‘Natural-born’ mess may soon be cleared up

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“So far as the author knows, no fully satisfactory definition of the term ‘natural-born citizen’ has yet been given by the Supreme Court.”

Those words were published in 1910 in “The Constitutional Law of the United States” by Westel W. Willoughby. So far as anyone knows, the statement remains as true one century later as it was then.

But with any luck — and the strong backbone of an administrative judge in Georgia — the 223-year quest for clarity may soon be over.

Of course, the only reason why the phrase “natural born citizen” has any import is because it is one of three qualifications established by the U.S. Constitution to determine eligibility for the presidency of the United States.

The other two qualifications are straightforward requirements regarding age (35 years) and residency (14 years) and have never resulted in any national unpleasantness.

But the question of just who is a natural-born citizen, and thus eligible to serve as president, has been a matter of consternation and concern for well over a hundred years. Indeed, you can see the matter playing out in the Constitutional Convention itself, as the Founding Fathers tried to decide how to ensure that the powerful presidency did not fall into the hands of someone whose loyalty might be questioned.

Probably the most relevant historical reference on this point comes from John Jay, the first chief justice of the United States and a co-author of the Federalist Papers.

Jay wrote a letter in 1787 to George Washington, then serving as president of the convention, in which he took up the issue of who should serve as president — in particular in the president’s role as commander in chief:

“Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to, nor devolve on, any but a natural-born Citizen.”

The logic of such a stricture should be apparent to anyone. The presidency enjoys considerable powers over the well-being of the nation and the lives of the citizenry, and thus those powers should not be granted to anyone with divided loyalty, or even the appearance thereof.

Jay’s “hint” was heeded by the Constitutional Convention, and though any citizen may serve in the House or Senate, it was established that only a “natural born citizen” may serve as president. So it was written in 1787, and so it remains today.

What is funny is that many people think this eligibility issue only surfaced when Barack Obama ran for president in 2008, or when he was inaugurated in 2009. Quite often, the charge of racism is leveled against anyone with the temerity to question whether Obama, whose father was a British citizen born in Kenya, is himself a natural-born citizen.

But the issue is not racism; the issue is the quote that we started this column with: “... no fully satisfactory definition of the term ‘natural-born citizen’ has yet been given by the Supreme Court.”

In other words, since the matter has never reached the high court of the land in a case of direct relevance, there has never been established once and for all a rule about who is, and more importantly who is not, a natural-born citizen.

And because there is no rule, we have been left with uncertainty and doubt. Indeed, the matter has come up repeatedly in American history, but rarely with enough significance or import to merit a case being presented to the judicial system for review and determination, and in those few cases where court challenges were mustered, they were thrown out long before reaching the high court.

A few of the famous instances where the right of natural-born citizenship has been questioned in prior presidential campaigns include John McCain, the 2008 standard-bearer for the GOP, who was born in the Panama Canal Zone in 1936  while his father was stationed there as a naval officer; Barry Goldwater, who was born in the Territory of Arizona before it became the 48th state in 1912; Mitt Romney’s father, George Romney, who was a potential candidate for the presidency in 1964 and 1968 and who was born in Mexico to two American citizens; and Franklin Delano Roosevelt Jr., the president’s son, who was born at the family’s famous summer estate at Campobello in New Brunswick, Canada, and who was considered as a possible candidate to succeed Harry Truman in 1952.

Most relevant to the question of Barack Obama’s own eligibility is the case of Chester A. Arthur, who ascended to the presidency after President James Garfield was assassinated in 1881. Like President Obama, Arthur had a father who was a British citizen. Even more remarkable as a parallel, just as President Obama’s birth in Hawaii has been called a cover-up for a foreign birth, so too was Arthur’s birth in Vermont doubted by those who said he was actually born across the border in Quebec.

Now, you might think that the precedent of Arthur serving as president would have put the issue to rest once and for all, but of course it did not — because like President Obama’s citizenship, Arthur’s birthright was only a matter of public speculation not court proceedings.

Since the Supreme Court did not rule on Arthur’s case, or any other bearing on the issue, in the 223 years since the Constitution was ratified, we remain blissfully ignorant about who is eligible to be president.

But that may soon change, thanks to an obscure hearing scheduled for Thursday in Atlanta.

It turns out that Georgia has a state law requiring that every candidate for federal office “shall meet the constitutional and statutory qualifications for holding the office being sought.” Seems reasonable enough. The law also permits any “elector” (which in common parlance means any person eligible to vote in Georgia) to raise a challenge to any candidate’s qualifications.

This is significant because, although there have been challenges in court to President Obama’s eligibility before, there has never been a case yet where evidence was presented and a verdict reached. If Judge Michael Malihi of the Georgia Office of State Administrative Hearings actually allows the case to proceed to a verdict, it is almost inevitable that it will be appealed by one side or the other all the way to the U.S. Supreme Court, and we can get a ruling — finally — on just what the Founding Fathers meant when they restricted the presidency to “natural born citizens.”

President Obama certainly can make a strong case that he meets the definition of a “natural born citizen,” especially if he presents a hard copy of his Hawaiian birth certificate instead of the digital copy released last year.

Yes, there are those who — taking their argument from Emerich de Vatell’s “The Law of Nations” of 1758 — insist that natural born citizens “are those born in the country, of parents who are citizens,” but there have been many others who have drawn the opposite conclusion as well.

William Learned Marcy, the secretary of state under President Franklin Pierce, for instance, opined that “every person born in the United States must be called a citizen of the United States, notwithstanding one or both of his parents may have been alien at the time of his birth.”

Marcy even went on to declare that in his opinion such a person, even though born of alien parents, “would be considered a natural born citizen of the United States, so as to make him eligible to the presidency.”

This opinion had been written in a letter to a New York attorney by the name of Joseph B. Nones and was published, probably at Nones’ request, in several newspapers in 1854, including the Watertown (Wis.) Weekly Register. It has little or no evidentiary value, and as Marcy himself declaimed, “doubts may be entertained of the expediency of making answer” to Nones on a matter of law by the secretary of state.

But what cannot be doubted is that the Supreme Court has itself never resolved the issue either. Even when it has dealt with the citizenship issue, it has done so with ambiguity rather than finality. In the “Minor v. Happersett” ruling of 1875, for instance, the court noted that, “it was never doubted [in common law] 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.”

This seems pretty straightforward until you read the rest of the paragraph:

“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of the parents. As to this class there have been doubts, but never as to the first.”

Yep, doubts there were, and doubts remain. Let’s see what happens Thursday in Judge Malihi’s court, and then revisit the issue with a fresh mind.

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