April 17, 2011
Presidential Eligibility Semantics
Every day, more Americans are becoming aware of the doubt of some known as "birthers" regarding the president's eligibility to hold office. Much of this attention is a direct result of Donald Trump questioning the nature of a birth document put forth as genuine by Mr. Obama. I am cognizant of the premise of these questions but dismayed that such is the focus of our attention. In fact, I cannot fathom why supposedly intelligent Americans pursue questions of birth narrative when empirical facts answer the eligibility doubts without any consideration of such. In fact, some have argued that Mr. Trump and those who encourage his vein of investigation do so at the expense of an obvious defect in Mr. Obama's right to hold office.
It is critical that anyone interested in this constitutional point of order understand the fundaments of the argument: first, that the phrase that gives opportunity to those citizens desiring to hold presidential office -- "natural born Citizen" -- is used only once in the entirety of our highest legal document; and second, the premise for its insertion into the document as one of the three restrictive caveats for potential candidates (along with age and residency). In a nutshell, the phrase "natural born Citizen" stems from concerns by John Jay (later first Chief Justice of the United States Supreme Court) that he penned to the constitutional convention president, General George Washington, in 1787.
Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.
The contention, not addressed by Mr. Trump and his ilk, comes from a phrase which was included to specifically prohibit those born with foreign allegiance from holding office -- a unique phrase used solely with regard to the presidency, the office that empowers the elected person to command the Armed Forces of the United States.
Mr. Trump and those who regard the matter as simply an issue of whether Mr. Obama is a native-born citizen have muddied waters that originally ran clear. Their concern is an incomplete doubt premised on a questionable birth document and narrative -- doubts that require definitive proof one way or the other. Though it is true that anyone desiring to hold office must be native-born, this is not the sole requirement. This author would be remiss in not pointing out the obvious in that many native-born Americans are at the same time dual citizens required to obey the laws of foreign powers (i.e., the children of illegal immigrants).
The semantics of presidential eligibility has been ignored to the detriment of our integrity as a constitutional republic. The following definitions are critical to anyone desiring clarity as to why some believe Mr. Obama is worthy of removal from office.
"natural born Citizen" - based on the reasoned inclusion into our Constitution (intent as given by Mr. Jay and approved without debate by the Constitutional Convention), this can only mean those Americans who were born without allegiance to a foreign power. The early office holders were all naturalized citizens and grandfathered, accordingly, into the newly constituted presidency. Those born after the adoption were elected as native-born citizens of parents who were themselves citizens. Prior to Mr. Obama, the lone exception was President Arthur, whose father naturalized fourteen years after his son's birth (a fact known to be true only in the last two years).
Native-born citizen -- some contend that the phrase is synonymous with "natural born." The error of this understanding comes primarily from confusing "native-born" with the term "native" in the context of citizenship. Someone who is native-born to this country is not necessarily a native. The terms can be clarified via the 1874 Supreme Court opinion in Minor v Happersett:
...it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens[.]
Persons born in our country can be "native-born" without enjoying our citizenship, such as the children of ambassadors. Those born in our country to parents who are not themselves citizens cannot be considered semantically "natives" or "natural-born citizens." In fact, per the court's judgment, "native" and "natural born" alone are distinctly synonymous. At best, it is logical to assert that some native-born are natural born, but not all.
Dual nationality citizen -- a recent understanding in the citizenship of Americans is recognition by the courts of those with fealty to nations other than our own. Many nations around the world do not recognize such multinational allegiances, but regardless, there are Americans who have obligations to foreign powers as noted by our Department of State:
The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. The country where a dual national is located generally has a stronger claim to that person's allegiance.
However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.
The purpose of those who find fault with the president's eligibility is to reconcile someone born "[owing] allegiance to both the United States and the foreign country" and "required to obey the laws of both countries" with the qualifications stipulated for a "strong check to the admission of Foreigners." How is it that someone can be born with allegiance to a foreign power and yet, at birth, be considered "natural born"?
Mr. Obama freely admits that he was born ("having from birth specified qualities") to a foreign father and enjoyed the status of dual citizenship at birth, owing allegiance and required obedience to the laws of both the United States and the United Kingdom. Is this admission not enough for an electorate to discuss his known lack of bona fides in light of the purpose of the constitutional qualification phrase "natural born Citizen"?
Steve Martin in the movie The Jerk starts his story with the line, "I was born a poor black child." His character later becomes fabulously wealthy. Could one say, semantically, that he was also "born a rich black child"?
No, the latter can no more be held as true than can the case of our president, where one who is born with foreign obligations ostensibly is later considered natural born.