Natural Born Citizenship: Statutory versus Constitutional
In my June posting, “Obama’s Presidential Eligibility: What You Need to Know,” I had highlighted a remarkably objective page by Mr. Stephen Tonchen that provides one of the best surveys of the eligibility question, to date. In that page, Mr. Tonchen highlighted a vitally important aspect of citizenship, namely, “What is the difference between a ‘Constitutional’ and a ’statutory’ natural born citizen?“:
“Constitutional natural born citizen” refers to the term “natural born citizen” when it appears in the Constitution or in a Constitution-related document such as a Supreme Court decision. It refers to the meaning of “natural born citizen” in the Constitution, whatever the Supreme Court ultimately decides such meaning to be.
“Statutory natural born citizen” refers to someone who is deemed a “natural born citizen” as a result of a Federal or State law.
Currently, there is no Federal law that explicitly defines “natural born citizen” or explicitly conveys “natural born citizenship” to anyone. However, existing laws are sometimesunderstood or interpreted as conveying natural born citizenship to certain individuals at birth. At this point, we do not pass judgment on these understandings and interpretations. We merely say that, if someone is deemed to be a “natural born citizen” pursuant to a law or statute, we refer to such person as a “statutory natural born citizen”. [emphases original]
Key State Department verbiage that will be repeated further down this posting:
A statutory natural born citizen is not necessarily the same thing as a Constitutional natural born citizen. The U.S. State Department warns against confusing the two concepts:
…the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes (Top of page 9, inU.S. Department of State Foreign Affairs Manual — 7 FAM 1130) [emphases original]
Mr. Tonchen’s posting goes on:
If we were to define “natural born citizen” to mean anyone who is a “citizen at birth”, our definition of “natural born citizen” would be statutory because it would depend on the statute or law which defines “citizen at birth”. Under existing law, all children born in the United States (except the children of foreign diplomats) are “citizens at birth”. Therefore, under existing law, almost all children born in the U.S. — including children of illegal immigrants — could be regarded as statutory natural born citizens.
However, H.R.1940, also known as the Birthright Citizenship Act of 2007, would change the existing law so that it would no longer grant “citizenship at birth” to children of illegal immigrants. If Congress were to pass H.R.1940, it would alter the meaning of “citizen at birth”, and therefore would alter our statutory definition of natural born citizen. If H.R.1940 were enacted, the U.S.-born children of illegal immigrants could no longer be regarded as statutory natural born citizens.
To summarize:
- “Statutory natural born citizen” is the meaning of “natural born citizen” when such meaning depends on a Federal or State law. As Federal and State laws change, the meaning of “statutory natural born citizen” changes accordingly.
- “Constitutional natural born citizen” is the meaning of “natural born citizen” as used in the Constitution.
If Barack Obama was born in Hawaii, he could be regarded as a statutory natural born citizen. But a statutory natural born citizen is not necessarily a Constitutional natural born citizen. [emphases original]
With the above in mind, a concerned citizen forwarded to me further analysis of the above by a Mr. Jason Hommel, a financial analyst specializing in precious metals, who originated a $100,000 reward for proof of Mr. Obama’s natural born citizenship status (a full explanation is at the referenced link).
Mr. Hommel posted a follow up article in which he opines more fully from his perspective why what Mr. Tonchen has said is so important to understand:
I’ll let God have the first word:
Deuteronomy 17:15 “be sure to appoint over you the king the LORD your God chooses. He must be from among your own brothers. Do not place a foreigner over you, one who is not a brother Israelite.”
Our Constitutional requirement may have come from the Bible! I was unaware of that before making my offer.
Part of the reason I made my offer was so I could further gather and share information, and I find controversy and debate and investigation to be fun. So, here’s a brief on what I know after 300 emails in nearly two days, many from greedy and angry know-it-all’s, and many from supportive and helpful researchers.
