the time of the adoption of the Constitution considered a person born in the English dominions to alien parents to be an English citizen unless those alien parents fit into the exceptions described above, and although American law apparently generally accepted this position, there nevertheless appeared to be some uncertainty as to whether persons born in the United States to alien parents were, in fact, citizens of the United States. Some scholars ascribe this uncertainty to the desire of Americans to embrace both a “consensualist” doctrine of citizenship, by which a person and a government consent to be mutually obligated, and an “ascriptive” doctrine by which a person is ascribed citizenship by virtue of circumstances beyond his control, such as birth within a particular territory or birth to parents with a particular citizenship.

It is the general view of the legal community that this issue was put to rest by the US Supreme Court in the 1898 case of US v. Wong. But even the Wong decision was split 6-2.

Given that confirmation bias leads us to select those authorities and citations that confirm what we already believe, it should be no surprise that in the midst of a wealth of conflicted history, each side could find things to make the case that suits them. The fact that the birthers always lose in court should inform us on which side has the stronger argument.

Most think Obama eligible, but just barely

Shocking new "Natural Born Citizen" Poll

Coincidence is high with me a YouGov contributor who was arguing with Devvy Kidd in email today about what “natural born citizen” means (she’s a disciple of Donofrio and Apuzzo) and a new poll of 1,000 persons from YouGov (they didn’t ask me) on this very topic comes out.

It turns out that the answer depends a lot on your politics, but overwhelmingly (77%) Americans would classify people like President Obama (born in the US to a US citizen mother and an alien father) as eligible. Nevertheless, when Obama is named, only 56% call him eligible (13% not sure), and only 39% say that for Ted Cruz (44% not sure). Another way to put it is that 31% believe Barack Obama is not legally eligible to be the president, slightly over the 27% of Americans that are just crazy in general.

A shocking 51% of republicans think Obama is ineligible with 14% not sure. In general those who believe Obama eligible tend to be young,  black,  northeastern, Democrat or liberal.

Here is the YouGov summary page, but I prefer the details. Only a plurality correctly say that a child born in the US to two non-citizen parents is eligible (47% yes, 40% no and 13% not sure).

A majority (61%) believe that someone born overseas to two US Citizen parents is eligible, but if that is reduced to one parent, then it drops to only about 30% voting for eligible.

There is a certain flakiness factor in the results, given that only 91% believe that a child born in the United States to two citizen parents is eligible (with 5% saying “no” and 4% “not sure”). Also 6% say that someone born outside the US to no US citizen parents is eligible (and 7% not sure).

An open letter to the Sonoran News

You do a disservice to your readers and the country by publishing Lawrence Sellin’s Guest Editorial unless you publish the other side. Put bluntly, Sellin’s article is nonsense. There is no constitutional scholar, no civics text book, and no court decision that supports his claim that persons born citizens on US Soil must in addition have US citizen parents to be President of the United States.

Sellin relies on the US Supreme Court decision in Minor v. Happersett, but a judge in your own State of Arizona, in Allen v. Obama (2012), ruled:

Most importantly, Arizona courts are bound by United States Supreme Court precedent in construing the United States Constitution, Arizona v. Jay J. Garfield Bldg. Co. , 39 Ariz. 45, 54, 3 P.2d 983, 986(1931), and this precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President. … Contrary to Plaintiff’s assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise”

In fact, no fewer than 11 court decisions since 2008 have said the same thing.

But it is more than Sellin just being wrong; he is also trying to trick the reader, for example, when he says:

Why has every President since Martin van Buren been a US citizen at birth of two citizen parents except Barack Obama and Chester A. Arthur, who lied about his personal history?

He is leading the reader to think that Arthur lied about his father’s citizenship, but that is not true. President Arthur never said or even hinted anything relating to his father’s citizenship. (Arthur apparently lied about his age by one year.) The scant information available about Arthur suggests that his opponents were aware of his father’s naturalization status, and didn’t think it an issue. In Arthur’s own state the New York Chancery Court had previously offered the opinion in the case of Lynch v. Clarke (1844):

The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “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 only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.

The nonpartisan Congressional Research Service, a branch of the Library of Congress, produced a comprehensive report on presidential eligibility, in response to queries from members of Congress. That’s where one should go if they want authoritative information on this topic, not to some guy on the Internet:

Qualifications for President and the ‘Natural Born’ Citizenship Eligibility Requirement

Lest anyone claim the CRS report is some modern political revisionism, I would point you to the book, A View of the Constitution, by William Rawle, the first civics textbook in the United States, used at the US Military Academy at West Point. Rawle is a noted jurist and historian, and was appointed by George Washington as US Attorney for Pennsylvania. Rawle wrote in 1825:

Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural-born citizen within the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity….

Under the Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however that capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of the president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.

Sellin is the one trying to rewrite history.

Kevin Davidson

Further related reading at Obama Conspiracy Theories: