Law Study

How Could Obama Not Be a U.S. Citizen If His Mother Was an American?
(Apr 14, 2011)

INTRODUCTION

This article will clarify the several arguments surrounding the issue of Obama's eligibility to the presidency. It will raise some additional points of concern that may not, as yet, have been properly considered, and will provide the references to several legal and historical sources often cited on this subject.

By presenting these issues clearly and concisely, I hope to promote a greater sense of urgency to see that this matter is properly resolved.

Why would anyone suggest that Obama might not be an American citizen, if his mother was an American? A narrow focus on Obama's birth certificate obscures some basic facts. For those who are concerned about this matter, a few things should be candidly addressed.

OBAMA'S CITIZENSHIP

Unless Obama's mother was not Stanley Ann Dunham, the only way it might be possible for Obama not to hold American citizenship is:

1.) If Obama had had, then subsequently lost American citizenship at some other time. This appears unlikely, as both past and present U.S. citizenship law has certain protective provisions for children. However, it is important to note that under such a scenario, the presentation of an original birth certificate or other document indicating U.S. birth is useless in verifying current citizenship status.

2.) Or, if Obama was born in his father's country of Kenya, (or elsewhere outside the U.S.). U.S. law at that time did not grant automatic citizenship to children born abroad to married couples if one parent was a foreigner, and the other was under the age of nineteen, as Ann Dunham was. Under this scenario, any record for Obama that Hawaii may have on file indicating Hawaiian birth would have to contain either erroneous or falsified information.

OBAMA'S NATURAL HERITAGE

In addition to citizenship, it is a legal requirement that the president must also have been natural born. This brings up another frequently discussed subject regarding presidential eligibility, which is often muddled together with the citizenship issue.

Is Obama natural born?

To answer this question with clear understanding, backed by evidence, one must be able to define the term "natural born".

It is common for persons having been natural born citizens of a foreign country, to also hold American citizenship. Such persons are considered "naturalized" American citizens. You may have friends or relatives who are naturalized, or yourself be a naturalized citizen. The presidency and vice presidency are the only offices in U.S. government which a naturalized citizen may not hold. This legal restraint provides a check against foreign influence within the office of President of the United States.

From time to time it is suggested that the complete meaning of the term "natural born citizen" is uncertain. Even the U.S. Senate's official website says that this provision raises an unanswered question concerning presidential eligibility. However, there are several important references which will assist us as we follow, and continue our own research into this matter. First, let's examine the actual law.

The related provision is found in Article 2, Section 1, Clause 5 of our United States Constitution, and is as follows:

"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..."

We can see that a clear distinction is made between a "citizen" and a "natural born citizen". The phrase "natural born" as it is used here, very much appears as a reference to nature as in "natural law".

What is natural law?

In the legal sense, natural laws are those which are not instituted by man, but which exist by nature. As a relevant illustration, consider that every person has natural parents. One's natural parents are not determined by any man-made law, and no man-made law or legal adoption can ever change who one's natural parents are. Furthermore, the identity of one's natural parents are legally recognized- as in child custody and child support cases, for example.

Many agree that natural parents are a factor in determining the natural born citizens of a country. Some may say that it is the only factor. In any case, if we are interested in finding the meaning of the words "natural born citizen", it is necessary to look to sources dealing with natural law as it applies to natural born citizenship, rather then simply looking up citizenship legislation.

NON-BINDING SENATE RESOLUTION ON NATURAL BORN CITIZENSHIP, (2008)

The latest resource which addresses the "natural born" issue, is the 2008 non-binding Senate resolution which recognized candidate John McCain as eligible for the presidency. Although the resolution has no legal effect, I mention it here for the record, as well as to suggest that it was presented with questionable motives.

This non-binding resolution was co-sponsored by then Senator Barack Obama, and begins by stating that the term "natural born citizen" is not defined in the Constitution. It later suggests that candidates born outside of the country may be eligible for the presidency, and also calls specific attention to John McCain's birth to "American citizens".

A portion of the 2008 non-binding resolution is as follows:

"...Whereas previous presidential candidates were born outside of the United States of America and were understood to be eligible to be President; and Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be it Resolved, That John Sidney McCain, III, is a 'natural born Citizen' under Article II, Section 1, of the Constitution of the United States."

CONGRESSMAN BINGHAM ON NATURAL BORN CITIZENSHIP, (1866)

An earlier source on this subject is Congressman John Bingham, who in 1866 appears to speak quite directly on this point.

Bingham had been one of the three judges in charge of the Lincoln assassination trial. He has also been called the father of the 14th amendment. During the period following the Civil War, Congress was compelled to enact legislation upholding the citizenship rights of freed slaves. While debating a civil rights bill in the House, Bingham concurred on a specific point of the legislation being presented, and declared:

"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"

Note Bingham's plural use of the word "parents...", "not owing allegiance to any foreign sovereignty". If such a definition of a natural born citizen were found to be complete and authoritative, Obama, (whether a U.S. citizen or not) could not be considered natural born. In this case, America would have been for the last few years without a president, in violation of its Constitution.

This quote from Bingham was displayed in an article on Wikipedia.org for some time, but has since been deleted. There appears to have been some discord among Wikipedia contributors- I believe this quote had been deleted and restored at least once before. In any case, the original transcript, in its entirety, is available though the Library of Congress' online archives.

