Trying to clarify the imponderables of the natural born citizen issue

(Note: For further light on the subject, be sure to see the exchange with Clark Coleman starting here.)

This blog entry will not lead you to knowledge of the truth. It may, however, help lead you to knowledge of what you don’t know about the truth. And knowing what you don’t know is far better than not knowing what you don’t know.

I also argue in this entry that whatever the facts and law turn out to be, there is no realistic chance—given the staggering ambiguities in the existing law—of that discovery leading to a serious attempt to cancel the election. This is not about trying to disqualify Obama (for whose Republican opponent I did not vote), this is about getting at the truth of Obama’s origins that has been concealed from us.

In reading the comments on the Randall Hoven article at American Thinker that I linked earlier, I realize that the characterization of the relevant federal law (or rather one of the relevant laws) that I had been basing myself on since VFR’s discussion last August of the Obama birth issue was incorrect. (Or perhaps it wasn’t. Ha ha. I said this was about what we don’t know.) Below is the text quoted in that entry that described the relevant law and that I relied on:

Thursday, August 21, 2008
Obama Sued in Philadelphia Federal Court on Grounds he is Constitutionally Ineligible for the Presidency

by Jeff Schreiber
America’s Right.com

[…]

Should Sen. Obama truly have been born in Kenya, Berg writes, the laws on the books at the time of his birth hold that U.S. citizenship may only pass to a child born overseas to a U.S. citizen parent and non-citizen parent if the former was at least 19 years of age. Sen. Obama’s mother was only 18 at the time. Therefore, because U.S. citizenship could not legally be passed on to him, Obama could not be registered as a “natural born” citizen and would therefore be ineligible to seek the presidency pursuant to Article II, Section 1 of the United States Constitution.

Must be at least 19. Many people, it seems, including me, have been using that as the benchmark. However, on reading the full text of TITLE 8, CHAPTER 12, SUBCHAPTER III, Part I, 1401 of the U.S. Code, which is here, and which was quoted and linked in the comments following Hoven’s article, I realize that the “19 years of age” is an incorrect characterization of the law. Here is the actual law:

1401. Nationals and citizens of United States at birth The following shall be nationals and citizens of the United States at birth:

[…]

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:

I think what happened was that Philip Berg or Jeff Schreiber added the five years onto the 14 years and came up with 19 years. But they missed the phrase “at least two of which were after attaining the age of fourteen years,” meaning that the person did not have to reside in the U.S. for five years after attaining the age of 14, but only two years, which Stanley Ann Dunham obviously did, and therefore Obama would be natural born citizen.

Thus what I had thought was a main argument against Obama’s being natural born, namely that his mother was less than 19 at the time he was born in Kenya (assuming he was born there), was incorrect.

However, that’s not the end of it. In that same August VFR entry, there is another law that is referenced:

Does polygamy secure Obama’s citizenship?
By Steve Miller Monday, August 11, 2008

[…]

Here is the law per FindLaw.com that applied at the time of his birth—if his parents were legally married [LA: which of course is a big question, but we can’t deal with all questions at once]:

4. December 24, 1952 to November 13, 1986: If only one parent was a U.S. citizen at the time of your birth, that parent must have resided in the United States for at least ten years, at least five of which had to be after the age of 16. If the above law is found to be the correct law applying at the time of the birth of Barak Obama, he is legally not qualified to hold the office of President.

So according to this law, the mother of a child born in Obama’s circumstance would have had to be 21, and therefore Obama’s not a natural-born citizen. Now the author does not provide what section of the U.S. Code this provision comes from, and obviously it is in conflict with Sect. 1401 quoted above. But since we have actually have Sect. 1401, we’d have to give it the precedence.

However, in the AT discussion, Sharon Everette at Dec 09, 07:33 AM references the “ten years, at least five of which” law, but her comment is so poorly written it’s impossible to make sense of it:

Randall, if it were that simple it would have been over long ago. You need to go to the year applicable to Obama’s birth. At that time, Obama’s mother would have to be 19 when she gave birth, if she indeed gave birth in Kenya.

