The Birthers: Missing the Forest for the Imaginary Trees
I haven't had the time over the last few weeks to follow the news as closely as I normally do, but it appears that the "Birther" movement has reached a whole new level of exposure while I was away.
The ever-morphing claims of the Birthers are hard to keep up with, but if I understand them correctly, there are two basic claims being asserted: 1) that Obama is not a "natural born citizen" within the meaning of the Constitution because he was (supposedly) born in Kenya, not within the U.S., and 2) that regardless of where he was born, Obama is not a "natural born citizen" because his father was not a U.S. citizen.
Now the first claim is obviously based on the highly dubious (and, as far as I can tell, completely groundless) factual assertion that Obama was born not in Hawaii, as all evidence suggests, but rather in a foreign country. The second claim is based on the undisputed fact that Obama's father was not a U.S. citizen.
What's interesting about both of these claims, however, is their reliance on very rigid interpretations of the phrase "natural born citizen." The phrase is not one that has an obvious correct meaning. It is not defined in the Constitution and is used only in the clause specifying presidential eligibility requirements. It has only rarely (and tangentially) been addressed by the Supreme Court. To the extent the Court has weighed in, its pronouncements do not support the Birther theory that both of your parents must be U.S. citizens in order for you to be a "natural born citizen." It's virtually inconceivable to me that any modern court, if faced with this question, would interpret the Constitution to require both of a presidential hopeful's parents to have been U.S. citizens. That interpretation just doesn't make any sense. What possible relevant difference is there between someone who has one citizen parent and someone who has two? What if, as is the case with Obama, the foreign-born parent was not a part of the child's life? What if a presidential hopeful was adopted or doesn't know the identity of one or both parents? Should someone who was clearly born and raised in the United States have to locate and verify the immigration status of his biological parents before running for office? Could the drafters of the Constitution have possibly intended that?
The same questions should be asked of the other Birther theory, that one who is born overseas, even to a U.S. citizen on vacation, is not a "natural born citizen." No one is contesting that Obama is the son of Ann Dunham, a U.S. citizen, and that he grew up from infancy in the United States (except for a few years spent in Indonesia later on). He is a U.S. citizen with a social security number and all the other rights and privileges of citizenship. No one denies this. The Birthers are merely claiming (without any basis) that Obama was born while his mother was vacationing in Kenya. But what logical reason is there to bar such a person from serving as president? Why should someone be ineligible to be president because his parents happened to be vacationing or on assignment overseas when he was born? Is there any reason to believe the drafters of the Constitution intended to exclude such people when they used the phrase "natural born citizen"? Isn't the most logical interpretation of that phrase that it is differentiating between those who have been U.S. citizens since birth and those who were naturalized later in life?
Remember, if you accept the Birther logic here, numerous past presidential candidates, including John McCain (born in Panama) and George Romney (born in Mexico) would not have been eligible to be president.
As an attorney and person with someone background in constitutional law, I'm fairly certain that if the Supreme Court were forced to interpret the phrase "natural born citizen" today, it would interpret it in a way that excludes the fewest number of people. It certainly would NOT interpret it in an overly rigid way that excludes the most recent Republican nominee for president and (according to the Birthers) the current president, both of whom were born to U.S. citizens and grew up in the United States.
So this whole conspiracy theory is myopic in the extreme. If you're going to waste everyone's time theorizing about vast conspiracy, at least make the object of the conspiracy something that matters. Even if the Birthers factual claims are correct (which there's no reason to believe), their legal theories are thoroughly unpersuasive. In other words, even if they're right on the facts, they're still wrong on the law. They can't see the forest for the imaginary trees.
The ever-morphing claims of the Birthers are hard to keep up with, but if I understand them correctly, there are two basic claims being asserted: 1) that Obama is not a "natural born citizen" within the meaning of the Constitution because he was (supposedly) born in Kenya, not within the U.S., and 2) that regardless of where he was born, Obama is not a "natural born citizen" because his father was not a U.S. citizen.
Now the first claim is obviously based on the highly dubious (and, as far as I can tell, completely groundless) factual assertion that Obama was born not in Hawaii, as all evidence suggests, but rather in a foreign country. The second claim is based on the undisputed fact that Obama's father was not a U.S. citizen.
What's interesting about both of these claims, however, is their reliance on very rigid interpretations of the phrase "natural born citizen." The phrase is not one that has an obvious correct meaning. It is not defined in the Constitution and is used only in the clause specifying presidential eligibility requirements. It has only rarely (and tangentially) been addressed by the Supreme Court. To the extent the Court has weighed in, its pronouncements do not support the Birther theory that both of your parents must be U.S. citizens in order for you to be a "natural born citizen." It's virtually inconceivable to me that any modern court, if faced with this question, would interpret the Constitution to require both of a presidential hopeful's parents to have been U.S. citizens. That interpretation just doesn't make any sense. What possible relevant difference is there between someone who has one citizen parent and someone who has two? What if, as is the case with Obama, the foreign-born parent was not a part of the child's life? What if a presidential hopeful was adopted or doesn't know the identity of one or both parents? Should someone who was clearly born and raised in the United States have to locate and verify the immigration status of his biological parents before running for office? Could the drafters of the Constitution have possibly intended that?
