While a handful of attorneys have taken on the Obama eligibility issue on the negative side, they are far from authorities in Constitutional law. Herb Titus is the closest the birther side has to an authority and even he is not widely-considered so. From those attorneys we have a number of articles, papers and briefs arguing that US Presidents must be born in the United States of two citizen parents; and a number of people are persuaded by them – since they are the only game in town.
United Press International reports:
“The arguments aren’t crazy,” said Georgetown law Professor Lawrence Solum. But, he added, “The much stronger argument suggests that if you were born on American soil that you would be considered a natural-born citizen.”
Daniel P. Tokaji wrote:
The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. [emphasis added]
If the birther argument isn’t “crazy” and indeed a “vital question” of “national importance”, then why is the issue being ignored as if it were a crazy sideshow by Tokaji, Solum and the other “big guns” in the legal profession?1 An entire issue of the Michigan Law Review First Impressions was devoted to John McCain’s eligibility. Laurence Tribe and Theodore Olson wrote a scholarly letter in support of McCain. If the birther argument were crazy, then it makes some sense that mainstream scholars would ignore it, but if there is a legitimate controversy, where is the definitive law review article in support of the eligibility of persons born in the United States to alien parents2. It’s not as if this issue will never come up again.
We have a pretty good idea where some scholars stand on the issue:
Those born in the United States are uncontroversially natural born citizens. There is also a strong argument that those obtaining citizenship at birth by statute are natural born citizens…
It’s just accepted law that people born in the United States are natural-born citizens. That’s just been the understanding for a long time.
Based on my reading of the historical sources, there is no credible case that a person born on American soil with one American parent was clearly not a “natural born citizen.”
…that fact alone would make [John McCain] a “natural born” citizen under the well-established principle that “natural born” citizenship includes birth within the territory and allegiance of the United States. See, e.g., Wong Kim Ark, 169 U.S. at 655-66.
I’m not an expert on this area of the law, but the Georgia judge’s reasoning, which echoes the reasoning of a 2009 Indiana Court of Appeals decision strikes me as quite persuasive, as does the much more detailed reasoning in a Nov. 2011 Congressional Research Service report, which reaches the same result.
It would be a very bad thing if a close 2012 election were decided based on misinformation about a candidate’s eligibility. I think it’s time for the recognized experts to step up and serve the public interest by publishing well-reasoned papers on the subject. How about an amicus brief submitted to the 4th Circuit Court of Appeals in Tisdale v. Obama? It’s time for the academic leaders to lead, so that the electorate has good information upon which make its decisions.
If the reader knows of any statements that show where recognized authorities stand on the topic, please leave them in comments with references so that I can update the article.
1 In researching this, I discovered a similarly-themed article at The American Thinker titled, “Academia Shrugs: Obama’s Citizenship and the Presidency.”
2 I would say that the most authoritative document that we have now is the Congressional Research Service report, “Qualifications for President and the ‘Natural Born’ Citizenship Eligibility Requirement” by legislative attorney Jack Maskell. While that report was informally published, it remains essentially an internal report for Congress and is neither a legal brief, nor a work targeted to the general public or the legal community.