1986—Subsec. (g). Pub. L. 99-653 substituted “five years, at least two” for “ten years, at least five”.

I found nowhere in the code making this retroactive to 1961.

Then Hoven in a later comment throws another wrench into the works. He says that Sect. 1401 refers to “Nationals and citizens of United States at birth,” and that this is not the same thing as a “natural born citizen,” and that the latter only means “born in the US, with both parents being US citizens”! Oh my gosh. What mortal could possibly follow these issues!

Also, it makes no sense. It would mean that if a U.S. citizen couple travelled abroad for a few months, and had a baby there, that baby would not be a natural born U.S. citizen.

And what is the difference between a natural born citizen and a U.S. national and citizen at birth? Also, what is the difference between a national and a citizen?

Here is Hoven’s comment:

Posted by: Randall Hoven
Dec 09, 11:58 AM Report Abuse

I would like to soften my previous comment [his comment of in which he said that USC 1401 shows that Obama is a natural born citizen]. While USC 1401 is pretty clear on what constitutes a “national and US citizen at birth”, that is not the same as “natural born”. And some good legal scholars emphatically state they are NOT the same. Some such scholars instist that “natural born” means “born in the US, with both parents being US citizens”. That seems like a pretty strong definition, possibly too strong if we give any weight at all to the Donofrio case and the Supreme Court’s decision on that.

But I don’t think we should be discussing the definition of “natural born” as laymen on the internet. It truly is a legal and constitutional issue that I know I am not qualified to discuss. You cannot simply trace the definition to some law or court ruling.

However, simply citing USC 1401 is not sufficient to put the matter to rest.

It would sure be nice if (a) Obama produced his “long form” BC, and (b) the Supreme Court, or some court, told us what “natural born” means.

We are ALL in the dark, and there’s been too much heat and too little light.

I stand by my story.

Hoven wisely recognizes the staggering difficulties in understanding what the law really is. All of which points to the fact that even if it turned out that Obama was born in Kenya, there is no chance that any plausible challenge could be mounted to his qualifications. And therefore we should not be afraid of the truth. The worst that would happen is that Obama would be revealed as a liar for saying he was born in Hawaii when he was really born in Kenya. But what difference would that make? We already know he is one of the biggest liars that ever lived, having bald-faced lied about the nature of the church he had been attending for his entire adult life. If that lie—not to mention his membership in that disgraceful church—didn’t disqualify him in the public’s eyes for the presidency, his lying about the location of his birth will not disqualify him either.

Also, Wikipedia’s article on natural born citizen is worth reading. It shows that the term is indeterminate and undefined. Indeed, beyond a child born in the U.S. of two citizen parents, there is a huge grey area. Of particular relevance to the Obama situation is President Chester A. Arthur, who was born in Canada of an American mother and a father from Ireland who later became a naturalized U.S. citizen. Given the Arthur precedent, it’s hard to see what Obama and David Horowitz have to be afraid of.

The bottom line remains: we deserve the truth.

* * *

In addition to wanting to understand what these laws mean and which law is the operative version of the law, I’d also like to know the reasons for these strange laws. In their incomprehensibility and seeming arbitrariness (“… who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years…”), they remind me of the rules for the duel in Act V of Hamlet.

First, here is the courtier Osric speaking to Hamlet, proposing the duel with Laertes:

The king, sir, hath laid, that in a dozen passes
between yourself and him, he [Laertes] shall not exceed you
three hits: he hath laid on twelve for nine; and it
would come to immediate trial, if your lordship
would vouchsafe the answer.

Then later, just before the duel begins, King Claudius gives his own version of the rules to Hamlet and Laertes:

Set me the stoops of wine upon that table.
If Hamlet give the first or second hit,
Or quit in answer of the third exchange,
Let all the battlements their ordnance fire:
The king shall drink to Hamlet’s better breath;

Transparent, huh? Try to figure out each of these sets of rules for the duel. Just try it. Then try to reconcile Osric’s version of the rules with the King’s. Now imagine if Shakespeare had written the United States Code, and it wouldn’t be much harder to make sense of than it actually is.

