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

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.

Sincerely,
Kevin Davidson


Further related reading at Obama Conspiracy Theories:

157

Rawle’s “therefore”

The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths accompanied them in the formation of the great compound commonwealth which ensued. They became citizens of the latter without ceasing to be citizens of the former and he who was subsequently born a citizen of a state became at the moment of his birth a citizen of the United States. Therefore every person born within the United States its territories or districts whether the parents are citizens or aliens is a natural born citizen in the sense of the Constitution and entitled to all the rights and privileges appertaining to that capacity. … [the balance of this paragraph is discussed below]

–William Rawle – A View of the Constitution (1829)

William Rawle, a confidant of Washington and Franklin, has impressive credentials.  The preceding citation has appeared on this site a number of times in support of the eligibility of Barack Obama to be President of the United States, and the eligibility of anyone else born a US citizen within the country.

Rawle was a US Attorney and a noted jurist, and we may assume that he forms his arguments like a lawyer, and this looks like a logical argument because of the use of the word “therefore.” The most common argument form ending in “therefore” is like this:

1) All (a) are (b)
2) All (b) are (c)
Therefore: All (a) are (c)

Rawle doesn’t provide a second premise, but I think he intended one to be understood, because otherwise the argument doesn’t work. His conclusion doesn’t follow solely from his explicit premise.

In a formal argument, the first premise and the conclusion are sufficient to derive the second premise. Here’s Rawle’s argument substituted into the standard argument form:

1) All persons born in the United States are citizens at birth
2) All (b) are (c)
Therefore: All persons born in the United States are natural born citizens.

In the preceding (b) is “citizens at birth” and (c) is “natural born citizens.”

Therefore: the missing second premise, all (b) are (c), by substitution must be:

“All citizens at birth are natural born citizens.”

If Rawle’s statement is a logical argument in the standard form and there is a missing 2nd premise, then we have undoubtedly derived it. It is reasonable to assume that “natural born citizen” was a term generally understood in 1787, given the paucity of discussion about it, and if it was generally understood, the omission of an explicit second premise is justified and the assumption that Rawle’s argument follows the standard form is very likely. Indeed Rawle tells us as much, writing:

It cannot escape notice that no definition of the nature and rights of citizens appears in the Constitution. The descriptive term is used, with a plain indication that its meaning is understood by all, and this indeed is the general character of the whole instrument. …

Now let’s consider the balance of the paragraph opening of this article from Rawle:

… It is an error to suppose as some (and even so great a mind as Locke) have done, that a child is born a citizen of no country and subject of no government, and that he so continues till the age of discretion, when he is at liberty to put himself under what government he pleases. How far the adult possesses this power will hereafter be considered, but surely it would be unjust both to the state and to the infant, to withhold the quality of the citizen until those years of discretion were attained. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality1 is established as to us.

Rawle’s initial argument left a hole. What if being born in the country just makes one a citizen upon majority? Rawle says that this question is settled by the Constitution’s “express language.” How would it be settled if the phrase “natural born citizen” in the Constitution is defined by place of birth? By that definition, the Constitution says nothing more than that there exists citizens born in the country who at age 35, when they become eligible to run for President, are citizens. The only way the Constitution could settle the question of citizenship with its “express language” is for “natural born citizen” to be generally understood as “citizen from birth” thereby proving that people born in the country are citizens from birth.

Rawle says that the “relative quality” (which I take to be “citizenship from birth”) is established by place of birth (as he says clearly in the opening of the paragraph). Under the Constitution, the only way to be a citizen at birth is to be born in the country, but that is sufficient for his argument. However, under statute, there are other ways (as we saw in the Naturalization Act of 1790) to become a citizen at birth, but Rawle’s book is about the Constitution, not statutory law.

I believe that it was Rawle’s opinion that “all citizens at birth are natural born citizens” based on his writing in A View of the Constitution.

Ah-nold for President?

imageAustrian-born action film star, former California governor, and naturalized US citizen Arnold Schwarzenegger is often given as the classic example of someone who is not eligible to run for President of the United States. Some years back there were proposals for a Constitutional amendment floating around Congress to change Article II to make Schwarzenegger eligible. They went nowhere.

