Monte Kuligowski
May 25, 2011
What it will take to resolve the natural-born question
By Monte Kuligowski

Americans waited from Feb. 10, 2007, when then-Senator Barack Obama announced his presidential candidacy, to April 27, 2011, for Obama to release a detailed birth certificate. The real carnival barker of the unnecessary drama is Mr. Obama himself, who, through proactive stonewalling, turned expected transparency into a smoke-and-mirrors sideshow.

Meanwhile, the legal questions raised by Obama's divided allegiance at birth and apparent adoption by his foreign stepfather have been eluded.

The original birthers got a Resolution

Amazing as it may be, the Constitution's "natural born Citizen" clause has not been defined as related to Barack Hussein Obama, II. With respect to Candidate McCain, the U.S. Senate held hearings and passed a resolution in 2008, affirming that John Sidney McCain, III is in fact a natural born citizen.

The McCain Resolution states that, "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."

Perhaps more significantly, the Resolution taps into the "purpose and intent" of the "'natural born Citizen' clause of the Constitution of the United States." The McCain Resolution relies upon "the First Congress's own statute defining the term 'natural born Citizen,'" as evidence for the purpose and intent of the natural born clause.

The relevant statute of the First Congress reads, in part: "And 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 . . . ."

It is apparent that the First Congress considered natural allegiance to the U.S. to be preeminent over native birth. Note: Congress wasn't defining the requirements of Article II presidential eligibility; but ordinary U.S. citizenship.

It's all about allegiance

Birth on U.S. soil to U.S. citizen parents, are the two exploratory elements of "natural born Citizen" status. In the McCain Resolution, the element of native birth was merely probative in the larger assessment of McCain's undivided allegiance — the real substance of the Constitution's natural born requirement.

The wise founders were concerned with ensuring that only individuals with an unbroken chain of natural allegiance to the United States assume the high office of the presidency.

When the Constitution was written in 1787 the drafters overwhelmingly understood that the meaning for "natural born Citizen" was found in Emmerich de Vattel's 1758 "Law of Nations" — which normatively requires (in our context) U.S. citizen parents at the time of the candidate's native birth, i.e., uninterrupted allegiance to the United States.

Almost 100 years later, in 1866, Rep. John Bingham echoed de Vattel's definition of natural born citizen: "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 . . . ."

Senator McCain passed the litmus test question of the eligibility requirement: Has the prospective candidate ever owed allegiance to a foreign sovereignty?

Natural born status is a higher standard

As the winds of willful ignorance swirl around the question of Obama's eligibility, most "journalists" continue to believe that a native birth answers the question in the affirmative for the president.

Nevertheless, the distinction between ordinary U.S. citizenship and the standard for the Constitution's presidential eligibility clause lies in the fact that only the status of "natural born Citizen" makes uninterrupted, sole allegiance possible. The goal is to have a president whose loyalty to the U.S. is 100 percent and the eligibility clause is a constitutional safeguard toward that end.

Under the doctrine of unbroken allegiance, a naturalized U.S. citizen never qualifies for the office of president. And, a native born citizen is only a natural born citizen if both parents owed no foreign allegiance at the time of the candidate's birth. If born into divided allegiance status, a native born citizen likewise never qualifies for the high office.

Both the naturalized citizen and the native born citizen with a foreign parent (or parents) have at some point owed allegiance to a foreign sovereignty.

Unsurprisingly, the scholarship on natural born presidential eligibility is currently conflicting. And, at least one scholar, Lawrence Solum, has edited his (Michigan) Law Review article to seemingly support the president. Columnist Cindy Simpson notes that Solum's piece formerly referred to the "general agreement" that, "Anyone born on American soil whose parents are citizens of the United States is a 'natural born citizen.'" Professor Solum now argues that only one citizen parent is required to confer natural born status.

The state of the law is unsettled but one certainty exists: No authoritative body or court has found that Mr. Obama qualifies as a natural born citizen.

The U.S. Supreme Court has never addressed the issue of presidential eligibility under the "natural born Citizen" clause. Consequently, those who argue that Obama meets the Constitution's standard often rely on case dicta and legal commentary, confusing issues of U.S. citizenship with natural born status.

Those who argue that Obama is eligible based on ordinary citizenship effectively argue that the "natural born Citizen" clause does not require a higher standard for the presidency. Such arguments make the only discernable distinction for the clause — that of sole allegiance to the United States, from birth to the White House — absolutely meaningless.

What can be done?

As a practical matter, getting an authoritative body or court to declare that Obama is currently ineligible for his four-year presidential term is not going to happen. Many have the notion that everything Obama has done and signed into law would become null and void. Not many in power would be willing to overturn Obama's term believing that chaos would follow.

Mr. Obama was placed on the ballots, elected and sworn into office at a time when inadequate eligibility laws were in place. As such, the judiciary (regrettably) did not feel compelled to rule on the definition of "natural born Citizen."

But that doesn't mean the states are powerless to enforce the "natural born Citizen" clause prior to the 2012 election — even as related to Obama.

Enforcement of the Constitution may be realized via the presidential eligibility bills that several states are currently working on.

Without question, the eligibility election laws of the states need to define the term "natural born Citizen" in the traditional sense (which would preclude Obama from the respective ballots) and then let the courts rule on the matter as related to Obama.

Unfortunately, however, so far most states are neglecting to define the clause. Louisiana's bill, for example, which Gov. Bobby Jindal has promised to sign into law, contains no language that would force the courts to rule on a codified definition of "natural born Citizen."

Election eligibility law is perhaps the sturdiest tool of the states to enforce the clause. But, the proper language is essential — and time is of the essence.

An earlier version of this article was published at WorldNetDaily on May 24, 2011.

© Monte Kuligowski

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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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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