He's Not My President?

Thoreau: "Government is Best Which Governs Least"

Natural Born Citizen — Chapter 4: The 14th Amendment

Change to United States citizenship law

Since it has been noted that the United States Constitution does not define natural born citizen in Article II, Section 1, we must look at all other Articles and Sections within the Constitution as well as its Amendments to discover whether or not the issue is addressed and the words natural born citizen have been defined.  Within the original Constitution no other mention of natural born citizen is cited.  There are certainly other sections of the Constitution where requirements to hold office are detailed.  For example, in Article I, Section 3 of the U.S. Constitution, the requirements to hold the office of Senator is stated as follows:

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.[i]

There is no mention of natural born citizen in the requirement for Senator, simply the requirement to be a citizen for nine years.  John McCain’s place of birth and Barack Obama’s Father’s citizenship would not, therefore, necessarily preclude these men from meeting the citizenship requirements to be U.S. Senators.

On July 28, 1868, the 14th Amendment to the United States Constitution was ratified by the required three-fourths of the States.  The 14th Amendment directly dealt with the issue of citizenship and provided for citizenship to former slaves recently freed via the Civil War and the Emancipation Proclamation.  Also known as the “Reconstruction Amendment,” the 14th Amendment begins:

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.  No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[ii]

When the debate regarding Barack Obama’s citizenship first surfaced, many of Barack Obama’s supporters pointed to the 14th Amendment as their proof that Barack Obama was eligible to be President.  The argument they make goes something like this:

… Barack Obama is, in fact, a natural-born citizen of the United States, for the simple reason that he was born on American soil (in Hawaii, two years after it acquired statehood). The age and citizenship status of Obama’s parents at the time have no bearing on Obama’s own citizenship.

Any confusion on this point is the result of misunderstanding the legal concepts of jus sanguinis (right of blood) and jus soli (right of birthplace).[iii]

We learned earlier in our discussion that de Vattel unequivocally believed that both jus sanguinis (right of blood) and jus soli (right of birthplace) were requirements to be natural born citizens not simply jus soli (right of birthplace) as the above argument contends.  In addition, it has always surprised me that the 14th Amendment has been relied upon so heavily by those who argue it makes Barack Obama a natural born citizen as nowhere contained therein is the term natural born citizen. 

I was not aware until today, however, (a day after posting this chapter of the book) that referenced on one of Barack Obama’s campaign websites Fight the Smears was a statement regarding Barack Obama’s citizenship with reference made to the 14th Amendment.  While reading a respected legal blogger known as jbjd, I found the following post “If Drowning out Opposing Facts is ‘Un-American,’ then Ignoring Unpleasant Facts Must Be Un-American.”[iv]  In the blog post, jbjd references the Fight the Smears website which states:

Senator Obama was born in Hawaii in 1961, after it became a state on August 21st 1959.  Obama became a citizen at birth under the first section of the 14th Amendment. [v]

It is amazing that a candidate’s own website would reference a citizenship amendment via the 14th Amendment declaring that the candidate is a citizen when it is distinctly evident that the qualification for President is to be a natural born citizen.

For those that are still convinced that the 14th Amendment proves that Barack Obama is a natural born citizen by virtue of his birth in Hawaii, let us look at the words of John Bingham credited as the father of the 14th Amendment.  Mr. Bingham said in 1866 while speaking to the first session of the 39th Congress:

I find no fault with the introductory clause, 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; but sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or the color of power to say that any man born within the jurisdiction of the United States, not owing foreign allegiance, is not and shall not be a citizen of the United States.  Citizenship is his birthright, and neither the Congress nor the States can justly or lawfully take it from him.[vi] (Emphasis added)

In the Congressional record, John Bingham makes clear reference to a difference between natural born citizens and citizens that difference being jus sanguinis, i.e., the citizenship of the parents.   I ask those proponents of Barack Obama’s natural born citizenship status how then does the 14th Amendment support that status when the father of the 14th Amendment , John Bingham, in his own words states:

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…[vii]

Barack Obama’s father was a British Citizen temporarily residing in the United States while he attended school.  Barack Obama’s father clearly owed allegiance to a foreign sovereign.  In the words of the father of the 14th Amendment that makes Barack Obama a citizen of the United States of America but not a natural born citizen. 

For those who deny the importance of this statement, we shall look at those significant cases on citizenship that followed the 14th Amendment to see if we can find any indication that the understanding of natural born citizenship that Mr. Bingham purported has somehow changed in meaning and application.


