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Newark Political Buzz Examiner
The Birther Issue

There is a claim abroad to the effect that President Barrack Obama is not eligible to be President of the United States because he is not a "natural born Citizen" of the United States as required by the Constitution.  The grounds for this claim were examined in this series of articles now consolidated into a single piece.

These articles were originally published in successive weeks in May 2012.

The Constitutional Question

How can you tell when a politician is lying?

His lips are moving.

Jokes aside, there are people in government and politics who are honest and worthy of respect.  We just should never be surprised to discover that someone lied.  Most people will lie when they perceive it to be in their own self-interest, if the stakes are high enough, and politicians have no corner on this.  So if it happened that someone claimed to be born in Hawaii so that there wouldn't be a lot of trouble over whether he was qualified to be President of the United States when he actually was not born here, and attempted to prove it with false evidence, that should not shock us.

We do not yet know whether this happened.  That, though, is the claim made by "Birthers", who believe that President Obama was born in Kenya, and that he therefore is not a "natural-born citizen" of the United States, as required by the Constitution.  They believe that this invalidates his election and disqualifies him from candidacy for the next one.  They base this on a number of facts, including that his father, for whom he was named, was a native and citizen of Kenya, that his mother moved to Africa to be with him, and that the digital image of a birth certificate released by the White House purporting that he was born in Hawaii shows signs of tampering and other problems.

This idea, which is regarded by some as a nonsensical distraction from the real issues (and which even Donald Trump abandoned), is quietly gaining ground.  Lawsuits have now been filed in several states, including here in New Jersey, claiming that our current President, Barrack Obama, cannot be listed on the ballot in November because there is evidence that he is not a "natural born citizen" and he has not refuted this claim except by presenting a Hawaiian birth certificate which they claim is a forgery.  If even half the lawsuits filed result in his exclusion from state ballots, he will be hard-pressed to win the next election.

There are several issues present here, and we will look at most of them in turn; yet fundamentally it turns on the requirements for being President of the United States as they appear in the Constitution of the United States of America.  Thus that must be our starting point.  The Constitution requires that any President must be a "natural born Citizen", but it does not define that phrase directly, apparently assuming that the reader will know what it means.  Those claiming that Barrack Obama is not a "natural born Citizen" maintain that it is a requirement that he must have been born within the territory of the United States, and that he was actually born in Kenya, and therefore does not qualify.  The latter point is a question of fact, one which can be determined only by a hearing examining the evidence; the former, though, is a question of law:  what does the phrase mean?

Looking at the text of the Constitution broadly, it appears that the phrase "natural born citizen" as a requirement for the Presidency is placed in the same position in the statement as the phrases "seven Years a Citizen" and "nine Years a Citizen" are as requirements for, respectively, Representative and Senator.  This suggests that it not about where he was born but whether he became a citizen at that moment.

However, it is not exactly true that the Constitution means what it says; technically, thanks to John Marshall's wonderful opinion in Marbury v Madison, the Constitution means what the United States Supreme Court says that it says.  Thus the "Birthers" claim that previous Supreme Court decisions have defined this phrase to mean those who are born in the United States.  It will be necessary to consider those cases to say whether they are correct, which is where this will go next.

Donald Trump strongly argued that Barrack Obama was not eligible to be President. (Photo by Matthew Cavanaugh/Getty Images)
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Supreme Court Decisions

We looked at the part of the Constitution which stated that a President had to be a "natural born Citizen", and noted that this phrase paralleled the requirements for Representative and Senator, respectively, that they must have been citizens for seven and nine years.  Thus there is prima facie reason to believe that the requirement means that he must have been a citizen from the moment of his birth.  However, "Birthers" claim that it means specifically that he must be born in the United States, and that the Supreme Court has said as much in previous cases.  Since ultimately the Constitution means whatever the Supreme Court says it means, we have to look at these cases to know what it means.

The case most frequently cited is Minor v. Happersett, 88 U.S. 162 (1875).  It happens to be irrelevant--it says nothing on point, and even it if did, it is about a completely different issue and anything it might have said would be what's called dicta, which (as the Court says in another of these cases) means a statement made that is illustrative but not on point and therefore not binding to future decisions.  Minor was a woman in Missouri who sued the registrar of voters, Happersett, for refusing to allow her to register to vote.  He refused, because the statute in Missouri at that time only recognized suffrage for male citizens; she claimed that she was a citizen of the state and therefore the 14th Amendment guaranteed her the right to vote.  The Court decided that it guaranteed no such thing.  First it discussed whether she was indeed a citizen, and decided yes, having been born in the United States she was a citizen.  It discussed the meanings of statements about citizenship in the Constitution, concluding that there were citizens and there were aliens, noting that the Constitution allows Congress to create rules for "naturalization" for aliens to become citizens, and that it does not define "natural born citizens".  It concludes only that it includes any child of citizens born within the territory of the United States--without saying that it excludes anyone else.  Thus Minor tells us quite clearly, if there was any doubt, that if you are born within the geographical boundaries of the United States as the child of two parents both of whom are citizens that you are a natural born citizen; it does not say that those factors are all necessary to that status.

