Monte Kuligowski
Obama's presidential eligibility: A misguided focus
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By Monte Kuligowski
November 30, 2010

As recently as Aug. of 2010 a CNN opinion poll revealed that 29% of Americans believe that Barack Obama, Jr., was "probably born in the U.S." A mere 42% believe that Obama was "definitely" born on U.S. soil. Approximately a quarter of Americans have doubts that Obama was born in the United States.

Those are fairly alarming numbers. And, it appears that doubt is increasing with time.

Mr. Obama's unprecedented secrecy and stubbornness has caused public distrust and, for many, an unquenchable desire to get the hidden details of his birth (and life). The president could end the controversy, inter alius viae, by signing a simple release of records form with the relevant hospital. Or, at minimum, Obama could grant the relevant hospital permission to provide a simple "yea" or "nay" to the birthplace question.

State Representative Leo Berman, from Texas, has introduced House Bill 295 which reads: "The secretary of state may not certify the name of a candidate for president or vice-president unless the candidate has presented the candidate's original birth certificate indicating that the person is a natural-born United States citizen." The law is expected to be in effect prior to the certifying of the candidates for the 2012 presidential election.

Inasmuch as "birth certificate" has become a term of art, Berman's intentions perhaps would be better served by requiring each presidential candidate to produce a birth certificate listing the hospital of birth and attending physician. Otherwise, the document Obama posted on the Internet might pass the law's muster. In the event of a non-hospital birth, the bill perhaps should state that a certification (such as what Obama posted) showing a birth in the U.S., without details, would be sufficient.

Let's assume Obama was born in one of the two Honolulu hospitals that have been proposed as his birthplace. Let's further assume that Obama complies with Texas' future election code law and releases a birth certificate naming the hospital and doctor of record. If Obama were to release such a document or were to allow the relevant hospital to release information, at least Berman and his constituents could get the peace of mind of knowing the birthplace of the 44th president.

Under those circumstances, many could get much needed assurance, but unfortunately, the place of Obama's birth would not necessarily answer the question of natural born eligibility status.

The Natural Born question: Natural parents required

It may be shocking to many, but the birthplace of Obama is not the primary issue when considering natural born status.

The Constitution requires in part that, "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." A combination of citizenship and something more is required. The something more begins with parents who were United States citizens at the time of the candidate's birth. That's really a matter of common sense.

Let's say a child is born on U.S. soil in Arizona sometime after one of the child's parents illegally crosses the Mexican / U.S. border. Does anyone believe that the Constitution would confer presidential eligibility status to a child born to an illegal alien? And, is there any practical distinction between illegal foreigner and legal foreigner so far as U.S. allegiance is concerned? At minimum, we must conclude that a birth in the U.S. does not automatically impute natural born status under the Constitution.

Now let's say both husband and wife were U.S. citizens at the time of their child's birth. But this time, the child was born in France while the parents were on vacation. Or, as with the case of John McCain, his parents were U.S. citizens at the time of his birth — but he was born on a military base in Panama, not in the United States.

The case can easily be made for both of the latter examples as having had natural born status conferred at the time of birth. And, with the case of John McCain, the U.S. Senate passed a resolution declaring that Sen. McCain in fact possesses natural born eligibility status under the Constitution (Incidentally, McCain released documentation showing his hospital and physician of record). Both parents were U.S. citizens and their son was a natural born citizen regardless of venue. According to U.S. State Department policy, if only one parent had been a U.S. citizen, McCain would have been born a U.S. citizen, but not necessarily a "natural born" citizen.

Interestingly, no such Congressional eligibility deliberations took place with respect to then-Senator Barack Obama, Jr., a.k.a. Barry Soetoro.

An influential book of the founding era, "Law of Nations," by Emmerich de Vattel, defines the term "natural-born citizens" as those who are "born in the country, of parents who are citizens."

Vattel's strict definition harmonized with American understanding at the time of the Constitution, but I believe the most dispositive aid for interpreting the words "natural born citizen" is the First Congress's naturalization act of 1790: "An Act to Establish a Uniform Rule of Naturalization." Under the act, "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens." The act was later repealed, but not because of problems with its definition of "natural born citizen."

Citizenship status of one's parents, it appears, is the primary consideration for natural born citizen status.

Though no legally definitive court ruling exists on the question of natural born status for presidential eligibility, the citizenship of parents has been a key consideration of jurists throughout the centuries. Natural born citizenship status by parentage alone has been legally recognized, but such status by birthplace alone has never become an accepted legal precedent.

The Constitution's natural born clause was not written as some inane technicality; but rather as a way to prevent someone from assuming the presidency while holding conflicting loyalties and interests. It can be argued that the spirit and letter of the clause exists to prevent someone like Barack Hussein Obama, Jr., from holding the high office regardless of his place of birth.

Mr. Obama's father was not a U.S. citizen at the time of Obama's birth. Therefore, regardless of birthplace, the question of Obama's constitutional eligibility should have been a serious consideration prior to his certification as the Democrat's presidential candidate for the 2008 election. The country had never witnessed a son born to a foreign national — having lived five boyhood years in a third world Islamic country — become a contender for the office of president of the United States.

Hearings should have been held on all the legal issues. Evidence should have been presented. Legal arguments should have been made. And the United States Supreme Court should have announced a decision. A federal court ruling on the question would have produced confidence one way or the other and the law on natural born eligibility status would have been solidified.

Well, it didn't quite work out that way and most of the focus shifted to the location of Obama's birth.

Maybe Obama's refusal to release basic information all along ensured such a focus. Maybe the calculations of Obama's Chicago team guided the debate from the ill-advised conception of Barry's presidential candidacy.

Until we get more information, we will never know.

© Monte Kuligowski

 

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Monte Kuligowski

Monte Kuligowski is an attorney and writer whose legal scholarship, including "Does the Declaration of Independence Pass the Lemon Test?" (Duke Journal of Constitutional Law & Public Policy), has been published in several law journals... (more)

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