In 1898, in the Wong Kim Ark case, the Supreme Court reexamined the “citizenship-by-birthplace-alone” theory, but did not decide whether it applied to natural born citizenship. The Court ruled that Mr. Ark was a citizen, but did not rule that he was a natural born citizen (SCOTUS in ‘Wong Kim Ark’).

This is a major gloss over one of the most sweeping surveys of citizenship ever appearing in US jurisprudence. The question before the court was whether Wong Kim Ark, born in California of Chinese subjects at a time when racist legislation (the Chinese Exclusion Act) prohibited the Chinese from becoming naturalized citizens, was a citizen. The Court said that he was. But in the majority opinion, the Court said a great many things of importance, specifically:

1. Citing Smith v. Alabama, the court said that the Constitution is framed in the language of English Common Law
2. The Court cited English Common law, saying that those born in England are natural born subjects of England, without regard for the citizenship of their parents
3. The Court asserted the equivalence of “citizen” and “subject”.

While US v. Wong did not decide the natural born citizen question, the majority opinion leads inevitably to the conclusion that those born within the United States (except the children of ambassadors) are our natural born citizens, without regard to the citizenship of their parents.

Next in Tonchen’s article we read some details about Barack Obama’s birth, that his father was a “British Subject” (technically Obama was a Citizen of the UK and Colonies, not a British subject). Tonchen says:

If Barack Obama Jr. was born in the United States but, at the time of his birth, his father was a citizen of a foreign country and not a U.S. citizen, does Barack Obama Jr. meet the Constitutional “natural born citizen” requirement for presidency?

Obama apologists say “Yes”.

Earlier in the piece, Tonchen says that a consensus of the Congress and the media believe that birth in the United States is sufficient, but now he relegates this view to “Obama apologists”.

I note that Tonchen uses the term “birther” differently than the editorial policy of this web site. For Tonchen, a birther  is anyone who doubts Obama’s eligibility to be president, where here we use it for anyone who doubts that Obama was born in the United States. Keep this in mind when comparing the two sources. Tonchen describes the born in Africa story as “unsubstantiated rumors,” so we will agree on this point and move on to his comment:

The U.S. Constitution, and the Naturalization Acts of Massachusetts (1776-1790), use the term “natural born citizen” but do not define it.

The Massachusetts acts, while not defining the term (implying that the term was established already in common law), do present some interesting language suggesting the absence of a parentage requirement (consistent with common law definitions). Here is a sample from the act naturalizing Peter Landais:

Be it enacted…that upon the taking and Subscribing the Oath of Allegiance…the said Peter Landais…shall be deemed and adjudged and taken to be a natural [other acts say "born" in this spot] Subject [other acts say "citizen" in this spot] of this State to all Intents and Purposes as if he the said Peter Landais had been Born within this State and had continued and dwelt therein from the Time of his Birth and having been here abiding on the fourth day of June…[1776].

Here we see that this grant of natural born subject status is equivalent to someone being born in the state and continuing to reside there. Not a word about  natural born subjects having a parental requirement. We see similar language (without any reference to parentage) in the Naturalization Acts of New York. It is quite clear from these acts, as well as from the Charter of Georgia and legislation in South Carolina that the phrase natural born citizen/subject was universally tied to birth within the state/colony without regard to the status of the parents.

Tonchen follows with:

Five years later, Congress repealed the 1790 [Naturalization] Act and replaced it with the Naturalization Act of 1795. The wording of the 1795 Act was essentially the same as the 1790 Act, except that the term “natural born citizens” was deleted and replaced with “citizens”.

I would object to the assertion that the two acts were essentially the same. One is twice as long as the other, and the section specifically about children of citizens born overseas has been rewritten. It is not at all clear whether the drafters of the 1795 act dropped the phrase “natural born” for substantive legal reasons or just because they thought that all children who were citizens at birth are natural born, and therefore the phrase was unnecessary, and the change was made to improve the flow of the text (which it did). Compare the text of the two acts for yourself.

