PrintDecember 12, 2008
Natural Born Pickle
I am at peace about Barack Obama and his natural born US citizenship. Still not cheerful about being called deranged and told to shut up, but on the issue itself -- peace. If you care to follow this journey of enlightenment, read on.
My journey is based on straightforward readings of the Constitution and the law through a reasonable layman's eyes. It is not based on what I'd like the outcome of the case to be or on blind trust in anyone else. And I do not have to buy that Obama was born in Hawaii. I will also say that I've never seen what I am about to explain, explained before. There has been much heat on this issue, but little light.
My editor Thomas Lifson expressed our goal here as saying we should be "skeptics who look at evidence and logic, and follow the truth." I usually have a more modest goal: a keen grasp of the obvious. In this case, I'm diving deep, way past the obvious. I'm going into dangerous territory; I'm going to try to think like a lawyer. Pray for me.
An Overview
The Constitution is clear that the President must be "natural born", and if the converse is discovered prior to January 20, 2009, then Joe Biden shall be President from then until "a President shall have qualified." Unlike David Horowitz, I don't think these constitutional requirements can be wished away. I said all this previously.
Unfortunately, the Constitution does not spell out what is meant by "natural born." Even more unfortunately, it is not spelled out anywhere in unambiguous terms that we can all agree on. No one can provide a URL, for example, that will lead you to the "official" definition of "natural born."
Given that, it is up to courts to decide what "natural born" means. There are legal arguments for various definitions, but these are arguments to be heard by courts. The courts have not yet spoken, at least clearly. This is exactly where reasonable people can disagree. Some people might claim to "know" what the definition is or should be. I'm saying no one knows, just as no one knows what "arms" means in the 2nd Amendment or "cruel and unusual" in the 8th.
And here is where it gets interesting. For some not-unreasonable definitions of "natural born", the location of Obama's birth is irrelevant, meaning the whole "birth certificate" issue (e.g., "long form" vs. "short form") could be irrelevant. At one extreme in the definition, Obama is not natural born regardless of the location of his birth. At the other extreme, he is natural born regardless.
That is why I am now satisfied accepting that Obama is "natural born", even if he never releases his "long form" birth certificate and even if no court decides to hear oral arguments in any of the related lawsuits before it. I am satisfied because I believe it is within the latitude of the courts to consider Obama "natural born", by some not-unreasonable interpretation of that phrase, given what almost all of us accept as the facts in Obama's case.
Let me repeat some key points:
- The Constitution is clear on what we shall do if Obama is not natural born, and I believe we need to do that.
- I am not necessarily accepting that Obama was born in Hawaii. Similarly, I do not accept that his "Certification of Live Birth", the statements from Hawaiian officials, or the "birth announcement" prove anything. We do not know where Obama was born.
- I do accept that there is a reasonable "weak" definition of "natural born" that applies in Obama's case, and does not require him to have been born in the US.
- I'm willing to accept that the courts, even giving due diligence, could decide to accept some kind of "weak" version without hearing oral arguments, and therefore appearing to dismiss the case without hearing it.
- I am conceding no principle here. The Constitution is not defiled. This boils down to the legal definition of a phrase, "natural born", defined neither in the Constitution nor US law. If Congress does not write a specific statute to define the term, only the courts can define it right now, or allow current interpretations to stand, sketchy as they might be.
That is the nub of the case. I know, quite a "nub." And I haven't even gotten to what I mean by "weak" and "strong" definitions of "natural born." If you have any patience or interest left, read on.
The "Weak" Definition of "Natural Born"
The weak definition is what US Code currently defines for "nationals and citizens of the United States at birth." I can give you a reference and URL for this: US Code 1401. This is what I will call the "citizen at birth" definition. So the weak definition of natural born is simply what USC 1401 defines as "citizen at birth."
US Code 1401 states that "The following shall be nationals and citizens of the United States at birth":
"(a) a person born in the United States, and subject to the jurisdiction thereof.""(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of [honorable military service outside the US, etc.] may be included in order to satisfy the physical-presence requirement of this paragraph."
There are other paragraphs, but these are the ones that appear to apply in Obama's case.
If Obama was born in the US, he was a citizen at birth, regardless of either parent's citizenship status, per paragraph (a).
If he was born outside the US and even if his father was an alien, he was a citizen at birth as long as his mother was a citizen and "was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years." I've heard no one dispute that his mother would not meet these physical-presence requirements.
Obama is a "citizen at birth" according to the current USC 1401.
Some of our advanced students might note that Obama might have had dual citizenship or that he later became a citizen of Indonesia. There is nothing in the USC 1401 definition of "citizen at birth" that says simultaneous citizenship elsewhere at birth negates it. And if we dig deeper, into USC 1481 on Loss of Nationality , we find
"(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or ..."
The law goes on to other cases, but none of which appear to apply to Obama. In Obama's case, we would require that he relinquished his nationality "voluntarily" and with "intention" and "after having attained the age of eighteen years." To my knowledge, none of these apply to Obama, who was back from Indonesia and living in Hawaii by age 10 or so.
Again, Obama is a "citizen at birth" according to current USC 1401 and 1481, per this reasonable layman's reading. If we accept that and we equate "natural born" with "citizen at birth", there is a pretty solid case that Obama is "natural born."