On who lies the burden of proof? Even for regular citizenship, it lies on Obama, so says the State Department. These are complex issues, because it involves not only the place where born, but also one’s parent’s nationality and/or citizenship, and as we know, people can have two parents of all different nationalities and citizenship, and even be born in a another place, creating complexity.
The State Department has a 103 page document on “ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT”:
http://www.state.gov/documents/organization/86757.pdfThe State Department said, “The burden of proving a claim to U.S. citizenship, including blood relationship and legal relationship, where applicable, is on the person making such claim.”
And that’s merely for plain old US citizenship, not “natural born” citizenship, which could be even more complex.
The State Department also asserts that “the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.”[14]
Note that! Even “natural born” status given by statute may not work for Constitutional purposes!
How could that be? Let me guess. “Natural born” citizen status can be given by statute to a foreign born child if both of his parents are US citizens, but perhaps the State Department is recognizing that such a law would be superceded by the Constitution, which is the supreme law of the land, and those who interpret it, such as the Supreme Court.
Many have claimed that the Constitution does not define “natural born citizen.”
But there are clear legal distinctions between a “natural born citizen”, which is different from a naturalized “citizen”. According to the 14th Amendment, anyone born or “naturalized” in the US becomes a citizen, but not necessarily a “natural born citizen” as that wording was not used in the 14th Amendment.
Confusing? Yes! This issue is what most people are confused about: A person born in the USA is a citizen, but is not necessarily a “natural born” citizen, because even regular citizenship also depends on your parents, as the State Department clearly acknowledges in their 103 page document, over and over again.
Arnold Schwarzenegger is a clear famous case of being a US citizen, but not a natural born citizen. Arnold was naturalized, he became a US citizen after his birth, and most people know he is not eligible to be President.
Also, people can become US citizens at birth, by being born in the US to foreigners, via the 14th Amendment, but it would not necessarily make them a “natural born” citizen either. People forget that.
It is clear that if you have three things, such as both parents being citizens of the nation, and being born in the nation, you would be undoubtedly, a “natural born” citizen.
But if one of those three things is in doubt, then natural born status is in doubt, implied the Supreme Court.
Minor v. Happersett 88 U.S. 162 (1874) The Fourteenth Amendment draws a distinction between the children of aliens and children of citizens. “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.”
Here’s my understanding and explanation of why:
There are provisions for one or two US citizens bearing a child overseas, that child could still be a “natural born” US citizen, but that’s only by statute, and might not be enough, for Constitutional purposes, according to the State Department, remember.
Therefore, a similar situation could be true. A child born to foreign parents, born not in the nation of his parents, such as in the USA, would have citizenship of his parent’s nation, and also be a “14th Amendment US citizen”, but not a “natural born” US citizen.
This appears to be the case with Obama.
Obama’s father was Kenyan, and thus, his father could not give any “natural born citizen” status to Obama, except Kenyan citizenship, (or British).
Obama’s mother was American, but 17 or 18, depending on the reports. She was too young to give US citizenship to Obama by blood only, which is crucial for the circumstance of being born overseas, for which she would have to be 19.
From the Immigration and Nationality Act of 1952 (McCarran-Walter Act):
http://algiers.usembassy.gov/crba.html
2) Born to one U.S. citizen and one alien parent
Born before or on November 13, 1986
The U.S. citizen parent must have been physically present in the United States for a cumulative period (or periods totaling) ten years before the birth of the child, at least five years of which were after the U.S. citizen parent reached the age of 14. If this requirement is met, the child acquires U.S. citizenship under the provisions of Section 301(g) of the Immigration and Nationality Act.’But even if Obama’s mother qualified, that would still only give “US citizen” status, not “natural born” status.
Yes, that’s for foreign born children.
It appears that if Obama was born overseas, and obviously Obama’s mother didn’t qualify to give him US citizenship, as she was too young, she may have found another simple way to get regular US citizenship for her son, which I speculate on a few paragraphs below.
Links for further research:
www.EligibilityQuestions.com [emphases original]
Mr. Hommel goes on:
The San Francisco Examiner remains unconvinced, as of today, July 29th, by the Hawaiian short form, and by the recent “congressional resolutions”.