In Section 6, Tonchen relies on the Leo Donofrio’s slander of the late president Chester A. Arthur by saying:

When Chester Arthur ran for Vice President and later President, he told outright lies and burned historical records, to conceal the fact that, although he was born in the United States, his father was a British Subject and not a U.S. citizen at the time of his (President Arthur’s) birth. If “natural born citizen” means anyone born in the United States, regardless of parental citizenship, why did Chester Arthur go through so much trouble to convince the public that his parents were U.S. citizens when he was born? It is inconceivable that Chester Arthur would have taken such extraordinary measures, unless he believed that his birth to non-citizen parents made him ineligible to serve as VP or President (Historical Breakthrough — Chester Arthur).

There are a number of misleading statements and half-truths here. The facts are:

1. While Chester Arthur lied saying he was one year younger than he really was, and he got some family details and dates wrong, he never said his father was a US Citizen when Arthur was born.
2. While he did burn his papers before his death, he did not do so in the context or time of the election.
3. Arthur made no statement implying that his father was a citizen when Arthur was born.
4. Arthur, a lawyer from New York, may well have read the New York Supreme Court opinion that said the children of aliens born in the United States were eligible to be president (Lynch v. Clarke). Therefore, there is no rational explanation for the claim that Arthur thought he was ineligible, since the NY Court had said that the universal public opinion was that children of aliens born in the US are natural born citizens.
5. Finally, through original research, Obama Conspiracy Theories has found evidence that at least one Arthur opponent was aware of Arthur’s father’s naturalization status.

This is discussed at length in two articles on this web site:

• The Assassination of Chester A. Arthur
• Chester A. Arthur: Rest In Peace

Tonchen then says:

On March 9, 1866, Representative John Bingham of Ohio, considered the father of the 14th Amendment, said the following in a speech before House of Representatives:

[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. (John Bingham, 1866, as quoted in Defining Natural Born Citizen)

The problem with this quotation, is that the reader is not treated to the context of what “allegiance to any foreign sovereignty” meant at the time. Allegiance in the United States (as is jurisdiction and citizenship) is attached to the place of birth as stated by framer of the Constitution, President James Madison:

It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.

Tonchen, continuing to provide true evidence, but misdirecting it says:

In 1797 (a decade after the Constitution was adopted), the English translation of Emmerich de Vattel’s, Law of Nations was revised to include the term “natural born citizen”. The revised English translation helps to clarify the meaning of “natural born citizen”, as English-speaking people generally understood it towards the end of the 18th Century

This is true, but we should emphasize that the English translation of de Vattel available at the time the Constitution was written said indigenes [a transliteration of the 0f the original French] and not “natural born citizen”. The 1779 translation is hardly a clarification, but an inexplicable departure from the original.

Stay tuned for Part 3 coming to a theater near you.

Let’s start this discussion at President Obama’s own campaign website, FightThe Smears.com, citing FactCheck.org:

“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.

Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”

The FactCheck.org article goes on to say:

British Nationality Act of 1948 (Part II, Section 5): Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.

Obama’s British citizenship was short-lived. On Dec. 12, 1963, Kenya formally gained its independence from the United Kingdom. Chapter VI, Section 87 of the Kenyan Constitution specifies that:

1. Every person who, having been born in Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Kenya on 12th December, 1963…

2. Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father becomes, or would but for his death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963.

As a citizen of the UKC who was born in Kenya, Obama’s father automatically received Kenyan citizenship via subsection (2). So given that Obama qualified for citizen of the UKC status at birth and given that Obama’s father became a Kenyan citizen via subsection (1), it follows that Obama did in fact have Kenyan citizenship after 1963. So The Rocky Mountain News was at least partially correct.

But the paper failed to note that the Kenyan Constitution prohibits dual citizenship for adults. Kenya recognizes dual citizenship for children, but Kenya’s Constitution specifies that at age 21, Kenyan citizens who possesses citizenship in more than one country automatically lose their Kenyan citizenship unless they formally renounce any non-Kenyan citizenship and swear an oath of allegiance to Kenya.

Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.

Flag of Kenya

I start with the conclusion from the Obama campaign and FactCheck.org because they employ careful researchers, and are expected to get things right. Based on this analysis, we may conclude that President Obama is no longer a citizen of Kenya.

