The Obama Eligibility Question – Part II

HOW HAVE 19^th AND 20^th CENTURY POLITICAL LEADERS DEFINED THE TERM “NATURAL BORN CITIZEN?”

(Oct. 12, 2016) — In Part I of this series we discussed the way in which the Framers indicated that the terms “citizen” and “natural born Citizen” were mutually exclusive, not synonymous. And we discussed the all-important significance of the phrase, “or a Citizen of the United States, at the time of the Adoption of this Constitution…” in Article II, Section 1, Clause 5 of the Constitution, signifying that the terms “citizen” and “natural born Citizen” were to be seen as mutually exclusive… one all-inclusive, the other describing a specific category of citizens.

Were that not the case, and had the Framers intended that the terms “citizen” and “natural born Citizen” were to be viewed as synonymous, the Framers would simply have written,“No Person except a Citizen of the United States shall be eligible to the Office of President…”

The Framers found it inconceivable that a president of the United States, commander in chief of the Army and the Navy, should ever be influenced by or required to obey the laws of a foreign country. It is for this reason that the Constitution limits candidates for president and vice president to those who are “natural born” citizens, and to those who were citizens of the United States at the time the Constitution was adopted. There can be no exceptions.

In Part II, we will provide examples of how 19^th and 20^th century political leaders and legal scholars have differentiated between the terms. For example, in 1866, John A. Bingham, chief framer of the 14th Amendment, which granted citizenship to the freed slaves, wrote as follows: “Every human being born within the United States of parents not owing allegiance to any foreign sovereignty(emphasis added) is, in the language of the Constitution itself, a natural born citizen.”

While the Constitution itself does not define the term “natural born Citizen,” the legal precedent referred to in the Olson-Tribe memorandum cited above is taken from Minor v. Happersett, 88 U.S. 162(1875), the only defining precedent established by the U.S. Supreme Court. The Court concluded in Minor 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. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

In subsequent years, as modern transportation systems were developed and international travel became commonplace, the term “natural born Citizen” evolved to include those who were born to American citizen parents outside the continental limits of the United States… as was the case with former Michigan Governor George W. Romney (born in Mexico to American parents) and Senator John McCain (born in Panama to American parents.)

Today, many thousands of babies are born each year to U.S. citizens on foreign soil. In cases where both parents are U.S. citizens, those children are “natural born” citizens under Article II, Section 1 of the U.S. Constitution. Conversely, many thousands of children are born each year on American soil to parents, both of whom are not U.S. citizens. Under the 14^th Amendment, those children become U.S. “citizens” at birth, but they can never qualify as “natural born” citizens.

Clearly, those who drafted the U.S. Constitution and subsequent amendments knew what it meant to be a “natural born” citizen, but what of our political leaders of today?

In the early months of 2008, at a time when Hillary Rodham Clinton was the frontrunner for the Democratic nomination and few observers were taking Barack Obama seriously, a number of lawsuits were filed questioning whether Senator John McCain, having been born in the Panama Canal Zone, was a natural born U.S. citizen.

Former U.S. Solicitor General Theodore Olson, a conservative Republican, and Harvard Law professor Laurence H. Tribe, a liberal Democrat, were assigned the task of researching the issue. In a March 19, 2008 memorandum, Olson and Tribe concluded that, “Based on original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent, Sen. McCain’s birth, to parents who were U.S. citizens serving on a U.S. military base in the Panama Canal Zone in 1936, makes him a ‘natural born Citizen’ within the meaning of the Constitution.”

Weeks later, in an April 10, 2008 statement, Sen. Patrick Leahy (D-VT) chairman of the Senate Judiciary Committee, said, “Based on the understanding of the pertinent sources of constitutional meaning, it is widely believed that if someone is born to American citizens anywhere in the worldthey are natural born citizens. Because he was born to American citizens, there is no doubt in my mind that Senator McCain is a natural born citizen (emphasis added).”

This was followed by an April 30, 2008 Senate resolution, approved by a vote of 99-0 (Senator John McCain abstaining). The resolution declared: “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.” Senator Barack Obama (D-IL) voted in favor of the resolution.

It is important to note that all five references… the 1866 Bingham definition, the 1875 Minor v. Happersett decision, the Olson-Tribe Memorandum, the Leahy statement, and the U.S. Senate Resolution… all utilize the plural terms “parents” or “citizens,” strongly suggesting that the “natural born” question rests principally on the necessity of both parents being U.S. citizens. Nowhere in the law or in legal precedent is it even suggested that a child born on American soil to a foreigner can claim status as a “natural born” US citizen.