- end of initial entry -

Clark Coleman writes:

Part of the confusion here is caused by the federal statutes being amended in 1986 to change “ten years” to “five years” and “at least five years after age 14” to “at least two years after age 14.”

So, the age of 19 was not arrived at by mistake, as you surmised, but by using the language of the statute as applicable in 1961 when Obama was born, rather than as it is found on the internet today, having been amended in 1986.

For details, refer to this article by Matthew Franck:

In particular, follow the link to Eugene Volokh’s correction of his own remarks on this matter.

Unlike Mr. Hoven, I am not convinced that “natural born citizen” means both parents were American citizens AND you were born on American soil. Rather, I believe that the usages, going back to Blackstone and earlier, implied that you were unquestionably a citizen at birth, with your only possible allegiance being to one “crown” or nation, and thus you did not need to become a citizen by any later naturalization process. The intent of our founding fathers was to prevent divided loyalties in a President of the United States. Being born overseas, with one of your parents not even an American citizen, raises too many questions of potentially divided loyalties. Obama’s birth and youth, being raised for a while as an Indonesian citizen, etc., all point to exactly what the Founders wished to avoid. Whether he runs afoul of the applicable statutes will depend on several factors, including his place of birth.

If two American citizens have a child while they happen to be traveling outside the country, having met the residency requirements of the statute, the child does not need to be naturalized as a citizen, i.e. the child is a natural born citizen. If one parent is an alien, then residency requirements are strict, because you can imagine all sorts of cases in which a child could be born and raised entirely with loyalties to another nation, and then seek to be POTUS. For example, what if Obama had been reared in Kenya until age 18? Would it be sufficient to note that his mother was an American citizen to make him eligible for POTUS? I think not, and the statutes are designed to require a certain preponderance of evidence of national ties. Birthplace, residence, whether birthplace was determined by overseas assignment of a parent in the military or other government service or was due to mere private choice, etc., are the various factors considered. Requiring perfection in these indicators, as Mr. Hoven does, does not fit the statutes or the common law precedents and Blackstone. But Obama is on thin ice.

LA replies:

You can help us by expanding on your opening point. It needs to be made clear what is the meaning of the two versions of the law, what is the relationship between them, and why has the confusion arisen.

Second, re the purpose of the law to avoid divided loyalties, this is an excellent point, but I don’t see how the law is actually concerned with all the things that you say are concerns. e.g., none of those statutes say when the child must return to the U.S. Under the law, if the U.S. mother living abroad is of the requisite age and residency requirements, so that the child is U.S. citizen from birth, then he could continue living in that foreign country until, say, age 12 or 15, then come to the U.S. What would prevent him from being natural born citizen and running for president? Obviously a person living the first 12 years of his life would start to have some existential allegiance to the country of his residence, but how would such “non-allegiance” to the U.S. be captured and identified by the U.S. law? He is already considered to have allegiance by the fact of meeting the requirements of natural born citizen at time of birth.

Another question. Suppose Obama was not a natural born citizen, but his family all considered him one. His mother brings him back to Hawaii at say age of one month. He lives his whole life in U.S. (leave out of this scenario the Indonesian interlude). He’s never sought naturalization because he simply considered himself a citizen. What then is his status?

Or put it another way. Let’s say child of U.S. citizen born abroad is not natural born because citizen mother doesn’t meet residency or age requirements. WHAT IS HIS STATUS? HOW DOES HE BECOME A CITIZEN? Does he need to go through naturalization process? That would seem absurd.

