Obviously, this is a controversial subject, and one that threatens to push those who discuss it into the weeds of that field now dubbed “birtherism,” but there is some news on this front that I believe does deserve coverage, if only because whether one believes Barack Obama to be ineligible to the office of President of the United States, or instead believes the whole issue to be a load of nonsense, it is now an issue at controversy in several courts around the country. There is a certain red letter that becomes attached to people or sites that spend much time on the issue, and that letter is “K” for “kook,” but in fairness to those concerned, there are significant issues at stake. The question is: How seriously should we take any of them? I won’t be spending more time than this on the matter without significant developments in the case, but I do believe we should at least be aware of the issues in controversy as a matter for voters to consider, (or not.)
Let us back up a bit and examine the nature of the claim against Barack Obama, and why it matters, if everything or anything the so-called “birthers” contend is true. In the United States Constitution, set forth in Article II, that pertains to the executive, the qualification of those who hold this office are set forth in Section 1, in the fifth clause:
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
To examine this fairly, let us consider first the plain truth of what this says. A person, to be eligible for the presidency, must be thirty-five years of age, apparently by the time of inauguration to it, and must have been a resident fourteen years within the United States, and must be a natural born citizen, or a citizen at the time of the adoption of the constitution.
From a factual point of view, it appears by all accounts that he has been a resident fourteen years, and it is clear that he is older than thirty-five years of age, so all that remains to be considered is the citizenship clause, and indeed, this is where the controversy attached to so-called “birthers” arises. One section of this list of qualifications is obsolete, and that is this piece:
“or a Citizen of the United States, at the time of the Adoption of this Constitution”
This odd distinction is no longer applicable, but it is important because it is a distinction, and because while no longer operative, it offers a clue to the intent of the framers. This clause was inserted to permit some of those then alive, who would not meet the definition of natural born citizen to be eligible to that office. After all, the United States was a new country, and all of its people had at one time owed their allegiance to the British empire, so that people like Washington, Jefferson, Adams, and all the rest of that generation had been British subjects, and not citizens of the United States from birth, or, as we shall find, not having been born to two citizen parents. This entire requirement regarding citizenship is formulated in response to the question of loyalties. It was assumed that those who had no attachment by birth or culture to the United States might have no particular qualms about undermining it. It is therefore clear that the framers had intended our President to always be a loyal citizen from birth, that there would be less chance of a usurper with no loyalty to the country who might rise to occupy that office.
What the US Constitution does not do is to define the term “natural born Citizen,” and nowhere in its text can you find anything to reference on the matter. Instead, we are left to find the meaning of that term, as distinct from “citizen” elsewhere in law. At the time of the founders, the common law understanding of the terms appears to have been that a natural born Citizen is one born in the country of which both parents were citizens. This understanding of the term has a precedent in law, with the 1875 U.S. Supreme Court decision, Minor v. Happersett:
“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.”
Let me give you the short version: To be a “natural born citizen,” as late as 1875, one must have been born in the United States to two citizen parents. If this is the controlling legal authority for the definition of the term “natural born Citizen,” then we have a problem. If this is the strict definition of the term, there can be no way for Barack Obama to be a “natural born Citizen,” because he his father was not at any time a US Citizen, but instead a subject of the British crown, or a citizen of the nation Kenya.
This is then the central question under examination by so-called “birthers.” There have been some subsequent cases that may override the earlier definition, but the problem is this: It’s really a straight-forward matter if the definition is as defined in Minor v. Happersett. It is on this basis that the parties have been dueling in court these last four years, because on this simple matter of definition, turns the eligibility of Barack Obama.
There are other arguments too, about forged birth certificates, and hoax Kenyan birth certificates, and a whole lot of hyperbole that has more or less caused the issue to devolve into a circus with one side pointing at the other and calling them “wearers of tin-foil hats” while the other side points back with accusations of “koolaid drinkers,” and so on, but the matter may hinge on the definition of that one term in Article II, Section 1, Clause 5: What is a “natural born Citizen?”
Apart from the circus atmosphere that erupts from any making this particular claim or challenge to Barack Obama’s eligibility to that office, those who make this claim have an initial obstacle to pressing their case: As in any matter, the plaintiff must show legal standing before the court, and the court must take jurisdiction over it. That has been the primary defense used by Obama’s legal team to tamp all of this down: Those raising the issue have no standing before the courts in the matter, or that the courts themselves do not have jurisdiction over it. This has served as a very effective shield to the questions ever gaining traction in a court of law.
As WND is reporting, there is now a case in process in the state of Georgia, wherein citizens can challenge the eligibility of anybody who wishes to be placed on the ballot. There, Obama’s legal team is making two very different arguments, composed of asserting that because he is already president, this issue is mooted, but also that because he is president, he hasn’t the time or the obligation to answer to some lowly court in the state of Georgia over what his lawyers contend is a federal matter of jurisdiction.
Unfortunately for Obama, the judge in the case has refused to quash a subpoena on the basis of his legal team’s claims, stating that they may have the authority to do so on the basis of some executive privilege, but that they have yet to demonstrate its existence to the court. This is actually a huge win for the so-called “birthers,” because it implies that the case must go forward. In the end, what is at stake is ballot access for Barack Obama in the state of Georgia.
Of course, there are other arguments about Obama’s eligibility, including notions about becoming a citizen of Indonesia subsequent to his birth, and being re-naturalized as a US Citizen. That too would make him ineligible, and the biggest obstacles to the cases brought around the country on that basis has been standing and jurisdiction, and the ability to subpoena records.
In researching this, what I’ve found is that there has been a vast and effective propaganda campaign against so-called “birthers,” trying to lump them all into the tin-foil-hat wearing ranks of conspiracy nuts, but not all of their claims are so “kooky” on closer examination. Instead, what you find is that the group has been marginalized by grasping occasionally at hoaxes, like “Kenyan Birth Certificates” and other such things that have thus far all turned out to be frauds, at least insofar as my research has concluded.
I also think there’s another case to be made here, and that has to do with the intent of the framers. What this requirement was clearly intended to create was an effective obstacle to the plotting of subversives who would take over the United States by acts of usurpation, rather than by open warfare against them. In this sense, one could conclude that many of the beliefs of Barack Obama are foreign to American governance, and indeed seem preoccupied with the notion of overturning our form of government, begging the question: Whether or not he meets the strict definition of “natural born Citizen,” does his mostly unknown background and scarcely-recorded early advocacy and professions make him ineligible to that definition in spirit, even if not in fact?
I suspect this issue will haunt Obama until the end of his presidency, and for much the same reason as we now see a question of tax records haunting the steps of Mitt Romney: If you have nothing to hide, and you’ve done nothing wrong, why will you not let us examine the records? Nothing quiets a controversy quite like proof, and last year, when the Obama administration released what appeared to be a valid birth certificate, it really quieted the whole matter of the question of where he was born. What it did not and could not quash was the matter of whether he is a “natural born Citizen,” by definition of law and applicable precedents. It is clear that the framers intended a separate definition of that term by virtue of their specifying it in contrast to any other form or usage of the simpler term “citizen.” That matter appears still to be an open question.
(Note: I don’t wish for this post to turn my site into “birther central” or some such thing, but with all the questions still raised in some quarters, and with the re-emergence of the matter back into the news cycle via the Georgia case, I felt it necessary to at least discuss the issue briefly, do a little research on it, and report it to you in similarly brief fashion.)