But FactCheck.org leaves a gap in the argument. It says “Obama’s British citizenship was short-lived,” but it doesn’t say why. In to this small gap rides Mario Apuzzo with the assertion that Obama never lost his British citizenship at Kenyan independence.

Several British colonies in Africa became independent in the 1960′s. The transition was accomplished through paired legislation: Independence Acts in Britain and Constitutions in the former colonies. In these acts when citizenship was defined in the new country, British citizenship ended for citizens of the new country.

1. The position before 1983

1.1 When a former British colony, associated state, protectorate etc, achieved independence within the Commonwealth, and made its own citizenship laws, a corresponding Independence Act was passed in the United Kingdom to deal with the consequences, e.g.:
• To include the name of the newly independent country in s.1(3) of the BNA 1948; and, if necessary
• To remove it from the list of protectorates etc in the current British Protectorates, Protected States and Protected Persons Order; and
• To withdraw citizenship of the United Kingdom and Colonies from certain people who became citizens of the new country

Source: British Home Office

The act for Kenya was the Kenya Independence Act (1963). Unfortunate for this analysis, the section of the Act dealing with citizenship was repealed by the British Nationality Act 1981, and all online copies of the Kenya Act accessible to me have the original sections stricken. However, we can infer the contents of the Act from text written about it. Here we have an authoritative source, a legal document from the European Court of Justice.

2.6 … The Kenya Independence Act, passed by the British Parliament, removed UK and Colonies citizenship only from a person who ‘on the appointed day [the date of independence] ….becomes a citizen of Kenya’. This ensured that at the date of independence a person born in Kenya would either acquire Kenyan nationality, or would retain UK and Colonies citizenship. …

2.7 The joint provisions of Kenyan and UK law thus envisaged that all those who had previously been UK and Colonies citizens would either acquire Kenyan nationality, or would retain UK and Colonies citizenship…

There is also this record of Parliamentary debate:

Mr. David Steel: … In 1963, we were negotiating independence for Kenya. The Government of the day decided to give the Asian community a choice. They said, “For two years, you will have an option; you can either opt to become a citizen of Kenya or you can retain your British nationality status, with all the rights which that involves”. If it was the intention of the right hon. Member for Streatham to withdraw the right of free entry from the Asian, African and the European populations—the African population were automatically Kenya citizens—it should have been made clear beyond doubt in the 1963 Act that these rights of citizenship were being withdrawn.

We see through the FactCheck.org analysis that Barack Obama did become a citizen of Kenya on the date of independence, and hence on that date he lost his Citizenship of the United Kingdom and Colonies (CUKC). So therefore, on 12th December, 1963, Barack Obama ceased to be a British citizen.

It would be convenient to end the story at this point; however, the Kenya Independence Act section referenced above was, as I said earlier, repealed by the British Nationality Act 1981. So while Obama certainly lost his CUKC citizenship in 1963, did he get it back in 1981 (while he was traveling in Pakistan on his US passport)?

The relevant section of the British Nationality Act of 1981 is:

35. Circumstances in which British subjects are to lose that status.

A person who under this Act is a British subject otherwise than by virtue of section 31 shall cease to be such a subject if, in whatever circumstances and whether under this Act or otherwise, he acquires any other citizenship or nationality whatever.

[Section 31 deals with citizens if Ireland.]

Update

Also please review additional substantive argument of the issue in the comments that follow, regarding the fact that the British Nationality Act of 1981 repeals the section of the British Nationality Act of 1948 under with Obama gained British citizenship in the first place.

So in conclusion, Barack Obama is not a citizen of Kenya nor of Britain.

Update

A generous contributor has provided a link to the original text of the Kenya Independence Act (1963). The operative section says:

(2) Save as provided by section 3 of this Act, any person who immediately before the appointed day is a citizen of the United Kingdom and Colonies shall on that day cease to be such a citizen if on that day he becomes a citizen of Kenya.

Update

That’s all fine, but it turns out that there is another kind of British Citizenship that Obama retained for a few more years, “Commonwealth citizenship.” Read the continuing saga in this article:

Donofrio v FactCheck.org

Satellite Phone

“Obama was born in America. That is, that’s obvious.”