VATTEL'S "THE LAW OF NATIONS" ON NATURAL CITIZENSHIP, (1758)

The last source I will cite here, is the 1758 works of the Swiss legal philosopher, Emmerich de Vattel.

Vattel wrote several books on the law of nature as applied to nations. This treatise, known by its short title "The Law of Nations" is of enduring significance. According to the preface to the 1999 digital edition, this work had been read by many of the founders of the United States, and influenced their understanding of principles of law now established in our Constitution.

In dealing with natural citizenship from birth, Vattel teaches that it is not where we are born, but to whom we are born that matters. Several excerpts from "The Law of Nations", Book 1, Chapter 19 are as follows:

"The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. ...in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country."

"...It is asked whether the children born of citizens in a foreign country are citizens? ...By the law of nature alone, children follow the condition of their fathers, and enter into all their rights; the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him..."

"...naturally, it is our extraction, not the place of our birth, that gives us rights"

Note: The dictionary definition of "extraction" is not just the "taking out of something", it can also mean "ethnic origin: the original nationality of somebody's ancestors", (Encarta World English Dictionary).

If the Framers of our Constitution accepted Vattel's view that natural born citizenship is inherited only through parents, Obama might be considered as much a natural born citizen of Kenya/Britain as of America. If such is the case, could a dual citizen at birth be considered "natural born" according to the complete meaning of the term, and as used and understood by the framers of our Constitution? Does Obama's birth to a Kenyan father, and his Kenyan/British citizenship at birth make him ineligible to the office of President of the United States?

SUMMARY AND POINTS OF CONCERN

There are many other points of concern relating to this controversy, not discussed here, including Hawaiian procedure for certifying state births, and the prior conflict of interest in the U.S. Senate regarding Senator McCain's presidential eligibility. Additionally, there are sources which assert that place of birth alone may determine natural born citizenship, and I have not presented such arguments and counterarguments.

While I have not set out to resolve every question relating to this matter, I hope I have contributed to a clearer understanding of the underlying issues and their importance.

Specifically, I would like to emphasize the following points:

As to this last point, to my knowledge no case directly addressing this issue has been tried in a court of law. It appears that the present situation is due to more than simple negligence. If this is so, certain persons may have implicated themselves in an attempted to conceal or commit fraud, regardless of whether or not Obama is found to be eligible.

The Constitution guarantees to every American that they will have a lawful president, and it is their right to know that this provision is upheld. As a self-governed nation, it is the duty not just of the military, but of every American citizen to support and defend the Constitution.

TERRENCE LAKIN

I close by reminding the public of Lt. Col. Terrence Lakin, a distinguished career military doctor who has been sent to prison for disobeying orders to redeploy to Afghanistan. Considering his oath to defend the Constitution, Terrence Lakin had sought assurance that his orders were lawful, as originating from a duly seated Commander in Chief. He attempted to resolve the matter through his chain of command, through his congressional delegation, and by writing to Obama. Lakin was rebuffed and found guilty by a court martial. He was stripped of his title, his service, his salary and pension, and is currently serving 6 months in prison at Fort Leavenworth, Kansas, (as of April 2011).

Lakin had previously served in Afghanistan, (under President Bush), Korea, Bosnia, Germany, Honduras and El Salvador. A recipient of numerous medals and commendations, he would have been due for a promotion to full colonel this year, of 2011.

Thank you for reading.

RESOURCES

U.S. Citizenship Law Between 1952 and 1986 - Birth Abroad to One Citizen
http://travel.State.gov/law/citizenship/citizenship_5199.html [Archive]
The actual U.S. Code, Title 8, Section 1401, Subsec. (g.) and amendment history may be found at uscode.House.gov

The United States Constitution on Presidential Eligibility
Article 2, Section 1, Clause 5, (and commentary on this provision).
http://www.Senate.gov/civics/constitution_item/constitution.htm#a2_sec1_e [Archive]

2008 Non-Binding Senate Resolution on John McCain's Natural Born Citizenship
Bill summary of S.RES.511 with links to the Senate proceedings and actual resolution.
http://Thomas.LOC.gov/cgi-bin/bdquery/z?d110:SE00511:@@@L&summ2=m& [Archive 1, 2, 3]

John Bingham on Natural Born Citizenship - The Library of Congress
The Congressional Globe, March-9-1866, Page 1291, 2nd column, 3rd paragraph.
http://lcweb2.LOC.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=332 [Archive]

Emmerich de Vattel's "The Law of Nations" on Natural Citizenship
Book 1, Chapter 19, the first several paragraphs starting from the section titled "Citizens and natives". Also available are the prefaces to the several editions.
http://www.Constitution.org/vattel/vattel.htm

ARTICLES OF INTEREST

Emmerich de Vattel
http://en.Wikipedia.org/wiki/Emerich_de_Vattel

The Continuing Importance of Congressman John A. Bingham
http://www.uakron.edu/dotAsset/727357.pdf

CNN.com - "Before birther row, Lt. Col. Lakin racked up medals as flight surgeon"
http://articles.cnn.com/2010-08-06/justice/terrence.lakin.birther.bio_1_birther-movement-president-obama-birth-certificate

YOUTUBE VIDEO

State of Our Nation's Media - When former Press Secretary Gibbs is presented with a question concerning presidential eligibility, members of the Media deride the issue.
http://www.youtube.com/watch?v=zH7Bge1m7SM