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The silence of the sheepskins

imageWhile 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 Unite 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:

Gabriel Chin:

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…

Bruce Ledewitz:

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.

Lawrence Solum:

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.”

Laurence Tribe and Theodore Olson:

…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.

Eugene Volokh :

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.

Did the Senate hold hearings on John McCain’s eligibility?

According to attorney Gary Kreep, speaking before the 9th Circuit Court of Appeals, they did. I have seen claims that these hearings happened, and that they didn’t. I present this article, and solicit comment, to arrive at an answer.

An April 2, 2008, exchange between Senate Judiciary Committee Chairman Patrick Leahy and Secretary of Homeland Security Michael Chertoff is claimed to be part of the hearing. S. Res. 511 would not be introduced until April 10, the following week. As one can see from the full context, the exchange was not made during a consideration of Senate Resolution 511, but as part of the oversight of the Department of Homeland Security:

Chairman Leahy: … I would mention  one other thing, if I might, Senator Specter. Let me just ask this:  I believe–”and we have had some question in this Committee to  have a special law passed declaring that Senator McCain, who was  born in the Panama Canal Zone, that he meets the constitutional  requirement to be President. I fully believe he does. I have never  had any question in my mind that he meets our constitutional requirement.  You are a former Federal judge. You are the head of the  agency that executes Federal immigration law. Do you have any  doubt in your mind–”I mean, I have none in mine. Do you have any  doubt in your mind that he is constitutionally eligible to become  President? Continue Reading →

The Great Mother of all Native Born Citizenship Pages

There seems to be strong historical evidence that the founders of the country considered native born citizen and natural born citizen the same thing. Consider the following from commenter Ballantine and see of you don’t agree:

No court has ruled on NBC. The court has not defined many terms, but that does not mean a definition is in doubt. Even if it was in doubt, the court will look to all early legal authorities to define such term…

With respect to native birth, Wong stated that since the common law was adopted, all children born in the US are generally native born citizens. You are simply trying to read an implication into a choice of terminology. The court made clear the English common law rules controlled and under the common law all the native born (subject to common law exceptions) were by definition “natural born.” I think you need to refresh your Blackstone as you would see there are only 2 classes of people at birth under the common law, the natural born and the alien born. The natural born were also referred to as natives. There is no authority anywhere that says there is a difference between native and natural born under the common law.

Finally, here is a list of early authorities saying that the president needs to be native born citizen or a native. Take notice it includes the most influential scholars of the early republic that court consistently relies upon. If you or Leo [Donofrio] disagree with this multitude you need to find authority to the contrary. Clearly, there you have no such authority.

“No man but a native, or who has resided fourteen years in America, can be chosen President.” Elliot’s Debates –DEBATES IN THE CONVENTION OF THE STATE OF NORTH CAROLINA, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, pg 195-196 (statements of future Supreme Court Justice James Iredell, July 30, 1788).

“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence,…” St. George Tucker, BLACKSTONE’S COMMENTARIES (1803) Continue Reading →

The Great Mother of All Natural Born Citizen Quotation Pages

Partial lists don’t carry the full impact of citations scattered here and there. This project is to collect everything accessible and to the point into one place If it takes much context or argument, a brief reference and a link is included. I promise you that the quotations will mean the same thing when you read them here than they mean if you read the larger context, and the larger context will be linked to the text. No tricks, no deception.

For additional citations, see The “Natural Born Citizenship” Clause (Updated) to whom this article is indebted for some of these citations. And for EVEN MORE citations see SCOTUS & “Natural Born Citizen” – A Compendium, Books on Google that define “Natural Born Citizen” and History of US citizenship laws.

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