Obama eligibility: natural-born citizen

The Constitution is not dead
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Has the phrase natural-born citizen lost its meaning? New Jersey Administrative Law Judge Jeff S. Masin implied that when he dismissed the latest Obama eligibility case (Purpura & Moran v. Obama, STE 4534-12). But a closer look at the precedents he cites, says no. To infer anything else is to show how wrong it is to regard the United States Constitution as “a living document” and thus allow courts to change the meaning of its words at will.

Natural-born citizen in the Obama eligibility context

Nick Purpura and Ted Moran argued that the name of Barack H. Obama should not appear on a New Jersey Democratic primary ballot, for two reasons:

  1. No one can say for certain who “Barack H. Obama” is, where he was born, or even when he was born.
  2. Even if he was born in Honolulu, HI, as he says, his father was a British colonial subject. So Obama cannot be a natural-born citizen.

That last phrase is key. Article II, Section 1, Clause 5 of the US Constitution reads in part:

No person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President.

Most Obama eligibility cases focus on the disputed Obama birth certificate. That document did not even figure in this case. Obama’s campaign never offered it to the New Jersey Secretary of State, in any form, hard-copy or soft-. Judge Masin even asked his lawyer, Alexandra Hill, to concede that point, and she did.

Judge Masin concluded that Obama need not produce anything. More than that, he offered this exact conclusion:

the petitioners have failed to meet their burden to [show] that Barak Obama failed in any obligation to prove to the Secretary of State that he [qualifies] to hold the Presidency and that he is a “natural born Citizen” of the United States of America, as required by the United States Constitution.

Many bloggers, sympathetic to Mr. Obama, have construed that to say that Judge Masin has somehow “ruled” that Barack H. Obama is a natural-born citizen. That’s not necessarily what that sentence means. The sparing way that Masin punctuated that sentence makes it say that Purpura and Moran did not prove that Obama had failed in any duty he might have to prove that:

  1. He qualifies for the office of President, and
  2. He is a natural-born citizen.

Natural-born citizen: federal case law

Judge Jeff Masin heard the Obama eligibility case in New Jersey

The Hon. Jeff Masin presides at the latest Obama eligibility hearing. Photo: CNAV

Masin mentions three federal cases in trying to decide what a natural-born citizen is. Purpura and Moran mentioned one: Minor v. Happersett, 88 US 162 (1875). Masin, quoting an Indiana case (Ankeny v. Gov. Ind., 916 N.E.2d 678 (Ind. Ct. App. 2009)), mentioned the other two: US v. Wong Kim Ark, 169 US 649 (1898), and US v Rhodes, 1 Abbott, US 28 (Cir, Ct. Kentucky, 1966), that another blogger quotes here. (Judge Masin mis-quoted the year of the Rhodes case; he lists it as 1860, not 1866. Tellingly, the bloggers who triumphantly quote his decision never catch the mistake. From this, CNAV concludes that they are not doing their own research.)

The Minor case defines “natural-born citizen” better than any other case.

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. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their 168*168 parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

Note the sentences that CNAV emphasizes. The Minor court said: Any person born in-country to citizen parents is a natural-born citizen. Whether a person born in-country to two parents, one or both of whom might not be a citizen, is a citizen himself, is still in doubt. And the Minor case never sought to resolve that. And where did the Minor court get its definition? From Emmerich de Vattel’s Law of Nations. It reads in relevant part:

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.

The defendant/respondent Wong Kim Ark came to the Supreme Court after the government tried to expel him for his Chinese nationality. His parents were temporary railroad workers, and were not Chinese diplomats. By any reasonable standard, Wong Kim Ark was born in the United States and was subject to its jurisdiction. That made him a citizen.

Obama eligibility apologists have repeated ad nauseam that the Wong court not only said that Mr. Wong could stay in America, but that someday he could run for President. That is utterly unfounded. Not one word in the majority opinion in Wong says, or implies, that “Wong Kim Ark for President!” would have been a legitimate campaign slogan.

(As an aside, the Wong ruling applies to one born in-country of lawful residents. So the “anchor baby syndrome” has an instant remedy: read the opinion, and stop reading into it. The Wong court would not have held that the children of illegal aliens were themselves citizens by sole reason of location of birth. Neither might they have held that a “birth tourist,” typically a foreign-born woman staying at an American hotel, going into labor, and riding in an American ambulance to an American hospital for admission to an American labor-and-delivery suite, could ever confer American citizenship on her baby by so acting.)

The other case that Judge Masin cited was US v. Rhodes. The linked quote is, as the Webmaster admits, incomplete. Whether the Court in that case correctly used the word citizen interchangeably with the phrase natural-born citizen is impossible to determine. The reason: the quoted text lays no foundation for conflating those two terms.

So where do the Obama eligibility apologists stand? Either the Supreme Court still defines a natural-born citizen as a special class of persons born in-country to citizen parents, or it does not. And if not, then it can only have re-defined that phrase through the sort of “penumbras” of which Justice William O. Douglas was so fond in Roe v. Wade. Here, then, is the danger of regarding the US Constitution as “a living document.” To say that is to say that the Constitution means whatever the Supreme Court of the United States says it means, the last time it said it in any specific context. That Judge Masin stands on this “living document” belief is clear from his remarks, in the below-embedded video, to Mario Apuzzo, counsel for the petitioners. He briefly acknowledges Vattel, and other Supreme Court case law, including Minor.  And then he sets that aside as of no moment in construing the Wong case as:

  • Conflating the terms “citizen” and “natural-born citizen,” and
  • Defining, or re-defining, “natural-born citizen” as one born in-country whether the parents were citizens or non-citizens, so long as they were both lawful residents.

Even that is a very slender reed. Barack Obama, Senior, did not live at the same address as did Stanley Ann Dunham Obama. He lived in a “bachelor pad” in downtown Honolulu. Nor has anyone shown that Obama, Senior was a lawfully domiciled resident at the time.

Or else the Constitution, as Thomas Jefferson warned after the Supreme Court’s decision in McCullough v. Maryland,

is now become a thing of wax, which the Court may shape and mold as it pleases.

J. B. Williams (Canada Free Press) warned the American people against just this mind-set nearly two years ago. He bluntly said that if we cannot preserve the office of President from foreign influence, nothing else matters. More to the point, if we cannot rely on a word or phrase to mean the same thing today as it meant when James Madison and his colleagues wrote it, we have no Constitution. We ignore that warning at our peril.

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