Monday, May 28, 2012

Is Barack Obama a Native-Born Citizen of the United States?

Obviously this is a hot topic these days. Voters in Georgia challenged Obama's qualification to run for office earlier this year and, despite the fact that Obama submitted no evidence whatsoever in his case and, in fact, refused to appear at the hearing, their challenge was dismissed. And with good reason. Here is an interesting article about the subject, which I will tear apart in the remainder of this posting.

So that article cites "Top constitutional expert Herb Titus" in support of its proposed definition of "natural-born citizen" to mean someone who is born of two parents who are U.S. citizens. He also claims that a Supreme Court case has definitively held in his favor. This one. As you can see from this brief description (which is an accurate summary of the decision), it holds simply that the Fourteenth Amendment does not guarantee women the right to vote.

Anyone familiar with the Constitution already knows that, though, because if the Fourteenth Amendment did guarantee women the right to vote, there would have been no Nineteenth Amendment. Following is the excerpt from the case that Titus uses (though I have included the entire paragraph, instead of just the sentences I like):

“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their *168 parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words ‘all children’ are certainly as comprehensive, when used in this connection, as ‘all persons,’ and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.” 88 U.S. 162, 168 (Full text, if you're interested)

As you can see, the Court did not actually DECIDE what exactly it takes to be a natural-born citizen. All they decided was that a white woman born within the United States at some point before 1851 was a natural-born citizen because she had been born in the United States to parents who were, themselves, citizens of the United States. This decision was drafted by the Chief Justice at the time, who was not known for being a particularly liberal or expansive legal thinker. If he had intended to limit the scope of natural-born citizenship to only the first class of people discussed, why would he have even brought up other definitions that some experts support?

Specifically, the Court acknowledged that under the common law (which, for clarity, was the judge-made law of England predating the founding of the United States on which much of U.S. law is modeled), “some authorities go further and include as citizens children born within the jurisdiction without reference of their parents.” As you know, this is how U.S. citizenship works since the Fourteenth Amendment, which said: “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.”

Notwithstanding the fact that Titus is wrong on the law and the case brought in support, let’s look at the implications of his definition of natural-born citizen. If one is not a natural-born citizen unless one is born within the United States to parents who are both citizens of the United States, then it stands to reason that nobody born before 1776 was a natural-born citizen. That means George Washington, John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams, Andrew Jackson, and William Henry Harrison were not natural-born citizens. If that list looks familiar, it should: Those are eight out of the nine first Presidents of the United States. If we define it based on the ratification of the Constitution in 1789, then Martin Van Buren, our eighth President, also fails.

Now, obviously, their Presidencies are saved by that subclause “or a Citizen of the United States, at the time of the Adoption of this Constitution,” but still, it begs an interesting question: How is it that two people can grant their child a citizenship status that they don’t have themselves? The answer is simple: it's because whether or not a person is a natural-born citizen has nothing to do with his or her parents' citizenship: not inherently, anyway. A child’s citizenship isn’t just the average of his or her parents’ citizenship. A child is a natural-born citizen if he or she is a citizen of the United States upon his or her birth. No other definition makes any sense.

So the Fourteenth Amendment makes it clear that Barack Obama is a natural-born citizen, because he is a “person born . . . in the United States.” John McCain, who was not born in the United States, is also a natural-born citizen, because he was born to two citizen parents. But it isn’t the Constitution that makes him a natural-born citizen; it is federal law, which declares that the child of two citizens, wherever born, is a citizen of the United States unless he or she renounces that citizenship.

If Congress were to pass a law tomorrow declaring that every person born is a citizen of the United States, they could do so, and then in the 2048 election, a 36 year-old up and comer from China, India, or Brazil could storm into the American consciousness and be elected President. Assuming she could garner the votes. Such a decision about citizenship in the United States would have huge political implications for the legislators who passed it, obviously, and it would require a complete restructuring of our tax system (no more taxing foreign income of citizens living abroad), but it's not constitutionally prohibited.

Ultimately, we can't govern ourselves based off what the Founding Fathers wanted. All we can do is look at what they said, and take it for what it is: wise advice from people who were a hell of a lot smarter than most of us.

1 comment:

  1. A question from a Facebook thread about this blog entry: "But: are babies born by Caesarean section "natural born?". I would say not. Probably the Court hasn't considered that question."

    Answer:
    I'll refer you to two things: First, I argued that the proper definition of "natural-born citizen" is a person who is a citizen of the United States from birth. I will not deviate from this definition. Then I will provide you again with the text of the first sentence of the first clause of the Fourteenth Amendment: "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."

    So, to the extent that a child delivered through caesarean section delivery is "born," he or she is a "natural-born citizen" if he or she is a citizen from that point. So the Fourteenth Amendment tells us that, again to the extent that a child delivered through caesarean section delivery is "born," such a child is also a natural-born citizen of the United States.

    I doubt I'll hear much serious argument that a child delivered through caesarean section delivery is not born...right?

    ReplyDelete