[i] Cornell University Online Constitution — http://www.law.cornell.edu/constitution/constitution.articlei.html#section3

[ii] Cornell University Online Constitution – http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html

[iii] About.com in the comments section of a post entitled: “Email Claims Barack Obama Isn’t a Natural Born Citizen” — http://urbanlegends.about.com/od/barackobama/a/obama_citizen.htm

[iv] Word Press Blog by jbjd “If Drowning Out Opposing Facts is ‘Un-American,’ then Ignoring Unpleasant Facts Must Be Un-American, Too” — http://jbjd.wordpress.com/2009/08/13/if-drowning-out-opposing-facts-is-un-american-then-ignoring-unpleasant-facts-must-be-un-american-too/#comment-839

[v] Word Press Blog by jbjd “If Drowning Out Opposing Facts is ‘Un-American,’ then Ignoring Unpleasant Facts Must Be Un-American, Too” — http://jbjd.wordpress.com/2009/08/13/if-drowning-out-opposing-facts-is-un-american-then-ignoring-unpleasant-facts-must-be-un-american-too/#comment-839

[vi] The Congressional Online Record “The Congressional Globe p. 1291” — http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=332

[vii] The Congressional Online Record “The Congressional Globe p. 1291” — http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=332

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Written by KJ Kaufman

August 12, 2009 at 1:01 pm

6 Responses

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  1. What a great find from John Bingham.

    The evidence is mounting.

    yo

    August 13, 2009 at 9:03 am

  2. Just so; and I think what smrstruss guoted from the preliminary chitchat was the Brit side attempting to assure that NB Subjects of theirs would be considered NB Citizens of the US States. Even into the 1830 there were still many in the US who were “loyalists” in favor of beinging back the English king. An ancestor of mine in his handwritten journals traveled the then-US widely (including witnessing and describing the assination attempt on Jackson) and commented upon the loyalist arguments.

    The Brits had not yet fully reconciled the difference between subjects and citizens nor did they realize that even NB Citizens of the States would not be the same as A2 NBC (for presidential eligibility purposes) in the federated nation if they were even aware of that sentiment during the “prelims” – which I think is doubtful.

    jtx

    August 26, 2009 at 7:52 pm

    • Thank you for this information. Very interesting.

      As you will see in the comments sections of future chapters, smrstrauss and I continue to spar. I think his arguments are false, but I appreciate the dialog with him because that is one of the purposes of this book is to begin a national dialog on the subject.

      curi0us0nefromthe60s

      August 26, 2009 at 8:31 pm

  3. Hello all,

    Re. The 14th Amendment.

    There are some excellent research papers and essays written by several well informed people in TheBirthers.org site. In particular to this thread, there is an excellent piece about the 14th amendment.

    Also, you may wish to take a look at the research and essays of Greschak and Tonchen. Go to The Birthers site and then put your cursor on the Natural Born section, then Research, and you will see a selection of good writings there on the NBC issue and the 14th Amendment. I even see they have added a link to your book work in process. But do read the Greschak and Tonchen work. They are excellent.

    http://www.thebirthers.org

    M Publius Goat
    Goat’s Ledge:
    http://countryfirst.bravehost.com/phpBB3/viewforum.php?f=105

    P.S. Also read the Logical Analysis of a NBC which is linked to in TheBirthers.org site via a Euler Diagram logo in the right frame of the home page. It is excellent too.

    mtngoat61

    August 28, 2009 at 1:06 pm

  4. Just got done reading Chapter 4. My take is that in the address to the 39th session, you bring up a valid point, in that Bingham interprets what he believes is the constitution implication on natural-born status.

    First, he states that the constitution already defines what natural-born is ie “born…of parents”(he says “in the language of your constitution”, my only problem is that those words that he said do not exist in the constitution. Was this a misquote? or was there a draft having this statement that was left out in 1787?). This claim also implies that the 14th amendment wasn’t even necessary, right? The slaves did not have any foreign allegiance, i don’t think so? If anything slaves were sort of like American subjects, similar to British subjects. This could again bring up an argument of whether a subject is the same as a citizen. Was the 14th amendment meant only to make slaves citizens? If that’s the case, then no one with parents having foreign allegiance should be entitled to citizenship at all. My interpretation of his statements is an all or nothing due to the choice of his words.