By special arrangement with author Dr. Greg Doudna, Obama Conspiracy Theories is most pleased to be able to offer its readers Greg’s true, unedited, transcript of the infamous transatlantic telephone conversation transatlantic between Barack Obama’s step grandmother, Sarah Obama, and American anti-abortion activist and street preacher Ron McRae.

Sarah Obama

Probably the single most convincing piece of evidence that has led an amazing number (perhaps as many as 10% in an Ohio State University poll) of Americans to believe the incredible story that President Obama is not a “natural born citizen” is an the edited transcript of this recording from a fake-named Kenyan (“Kweli Shuhubia”) filed in the now-dismissed Berg v. Obama lawsuit and YouTube Video of the transcript superimposed on an edited audio version of the tape. The altered tape and transcript is discussed here in our feature article: Obama’s Grandmother says he was born….

Mr. Doudna writes:

The full tape transcription makes clear that this phone conversation has not been represented accurately. There never was a statement by Sarah Obama at any point in this phone call saying or intending to say that Barack Obama Jr. was born in Kenya. Sarah Obama herself said that Obama was born in Hawaii and never said differently. There was a confusion over the meaning of where Mrs. Obama was “present” when Obama was born in Hawaii, but not over whether Obama was born in Hawaii. The Berg lawsuit affidavit transcript quotes a portion of the phone call in which, according to the Berg transcript, Sarah Obama answered that she was “present” when Obama was born (actually others speaking for Mrs. Obama, not Mrs. Obama, may have given that particular answer). But the Berg transcript omits the rest of the phone call which shows the sense intended was not that Barack Obama Jr. was born in Kenya, but rather that Mrs. Obama was present in Kenya when Barack Obama Jr. was born in Hawaii.

The full version of the tape has been available here on Obama Conspiracy Theories for some time. Now the full, unedited transcript of that conversation is available here and it says in no uncertain terms that Barack Obama was born in Hawaii!

Ron McRae

MCRAE: OK I’m sorry. I, I thought she said she was present when he was born. I was—
TRANSLATOR OGOMBE (sounding exasperated): No, no! The, the woman was not present. She was uh not, a what–you see, she was here in Kenya, and Obama was born in America. That is, that’s obvious.

So here it is:

• The Tape
• The Transcript

Greg Doudna, whose day job is deciphering the Dead Sea Scrolls, has dipped a finger in the well of Obama Conspiracy Theories and published a commentary giving some history and background on the Berg lawsuit and the affidavits attached to it claiming that Barack Obama’s step grandmother, Sarah Obama, had said that “he” was born in Kenya and that she was “present”.

The affidavit of Bishop Ron McRae accompanying the recently ended Berg v. Obama lawsuit contains a transcript of a very badly connected transatlantic telephone call between McRae and Sarah Obama on the other end accompanied by a group of translators and family members. The transcript abruptly ends though the the tape recording widely available on the Internet continues.

Now a complete transcript of the entire call is available in Greg Doudna’s published work:

The Tale of The Secret Kenyan Birth of Barack Obama Jr.:
A Strange Story of a Transatlantic Telephone Call, a Fateful
Confusion Over the Meaning of the Word “Present”, and a Brief
Excursion Into the Wonderful World of Conspiracy Theory in
American Politics

or

A Full and Complete Transcription of a Phone Call between Ron
McRae and Sarah Onyango Obama of Kenya on Oct. 16, 2008,
which has been wrongly alleged to contain a statement by Barack
Obama Jr.’s grandmother that Barack Obama Jr. was born in
Kenya
with notes, analysis, and commentary

The 27-page report and transcript may be purchased for $2 from LuLu.com.

I sprung for a copy.

Two bucks is not a lot of money, and this is probably worth it (used copies of Obama Nation go for $2.70 on Amazon.com and probably aren’t worth it). What you get is the complete transcript, not the abruptly ended McRae version. Anyone who has listened to the full Sarah Obama tape already knows she and her family are telling us that our president was born in Hawaii. You don’t need a transcript for that. Nevertheless, this transcript is well done and has very informative footnotes.

See also our article here: Obama’s Grandmother Says he was Born….

Note that this is a transcript of the English portion of the tape, not a translation of the Swahili/Luo portion which is of such poor quality as to make that near impossible anyway.