Why It Matters Whether Obama Is A Natural Born Citizen

Article II of the U.S. Constitution sets forth the qualifications for being president of the United States. There are only two requirements: you must be at least 35 years of age; and you must be a natural born citizen. Specifically, Article II reads:

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; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

At the time of the adoption of the Constitution in 1787, no potential candidate could meet the "natural born" requirement because the new country had only recently freed itself from British rule. Although many revolutionaries were born in the U.S., they had been born as subjects of the King of England. To address this situation, the founders allowed persons who were citizens at the time of the adoption of the Constitution and who had resided in the U.S. for at least 14 years to run for president. An early constitutional scholar, Joseph Story explained its need in 1833: "It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country." Every president since Martin van Buren has been considered a "natural born" citizen; however, candidates have faced scrutiny concerning the constitutional qualification from time to time.

In 1964, Barry Goldwater was confronted with the fact that he was born in the Arizona territory before it became a part of the United States. In 1968, Michigan Gov. George Romney was challenged because he was born in Mexico after his U.S. citizen parents had fled across the border when Mormons were being prosecuted in the U.S. for polygamy. And just earlier this year, the New York Times raised questions about Sen. John McCain's "natural born" status because he was born in the Panama Canal Zone while his father was serving duty for the U.S. Navy. Despite media scrutiny of these other presidential candidates, all Republicans I might add, Sen. Barack Obama has escaped complete scrutiny on the issue despite many unanswered questions surrounding his birth and early years which cast doubt on his "natural born" status.

To many, the term "natural born" is synonymous with being born in the United States or one of its territories. But from Congress' first enactment on this topic after the adoption of the Constitution, the founders had something else in mind. "Quickly recognizing confusion over the evolving nature of citizenship, the First Congress in 1790 passed a measure that did define children of citizens 'born beyond the sea, or out of the limits of the United States to be natural born,'" the Times reported. The term "natural born", however, was eliminated from later enactments, adding to the current confusion. The purpose of the requirement is instructive. As Story explained in his commentaries, its purpose was to impose "a barrier against . . . corrupt interferences of foreign governments in executive elections":

But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source.

Story in his commentaries noted exceptions for a "temporary absence abroad on public business, and especially on a business to a foreign nation." Under English common law, it was understood that a child of British subjects born abroad would nonetheless be deemed a natural born citizen. The term under English common law had more to do with a person's loyalty and allegiance to the nation as opposed to the place of birth. Justice Noah Swayne expounded on this in U.S. v. Rhodes: “All persons born in the Allegiance of the King are Natural- Born subjects, and all persons born in the Allegiance of the United States are Natural-Born Citizens. Birth and Allegiance go together. Such is the Rule of the Common Law, and it is the Common Law of this country…since as before the Revolution.” Justice William Blackstone further expounded on this principle and suggests dual citizenship might be a disqualification: “And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once.”

In the case of Sen. Barack Obama, it is generally accepted at this point that he was born to a U.S. citizen mother, Stanley Ann Dunham, and a Kenyan citizen father, Barack Hussein Obama. At the time of his birth, the laws of both countries would have permitted him to hold dual citizenship. Because Kenya at the time of his birth was also a part of the British Commonwealth, Obama would have also been considered a B.C. citizen. According to a birth certificate produced by Obama's presidential campaign, he was born in Honolulu, Hawaii on August 4, 1961. Obama's campaign website says Obama's Kenyan citizenship expired on August 4, 1982 because he neither renounced his U.S. citizenship nor swore an oath of allegiance to Kenya before his 21st birthday as required by that nation's laws. Almost as quickly as Obama's birth certificate was posted, experts who reviewed it concluded it was a bad forgery. Unlike Sen. John McCain, Obama did not produce the original, long version of his birth certificate which would have been given to his mother upon his birth. Instead, his campaign produced a purported certified copy which was obtained from the Hawaii Department of Health just last year. An expansive analysis of this document can be found here, which gives serious reason to doubt its validity.

It is difficult to understand why the Obama campaign has not put this issue to rest by simply putting out Obama's original birth certificate for public review. According to his autobiography, he had this document at the time his book was released in 1995. "Ironically, Obama mentions his birth certificate in passing on Page 26 of his 1995 memoir, “Dreams of My Father,” writes blogger Jeff Schreiber. “I discovered this article, folded away among my birth certificate and old vaccination forms, when I was in high school,” he wrote. Adding more to the mystery is a claim by a former Pennsylvania Deputy Attorney General, Philip J. Berg, that he has been in communication with Obama's paternal grandmother in Kenya and, according to Berg, she claims she was present for Obama's birth at a hospital in Kenya. Berg claims to have a recording of the conversation, but he has not released it to the public as of this writing. Berg also initiated a lawsuit against Obama alleging he is not a "natural born" citizen in the federal district court for the Eastern District of Pennsylvania. Judge R. Barclay Surrick dismissed Berg's lawsuit on Friday on the ground that Berg lacks standing to bring the suit. There are no fewer than eight similar lawsuits pending in other states as of this writing on the same subject matter.