    Second, he states that congress has no right to determine the citizenship of one born in the US. I disagree that in the 2nd part he was declaring a different kind of citizenship since he repeats the statement “not owing foreign allegiance”. My opinion is that in the part that follows the “but sir,”, he was mainly implying that citizenship is a birthright and re-stating what he believed the constitution meant on this. If he believed that children born “with foreign allegiance” are simply citizens, he would have clarified this in the second part by saying “owing foreign allegiance” and not “not owing foreign allegiance”. No where does he comment about children born with foreign allegiance being entitled to simple citizenship.

    Another point I want to clarify is the status of Obama’s dad. The British Nationality Act simply made him a British subject. The act also used the term Commonwealth citizen. However the act did not imply that a Commonwealth Citizen was the same as a citizen of the UK. You can even tell by the way it was crafted, that the British really wanted to keep that distinction throughout the Act, they wanted commonality but not equality. So technically, Obama Sr. was neither a UK citizen nor a Kenyan citizen when Obama was born, which puts his British subject status similar to that of the founding fathers who were US Citizens (naturalized and therefore not required to denounce foreign allegiance) but also were British subjects. Now if Obama was born to a British citizen or a Kenyan citizen, I could see how this argument would be different. So if Obama is not eligible for POTUS, does this mean, that the first generation Americans, ie those born of British subjects(founding fathers), too were not eligible to be POTUS?

    There’s a can of worms that am also debating whether I should open! That is, that the constitution bars non-natural born citizens from qualifying to be POTUS. The grammar and placement of the comma can be debated. I believe the comma after “or a citizen of the United States” is what has lead to this. It would imply that only natural born citizens and citizens at the time of adoption of the constitution would be eligible – of course this wouldn’t make sense at all for subsequent generations! Removing the comma, then makes sense, but am NO grammar expert, so I will leave this debate to the English linguistic experts!

    Bottomline is that the term natural-born has only been discussed, scrutinized, debated but not ruled on, nor defined in language, so no one can claim as to what it assertively means. If our current government is wrong in the interpretation, so could Bingham have been wrong(depending on what you believe his word meant).

    My fear is that this becomes a political issue where it is subject to differing opinions where no one is right or wrong, eg abortion (highly controversial but valid points on either sides), and both sides are milking the issue for political gain. If for a fact, that Obama’s father’s British subject status poses a threat to the sovereignty (which I doubt it does), then it should be looked into. I don’t see any sovereignty issue, since the other requirements and the entire process to become POTUS have been met and ensure that a POTUS is really American by way of life as opposed to by way of technicality.

    I would also rather focus my energies on amending what is practically amendable, trying to make government more efficient (smaller if possible), work for the people and not against the people – ensure a level playing field for all, rich/poor, able or disabled.

    Am in no way discouraging you from publishing this book, but encouraging you to put the same energy in other areas of our laws, where such efforts can be quickly/rationally/practically implemented and later appreciated by the great citizens of this country, and those to be. We can differ in opinion and methodology but it doesn’t mean we can’t get along or get ahead with our respective goals. Lets rationally compromise, and not irrationally demonize each other.

    Curious Dude

    September 25, 2009 at 10:48 am

    • From Editor: Another terrific post by my new friend Curious Dude. I really appreciate the rational approach that you take in your comments. I encourage you to read chapte 8 on dual and multi-citizenship where I discuss both the British Nationality Act and the Kenyan Constitution.

      At one point, in my draft of the book, I discussed what you touched on in the paragraph where you stated “POTUS is really American by way of life.” In that section draft I looked at the life of Barack Obama which included spending 4 years living in Indonesia. I later decided to redact this portion of the book because it dealt with subjective rather than objective content. I instead focused on issues in this area in chapter 9 entitled Allegiance.

      We are certainly in agreement that this matter is not settled. And neither of us can definitively determine who is a natural born citizen.

      I also agree with you that smaller government should be the goal of all Americans as in my opinion reducing the size of the government is the best way to ensure that our liberty and freedoms are preserved. I am active in promoting this agenda through my local, state and federal representation.

      Finally, I spent my time on this book because I wanted people to be able to see the story of natural born citizen as it related to the 2008 presidential election from start to finish. I have attempted to be as fair as I can be and to quote only legitimate sources in all of my arguments.

      I posted my final chapter of the book today, chapter 15: conclusive remarks. You can find in this chapter more information as to why I felt this issue was important enough to spend as much time as I have writing this book.

      curi0us0nefromthe60s

      September 25, 2009 at 11:45 am


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