It is also important to note that, during the past decade, a number of resolutions have been introduced in the U.S. House of Representatives aimed at amending Article II, Section 1 of the Constitution, completely altering the traditional interpretation of the term “natural born Citizen.” For example, in support of Arnold Schwarzenegger’s stated presidential ambitions, Rep. Dana Rohrabacher (R-CA), introduced H.J.R. 104 on September 15, 2004. The resolution proposed to amend Article II, Section 1 of the US Constitution by adding the following language: “A person who is a citizen of the United States, who has been a citizen of the United States for at least 20 years, and who is otherwise eligible to hold the Office of the President, is not ineligible to hold that Office by reason of not being a native born citizen of the United States.”

H.J.R. 104 was referred to the House Judiciary Committee, Subcommittee on the Constitution, where it remained through the end of the 108^th Congress. Then, early in the 109^th Congress, on February 1, 2005, Rohrabacher made a second attempt with the introduction of H.J.R. 15, which contained essentially the same language as the failed H.J.R. 104 of the previous Congress. And while it is understandable that Rohrabacher would attempt to amend the Constitution to make it possible for his own governor, an Austrian-born naturalized citizen, to seek the presidency, similar attempts by Democrats during the same decade are not so easily understood or explained.

For example, on June 11, 2003, during the 108^th Congress, Rep. Vic Snyder (D-AR) introduced H.J.R. 59 which would have totally eliminated the “natural born Citizen” requirement in Article II, Section 1 by substituting the following language: “A person who has been a citizen of the United States for at least 35 years and who has been a resident within the United States for at least 14 years shall be eligible to hold the office of President or Vice President.”

The Snyder proposal was followed by H.J.R. 67, introduced on September 3, 2003 by Rep. John Conyers (D-MI). The Conyers proposal would have added the following substitute language to Article II, Section 1 of the Constitution: “A person who has been a citizen of the United States for at least 20 years shall be eligible to hold the Office of President.”

On January 4, 2005, early in the 109^th Congress, Conyers made a second attempt with the introduction of H.J.R. 2, proposing the same language as contained in H.J.R. 67 of the 108^thCongress. And on April 14, 2005, Rep. Vic Snyder made yet another attempt, introducing H.J.R. 42, containing amendatory language identical to his H.J.R. 59 of the 108^th Congress. All of the above resolutions, proposing to send constitutional amendments to the states for ratification, suffered the same fate. All died in committee without being acted upon.

Rep. Dana Rohrabacher is finishing his 13th term in the U.S. House of Representatives

Any member of Congress is free to introduce a resolution proposing an amendment to the U.S. Constitution. However, what distinguishes Rep. Rohrabacher’s resolutions from those of his Democratic colleagues is that his motive was clear; he was interested in making it possible for his governor, Arnold Schwarzenegger, to seek the presidency. The motivations of his Democrat colleagues, on the other hand, are a complete mystery; they only serve to raise major questions.

In other words, if the “natural born Citizen” requirement had not represented a major problem at any time in U.S. history, why were Democrats suddenly concerned about it in 2003, 2004, and 2005 when a young black man, the son of an American mother and an African father, born with dual US-British citizenship, was emerging as a rising star in the Democratic Party?

So the question arises, what did Congressmen Snyder and Conyers know that caused them to offer proposed constitutional amendments, any of which would have solidified Barack Obama’s presidential eligibility? More specifically, what did they know about Obama’s presidential ambitions and his inability to meet the “natural born Citizen” standard, and when did they know it? What did they know about Democratic Party efforts to “groom” an unknown black state senator from Illinois to become president of the Unites States, and when did they know it?

There is no better exemplar of the fears that motivated the Framers to limit access to the presidency to “natural born” U.S. citizens than the current resident of 1600 Pennsylvania, Ave. Barack Obama’s father was a Muslim and a black African socialist and communist sympathizer; his mother was a left-wing socialist flower-child; his stepfather was an Indonesian Muslim of unknown political leanings; his grandparents were far-left communist sympathizers; his teenage mentor, Frank Marshall Davis, was a well-known Communist Party writer and activist; the people who were instrumental in launching his political career in Chicago were Weather Underground terrorists who had killed U.S. law enforcement officers; and his religious mentor was the Rev. Jeremiah Wright, an America-hater of the first order.

It is precisely this sort of intellectual environment that the Framers feared most and that caused them to limit access to the presidency only to those who are “natural born” US citizens. With that formative background is it any wonder that, upon gaining the presidency, Barack Obama has attempted to “fundamentally transform” the government of the greatest nation on Earth?

Support for Barack Obama’s eligibility to serve as President of the United States begs the question: precisely what is it that differentiates a “citizen” from a “natural born” citizen? Those who agree that the two terms are mutually exclusive, but who also argue that Obama is “natural born,” are obliged to support that position with facts and reason. They have yet to do so.

In Part III and Part IV of this series we will discuss the circumstances of Barack Obama’s birth and citizenship, as well as US government policy on dual citizenship.

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Paul R. Hollrah is a retired government relations executive and a two-time member of the U.S. Electoral College. He currently lives and writes among the hills and lakes of northeast Oklahoma’s Green Country.