The complications over Obama's birth do not end with the issue of his Kenyan citizenship. Last year, an AP reporter obtained a record from a school Obama attended in Indonesia during the late 1960s, which has created quite a stir in the blogosphere, although it has been virtually ignored by the mainstream media. The school record indicates that Obama's legal name was "Barry Soetoro", that his father was Lolo Soetoro, that his citizenship was Indonesian and that his religion was Islam. Obama's birth father abandoned him when he was two. His parents were divorced, and his mother later married Lolo Soetoro and immigrated with her son, Barack Obama, Jr., to Indonesia. The school record obtained by the AP reporter suggests Obama was adopted by his step-father, which automatically made him an Indonesian citizen. Oddly, news reports which ran in the U.S. based on the Indonesian school record completely omitted the fact that Obama's name had been changed and his citizenship listed as Indonesian.

The Indonesian citizenship issue further complicates Obama's U.S. citizenship status if he was born in Kenya. Under the U.S. Immigration and Naturalization Act in effect at the time of Obama's birth, he could have become a U.S. citizen upon his birth even if he was born in Kenya because his mother was a U.S. citizen; however, because his mother did not remain in the U.S. for the period of time required of her for her son to obtain citizenship, he would have lost his citizenship status if he was actually born in Kenya. Further, if he became an Indonesian citizen, dual citizenship would have been permissible under U.S. law (although not Indonesian law at that time); however, dual citizenship is not compatible with the "natural born" requirement in the Constitution based upon Justice William Blackstone's analysis.

People need to be careful not to confuse Obama's "natural born" status with his status as U.S. citizen. These are two entirely different propositions. He could be a citizen by virtue of his birth in the U.S., birth abroad to a U.S. citizen or through the naturalized citizenship process set out in our Immigration and Nationality Act. Being a citizen does not mean you are a "natural born" citizen. Being someone born in the U.S. may also not make you a "natural born" citizen. By way of example, I recently was contacted by a Saudi citizen for immigration assistance with her family. She was born in San Diego, California while her father and mother were residing there temporarily because of her father's work. Her parents returned with her to Saudi Arabia where she grew up and became a Saudi citizen. In her late 20s, she attempted to get a visa from the U.S. consulate in Riyadh. What she learned shocked her. The consulate told her she didn't need a visa but a U.S. passport because she was considered a U.S. citizen based on her birth in San Diego. According to the analysis of some scholars, she would meet the "natural born" requirement while Sen. McCain would not because he was born in the Panama Canal Zone while his father was serving in the Navy. I cannot imagine the framers of our Constitution intended such a ridiculous outcome with this requirement. Again, the focus should be on one's loyalty and allegiance to country, not the place of their birth, if its purpose is to prevent foreign interference.

Some might wonder how Obama's situation could possibly pose any of the mischief the founders feared in interposing this requirement. For one, because Obama denies he was either born in Kenya or became an Indonesian citizen, he could be subject to blackmail in the event the leaders of either country know otherwise based upon their government's records. Both countries harbor radical Muslims who are hell-bent on destroying the U.S. In addition, you can bet other foreign intelligence agencies have researched this issue thoroughly and could also be prepared to use it to undermine confidence in our nation's leader should Obama become president. Rumors persist that Obama may have used an Indonesian passport to travel to Pakistan while he was in college because travel by U.S. citizens into Pakistan at that time was nearly impossible. Imagine the impact this would have on Obama's credibility and the embarrassment our country would face if such a basic constitutional requirement of holding our highest office was overlooked by our political system.

I fully acknowledge the fact that there is no agreement among constitutional scholars on what the term "natural born" means in Article II. In the case of Sen. McCain, respected constitutional scholars like Professor Lawrence Tribe believe McCain satisfies the requirement, but others aren't so sure. “There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” said Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively. “It is not a slam-dunk situation.” Earlier this year, the U.S. Senate unanimously approved a non-binding resolution deeming McCain a natural born citizen based on both of his parents being U.S. citizens and his father's service in the military at the time.

Obama's situation was not similarly taken under consideration by the U.S. Senate because the circumstances surrounding his birth have slowly come to light. Typically, presidential candidates come from well-established families within their respective home states and much is already known about them by the time they seek the presidency. This is not the case with Obama. His childhood is a riddle rapped up in an enigma. His maternal grandmother has never spoken publicly about such matters and may be physically unable to at this point and both of his parents are dead. There aren't childhood acquaintances or even college acquaintances who can vouch for Obama. We don't know a lot about him, and we need to know much more before we cast the final vote a week from Tuesday. Sadly, it does not appear the American people will be afforded that opportunity before election day.