The same questions should be asked of the other Birther theory, that one who is born overseas, even to a U.S. citizen on vacation, is not a "natural born citizen." No one is contesting that Obama is the son of Ann Dunham, a U.S. citizen, and that he grew up from infancy in the United States (except for a few years spent in Indonesia later on). He is a U.S. citizen with a social security number and all the other rights and privileges of citizenship. No one denies this. The Birthers are merely claiming (without any basis) that Obama was born while his mother was vacationing in Kenya. But what logical reason is there to bar such a person from serving as president? Why should someone be ineligible to be president because his parents happened to be vacationing or on assignment overseas when he was born? Is there any reason to believe the drafters of the Constitution intended to exclude such people when they used the phrase "natural born citizen"? Isn't the most logical interpretation of that phrase that it is differentiating between those who have been U.S. citizens since birth and those who were naturalized later in life?
Remember, if you accept the Birther logic here, numerous past presidential candidates, including John McCain (born in Panama) and George Romney (born in Mexico) would not have been eligible to be president.
As an attorney and person with someone background in constitutional law, I'm fairly certain that if the Supreme Court were forced to interpret the phrase "natural born citizen" today, it would interpret it in a way that excludes the fewest number of people. It certainly would NOT interpret it in an overly rigid way that excludes the most recent Republican nominee for president and (according to the Birthers) the current president, both of whom were born to U.S. citizens and grew up in the United States.
So this whole conspiracy theory is myopic in the extreme. If you're going to waste everyone's time theorizing about vast conspiracy, at least make the object of the conspiracy something that matters. Even if the Birthers factual claims are correct (which there's no reason to believe), their legal theories are thoroughly unpersuasive. In other words, even if they're right on the facts, they're still wrong on the law. They can't see the forest for the imaginary trees.
posted by A.L. at 1:21 PM
39 Comments:
I am following this closely to see where this conspiracy ends. Meanwhile I have collected some good articles and sites related to Barack Obama (more than 200 sites or articles). If you are interested take a look at the below link
http://markthispage.blogspot.com/2009/06/how-do-i-get-information-about-barack.html
It has nothing to do with facts or law. If it wasn't a birth certificate it would be a friend's suicide, (as in Vince Foster) or an old real estate deal on which you lost money.
I am not a psychologist so I don't understand the minds of people who insist on fantasy in the face of facts, although I think some of it is just (sorry to be condescending) being stupid. I do have some idea of the motives of the more sophisticated right wingers who are leading birthers around by the nose -- distraction, raising doubts and encouraging emotional disdain for the target person.
You can argue facts and law all day with birthers and it will make no difference. The fact that you take the time and make the effort to do it to stop the uncontested spread of lies to more neutral parties is part of the goal of the more sophisticated purveyors of lies.
Doesn’t your argument largely depend on the assumption that there is no good reason to restrict the presidency to “natural born citizens” and that therefore the term should be read as narrowly as possible? Some of your points (eg, what happens in the case of someone who is adopted and doesn’t know the circumstances of his birth) would apply equally to even the narrowest reading of “natural born citizen.”
If we were to interpret the “natural born citizen” provision in the same fashion as we have other provisions of the Constitution (ie, where we are sympathetic to the assumed purpose of the provision), we would first look at the plain language of the provision and, if that did not provide a clear answer (which it does not), at the Framer’s intent in including it. From what I know, there is sufficiently scant evidence of the Framer’s intent so as to leave ample room for creative theories as to what the intent might have been. It doesn’t seem to be beyond the realm of possibility that the Framers intended to exclude persons with one foreign parent, on the theory that such an individual might be raised and educated in the manner that they feared might happen with regard to a “non-natural born citizen.” Certainly it seems more likely that they intended to exclude such a person than to exclude the child of two American parents, who happened to be born while his parents were stationed overseas in the service of their country, an argument that was made in seriousness by “real lawyers” (not yokels like the Birthers) in connection with Senator McCain.
Of course, none of this has much to do with the actual motivation behind the Birther argument, which is simply designed to de-legitimate Obama, just as your argument is intended to de-legitimate the Birthers. But as long as we are pretending to have an intellectual discussion . . . .
It's mind-boggling how *stupid* those people must be to fall for this. It's frightening that our social/educational systems can produce such morons.
One of the fake arguments is that Obama isn't a citizen because both his parents weren't citizens. I think I heard whats-her-name (Orly Taize?) even saying the Constitution *requires* this. Consider how inane that argument is, even if it WAS true: if the definition of citizenship was that both parents were citizens, then NOBODY could be considered a citizen; all you have to do is find an ancestor who wasn't a US citizen (and we ALL have them if you go back far enough). That non-citizen would disqualify his/her children, and each generation would be therefore disqualified down the line.
Somebody should put the photo of Obama's birth certificate (the real one) along side those of McCain and Romney. That would be a telling case-in-point. Totally ignored by the wackos of course, reality not being a concern of theirs, but it would be a vivid example nonetheless.
Does this mean "Ah-nold"'s children can't be president either?
False equivalency alert. Those who "de-legitimize" 2+2=fivers are the same as 2+2=fivers "de-legitimizing" 2+2=4.
