Archive | Citizenship

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

Cranking natural born citizen

By on May 17, 2013 in Citizenship

When someone comes along with a theory they think is obvious, but that hardly anyone else thinks is right, and the one holding the theory has no special expertise in the field, I’m apt to label the theorist a “crank.” I’ve done it on this blog. Today, however, I’m swapping roles and being the crank.

Most legal scholars believe that anyone who is born a US Citizen is a natural born citizen, and meets that piece of the eligibility requirement to become President of the United States. I fully agree. Where I fit my own definition of a crank is the way that I arrive that conclusion.

One mark of a crank is making legal arguments out of a dictionary instead of law and precedent. So I start cranking with the dictionary definition of “natural born” which is “having a quality at birth.” The Constitution doesn’t define “natural born citizen" but I have never found any document from our Founders that says “natural born citizen” has a special technical definition. Why does it have to be a “term of art?”

If you think about it, the lack of a definition in the Constitution makes sense because in 1789 citizenship was defined by the States and not the Federal Government. Congress only had the power of naturalization under the Constitution and therefore they couldn’t define the citizenship of persons already born that way. That is, if natural born citizen means “citizen at birth” then the Constitution couldn’t have defined it because states had different definitions. My theory explains a puzzle: why the Constitution uses this term it doesn’t define, and whose common law derivation is controversial.

Now, the legal experts are going to look to the English Common Law for undefined terms in the Constitution (see Smith v. Alabama and Ex parte Grossman).  That’s what lawyers are trained to do, but I say they are overthinking the problem, and as proof I keep coming back to the Naturalization Act of 1790. In that act, the Congress said explicitly that the children born of US fathers overseas were citizens. In the debate on that act, the argument was made that the United States should make provision for the children of its citizens born overseas, just has had the English centuries before. If it provides for someone, that means that the Act made people citizens at birth who were not citizens at birth before the Act. It means that these persons were not eligible to run for President when the Constitution was ratified. Nevertheless, that act called these new citizens “natural born citizens.” James Madison, principal author of the Constitution, was in that Congress, and George Washington, President of the Convention that produced the Constitution, signed it into law. Surely they understood that they were adding a new class of potential candidates for President.

If one applies the common law concept to the 1790 Act, all sorts of constitutional questions arise. If one applies the dictionary, there is no problem at all.

The plain English meaning of “natural born citizen” is anyone who is a citizen from birth. At different times in our history, the laws on who was a citizen from birth changed. The states originally defined it in various ways, the Congress defined it through various laws, and the Constitution nailed some of it down in the 14th Amendment. Whoever the law, statutory or common, says is born a citizen, that person is a natural born citizen.

One other mark of a crank is that they very stubbornly hold on to their theories, expecting other people to prove them wrong. Well?

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NRO: Faux left Cruz birthers

By on May 16, 2013 in Citizenship, Media

I get riled up by Conservative newspeak. This one from the National Review Online caught my eye, from an article Ed Whelan titled: Ted Cruz, Originalism and the “Natural Born Citizen Requirement.”

Here’s the offending bit:

I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president.  Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.

Have you seen any “left-wing” birther attacks on Cruz’ eligibility? I haven’t. All I see is ultra-right nut jobs raising the same issue about Cruz that they raised about Obama. Whelan did find one article at The New Republic that talks about an inconsistency in Cruz’ origanalist way of interpreting the Constitution and his own eligibility, but this is not at all an attack on Cruz’ eligibility, but about his way of interpreting the Constitution. In fact, the New Republic article by Noam Scheiber makes it abundantly clear that Cruz is eligible, saying:

Is someone who was born abroad so obviously a natural born American?  The consensus among legal experts appears to be, emphatically, “yes.”

I think it’s pretty clear that natural born is defined in such a way as to include everybody that has citizenship, and who got it other than through naturalization. So the fact that Ted Cruz had citizenship at birth, and he clearly did under the statute that applied at the time, it’s pretty clear that he qualifies as natural born.

The Conservatives would like folks to believe that presidential eligibility nuttery is an equal-opportunity employer with the right attacking Obama and the left attacking Cruz, but it ain’t so. The folks on the right are ones attacking both candidates, and the folks on the left are gleefully watching the folks on the right making fools of themselves.

I do take issue with Scheiber’s article, though. Members of the First Congress, many of whom were those folks who wrote the U. S. Constitution, passed the Naturalization Act of 1790 that explicitly made the children of U.S. Citizen fathers born overseas “natural born citizens.” It is abundantly clear from this Act that those founders understood that being born in the United States is not a Constitutional prerequisite for  becoming President.

The National Review Online is not the only conservative news outlet trying to make liberals into birthers. Newsbusters touts an article: WaPo went “birther” on Cruz, But They’re Not Alone. The Washington Post article cited also concludes that Cruz is most likely eligible based  on the authoritative report from the Congressional Research Service.

