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

Birther boomerang

I consider this a very important article because without this article and the information following, the “Mailbox 11/7/2014” article would just stay at the top of the blog and I don’t think anybody wants that. I would really rather flip the page to something else.

The boomerang is the birther theory of the meaning of “natural born citizen,” a theory consistently rejected by legal scholars and the courts. The idea that a US President must be born in the United States of two US citizen parents was cooked up to try to make Barack Obama seem ineligible, and the boomerang returning is the effect this may have on certain conservative presidential hopefuls. In a poll this past May, a fairly significant number of potential voters believe it, and I wonder whether any Republican candidate can receive the presidential nomination who was born outside the United States, or has a non-US-citizen parent.

The occasion is a new article at Gerbil Report™ by Paul Hollrah titled “No, Ted Cruz is Not Eligible to be President.” Hollrah singles out more potential candidates than just Cruz—here’s his take on things:

Ted Cruz Born in Canada, foreign father
Bobby Jindal Born in US, two foreign national parents
Marco Rubio Born in US, two foreign national parents
Rick Santorum Born in US, foreign father

I don’t know whether Santorum’s father, who was born in Italy, was a naturalized citizen or not when Rick Santorum was born, but for the purpose of this discussion it doesn’t matter because we’re not really talking about facts but rumors. Have the birthers poisoned the well for these 4 potential presidential candidates? In a remotely close primary race, the birther nonsense seems to be something that would decide it against them. The disinformation factor was well-stated by the polling company, YouGov, who wrote:

That means more than half of Republicans (53%) would disqualify Texas Senator Ted Cruz from the Presidency on principle.  Cruz was born in Canada to a mother who was an American citizen, while his father was not.   But fewer than one in four Republicans think Cruz was born outside the country; only 10% know his mother was a citizen and his father was not.

imageSome suggest that my Senator, Lindsey Graham of South Carolina, will be a candidate for President in 2016. I can just see him running against Hillary Clinton. The whole race would be about Benghazi. Ugh!

Why is Clinton smiling?

Good citizenship, Dr. Conspiracy’s other hat

My joining Civitan International has nothing whatever to do with this blog. Civitan’s motto: “builders of good citizenship” and questions of citizenship covered on this blog are purely coincidental. That said, the question of how a good citizen acts does relate to both of them. While birthers like to put on the robes of patriotism, I think birtherism is neither patriotic nor representative of good citizenship.

I believe that quality public discourse is a civic virtue, and that extends to this blog. I am proud of the 3,562 articles published on this site, particularly those articles that educate, inform and correct misinformation. That said, the 2012 presidential election is over and nothing that birthers do really matters any more (unless a rogue birther branches out into criminal acts). Countering birther nonsense is not as valuable, now that nothing is at stake. Consequently, I am spending less time blogging about birthers these days.

I wrote earlier that I had signed up to be a poll manager in my county. I take my oath next Tuesday and I’ll be putting in 14 hours at the polls come election day. Attending my local political party meetings has also been on my agenda. I have been working on Habit for Humanity houses a lot over the last couple of months. I am on the board of the local Civitan Club and do several jobs for my church. I volunteered at the Special Olympics. Indeed I now have to put everything on a calendar to avoid conflicts, I am scheduled so much. All of that is on top of quite a bit of tourism. So these days I’m wearing many hats.

Dr. Conspiracy on the roof wearing Hard Hat

I don’t list all these volunteer activities to say what a fine citizen I am, but to suggest to birthers more productive ways to channel their energies. I have the luxury of being healthy and retired, making my particular choices possible, but others can be good citizens in other ways.

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.