Are there really no other presidents whose parents were born elsewhere (Founding Fathers aside)? Seems strange. I'd have thought there was at least one or two who were born to immigrant parents. Your Millard Fillmores or your Martin Van Burens or something.
C.S.
Well, if one takes the ridiculous assumption that Obama was born in Kenya seriously (which I do not), then the Birthers would be right. At that time, in order to be able to claim American citizenship for their child, an American parent living overseas and having a child (with a non-citizen) while overseas had to be 21 years of age or older. This law has been changed more recently, but it was the law then. This is the sum of the case offered by the birthers.
Under current law, as it applies now, Obama would be a natural born citizen even if born in Kenya, because his mother was a natural born citizen. This law was not in place then, then he would have been eligible for citizenship if his mother wished to claim it for him if she had been over 21 at the time of his birth and not a citizen at all if she was not. Again, this is the whole of the Birther argument, really.
The documentary evidence proving he was born in Hawaii is so overwhelming as to make that argument ludicrous and to serve only to make its proponents look inbred and ignorant.
The "birthers" are the same type of uninformed idiots who believed that Iraq was directly responsible for 9/11 when there was no facts or evidence to support that claim. Watching ONLY Fox news leaves them ignorant. Their racism and hatred clouds their minds. They are a disgrace.
chester a arthur....one of his parents was not an american-born citizen.
i agree with the "myopic" nature of this allegation, you dont have to like obama, but come up with a real reason not something made up
Weren't pretty much all of the founding fathers in the same boat? Their parents weren't American citizens: they were subjects of the British crown.
ER,
The statutes governing citizenship and the "natural born citizen" language of the constitution are not the same thing. Statutes change, but presumably, the definition of the "natural born citizen"--whatever it is--does not. They're independent questions.
Veteran Novice has it right - you can't argue logically with these people because their argument isn't based on logic. It is on the same level as those who claim Obama is the AntiChrist. And yes, if it wasn't this they'd come up with something else.
Their point has nothing to do with the Constitution, or where President Obama was born or whether his parents were citizens.
Their only point is that a ni**er stole the White House and they have to get it back, whatever it takes.
The birthers are of the same mentality as those who insisted Obama is a Muslim and the woman who stood up at a McCain rally to insist "he's an Arab." They are angry flat earthers, Holocaust deniers, Sarah Palin worshippers, creationists, ideologues who believe tax cuts cure all economic ills. They are the ones who believed there were WMD in Iraq, that Saddam was linked to Al Qaeda, and that abductions and torture keep us safe.
These people have three things in common:
1) They are irrational and impervious to reason. Their limited mentalities are entirely faith-based. They cannot be persuaded or dissuaded by facts because they reject the concept of deductive reasoning. They believe, as the Bushies used to say, that they make their own reality.
2) They are badly intentioned and fundamentally undemocratic. They lie, they deny, they shout others down, they threaten, they intimidate, they forge documents, and when aroused by hate radio hosts some are deranged enough to kill.
3) They are the base of the Republican Party.
A few more points. First, for those who keep asking about children of naturalized citizens, this is not the issue. No one is claiming that being a “natural born citizen” requires having parents who are themselves natural born citizens; the question is whether it requires that both parents be citizens. Second, with regard to the question of how the Founding Fathers could qualify for the presidency, the Constitution provides that persons who were U.S. citizens at the time of the adoption of the Constitution qualify for the presidency regardless of circumstances of birth.
ER’s analysis of the issue is, I believe, correct under statutory law. As it happens, I think that following statutory law regarding the definition of “natural born citizen” is the best reading of the constitutional provision. However, this conclusion is not self-evident—we don’t always, or even usually, allow Congress to define the meaning of constitutional provisions. AL presumably thinks we should not allow Congress to do so here, as evidenced by the fact that he believes that Obama would qualify as a “natural born citizen” even if he were born in Kenya.
Just because AL is, IMHO, wrong, however, doesn’t mean that his position is frivolous or insane—the same holds true for the Birther argument regarding the meaning of the constitutional provision. My point was simply that as a matter of ordinary constitutional argument, there is nothing particularly outlandish (so to speak) about the claim that being a “natural born citizen” requires being born of two American citizens. As for AL’s suggestion that the Framers could not have possibly intended to exclude persons with one non-citizen parent, I submit that there is no evidence to support this contention (certainly AL has offered none). FWIW, I suspect that the Framers would be rather less shocked by the Birther interpretation of the constitutional clause than by, say, the idea that the Constitution empowers Congress to provide universal health care or that it establishes a right to an abortion.
Which brings me to my final point. No one in this “debate” actually gives a whit about what the Framers intended. Perhaps AL would even admit that he would not change his mind on this even if presented with incontrovertible evidence that the Framers intended “natural born citizens” to be limited to persons with two American parents. He would just argue that we should ignore the original intent (as we do in so many other areas of constitutional interpretation), or that the matter is non-justiciable anyway, or that the Supreme Court will support his position regardless of the legal merits. This isn’t really a discussion about the law—its an opportunity to bash the Birthers and whomever one chooses to associate with them.
I am just pointing out the infirmities in AL’s reasoning. You can then accuse me of “false equivalency” and the fun goes on . . . .