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Obama taught Vattel at The University of Chicago

By on April 17, 2013 in Citizenship, Emmerich de Vattel, Racism

President Obama, when an adjunct professor at the University of Chicago Law School, taught a course  on Constitutional Law and one titled “Current Issues in Racism and the Law.” The New York Times published the syllabus for the latter back in July of 2008 in an article called “Teaching Law, Testing Ideas, Obama Stood Slightly Apart.”

There are some interesting items in the reading list Obama gave his students. On the issue of the removal of Indians, he cited Vattel’s The Law of Nations. We don’t have the over 500-page reading packet itself, so we don’t know what the particular reading from Vattel was1. It is nevertheless instructive that then professor Obama picked such a source, which in modern times is rather obscure. Obama also included a reading about the Dred Scott case and the Slaughterhouse Cases (both having been cited in the Presidential eligibility debate). Of course no discussion of citizenships is complete without the Fourteenth Amendment and the Civil Rights Act of 1866, both of which appear in the Obama syllabus.

While the Obama reading list is extensive, still it is remarkable that there is as much overlap between it and what we talk about on this site, and I do not think that this is a coincidence, because a discussion about racism is one of the practice of discrimination and exclusion and eligibility criteria are about the same thing.

1I suggest that the text might have been from The Law of Nations, Book 2:

§ 97 The savages of North America had no right to appropriate all that vast continent to themselves; and since they were unable to inhabit the whole of those regions, other nations might, without injustice, settle in some parts of them, provided they left the natives a sufficiency of land. If the pastoral Arabs would carefully cultivate the soil, a less space might be sufficient for them. Nevertheless, no other nation has a right to narrow their boundaries, unless she be under an absolute want of land. For, in short, they possess their country; they make use of it after their manner; they reap from it an advantage suitable to their manner of life, respecting which they have no laws to receive from any one. In a case of pressing necessity, I think people might, without injustice, settle in a part of that country, on leading the Arabs the means of rendering it, by the cultivation of the earth, sufficient for their own wants, and those of the new inhabitants.

Vattel, of course, had no notion of the vast size of the native population of the Americas before it was decimated by diseases from the European explorers.

Depressing

By on April 16, 2013 in Citizenship, Lounge, The Blogs

I went over to Obama Release Your Records this morning to check out something I saw from them about some teacher giving a homework assignment that mentioned “natural born citizen.” When I looked at the headlines on the site, it was depressing to see so much effort put into defaming the President, twisting events to suit a negative agenda, and generally pushing people towards the dark side.

  • President Obama’s plan for a socialist America…
  • Obama’s forged birth certificate…
  • Are we being compromised by Obama’s murky past?
  • Obama had Indonesian passport
  • Judge Schack A Socialist-Wonder Nutcase
  • Obama Identity Document Fraud Case Goes to Court of Special Appeals of Maryland
  • Obama Survival Guide
  • Analysis of Hawaii Department of Health Loretta Fuddy’s Financial Disclosure Form…fraudulent Long Form

Conspiracy theories I sort of understand: the brain works in particular ways that distort judgment. Trading good for evil, however, is something that is more fundamentally disturbing.

As for the article about the teacher, I did find it. The teacher, according to the article, may have followed a text book that said the qualification for President was a “native-born” citizen. Given that the Oxford English Dictionary gives the same definition for “native born” as “natural-born,” I don’t see what the big deal is—they see it as liberal indoctrination.

The relevance of the “natural born citizen” clause

By on March 28, 2013 in Citizenship

I made a comment on another article, saying:

Based on my reading of the debates on Presidential eligibility and other commentary, my opinion is that the concerns that prompted the NBC clause are no longer relevant as our form or government is no longer novel, and that the US is now a powerful and wealthy nation. That said, I see no groundswell of sentiment that would reach the high bar necessary for a Constitutional amendment, so we’re left with what we have.

Commenters at The Free Republic seemed to think my remark was significant, and also somewhat misrepresented what I said. Let me dismiss out of hand part of the Free Republic’s beef:

What you just read is the mindset of a (sic) Obama supporter. I do not agree with his opinion, nor with his other supporters who agree with him 100%, that Article 2 Section 1 Clause 5 is no longer relevant. In my opinion, it has become more relevant than ever since we have had a non-natural born Citizen become president five (sic) years and counting.

Barack Obama is no more ineligible under the Constitution than he has been president for five years.

I wrote an article a while back, titled The Framers on “foreign influence,” in which I talked about the debates on eligibility for office at the Federal Convention of 1787. It is clear to me that there was a strong feeling among the delegates that they wanted to preserve liberty for their posterity, and that they wanted to preserve the constitutional form of government, and that they did not want to slide into monarchy. They wanted a President who understood the (at that time) uniquely American form of government. They knew all too well the intrigues of European politics, and wanted to keep that out of the new United States. They were afraid that some monied European interest could bribe their way into office in the United States.