Clark Coleman replies:

I am not sure what needs to be expanded about my opening point, other than copying material from Eugene Volokh’s discussion, linked from the Matthew Franck piece. Many people, discussing this topic on the internet, have found the U.S. Code online and have read the version as amended in 1986, as you did. They then conclude that Stanley Ann Dunham was 18 years old, a U.S. citizen, and satisfied the requirement that the citizen parent resided at least two years after age 14 in the USA, making her foreign-born children natural-born citizens who do not need naturalization. Unfortunately, the law in effect in 1961 specified five years after age 14, not two. So, Barack Obama would have had to apply for naturalization. Mr. Berg, in his lawsuit that was denied for lack of standing, sought to force divulgence of State Department naturalization records and claimed that either (1) Barack Obama was naturalized sometime after return from Indonesia, in which case he cannot be POTUS if proof of Kenyan birth can be made, or (2) he was not naturalized, in which case proof of a birth in Kenya would lead to the conclusion that he is not even eligible to be a Senator! Obama’s attorneys objected to any divulgence of Obama’s records from any source in this case (college applications, Hawaiian agencies, Indonesia, Kenya, State Department, etc.) and fought Berg’s standing instead, and won.

As for the divided loyalties, I was addressing the intent of the Constitutional framers. You can generally read some correspondence between their intent and later statutory intent, but it is not perfect correlation.

The questions about how many formative years someone spends overseas are interesting, but Congress has chosen to address national ties using the citizenship and residency of the parents and the place of birth. This is partly because they want a status (natural born citizen or not) to adhere from the moment of birth. After all, that is the gist of the Anglo-American precedents: At the moment of birth, do you have natural allegiance to one country, or more than one country? Yes, allegiances can arise, disappear, or be strengthened or weakened later in life, but a status needs to be assigned at birth.

As you point out, that can lead to incongruous situations in which one person obviously has closer ties to the USA than another, yet is not a natural born citizen while the other man is. It happens. And yes, some people have actually had to be naturalized because of being born in Obama’s (alleged) situation, because one parent was an alien, even though their overseas birth would not have forced them to undergo naturalization if both parents had been USA citizens. Some such people have complained about this on internet sites discussing the Obama issue.

The bottom line is that a LOT now depends on the place of Obama’s birth. But, even if born in Hawaii, there are questions about whether he held an Indonesian passport before ever holding an American passport, etc., that I do not know much about.

LA replies:

Based on your comments the following can be reasonably said:

1. You’re not a deranged Obama opponent.

2. It is more serious than I realized.

3. Looking into this does have huge, chaotic consequences for the political system. It’s not just a “let’s get at the truth” situation, as I was suggesting.

So, what do you think ought to be done? Should all efforts be continued to get the truth? What about the David Horowitz-type concerns, the staggering chaos, conflict, mutual hatreds, harm to the system this could cause, given that Obama has already been elected?

LA continues:

If it all comes down to Stanley Ann’s being 18 instead of 19 when Barack was born, isn’t that absurd that such a meaningless technical detail makes him not a natural born citizen, and thus not able to be president? What would be at stake in that case is not the constitution, but some oddball requirement that happened to be in effect in 1961. And what was the purpose of the requirement that the parent had to have lived five years in the U.S. after age 14?

I guess your answer will be along the lines of your comment regarding the Founders’ intention that the President be a person who has undivided loyalty to America, not confused by ties to other countries or lack of clear ties to America. In the situation covered by the law in effect in 1961, given that one parent is not a U.S. citizen, there must be some indication that the U.S. citizen parent has actually grown up and lived his or her life in America before having a child in another country. Otherwise the child’s connection to America does become rather thin and questionable. Which, it just so happens, is the actual case with Obama. In which case the requirements in effect in 1961 are not merely technical but go precisely to the Founders’ concerns. Obama is precisely the kind of person the Founders, and the lawmakers of the law that was operative in 1961, thought would not have sufficiently close ties to America to have an undivided loyalty.

LA continues:
But what about the other issue I discussed back in August—that under the law, if the parents are not married, then, for some utterly bizarre reason, the length of residency in the U.S. required of the U.S. citizen parent prior to the birth of the child is substantially LESS than if the parents are married.

And since it’s highly likely that Barack Sr. was married when he married Stanley Ann, the Obama-Dunham marriage was not legal, and therefore Barack Jr. is illegitimate, and therefore he’s a natural born citizen.