Many people have tried to claim my reward by sending this link:
http://www.factcheck.org/elections-2008/born_in_the_usa.html
But it does not remotely address the key questions, and says that you cannot obtain a “long form”, when a picture of the long form for another child from one day after Obama was allegedly born, is here:
A Hawaii Long Form Certificate from 1961
http://www.wnd.com/index.php?fa=PAGE.view&pageId=105347An interesting “argument” or “evidence” is that there is a “birth announcement” in a Hawaiian newspaper. A birth announcement in a newspaper is not proof of being “natural born”, nor even US born, as anyone can place a birth announcement.
Shockingly, it was apparently enough to convince Hillary Clinton’s camp to give up the issue. Maybe because they didn’t realize that being born in the USA, (which that implied, but did not prove) would only be enough, maybe, to become a 14th Amendment citizen, but not enough to become a natural born citizen.
That Hillary gave up the issue, was apparently enough to convince Ann Coulter that there is “nothing to this issue”. Really? To trust Hillary’s judgment? Based on a newspaper announcement is all that’s needed? Right. Wow.
I suppose I should place a newspaper blurb that Obama is Santa Clause, willing to give everyone their every wish! Some people will believe anything! We “birthers” as they call us, are not the gullible ones here!
A newspaper announcement might have been necessary to create documentation for an “application for registration of birth abroad”.
If Obama was born in Kenya, and if “no proof of birth” was available, his mother could apply for the “certification of live birth” by creating some kind of document like a baptismal certificate, or perhaps such as placing a newspaper birth announcement.
22cfr \ 22 CFR \ PART 50—NATIONALITY PROCEDURES \ § 50.5 Application for registration of birth abroad.
§ 50.5 Application for registration of birth abroad.- – - The applicant shall be required to submit proof of the child’s birth, identity and citizenship meeting the evidence requirements of subpart C of part 51 of this subchapter and shall include:
(a) Proof of child’s birth. Proof of child’s birth usually consists of, but is not limited to, an authentic copy of the record of the birth filed with local authorities, a baptismal certificate, a military hospital certificate of birth, or an affidavit of the doctor or the person attending the birth. If no proof of birth is available, the person seeking to register the birth shall submit his affidavit explaining why such proof is not available and setting forth the facts relating to the birth.
(b) Proof of child’s citizenship. Evidence of parent’s citizenship and, if pertinent, evidence of parent’s physical presence in the United States as required for transmittal of claim of citizenship by the Immigration and Nationality Act of 1952 shall be submitted.
Many people have speculated that the Hawaiian newspaper birth announcement would be ridiculous to do merely to plan to hope to obtain the office of Presidency. Right! I agree. I believe it was merely to obtain normal, regular US citizenship, for a child born abroad, and certainly does not create “natural born” status.
If you know how the law works, and how loopholes exist due to normal uncertainty, you realize that you can just as easily have a birth at home and write it in your Bible, or have a birth overseas and place a newspaper announcement, and use any old statement of fact to get a birth certificate, and thus, regular citizenship.
More information is coming out that there is no evidence that Obama’s mother was in Hawaii during the time of his birth.
From:
Count the ways to get Hawaii ‘birth certificate’ – July 30th
http://www.wnd.com/index.php?fa=PAGE.view&pageId=105371“And the fact that though there are many witnesses to Ann Dunham’s presence on Oahu from Sept. 1960 to Feb. 1961, there are no witnesses to her being on Oahu from March 1961 to August 1962 when she returned from Seattle and the University of Washington. No Hawaiian physicians, nurses, or midwives have come forward with any recollection of Barack Obama’s birth,” the report said.
It has been said that the short form birth certificate from Hawaii was issued for such foreign births.
It appears that even a valid, Hawaiian short form is thus grossly insufficient to prove “natural born” status.