Today, there are other constitutional republics in the world, and commitment to that form of government is not unique to Americans. I think that today the risk of money influencing a presidential election is far greater from America than from a foreign source. And today, the information available to the electorate is totally unlike what was available to voters in 1789, and foreign campaign contributions today are illegal. What I am saying here is that the specific concerns from the mouths of the Framers are not applicable, not relevant to the present day. We have new concerns, and new problems. It is certainly possible that those Framers, presented with a different set of conditions, might have proposed a different eligibility requirement.

It may be that the character of Americans today is such that it is properly represented only by a natural born citizen. Whether that is true or not, I can’t imagine Article II being amended in my lifetime,  and so our Presidents will be natural born citizens. The United States being a nation of laws is a far more important principle than argument about relevance. If the Constitution needs change, we can amend it, but we do not ignore it. Since the natural born citizen clause is law, it is relevant.

Just a guy with a blog

By on March 25, 2013 in Citizenship

I’ve been rather busy of late, but primarily doing things unrelated to the blog. I’m close to finishing my 4th audiobook for LibriVox.org as well as writing some cool software to help with that activity.

One article of interest appeared at the Western Free Press (not to be confused with the birther rag, The Western Center for Journalism). The article was titled: “’Birtherism’ and the Tyranny of Ignorance.” It is another in a long line of “Ted Cruz is eligible to run for President” stories. The author, Greg Conterio, says something I strongly support:

One final observation: when you try to read-up on topics like this, sources do matter.  Some guy with a blog, or some attorney with some bizarre sounding legal theory are NOT authoritative sources. 

The problem is that Mr. Conterio so far as I can tell, is not an authority, nor does he cite authority in his article. For all intents and purposes he is “some guy with a blog.” The end of that cited paragraph says: “When it comes to law, the ONLY valid source is the published local, state or federal code on the topic.” Of course we all know that no statute uses the term “natural born citizen.” So what he does is jump to a conclusion that allows him to substitute “citizen at birth” for “natural born citizen,” saying:

A few points about section 1401 – The term citizen at birth is a synonym for natural born citizen.  They are not two different terms, with different meanings.

The two terms are trivially not the same since a citizen at birth is not necessarily even a citizen today, and I do not think anyone would argue that someone born a US citizen, having renounced his citizenship, is eligible to run for President.

However, I do agree that being a citizen at birth, or as I would prefer to say “a citizen from birth,” is the key to being a natural born citizen. I have written some articles arguing that this is the case. However, I am painfully aware that hardly any authority shares my views on the question of how the term “natural born citizen” gets its definition, most authorities deriving it as a term of art based on English Common Law. Conterio rejects the English Common Law as authority. So while I agree with the conclusion that Ted Cruz is eligible, I consider Conterio’s argument fringe at this point.

I guess that when it comes to guys with blogs, one needs to look at whether one cites sources or just simply asserts condescendingly.

I left some comments on the article.

Media misunderstands birthers

By on March 21, 2013 in Citizenship, Media

Forbes magazine logoForbes Magazine published a story about Ted Cruz, Sarah Palin and CPAC, covering some of the same ground that I’ve touched on the past few days. Their headline is:

Birther Hypocrisy- Right Wing Has No Problem With Canadian Born Senator Ted Cruz Running For President

It appears to me that Forbes writer Rick Ungar didn’t quite understand the birthers, any more than he understood the context of Sarah Palin’s “background check” comment. The thrust of the article is that conservatives who believed Obama was foreign born and thereby ineligible to be President have no problem with an indisputably foreign-born Ted Cruz. It’s not the same, and I tried to explain that in the following comment I left at Forbes:

I think this article lost its way.

First, Sarah Palin’s remark in context was not a reference to Obama’s eligibility, but to his “associations and intentions”. Some who cheered her remark might have heard her going birther, but that’s clearly not what she said.

Second, there were two streams of eligibility controversy about Obama. There were those who falsely believed that Obama was foreign-born, and while Canadian-born Cruz was born a US citizen, a hypothetical Kenyan-born Obama would not have been born a US citizen due to an obscure technicality that existed at the time related to his US citizen mothers’ age.

The other stream of Obama citizenship deniers holds to a legal theory that only persons born in the United States to two US Citizen parents can be President, and among the activists in that group, neither Cruz nor Obama, nor Bobby Jindal1 for that matter is constitutionally eligible to be President. (Obama’s father was not a US Citizen, nor were Jindal’s parents.) While those folks are wrong, they are not hypocrites.

1In the published comment, I misspelled Jindal.

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