Since at least the matter of Vince Foster's death, the right (the Reich?)has gotten some fun and profit from demanding that the left prove negatives. I'm a blogger, have fallen into this trap on countless occasions so I'm preaching from a run-off ditch, not a podium! But I think giving birthers, creationists, and folks like Freedom Works any space and attention is a mistake.
On the other hand, a clarification of eligibility for the presidency is very useful. But I keep wishing that we all would put as much time and muscle into taking our own issues forward as we put into swatting at those annoying "conservative" gnats.
And by the way, I'm convinced that more basic issues (unmentionable issues, destructive issues, narrow-minded issues ) are motivating people like the birthers and tea party nuts than what they claim. "Integrity of the Constitution" is, at best, a side issue for these folks. Their fuel is supplied (Micah Sifry has noted) largely by groups in the South, TX, and (exception) Colorado.
You cannot reason with zombie hordes. These folks have been conditioned through hate radio and authoritarian teevee personalities to require emotional overload when confronted with inconvenient facts or logic.
They just got more red meat last night with a Kenyan birth certificate that is alleged to be Obama's.
These are the same folks who are bullying congress members with angry, misguided confrontations recently and will continue during the next recess. Shouting them down (borrowing the tactic) and merely confronting opposing opinions with discourse will only feed the mob atmosphere and provide more sensationalism to our news cycle. Hauling them out in handcuffs will do much the same.
This problem will not go away quickly despite its dubious origins and irresponsible nature.
Chester Alan Arthur was the son of Irish born preacher William Arthur and Vermont-born Malvina Stone Arthur.
MLS,
You should read the links. There's actually overwhelming legal authority against the proposition the phrase "natural born citizen" is connected to the citizenship of your parents (as opposed to the location of birth). That particular birther argument has very little support in the case law or other primary sources.
You're right that the other Birther argument (that if Obama was born in Kenya, he is not a "natural born citizen") is stronger (though it relies on the groundless factual assertion that Obama was born in Kenya). My point was not that this argument is frivolous from a legal perspective, but that it is not as strong as Birther's think. If I had to bet, I'd bet that the Supreme Court would reject it. But it conceivable could go either way. My point was that "proving" Obama was born outside the United States is only half the battle for these folks. They'd still face some high legal hurdles even if they got that far.
mls, in response to your comment, "No one is claiming that being a “natural born citizen” requires having parents who are themselves natural born citizens"
Actually, they are claiming that. Orly Taitz (I looked up the spelling this time) said it on CNN:
http://www.youtube.com/watch?v=xyw90ykQAEk
It's the 'last word' comment she makes right near the end, about 2:13 or so.
If she's saying this on CNN as part of her brilliant legal strategy, then you know it's being breathlessly parroted among the stupidos.
I believe Obama!
Obama said he was born in Hawaii - and I believe him.
Obama said he was governed by British Law AT BIRTH - and I believe him.
Not ONLY were both parents not US Citizens at the time of his birth here in the US, but Obama himself agrees that he was also under the rule of British Law when he was born.
Are you calling him a liar? If you believe him, as I do, then how do you explain that way? Would you actually have no trouble with that fact? With the fact that well AFTER his 21st birthday he travelled to Kenya (on Taxpayer dollars) to campaign for a PATERNAL relative who believes in Sharia Law.
And as if that isn't enough, now that he is a Pretendadent he appoints Harold Koh as a legal advisor. Koh not only believes in Sharia Law, but also transnationalism. If you don't know the meaning of both of these VERY UN-American ideals, look them up!
And you are right, neither McCain or Romeny were eligible - and neither is Bobby Jindal or Arnold Swartzeneger. None of them are NBC's!
Chester Arthur is the ONLY other president in history which did NOT meet the requirements set forth in the Constitution. Arthur, like Obama, knew this and he lied about many facts surrounding his birth. He lied about the year of this birth. He lied about his mother never leaving the US, and he lied about the port of entry for his father. His father naturalized 14 years AFTER his birth. Yes, he knew he was ineligible to be VPOTUS when he ran for office. Like Obama they will both go into the history books as Usurpers to the Office of POTUS.
Natural Born Citizen is NOT defined anywhere and therefore is an issue that MUST be taken up by SCOTUS and decided once and for all so. I believe, as Obama stated, that he was governed AT BIRTH by British Law - do you? If you don't think Obama is lying then you too MUST question is eligibility.
AL- as far as I can tell, none of the cited cases actually addresses the issue we are discussing, namely the meaning of the term “natural born citizen” in the Constitution. Therefore, describing them as “overwhelming legal authority” on this a point is a tad exaggerated. Certainly you would agree that the Supreme Court would not have to overrule any prior decision in order to side with the Birthers on this issue.
Obviously, there is zero chance that any court is going to declare Obama ineligible to be president. But this is true regardless of the legal merits of the Birthers’ claim. (For similar reasons, it is very unlikely that any court is going to declare Hillary Clinton ineligible to be Secretary of State, although the better constitutional argument, IMHO, would require that result). Most likely, the courts would dismiss any challenge on justiciability grounds.
