"Natural Born Citizen" Before the Fourteenth Amendment

I quote here from a United States Supreme Court case, 1847, discussing the citizenship of a child who is born in the United States of a British citizen father and United States citizen mother:

4. The plaintiff in error being of legeance to the crown of England, his child, though born in the United States during its father's temporary residence therein,-twenty-two months and twenty days,-notwithstanding its mother be an American citizen, is not a citizen of the United States. It is incapacitated by its infancy from making any present election, follows the legeance of its father, partus sequitur patrem, and is a British subject. The father being domiciled and resident within the dominions of her Britannic Majesty, such is also the proper and rightful domicil of his wife and child, and he has a legal right to remove them thither. The child being detained from the father, its natural guardian and protector, without authority of law, the writ of habeas corpus ad subjiciendum is his appropriate legal remedy for its restoration to him from its present illegal detention and restraint; Constitution United States, art. 3, 2; Judiciary Act, 1789, 11; Inglis v. Trustees Sail. Snug Harb., 3 Pet., 99; 7 Anne, cap. 5; 4 Geo. 3, cap. 21; Warrender v. Warrender, 2 Cl. & F., 523; Story Confl. L., 30, 36, 43, 74, 160; Shelf. Marriage, Ferg., 397, 398.

Barry v. Mercein (1847), 46 U.S. 103, 46 U.S. 103 (How.)(Footnote 4).

Of course this rule of law as to citizenship of the child changed with the adoption of the Fourteenth Amendment, but it illustrates that a "natural born citizen" as used in Article II, Section 1 of United States Constitution when it was adopted excluded a child to a father who was a British subject, even though the child was born in the United States. The child had to be born with fealty to the United States alone.

Of course it will ultimately be up to the Supreme Court (eventually) to decide whether under the Fourteenth Amendment a "natural born citizen" is fully equivalent to a "born citizen" who may be born with dual allegiance. Stated differently, is sole allegiance to the United States at birth the determiner of "natural born citizen?" Or did the Fourteenth Amendment change that requirement?

Barack Obama was Born in Hawaii... Yawn.

Confirming what I have been saying all along, Barack Obama released the long for birth certificate confirming that he was born in Hawaii.

However, does that make him a "natural born citizen" within the meaning of Article II, Section 1 of the United Sates Constitution?

There is a serious school of thought, supported by historical record, that to be a natural born citizen, one must not only be born on American soil, but also be born of parents who are American citizens.

As I think about that, especially considering how our society has changed from the days when births out-of-wedlock were rare, I have the following questions in analyzing the legal issue:

1.  If the child is born of a single mother, does it matter the citizenship of the father?
2. As to 1, what if the mother does not know who the father is?  What if that is impossible to determine?
3. If the mother had no relationship with the father at the time of birth or after, why should the father's citizenship matter? 
4. It is said in the case of Barack Obama that his parents were married, but since the father had another wife in Kenya, was the Hawaii marriage legal? Does that matter as to the natural born citizen determination?

If a court has to make a decision, the court needs to consider the ramifications of any ruling in light of these and similar questions for the future.

I am long on questions, short on answers.

Natural Born Citizen Issues Not Simply About Place of Birth

A few days ago, I wrote a post, "Natural Born Citizen Obama." This is a follow up with new (to me) analysis.

To be eligible for the presidency, a person must be a 'natural born citizen." The overwhelming evidence is that President Obama was born in Hawaii in 1961. However that may not be the end of the story.

A scholarly article on The Federalist Blog, "Defining Natural born Citizen" written in November 2008 explains the history of the term "natural born citizen" and discusses the effect of the Fourteenth Amendment. The article contains the following statement in the analysis:

One universal point most all early publicists agreed on was natural-born citizen must mean one who is a citizen by no act of law. If a person owes their citizenship to some act of law (naturalization for example), they cannot be considered a natural-born citizen. This leads us to defining natural-born citizen under the laws of nature - laws the founders recognized and embraced.