Is it time for a President Schwarzenegger? The “governator” himself thinks so according to an article at The Washington Times, “Arnold Schwarzenegger lobbies for law change to seek presidency.”

“Schwarzenegger has been talking openly about working on getting the constitutional rules changed so he can run for president in 2016,” a source said, The [New York] Post reported. “He is ready to file legal paperwork to challenge the rules.”

Source? I don’t know. The preceding statement is pretty muddled. No one can “file legal paperwork” to change the Constitution. There are only two ways that can happen, as specified by Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; …

I have significant doubts about the veracity of this story at the Washington Times. I also have significant doubts that the Country is in any mood to adopt such an amendment, particularly before the 2016 election.

Update:

The Washington Post, confirming my doubts, reports that Schwarzenegger is not planning to lobby to have the Constitution changed.

Lawrence Sellin, PhD, spreads disinformation about presidential eligibility

The Sonoran News, a right-wing news site in Arizona, has published a guest editorial by Lawrence Sellin, PhD (in physiology), in which he says that we should discount what the politicians and the journalists say about presidential eligibility, and listen to him instead. I might add that one would also have to ignore no less than 10 court decisions (plus appeals) over the past 7 years and a truck load of Civics books and legal commentary as well. Listening to him would be a big mistake, because Sellin is a crank when it comes to the topic.

Sellin is a Vattelist, saying:

The term "natural born citizen" was well-known during the time of the writing of the Constitution from Vattel’s "Law of Nations" (1758), which stated "natural-born citizens are those born in a country of citizen parents" (Volume 1, Chapter 19, Section 212).

Of course no Framer of the US Constitution ever said that the phrase was based on Vattel. In fact the edition of Vattel available to the Framers, didn’t even contain the words “natural born citizen” – that came a decade later. Vattel was never mentioned in the context of citizenship or eligibility for office in the debates of the constitutional convention, or the debates over ratification in the state legislatures. The Supreme Court says (US v. Wong) that the term comes from English Common Law. Sellin is just making stuff up.

Sellin then plays the second birther card, Minor v. Happersett, a voting rights case from the 19th century. He claims that this case defines “natural born citizen” when in fact it states unequivocally that it was only considering the status of persons born in the US to citizen parents, and not others. Judges (see Allen v. Obama) and law professors (e.g. Associate Professor Joseph Hylton of Marquette University Law School1) are both on record that the Minor decision does not define the term for all classes of persons.

So why does Sellin’s view get so little traction with the courts, the Congress, the news media, Law Professors and historians? Sellin offers a conspiracist explanation:

Why is there a controversy? Because, I repeat, politicians and journalists are driven by political expediency in order to protect and enhance their own financial interests.

You might attribute this motive to some politicians and journalists, but all of them? I think not. And what about the judges, historians and law professors? What about ones writing 100 years ago?

The conspiracy started, according to Sellin, with a disinformation campaign that started in February of 2008 with a “fake” controversy about John McCain started by Obama supporters. The controversy was hardly fake as it had arisen decades before when George Romney (born in Mexico) was considered a candidate for President. The Hollander v. McCain lawsuit was filed in March. 2008, but Fred Hollander stated that he was a McCain supporter just trying to settle the issue. Other McCain lawsuits (e.g. Robinson v. Bowen) were from third-party supporters who didn’t like McCain or Obama, and sued both. Sellin also repeats the false rumor that McCain was born in a Panamanian hospital, rather than his true place of birth on the Coco Solo Naval Base in the Canal Zone.

Sellin thinks that S. Res. 511, declaring John McCain eligible, was some sort of back-door deal where Democrats got a tacit waiver for Obama. Here Sellin breaks with birther tradition that says (falsely) that S. Res. 511 declares Obama ineligible (making the same mistake confusing sufficient with necessary conditions that they make with Minor). What Sellin doesn’t appreciate is that the question of McCain’s eligibility is not completely settled, while Obamas’ is. Cruz is in a weaker position than McCain because the Panama Canal Zone, while not an incorporated US Territory, was under some sort of US jurisdiction.

Sellin continues the disinformation campaign theme by saying:

Complicit with the Democrats in violating the Constitution, the Republicans joined them in a deliberate campaign of disinformation to hide the truth about Obama and the natural born requirement; an effort that continues to this day.