Why should the Birthers give up just because they are never going to win in court? Assuming, for the sake of argument, that they actually care about the constitutional principle, there is no reason why they should feel bound even by cases on point, much less by predictions about how courts might rule if they reached the merits. They might plausibly claim that the constitutional question is one that should be settled in the political arena, either by the voters themselves or by the Congress. After all, there is nothing in the Constitution that says who decides on qualifications for the presidency (unlike with respect to Members of Congress, whose qualifications are decided by the House or Senate). Indeed, their argument would closely parallel that of liberals who claimed that the Supreme Court never should have intervened in the 2000 election dispute.
If one believes, as I do, that the Birthers are not really interested in the constitutional question, there is even less reason for them to give up. This is an opportunity for them to emphasize Obama’s foreign parentage and upbringing (something that Obama supporters don’t mind emphasizing either, so long as it is portrayed positively). Conversely, it is an opportunity for Obama supporters to portray Birthers (and conservatives in general) as subhuman racists with limited mental capacity.
So enjoy.
mls-
Just because AL is, IMHO, wrong, however, doesn’t mean that his position is frivolous or insane—the same holds true for the Birther argument regarding the meaning of the constitutional provision. My point was simply that as a matter of ordinary constitutional argument, there is nothing particularly outlandish (so to speak) about the claim that being a “natural born citizen” requires being born of two American citizens. As for AL’s suggestion that the Framers could not have possibly intended to exclude persons with one non-citizen parent, I submit that there is no evidence to support this contention (certainly AL has offered none). FWIW, I suspect that the Framers would be rather less shocked by the Birther interpretation of the constitutional clause than by, say, the idea that the Constitution empowers Congress to provide universal health care or that it establishes a right to an abortion.
See United States v. Wong Kim Ark, 169 U.S. 649 (1898).
Any person born in the US, even of non-citizen parents, is a citizen of the US, at birth, pursuant to the 14th Amendment. The 14th, which, in pertinent part reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” would seem to provide the most convincing clarification of whether a person born in the US is a citizen or not.
Logically following that, Wong Kim Ark, whose parents were both subjects of the Emperor of China, was a citizen at birth under the 14th, as he was born in San Francisco. If you can come up with a way to distinguish “natural born citizen” in Article II, and the discussion in Wong Kim Ark, you have my applause. But I certainly think the Supremes would have to overrule Wong Kim Ark to get past the conclusion that a child born in the US is, irrespective of parentage, a natural born citizen of the US. The English common law discussion on the definition of “natural born citizen” is fairly on point (the money quote):
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.”
Wong Kim Ark, 169 U.S. 649, 659.
Neither of the exceptions apply here, so the conclusion is obvious. The Kenya-birth theory I don't know much about, but since factually it's insane, I won't waste time researching it. However, my conclusion is any person born under the jurisdiction of the US is a natural born citizen (as distinguished from alternative methods of naturalization) by virtue of the 14th Amendment, no matter whether the parents are or are not citizens. Case law and common law seem to support that analysis. If you can point to a precedent where the alienage of parents determined the citizenship of a US citizen, please let me know. Otherwise, it seems all precedent favors AL's interpretation.
p.s. - there is another exception, that being Native Americans not subject to the jurisdiction of the United States. Obviously not at issue here.
Also some have said the legality of the parents presence at the time of the birth may be a hitherto unrecognized exception. However, Obama's mother was clearly legally in the US by virtue of her citizenship, so, besides having no basis in law, this theory of potential exclusion would seem to have no basis in fact, either.
Nerp- of course the Supreme Court would not have to overrule Wong in order to declare Obama ineligible. Wong involved a different constitutional provision, that has different language, a different purpose, and was adopted at a different time.
I agree that the English common law rule of citizenship would undoubtedly be a powerful argument against the Birther position. On the other hand, one could argue that the whole purpose of the “natural born citizen” requirement would be defeated if persons with a tenuous connection to the US (eg, the children of aliens temporarily sojourning in the US) were deemed to be “natural born citizens.” I am not saying that this is a strong argument, just that it is as at least as strong as a lot of constitutional arguments we take seriously.
There are two kinds of citizens, those born in the United States and those who obtain citizenship via statute. Those who obtain citizenship via statute are naturalized citizens. Those citizens who automatically obtain citizenship at birth via statute should be considered "natural born citizens". Those who are born in the United States obtain citizenship at birth via the Constitution and should also be considered "natural born citizens".
mls-
Nerp- of course the Supreme Court would not have to overrule Wong in order to declare Obama ineligible. Wong involved a different constitutional provision, that has different language, a different purpose, and was adopted at a different time.
All right, let me try to make my reasoning clear. Wong stated the common law meaning of “natural-born citizen” to mean “every child born in England of alien parents was a natural-born subject unless” the exceptions. The Court used this definition to determine the extent of the 14th Amendment. In short, the entire case rests upon this common law tradition. Read the whole case. Here's another goodie:
“The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle."
Id. at 693.
“Natural-born” is simply a method of naturalization. The common law based it upon the geography of the birth, without respect to the parentage. Wong explicitly relies upon this common law definition. You propose to add a dual parent citizenship requirement, not previously in existence under the common law. You cannot change the definition to require US citizenship of the parents without overruling Wong. Further, if you want to add it in, fine. However, Wong's analysis of the common law shows, that at the time of the adoption of the Constitution, the founders should have understood the phrase to mean citizenship by birth, irrespective of parentage.