And it appears that the long form, even if it showed Obama born in the USA, would also be insufficient to prove “natural born” status, because Obama’s father was Kenyan, and his mother was too young.
But the long form might also prove that Obama was not born in the USA, and could easily cause many to quickly and easily see that a foreign born person, born to a foreign parent and an underage US citizen, could not be construed as being fitting with the plain meaning of “natural born” for Constitutional purposes.
Or, there might not be any long form altogether. This is why I jumped into the fray. Asking “Where’s the Birth Certificate”, I think, is the wrong question. But it got me and many others asking questions, and so that campaign helped.
Unfortunately, it appears to me that the first thing Obama did when taking office is to block the release of such records via executive order, as reported here:
http://www.thefreepressonline.co.uk/news/1/1668.htm
On Obama’s first day in office, he sealed his birth and personal records through executive order. Here’s the link to the executive order on the government website:
http://edocket.access.gpo.gov/2009/pdf/E9-1712.pdf
Excerpt:
“Sec.2 — Notice Of Intent To Disclose Presidential Records
When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of the NARA regulations, the Archivist, using any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of executive privilege.”
Why would Obama seal records if he had nothing to hide?
Also, remember, the burden of proof is on Obama, not us.
But if he refuses to prove that he can be the President, then he cannot issue any valid executive orders!
Thus, all of his executive orders, including, and especially the ones to block the release of important documents that might prove he cannot be the executive, are likely illegal orders.
I suppose any such people who are following such an illegal order could be guilty of being an enemy of the Constitution, or aiding and abetting an enemy of the Constitution, especially if they are guilty of “obstructing justice” by blocking the release of information that would call into question Obama’s executive privilege.
I understand that all Marines have a sworn duty to protect the Constitution against all enemies, foreign and domestic. Where are all the Marines? Oh yes, fighting wars overseas that Obama said he would end, but has not ended. I suppose all Marines in battle overseas are following illegal orders from an ineligible President.
The important point here is that truth is not established by Obama or Congress or Hawaiian officials issuing “orders” or “proclamations”.
Truth is established by the people, by two or three witnesses, by the Bible, by your conscience, by a rule of law, by tradition, by facts, by investigation, by debate, by cross examination, and can be established, but not necessarily, by courts. I think I got to the truth rather quickly by reviewing over 300 people’s reviews of the subject. This is why I have provided links for everything.
Am I a racist? No. I have established that two Muslims, Africans, or Asians, or any other nationality, could come to the US tomorrow, become naturalized 14th Amendment citizens, have a child on US soil, who would then be a “natural born” citizen according to my understanding, and would thus qualify to be President. [emphases original]
As a sidenote, Mr. Hommel goes on through the balance of his posting describing why he seriously questions the American Judiciary after he filed an appeal concerning his attempt to get a job without using his Social Security number (which, if I recall correctly, the law stipulates that only federal, State or local governments can require a citizen to furnish such a number for record keeping purposes). This page documents Mr. Hommel’s journey through dealing with that law.
Clearly, the concept of natural born citizenship is something that could potentially be resolved via a revelation of background documentation, such as a birth certificate. However, since it’s abundantly clear that some situations — such as with Mr. Obama — are not clear-cut, it is important for everyone to become as educated as they can regarding even the finer nuances of natural born citizenship.
Of course, for this to be important to you, every word in the Constitution must be important, else one practices Cafeteria Constitutionalism ™, picking and choosing what one is going to consider legal and dumping the rest (funny how some in the opposition try to turn the argument around and suggest that individuals such as myself are the ones trying to do this!).
TheBirthers.org present a new posting regarding the Unseen Hand, a description of what this is ultimately all about (excerpted):
People are constantly asking for our opinion about which court case against Obama is the best, or who we think is the best lawyer.
We have stayed away from picking sides for a reason. Every lawyer involved has done this country a service. Every plaintiff from the individuals suing their Secretaries of States, to the individuals and members of the military suing Obama, and to those suing both Obama and Congress for the good of our Nation has the absolute right to be called a patriot.