Why equate the two? Because the Northern District of California ruled that way in McCain's case, or Robinson v Bowen . This decision recognized that McCain was born in Panama in 1936 and judged that the citizenship law in place at the time of his birth indicated he was a citizen. It went further though, to explain the law of citizenship as defined in 1937, after his birth.
"Under this view [the 1936 law], Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain's circumstances in the Canal Zone, Congress enacted 8 U.S.C 1403(a), which declared that persons in Senator McCain's circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already." [My emphases.]
This short passage could be used to set two precedents: (1) a citizenship law applies retroactively, after birth, and (2) "citizen at birth" and "natural born citizen" are synonymous.
If these precedents are used, my innocent layman's reading says Obama is a natural born citizen. The irony is that if you deny this ruling, you also deny John McCain's constitutional fitness to be President. That argument has been made, but you have to admit the ice gets thin there.
The "Strong" Definition of "Natural Born"
The strong definition says "you must 1) be born on US soil and 2) both your parents must have been U.S. citizens at the time of your birth."
If this is the case, then Obama is not natural born even if born in the US, since his father was not a US citizen. McCain's status would be problematic, depending on whether the Panama Canal Zone in 1936 is considered "US soil."
Frankly, I have trouble discerning the quality of this case. If there is clear precedent, it escapes me. We are in deep Lawyerland here, with hints of history, English common law and founders' intent sprinkled hither and thither. It gets too close to penumbras and emanations for my "plain reading" tastes.
The Donofrio case, dismissed by the Supreme Court December 5, and its sister case, Wrotnowski v Byseiwicz, to be considered by the Supreme Court December 12, are of this "strong" variety.
Strong or Weak?
I'm not about to argue whether we should be using the strong or weak version of "natural born", or something in-between. That would be what I would expect lawyers to argue in front of a court.
Again, the curious thing is that if either extreme is adopted, Obama's place of birth is irrelevant. Those of us wrapped up in the birth certificate hoo-hah can go back and color.
And here is where I think future court rulings can be predicted. Let me put the justices choices in clear view.
(1) Accept the strong view, or something like it, and Obama is unqualified to be President. A popular election, with 52% of the votes going to Obama, would be overturned. The first African-American ever elected President would be tossed out before he's even sworn in. Foreign governments, already voicing support for the President-elect, would be outraged, possibly to the point of abrogating treaties. To justify your strong view, you must muster history, common law, founders' intent, etc., to the point of penumbras and emanations. You would be accused of judicial activism and Republican bias all in one fell swoop.
(2) Accept the weak view, or something like it, and the political process continues along the peaceful path to Obama's inauguration. To justify your weak view, you can simply re-affirm, passively, the Northern District's ruling in the McCain case. You don't even have to hear oral arguments and therefore risk setting some precedent you'd rather not set.
Are you having trouble predicting the courts' rulings on this? I'm not.
But Is It Right?
Accepting the "weak" version of "natural born" could be considered weaseling our way out of a bad situation, but leaving a bad precedent. Is there something truly "wrong", in a deeper sense, with a person becoming President of the US who was not born in the US and who had only one parent who was a citizen at the time?
Frankly, I don't think so. In today's world of jet travel, the place of birth is increasingly irrelevant, especially if the child's parents lived in the US shortly before the birth and the child was raised in the US just afterward. Why disqualify an otherwise qualified person because his parents took vacation too close to delivery? And why insist on two citizen-parents, when so many kids have only one parent? Would a single-parent kid win out over a two-parent kid whose father was British?
Things can get tricky here, I know, especially with hypotheticals. But nothing done by the courts here requires setting any kind of specific precedent. In fact, perhaps the best decision is to dismiss cases without comment, and therefore let any precedents remain ambiguous. Future Congresses could clear it up however they like by statute, which the Court has indicated it would follow. And to become President, you still need to get elected.
Our principles remain intact. Our Constitution remains intact. We remain a nation of laws. Two plus two still makes four.
Derangement vs. Peace
Horowitz, Malkin, Snopes, FactCheck, FightTheSmears, et al are still wrong about almost everything in this case, and way too snarky. Many, especially in the media, not only misreported and made up facts, but demonstrated an arrogance of opinion that is unprofessional and indicative of how politicians have been able to be so corrupt. Instead of asking Obama the question and challenging "power," smug reporters chose instead to berate those who would hold "power" accountable.
But in the end, this is not a Constitutional crisis. It amounts to a Congressional statute that could use some clearing up. It would have been nice if any of these folks had used true explanation of the law, rather than ad hominems and invective, to make their cases.
My explanation could also shed light on why Obama seems so shady about the issue. He knows there are genuine legal issues about his qualification to be President. What are Americans to expect about how transparent the Obama administration will really be?
I'm ready to turn in my tin-foil hat. The Constitution has been bruised and beaten over many years and Western civilization hangs in the balance, but this case is not one of the culprits.
I assure you I have not been bought off, nor have I become a pod person. And I hope to never deep-dive into Lawyerland again.
Randall Hoven can be contacted at randall.hoven@gmail.com or via his web site, kulak.worldbreak.com.