Moreoever, the 14th Amendment undoubtedly altered the understanding of who was a citizen. After all, slaves or the descendants of slaves born in US were not considered citizens of the US prior to the 14th . Dred Scott. Thus, the original understanding of “natural-born citizen” has been altered by the 14th. So, to argue Article II in a vacuum without looking at the redefinition of citizen in the 14th is poor interpretation.
Since IANAL all I have to go on is what I see and hear spoken by those who display significant knowledge of the law. This is what I've gleaned so far:
1. I watched Taitz with Colbert, and, based only on that, I think she needs more powerful antipsychotic than her current prescription (but, IANAD, either). Colbert, who is normally pretty abrasive, seemed to realize that he was dealing with somebody who could have a breakdown right there, and he was downright gentle. She, on the other hand, was openly delusional.
2. Nerp gives us chapter and verse, and MLS waves his "oh, that's somehow different in some indeterminate way" wand -- but I don't see Nerp's argument going away.
Historically, citizenship of anyone born in the USA or its territories was unquestioned. Only the citizenship of immigrants was ever much of an issue, and then primarily as a means of racism or ethnic discrimination, practiced by that strain of American whose ideological roots go down into the authoritarian, exclusionary, and paranoid wellsprings of the right wing. How, after all, could someone born in a private home, with only a midwife (if that) present, produce proof of citizenship?
As for the facts:
3. Anyone who believes the "Obama wasn't born in Hawaii" stories is certifiably insane. While they may, on other matters, have a measure of rationality, they should never be trusted -- on anything. They may not be as nuts as Taitz, but they're not firing on all cylinders, either.
What are you talking about, MLS? The primary argument of the Birthers is that the Hawaiian birth certificate is false. Everything else are backup arguments. Do you agree that the Hawaiian birth certificate is false? Do you agree that Obama was born in Kenya? Do you think that is a rational position?
"Only the citizenship of immigrants was ever much of an issue, and then primarily as a means of racism or ethnic discrimination, practiced by that strain of American whose ideological roots go down into the authoritarian, exclusionary, and paranoid wellsprings of the right wing."
Questioning the citizenship of immigrants is relatively recent, actually. For many, many years before the passing of immigration regulations, immigrants were registered to vote as soon as they stepped off the boat. It was only during the great immigration boom of the second Industrial Revolution that anyone thought to put any limits on immigration or the citizenship of immigrants, and those restrictions paled by comparison to the laws passed post-WWII.
There actually is clear statutory law and Supreme Court precedent on what constitutes a 'natural born' American citizen. I've mentioned the statutes, nerp mentioned the court ruling.
As for the notion of the Framers' intent... I have to agree with mls's accusation that many of us don't think it matters. The Framers were an oligarchic elite (with a very /small/ number of exceptions, like John Adams and Alexander Hamilton, who had all been admitted to the elite through personal associations to its leadership) with extremely limited views on what constituted a citizen.
If the Framers' intent (the majority of the Framers, anyway) were followed, only white male property owners would be considered full citizens at all and the rest of the country would be second class adjuncts to 'the real America.' So I agree that, in most cases, the GOP is probably closer to the Framers' real intent than anyone else.
That isn't necessarily a good thing.
This post has been removed by the author.
Take a look at the following article (its from MSNBC so it must be accurate!). I am trying a link
here but if it doesn’t work this is the address (www.msnbc.msn.com/id/23415028).
The article states:
"Sen. John McCain, R-Ariz., and his advisers are doing their best to brush aside question — raised in the liberal blogosphere — about whether he is qualified under the Constitution to be president. But many legal scholars and government lawyers say it's a serious question with no clear answer.
But is John McCain a natural born citizen? The Constitution does not define the term further, and legal scholars say the notes of the Constitution's drafters shed little light on what they meant. It seems clear only that the founders wanted to make certain that whoever was president would be loyal to the U.S. alone and not to some other country. But the term "natural born citizen," many scholars say, was not in common use at the time the Constitution was written."
So I would ask whether you think that the liberal bloggers, legal scholars and government lawyers who questioned McCain’s eligibility were nuts like the Birthers. If the answer is no, why not?
Now I take it that Nerp’s argument would be that, contra the article, the term “natural born citizen” had a clear and fixed common law meaning at the time the Constitution was written. To reach a fully informed opinion on that question one would have to do a great deal of research and reading that I suspect none of us has done. I have at least perused the limited scholarship on this question and my impression (I claim no more than that) is that the MSNBC article is right and Nerp is wrong. It is partly for that reason that I was persuaded by a law review article concluding that Congress has the power to define who qualifies as a “natural born citizen” for purposes of the constitutional provision.
Nerp argues that his position is conclusively supported by the Supreme Court’s decision in Wong to the extent that the Court would have to overrule its precedent in order to accept the Birther interpretation of “natural born citizen.” But Wong is not addressing the meaning of the presidential eligibility clause or the meaning of the term “natural born citizen” in 1787. As AL suggested in his original post, its opinion is only tangentially relevant to these questions. So the Court would in no way be bound by stare decisis to reject the Birther argument.