What we have noticed is that each lawsuit has approached the issue differently, in the beginning there was no case law as how to stop a usurper from causing this constitutional train wreck. The attorneys used their best judgment and no one should play armchair quarterback. What we have noticed is that each new lawsuit either added something new or took a previous case and applied the lessons learned. Through a learning experience, each new lawsuit is becoming stronger and stronger. The disappointments that we all shared in not having a court hear any of the lawsuits were not in vain, because we have learned from our collective experiences.
To be respectful to the courts some decisions given by the courts were vague, while others pointed out that while a candidate, Obama was protected under the first amendment to run within the political process, for he was not yet subject to the eligibility requirements of Article II, Section 1. Some decisions before the civilian courts were trumped by the application of military law and policies. Other decisions have applied the rules of standing of civil proceedings because the cases were presented as civil proceedings. …
I believe it is for an unseen reason that standing has not yet been granted, that it is the unseen hand of Divine Providence protecting this Nation from our own sense of urgency and quietly strengthening one individual on whose shoulders rests the hopes of everyone who believes in a Constitutional republic and not the rule of the unbridled passions of body politic that is too often called democracy.
Perhaps this same unseen hand stopped the earlier lawsuits so the people could run with their passions, as the cry for “change” at any price made many to forget that this Nation is strong and our constitutional protections firm only when we govern ourselves with moral guidance. Did this unseen hand feed us the sweetness of our own egocentric desires, did this unseen hand pour a measure of the intoxicating wine of irresponsibility to the people as they ignored the foundations of our republic, and did this unseen hand do these things because we have forgotten our heritage and our place that Nature’s God put us in to guard against the events of the world that threaten the innocent? Did Nature’s God withdraw the hand of Divine Providence in the foreknowledge that it would come back to protect the Nation at its darkest hour, after the sweetness of desire turned bitter in our stomachs and the intoxication of irresponsibility shows that we have tossed off our clothes of morality only to see ourselves naked? If this is the answer then we with the hands that can be seen should show them joined in prayer to Nature’s God upon whose will Divine Providence is ordained. …
Who ever gets standing what we must do is bow our heads in silent prayer for it is this person that the Divine Providence of Nature’s God has uncovered and, that the argument they present to the courts comes from the wisdom of our Founding Fathers. Let us take comfort that in the unseen assurance that the same Divine Providence that protected our nation throughout the Revolutionary War still waits to protect us if we have the faith to call upon the name of Nature’s God.
Please join us at 2:01 PM Eastern time on Wednesday August 19, 2009 for one moment of silence as we bow our heads across the nation from the eastern most shores of Maine, to the western most island in the Aleutian Islands of Alaska to Nature’s God as we again ask for the protection of Divine Providence.
August 19th is an important date in American history it is the day we fought the final battle of the Revolutionary War, the Battle of Blue Licks, and it is the day that the grande dame of our Navy, the USS Constitution (how much more fitting can that be for those of us that swore allegiance to her namesake) scored our first victory of the second war of independence, the War of 1812, against the British ship the HMS Guerriere and earned her immortal nickname “old ironsides” as the British cannon balls bounced off her hull. The dark side of this day occurred 75 years ago in Germany when the position of the Führer was created by the simple majority of a democratic vote.
At the appointed hour on the August 19, 2009 let us take courage from the deeds of our history and resolve never to allow the dark passions of a desperate world to stain our national soul by believing that any one man or group of men are above the Constitution that empowers them. Let us move forward in our sworn duty, “with a firm reliance on the protection of Divine Providence,” to guard our Constitution and our Republic from all enemies both foreign and domestic.
An election for President and Commander in Chief of the Military must strive to be above reproach. Our public institutions must give the public confidence that a presidential candidate has complied with the election process that is prescribed by our Constitution and laws. It is only after a presidential candidate satisfies the rules of such a process that he/she can expect members of the public, regardless of their party affiliations, to give him/her the respect that the Office of President so much deserves.
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