That disinformation campaign actually started at least as early as 1776. Historian George Bancroft writing in the 19th century about the period between the Articles of Confederation and the adoption of the US Constitution said:

Every one who first saw the light on American soil was a natural-born American citizen.

And it continued with the first major work of exposition of the Constitution by jurist, historian and confidant of Franklin and Washington, William Rawle, who wrote in his A View of the Constitution of the United States (2nd Ed. 1829):

…he who was subsequently born a citizen of a state became at the moment of his birth a citizen of the United States Therefore every person born within the United States its territories or districts whether the parents are citizens or aliens is a natural born citizen in the sense of the Constitution and entitled to all the rights and privileges appertaining to that capacity.

Mr. Sellin is the disinformation campaigner. What are his motives? He claims that racism is behind his imaginary disinformation campaign for Obama; perhaps that’s what is behind the real disinformation campaign against Obama. Or maybe he’s just repeating something he heard in a chain email.


1Hylton wrote:

To cite Minor v. Happersett as the definitive statement of the meaning of the phrase “natural born citizen” is to exhibit an unfortunate lack of understanding of the Supreme Court’s 1874 decision in that case.

Yeah, Cruz is eligible

While I do not think that Congress can change the definition of “natural born citizen,” I do believe that they can change the status of individuals so that they meet the definition. I don’t see any qualitative difference between legislation adding a new state to the union (and thereby making new US citizens at birth) and Congress making citizens at birth through legislation under their naturalization powers. No one would argue that only people born in the 13 original states can be President, so why should they argue that only people born under the English Common Law provisions governing citizenship in 1789 can be President?

I should point out that the Constitution does not define “natural born citizen.” One has to look elsewhere for the definition. For a definition, I look to the first Congress, who in 1790 by legislation made certain persons natural born citizens who were not natural born citizens before. Those Congressmen, one of whom, James Madison, is recognized as the principal author of the Constitution, decided that they could by legislation create natural born citizens, and the former President of the Constitutional Convention George Washington signed that bill into law. I do not think that the actions of the First Congress and President Washington are easily dismissed, nor are arguments of carelessness on their part credible.

The clear implication of the 1790 Act (and the Oxford English Dictionary) is that to our founders “natural born citizen” meant “citizen at birth.” So the question that remains is whether the Constitution’s naturalization provision gives Congress the power to create citizens at birth (in contrast to the usual understanding of naturalization–making someone a citizen after birth). The Congress has and does create citizens at birth (even in some cases retroactively) and I don’t know of any challenge to them doing that. (Judge Alsup in Robinson v. Bowen even opined that a retroactive act of Congress made John McCain a natural born citizen.) I see no objection to Congress changing membership in the pool of natural born citizens, through its naturalization powers.

If one were to invoke the English Common Law as both defining the term “natural born subject” and limiting which persons meet the definition, then I would point them to the various British acts that create natural born subjects, as argument against that position. That is, in 1789 Americans had a contemporary example of British legislation that expanded the pool of natural born subjects. Or put another way, I think that saying that English Common Law defines membership in the class of natural born subjects is the same mistake as saying that Minor v. Happersett defines membership in the class of natural born citizens–confusing necessary with sufficient conditions.)

Since according to U. S. Law, Canadian-born Ted Cruz was a U. S. citizen at birth, then yeah, he’s eligible to run for President.

Foggy answers Apuzzo

A week later,  Bill Bryan aka Foggy appeared on the Charles Kuck Immigration program to respond to Mario Apuzzo. Thanks for the shout out to Obama Conspiracy Theories.

Here it is:

I’ve listened to the first segment and have these comments:

  1. John McCain was  born in 1936, not 1937.
  2. John McCain was  born on the Coco Solo Submarine Base, not in the Republic of Panama. The idea that McCain was born in hospital in Panama was a crude forgery. The newspaper announcements said on the base, and the reporter who actually saw McCain’s certificate said it was on the base. This is not controversial.
  3. The law in effect in 1936 did not make children born in the Canal Zone citizens. There was a “donut hole.” A later law was passed that retroactively made such persons citizens at birth. (The statute is cited in Robinson v. Bowen).