It is true that some of Wong’s language, specifically the reference to “natural born subjects” under English common law, would be useful to the anti-Birther argument. But there is a big difference between having useful dicta to cite and having a Supreme Court decision directly on point. Moreover, since the constitutional issue here is very likely never going to be decided by the courts (and arguably is one that the courts have no power to decide in the first place), the relevance of this language is even more attenuated.
What is notably missing from this discussion is any reference to the reasons that the Framers wanted to restrict the presidency to “natural born citizens” (namely “to make certain that whoever was president would be loyal to the U.S. alone and not to some other country”). As I pointed out before, this seems strange because we normally look to constitutional purpose as a way of understanding the meaning of ambiguous provisions.
I suspect that the reason for this silence is more or less the same reason that the Birthers want to bring up the matter in the first place. If one accepts the premise that someone with foreign roots might not be sufficiently loyal to the US, Obama’s foreign upbringing and his “U.N.-like” family appear in a different light. That why I am surprised by AL’s professed mystification over the purposes behind the Birther theories.
MLS,
The fundamental difference between the McCain and Obama situations is that the former was based on undisputed facts. McCain was born in Panama (and outside of the Canal Zone at that). Thus the legal issue was not premised on a groundless factual assertion (i.e. that Obama was born in Kenya).
You only reach the "McCain issue" with Obama if you disregard all the evidence that he was born in Hawaii and accept all the baseless assertions that he was born elsewhere.
I agree, though, that *IF* Obama was born in Kenya, it would present the same legal question as the one raised about McCain. And I agree that this is an open legal question (though I assert that if a court were to rule on it, it would be unlikely to adopt a definition of "natural born citizen" that excludes children born to U.S. citizens who are traveling or temporarily stationed abroad.)
mls-
Take a look at the following article (its from MSNBC so it must be accurate!). I am trying a link
here but if it doesn’t work this is the address (www.msnbc.msn.com/id/23415028).
The article states:
...
So I would ask whether you think that the liberal bloggers, legal scholars and government lawyers who questioned McCain’s eligibility were nuts like the Birthers. If the answer is no, why not?
Well, I don't know if I'd go and say “nuts.” Two key things – most people think the birthers are nuts because Obama was clearly born in Hawaii, not Kenya. Now, if a subsection are arguing he was born in Hawaii, but because his father was not a US citizen, he is not a natural born US citizen, I would say that subsection is not “nuts”, but clearly wrong on the law. My point is not that is an impossible argument to make, but the force of precedent and the common law are against someone making the argument. The reason why McCain's situation is different is, contra the common law definition of “natural born citizen” as understood from the overwhelming common law history in Wong (and completely uncontroverted by you), he was not born on US territory, rather at a hospital outside of the canal zone, which was always sovereign territory of Panama. Now, I certainly think an exception is appropriate there, but like the scholars say, and I agree, it isn't an open and shut case, even though both his parents were US citizens.
Obama, on the other hand, was born on sovereign US soil, and is therefore, rather undisputedly, a natural born US citizen, because the nationality of his parents is immaterial, as thouroughly discussed in Wong as the basis for its holding as to the meaning of citizenship under the 14th.
Now I take it that Nerp’s argument would be that, contra the article, the term “natural born citizen” had a clear and fixed common law meaning at the time the Constitution was written. To reach a fully informed opinion on that question one would have to do a great deal of research and reading that I suspect none of us has done. I have at least perused the limited scholarship on this question and my impression (I claim no more than that) is that the MSNBC article is right and Nerp is wrong. It is partly for that reason that I was persuaded by a law review article concluding that Congress has the power to define who qualifies as a “natural born citizen” for purposes of the constitutional provision.
Only because you are comparing apples and oranges. McCain's status is questionable because he was not born on sovereign US soil. So, the article is correct, and so am I.
Nerp argues that his position is conclusively supported by the Supreme Court’s decision in Wong to the extent that the Court would have to overrule its precedent in order to accept the Birther interpretation of “natural born citizen.” But Wong is not addressing the meaning of the presidential eligibility clause or the meaning of the term “natural born citizen” in 1787. As AL suggested in his original post, its opinion is only tangentially relevant to these questions. So the Court would in no way be bound by stare decisis to reject the Birther argument.
Have you read the case? Have you read the quotes I gave you? How do you implement your definition without saying Wong got the definition wrong (since it is clearly what I have said it is)? And you still don't address the fact you are reading Article II without even glancing at the effect the adoption of the 14th could have upon it.
It is true that some of Wong’s language, specifically the reference to “natural born subjects” under English common law, would be useful to the anti-Birther argument. But there is a big difference between having useful dicta to cite and having a Supreme Court decision directly on point. Moreover, since the constitutional issue here is very likely never going to be decided by the courts (and arguably is one that the courts have no power to decide in the first place), the relevance of this language is even more attenuated.
Now your argument is just no longer serious. It isn't just “some of Wong's language,” it's the entire thing. The case is long, and cites tons of common law understanding of the meaning of the term. You throw out the case without presenting one contrary understanding of the common law term.