Clark Coleman replies:

There has been some speculation that Obama knows he is qualified, but does not want embarrassing personal information to come out of his records, so he has fought on technical issues such as standing. Because Stanley Ann Dunham’s marriage is legally null and void, Barack Obama is a natural born citizen as his biological father’s status becomes irrelevant. No doubt legislators wrote the statutes not to encourage illegitimacy, but to avoid the complication of determining biological fathers of unwed mothers, especially in an age before DNA testing and so on. Even today, compelling an absent father to provide evidence and clarify his own citizenship status would be highly problematic.

So, Obama does not want to have to prove, in a very public court proceeding, that he is illegitimate under the law in order to prove that he is qualified to be POTUS. This would make perfect sense, and it would also answer the obvious question (which you raised explicitly a long time ago): Why would he run for POTUS if he knew that he is not legally qualified? Answer: He knows that he is legally qualified, but it is embarrassing to prove it publicly.

LA replies:

You are a fount of knowledge. Now I understand why, as paradoxical as it seems, the requirements are easier if the U.S. parent is not married.

Scott B. writes:

Don’t you think that, rather than having something to hide, Obama’s people might be craftily manipulating this situation in order to make some conservatives believe that there is something to hide?

They have already released what, to their unquestioning liberal supporters, and even to casual impartial observers, seems to be sufficient proof. But perhaps they have intentionally released what is in strict fact insufficient, so as to lead conservatives to jump to the wrong conclusion and thereby discredit themselves?

Terry Morris writes:

Randall Hoven wrote:

If we find that Obama is not natural born, then the Constitution says Joe Biden shall be President until the President thing gets sorted out. Everything about that is horrible. Unfortunately, it is exactly what the Constitution says we shall do. It does not “suggest”; it says “shall.”

There’s been a lot of speculation on this issue of “what if.” Some say that the entire Democrat ticket will be disqualified, and I tend to think that is the case. Some have said that Congress would quickly pass a Constitutional Amendment retroactively qualifying Obama and pass it to the states who would happily ratify it as a show of their belief in non-discrimination, fairness and whatnot. I tend to think this is an unlikely scenario. Whatever the outcome, it would be horrible as Hoven says. If Biden is determined disqualified based on Obama’s disqualification then I think the presidency would go to McCain. Of course, I don’t expect any of this to happen, but it’s interesting (and educational) to look into what the procedures would actually entail under such circumstances.

Robert B. writes:

I am a natural born citizen—born of two parents with no other nationality save American—I and my parents had/have no allegiance to any other nation, potentate, etc. This is opposed to Jorge and Margarita who have allegiances to foreign nations and or potentates.

The answer to this question, and many others, lies within “The Federalist Papers.” The whole idea is that the President should have no ties to any other nation or people other than the U.S. of A. That means that he should also not have dual citizenship—which Obama has.

The problem for people nowadays is that they have been taught not to think along these lines. “We” have been told for years that a person’s culture, ethnicity, nationality, etc. no longer matter. When in fact they do—as we shall soon see. Obama stated clearly during the debates that while he saw no reason to invade Iraq or even Afghanistan, he could very easily and would send American soldiers to Nigeria, Rwanda, Congo, Somalia, etc. to bring about the peace in those countries—i.e., he has dual loyalties and intends to effect change in those countries that he sees as “his” at American expense. Which is the whole reason why the Founding Fathers wrote this provision.

Its really that simple and makes perfect sense. Remember, at the time there were numerous instances of Kings in Europe with divided loyalties as well.

Clark Coleman writes:

The Chester A. Arthur case was only revealed recently, and I believe it was done here.

The statutes were different. I am not sure about the Wikipedia assertion that he was born in Canada. He claimed to be born in Vermont, and some political opponents apparently claimed he was born in Ireland. If it had been proven at the time that he was born outside the USA, he would have been forced to resign. But the real issue turns out to have been his father’s status, because the statutes at the time were even tougher than now with respect to natural born citizen status. Interesting reading.

LA replies:

Ok. I got the impression from Wikipedia that it was known at the time that Arthur had been born in Canada to a U.S. citizen mother and a foreign father, which would have significantly lessened Obama’s problem. But if people at the time thought Arthur was born in the U.S., that puts a whole different color on it.