Another case that is sometimes recommended in this connection is called The Venus, 12 U.S. (8 Cranch) 253 (1814).  It is a case in admiralty, concerning a ship taken by American Privateers during the War of 1812, addressing claims by individuals who were naturalized American citizens working in England at the time war was declared, who had not heard that war was declared at the time their property aboard that ship had been seized.  At issue was whether former British subjects who had become American citizens but were in England on extended business thereby lost their American citizenship, and the opinion of the court was that as long as they could not be shown to have intended to return to being British subjects they remained American citizens.  The only relevant information we get from this case is that you can't lose your American citizenship without specific intent to do so.

Shanks v. Dupont, 28 U.S. (3 Pet.) 242 (1830) takes this further, citing the principle that individuals do not have the power unilaterally to terminate their allegiance to their government and become aliens, and thus that Mrs. Shanks remained an American citizen despite having married a British soldier and moved with him to England.  The particular circumstances concerned an inheritance claim related to land left jointly to Mrs. Shanks and her sister upon the death of their father near the end of the American Revolutionary War, they having been born and raised in territory which was occupied by British troops for most of the war including the time when she married.  Her children, who made no claim to American citizenship, wished to claim her inheritance after her death.  It does not touch the question of whether children born outside U.S. territory are citizens because that was not at issue.  However, it makes the point that merely leaving the country and never returning, even marrying a non-citizen, does not terminate your citizenship.

The most important case in the citizenship issue, though, is United States v. Wong Kim Ark, 169 U.S. 649 (1898).  This is the case on which the "anchor baby" theory is based, and the one which gives the most extensive consideration of just who is, and is not, a "natural born Citizen".

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The Critical Case

In Wong Kim Ark, the son born in the United States of Chinese resident alien parents visited China and was refused re-admission into the United States under a statute passed which barred immigration of Chinese laborers.  He claimed he was a Citizen under the 14th Amendment, and the Court agreed.

Although it was all dicta (statements made in court decisions that are illustrative but not binding on future decisions), the court did a review of who is and is not a citizen, raising a number of peculiar points that are very important.  The key one is that the Constitution makes people citizens if either they are born within the geographical boundaries of the United States, or they are covered by naturalization laws passed by Congress.  It also appeared that those laws had changed a number of times in the nineteenth century.

There is a caveat to this.  The Court specifically excluded the children of foreign diplomats, on the basis that they were technically under the jurisdiction of their own government and not that of the United States.  Further, it is clear that it covers children of parents legally residing within the United States in long-term domicile while conducting business.  It has long been assumed that it covers so-called "anchor babies", children of persons in the United States briefly and/or illegally, but there is nothing in the case that does so and barring a decision otherwise by the Supreme Court lower courts would be free to rule that such children are not citizens, and thus legislatures at both the state and federal level could create laws treating them as non-citizens, at least until the matter was addressed.

Of particular importance, Wong Kim Ark cited Dicey's Digest of the Law of England with approval, quoting that "'Natural-born British subject' means a British subject who has become a British subject at the moment of his birth."  It then quotes from a case which cited Blackstone to the effect that "a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance...."  It seems clear that the statement in the Constitution is not related to where the child is born but whether he is a citizen of the United States at that moment.

As to who that covers, Wong Kim Ark recognized multiple statutes through the nineteenth century defining which children born outside the United States received citizenship at birth.  Under these statutes, the definition of who was included changed slightly over time, sometimes covering a child if both of his parents were citizens, sometimes if his father was.  Thus our answer in the present case can only be found by finding the present statutory definition.

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Statutory Definitions

The most important citizenship case made very clear that "natural born Citizen" meant someone who was a citizen from the moment of birth, whether or not born in this country.

The question, then, as to whether Barrack Obama is legally a "natural born Citizen" as required of the President of the United States by the United States Constitution, hinges on the statutory definition of who becomes a citizen at the moment of birth.  The definition that currently holds is found in 8 U.S.C. 1401 section 301, which reads in part:

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: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;....

So it appears that unless Mr. Obama's mother 1) was never a citizen (which is known to be false), or 2) left the jurisdiction of the United States prior to her 16th birthday and did not return prior to his birth (for which there is no evidence), or 3) found a valid means of expatriation (which has not been claimed) prior to his birth, he is a natural born citizen of the United States under the Constitution, U.S. Statutes, and Supreme Court decisions.

Some will undoubtedly object that the statutory definition cannot change the Constitutional requirement.  We have already recognized that the Constitutional requirement and the case law interpreting it make it such that the statute controls.  If, however, it is maintained that "natural born Citizen" does not include persons who are citizens from the moment of birth under the statue, then it would exclude

  1. the children of servicewomen and the wives of servicemen who give birth while stationed abroad (this includes Senator John McCain); and
  2. the children born to vacationing American citizens outside the United States; and
  3. the children of members of the American diplomatic corps stationed overseas
all of which are covered by the statute and not otherwise citizens.  It also raises the question of when such children are "naturalized" if they are neither "natural born Citizens" nor go through naturalization procedures as other immigrants.  They do not do so, because they are citizens at birth.

There are certainly questions raised by the publication of a birth certificate which might be a forgery, but those are separate from the matter of whether President Obama is a "natural born Citizen".  Whatever your feelings about him as President, he appears to meet the qualification.

See also the next article, The Birth Certificate, for more on this issue.
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