What is notably missing from this discussion is any reference to the reasons that the Framers wanted to restrict the presidency to “natural born citizens” (namely “to make certain that whoever was president would be loyal to the U.S. alone and not to some other country”). As I pointed out before, this seems strange because we normally look to constitutional purpose as a way of understanding the meaning of ambiguous provisions.
I suspect that the reason for this silence is more or less the same reason that the Birthers want to bring up the matter in the first place. If one accepts the premise that someone with foreign roots might not be sufficiently loyal to the US, Obama’s foreign upbringing and his “U.N.-like” family appear in a different light. That why I am surprised by AL’s professed mystification over the purposes behind the Birther theories.
Maybe. That's a fine argument. It still has to get past the fact that the common law meaning, which is assumed to have been known by the framers, is that he is a natural born citizen by virtue of his birth on US soil. You still have not cited one case or source demonstrating parentage is important. Indeed, the irony is you cite McCain's situation, in which both his parents are US citizens, as a disputable legal question, but can't come up with something that would bring Obama's Hawaii birth by a US citizen and a foreigner in doubt.
mls writes:
"What is notably missing from this discussion is any reference to the reasons that the Framers wanted to restrict the presidency to “natural born citizens” (namely “to make certain that whoever was president would be loyal to the U.S. alone and not to some other country”). As I pointed out before, this seems strange because we normally look to constitutional purpose as a way of understanding the meaning of ambiguous provisions."
Actually, no. I addressed this directly, specifically.
I think what I said addresses the question of the Framers' intent pretty directly. I'll say it again though, simply because it never hurts to repeat things ad nauseam. I learned that from conservatives.
I think the Framers' intent is one of the least important questions in deciding constitutional questions. The Framers clearly did not intend to include a full description of 'natural citizenship' in the national constitution for the reason that, at the time, questions of citizenship were left nearly entirely up to the individual states. If I remember correctly (and I could be wrong in noting these exceptions, the laws I am thinking of may not have passed yet) only two or three states even had laws granting universal manhood suffrage when the Constitution was drafted. The majority of states restricted voting rights to those white males who passed means tests (based on the old Roman system of property ownership) and literacy tests. Apprentices, wage earners, women, and anyone who was not white was, by default, not a citizen.
So it's pretty clear, for a big glaring reason the size of Dick Cheney's bald head, that Barack Obama is not a 'natural born citizen' by the standards of the Framers of the Constitution... a reason that has nothing to do with where he was born, the citizenship status of his birth father, or the religion of his stepfather. I don't think I have to spell it out.
The majority of the country has pretty much decided the Framers were wrong on that one, though I sometimes wonder if that isn't the majority of the Birthers' /real/ objection.
Of course the question of whether someone not a 'natural born citizen' of the country was related to concerns of loyalty to a foreign power. The major reason that issue isn't specifically addressed is because the question of 'natural born citizen' has been addressed by the clear proof of Obama's American birth and the clear status of the 'natural born citizenship' of American-born American citizens.
The question of Obama's 'American ideals' is one I don't think mls and I are ever going to agree on. Personally, I find it 'un-American' to think a corporation has the right to place limits on the Constitutional freedoms of its employees. But President Obama, in choosing to downgrade the priority of passing the EFCA, and Senate Democrats, in dropping the card check provision, disagree with me. As does every conservative I've ever spoken to on the subject.
The John McCain debate was silly, in my opinion, and the liberals advancing it were being purely partisan. Just as conservative Republicans backing Nixon in the 1968 primary were being purely partisan when they questioned George Romney's status as a 'natural born citizen' because of his birth in Mexico to Mormon missionaries. Just as the Birthers are being purely partisan now.
I think I covered all the points. Again.
Reference was made to citizenship in "territories." This is a somewhat tricky issue. Consider that being born in America Samoa does not by itself make you a U.S. citizen.
Citizenship in territories, particularly those obtained overseas, tends to grow out of treaty obligations and federal law. Such was the case when we bought Louisiana and won land from Mexico. Native Americans were made citizens via statute in the 20th Century.
This is where McCain comes in. Mssrs Tribe and Olsen argued that he was a citizen for various reasons, including the fact his father was a member of the military. Thus, a law passed after his birth that applied to his situation was not necessary.
Either way, federal law (since 1790) has specifically recognized - with various requirements (e.g., the five year residency that was not met in Obama's fictional birth in Kenya) -- the natural born citizenship of those born overseas to parent(s) who are/were citizens.
Birth in one of the U.S. states was always deemed enough. In fact, reasonably, the minority view in Dred Scott v. Sandford argued it applied -- if a state agreed -- even to blacks. The 14A made it crystal clear as a federal rule.
I'd add ironically if Obama's parents were not married, the law at the time made it easier for a fictional birth in Kenya to a citizen mother to be a natural born citizen -- only a year residency in U.S. was enough, not the five past 14 that she did not make at the time of his birth.
Birthers should not press the "they weren't married" line too much. Just my part for the cause.
Someone should make a video about those criticizing birthers because, you know, the motivation of birthers and birther critics is the same. Until then, we do have this:
New Explosive Video about the Birthers!
Post a Comment
Links to this post:
Create a Link
<< Home