(By the way, that website you linked, how can anyone read a webpage with deep black background and thin grey letters? Yet it’s a very common formatting in blogs.)

LA writes:

I’ve read the Eugene Volokh blog entry that Clark Coleman recommended. It has to do with whether the easier provisions enacted in 1986 were retroactive to 1952. Volokh had earlier said they were, then realized he had misread the relevant passage. In fact, the 1986 provisions are not retroactive. Therefore in 1961, if Obama was born in Kenya, Obama’s mother would have had to be 19 years old for him to be a natural born citizen. But she was almost four months short of age 19 when he was born. Therefore, assuming Obama’s parents had a legal, non-bigamous marriage, and, again, assuming that he was born in Kenya, Obama is not a natural born citizen and is disqualified from the presidency under the Constitution.

Further, according to Mr. Coleman, Obama, not being a natural born citizen, would have had to be naturalized to become a U.S. citizen. Since he was never naturalized as far as we know, what then is his citizenship status? It is said he is not a citizen at all. Is that possible? Property law has a concept called, I think, constructive possession, whereby if a person is in physical possession of a piece of land for a certain length of time, and the true owner never protests it, the property is recognized as belonging to the physical possessor. Might we have such a thing as constructive U.S. citizenship?

Again, I don’t think anything will come from this. I don’t think any official body in the United States is going to recognize these challenges or require that Obama present his birth certificate. And while this is wrong, and while I will continue to say that we deserve to know the truth, and that Obama is obligated to provide it, and that he is in bad faith with the people and the Constitution for not providing it, and that when he enters on the office of the presidency he will be consciously transgressing the Constitution he is swearing to protect, I’m not going to be bent out of shape about this. Personally, the fact that Obama got a pass for his twenty years at the feet of a gross race hater was more troubling to me. The situation is highly odd and irregular, but it will just have to stand that way. At the same time, the reasonable conviction that Obama is not a natural born citizen, and the certain knowledge that he has concealed the truth of his birth, are not going to go away. They will shadow him, his presidency, and his reputation, forever. David (“shut up”) Horowitz and his ilk would like to stop people from thinking. But you can’t stop people from thinking, especially when what they think is based on evidence and truth.

Richard H. writes:

I have been quite disappointed in the reaction of a number of people on the right. Dr. Jerry Pournelle has stated the lawsuit about Obama’s citizenship status is imbecilic. Ron Kessler, over at Newsmax, has drunk the Sailer Kool-Aid.

Horowitz, however, stands in a class by himself. His treatment of you a couple years back pretty much marked him as a man that has never recovered from his “new left” days. He has confirmed his status in that regard by a demonstration of a gross disrespect for the Constitution. Horowitz is simply a bully and he is about to throw away the influence he has had by insulting the intelligence of his readers.

I find the explanation offered by Sailer unpersuasive. The facts he offers, the relative geography of Hawaii and Kenya, for example, are not in dispute. The trip would not necessarily been taken in the way described by Sailer. They could have stopped somewhere in the continental United States while enroute, or in other places as well. We don’t know what resources they had at the time, but it is not unreasonable to think they had some money they could use to visit Obama Sr.’s home.

The only problem (if it was a problem) is the problem Obama Sr. would have keeping his two wives separated. I’m not sure that would have been a problem, although his racialist father might well have been a big one.

Frankly, making him present the documentation that would prove his citizenship is a small price to pay, and far from stupid, or imbecilic. I have a gut feeling that he is not a citizen, but that is far from being proven at this point. I really would like that feeling to be disproven.

Life is just too full at the moment, so I don’t get to your website much, alas. While I don’t agree with some of what you post (a big surprise I’m sure) I like your method of argumentation and willingness to stick with the facts and avoid emotionalism.

LA replies:

Thank you very much for your comments.

Life is very full, but so is VFR!


Posted by Lawrence Auster at December 10, 2008 12:13 AM | Send
    

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