Under the laws of nature, every child born requires no act of law to establish the fact the child inherits through nature his/her father’s citizenship as well as his name (or even his property) through birth. This law of nature is also recognized by law of nations. Sen. Howard said the citizenship clause under the Fourteenth Amendment was by virtue of “natural law and national law.”

Barack Obama's father was a British citizen.

In other words, it is reasonable to questions Mr. Obama's eligibility to serve, but darned tough to get that issue to court. The Supreme Court has already refused to hear an emergency petition this issue which were raised in Leo Donofrio v. Nina Mitchell Wells, which I believe (from memory, sometimes faulty) in the lower court was decided on a standing issue, i.e., Leo Donofrio, citizen, lacked standing to raise the natural Born citizen issue over then candidate Barack Obama.

The following statement was released by Leo Donofrio after the Supreme Court declined to hear his emergency petition:

Before I address the legal facts of this headline, I want to address all of the other Presidential eligibility cases that went before SCOTUS including my own. It’s true that – technically – Donofrio v. Wells could still be pending if I chose to submit a full petition for writ of certiorari. Many have written to me and asked why I haven’t resorted to that tactic. The answer is fairly simple: my case is moot.

The same is true for Wrotnowski v. Bysiewicz, Lightfoot v. Bowen and the Berg cases, all of which asked for emergency stays or emergency injunctions to stop a candidate from becoming “president-elect” and later president.

Once my case stay application was denied, I had exhausted the only emergency procedure available to me and the US Supreme Court Rules would not have facilitated the resolution of a full petition before the candidate was sworn in as President (or become president-elect).

When Obama was sworn in by Chief Justice Roberts as President, our Constitutional separation of powers kicked in big time. Because of the separation of powers enumerated in our Constitution, the United States Supreme Court has no ability to remove a sitting President. Nowhere in the Document does it give the Supreme Court (or the judicial branch) any authority to remove a sitting President.

All of the eligibility law suits – brought before electoral college votes were counted in Congress – sought to challenge the qualifications of candidate Obama to be President. Once he graduated from “candidate Obama” to “President-elect Obama” and later “President Obama”, every single eligibility law suit pending before SCOTUS became moot.

Full statement here.

For more reading: Natural Born Citizen blog.

Wikipedia's Natural Born Citizen Clause which includes discussion of other presidents and candidates whose eligibility was questioned.

American Thinker article, Obama and the Natural Born citizen Clause.

Obama Presidential Eligibility, An Introductory Primer.

Natural Born Citizen Obama

I am baffled about the continuing theories surrounding President's Obama's birth location. I don't like the guy as president, but all the solid evidence points to his being born in Hawaii.

Interestingly, there is also a theory out there that President Obama even if born in Hawaii is not a "natural born citizen" within the meaning of the United States Constitution unless both of this parent were also citizens. The President's father was a citizen of the U.K.

It seems to me that the citizenship clause of the Fourteenth Amendment to the United States Constitution puts that potential doubt to rest, by saying, " 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."

Granted, the words "natural born" are not used (and I have no ideal what an unnatural birth might be -- birth by test tube, maybe), but The Fourteenth Amendment makes is clear that one is a citizen by birth if born in the United States.

Could anything be clearer?

US Constitution Series, Article II, Section 1

Article II. EXECUTIVE DEPARTMENT

§ 1. The President

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representatives from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

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.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

The manner of election of the president and vice president was changed by the 12th Amendment. The issue of succession has been addressed twice by amendments: 22nd and 25th.

The requirement that the President be a natural born citizen has, of course, been of some controversy lately, with some folks (called derisively "birthers") claiming that president Obama was not really born in the United States. The exact wording is NOT "born in the United States" but is "natural born citizen." If a baby is born physically outside the United States but both parents are citizens, the baby is, I think, probably still a "natural born citizen." I understand this is not a matter of settled law with a definitive Supreme Court ruling. An interesting scholarly Wikipedia article on the subject may be found here.