Everything You Need To Know About Being A "Natural-Born Citizen"

Blog ››› ››› SIMON MALOY

Were you born within the territorial boundaries of the United States? Were your parents not in the service of a foreign government at the time of your birth? If so, then congratulations! You're a natural-born citizen of the United States of America. If you're over 35 and have been a resident of the U.S. for 14 years, then you also meet the basic requirements to run for the presidency, as laid out in Article II of the Constitution. What's more, you share these qualities with the current President of the United States, Barack Obama (update your resume).

However, there is a small segment of America that would seek to deny you the rights you have as a natural-born American citizen. They are the remnants of the birther movement whose determination to the cause has not wavered even after President Obama released his birth certificate and proved beyond any doubt that he was, in fact, born in the United States. They are the post-birthers.

They will deploy a variety of arguments endeavoring to explain why you and the president are a second-class citizens undeserving of your birthright. But rest assured: those arguments are all complete garbage.

One Parent -- The Father, For Example -- Is Not A U.S. Citizen

This is the biggie -- the argument that, post-birth certificate, the birther faithful are clinging to like grim death. It basically goes like this: the fact that Obama was born in Hawaii in 1961 is immaterial given that his father was not a U.S. citizen, and thus the younger Obama is not a "natural-born citizen" as stipulated in Article II and is ineligible for the presidency. This argument takes full advantage of the fact that the framers of the Constitution never defined the term "natural-born citizen," and the fact that the Supreme Court has never specifically defined it either.

According to proponents of this theory, since the framers did not define "natural-born citizen," we instead have to gauge their intent, and the framers' intent -- they claim -- was to exclude the children of non-citizens. There seem to be two popular bases for this claim: one is the writing of Swiss philosopher Emmerich de Vattel, a contemporary of the Founders who wrote on principles of citizenship; the other is the Bible, which is very specific about making sure the children of Moabites not become kings of Judah.

The Founders, for their part, apparently didn't spend any time debating the definition of "natural-born citizen" before voting unanimously to include it in Article II. However, that doesn't mean we don't know what they understood the term to mean. Christina Lohman argued in a 2001 article for the Gonzaga Law Review that the absence of debate over "natural-born citizen" is an indication that the Founders had a clear understanding of its meaning as described by English common law, which subscribed to the principle of jus soli -- "law of the soil," or birthright citizenship:

Under the English common law, from which the constitutional Framers apparently derived the words "natural-born citizen," at least some foreign born children of American citizen parents are "natural-born." Included are children born within the allegiance or jurisdiction of the United States. Children born to citizen parents who are in a foreign land as a result of United States government employment undoubtedly fall within the allegiance of the United States, and, therefore, are eligible for the Office of the Presidency.

Over 150 years of judicial opinion and Constitutional amendments have helped solidify the definition of birthright citizenship in those terms. If you were born within the territorial boundaries of the United States, regardless of your parents' citizenship status (diplomats excluded), you are a natural-born U.S. citizen and entitled to all the attendant rights and privileges. The Fourteenth Amendment indicates as much: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." (The issue of who is a citizen by birth comes up in litigation mainly through interpretation of the 14th Amendment's citizenship clause, which was put in place to reverse the Supreme Court's pre-Civil War decision that black people were not citizens.)

The Supreme Court has hewed closely to this understanding of citizenship by birth. In 1898, the court ruled in United States v. Wong Kim Ark that a man born in the U.S. to parents who were "subjects of the Emperor of China" was, according to the Fourteenth Amendment, a U.S. citizen by birth. In 1985, the court's opinion in INS v. Rios-Pineda stated that the respondents, a married couple who were citizens of Mexico but residing in the U.S., "had given birth to a child, who, born in the United States, was a citizen of this country." Lower courts have actually weighed in on the question of whether Obama qualifies as a natural-born citizen. In a 2009 ruling, the Indiana Court of Appeals cited Wong Kim Ark in stating that "persons born within the borders of the United States are 'natural born Citizens' for Article II, Section 1 purposes, regardless of the citizenship of their parents."

And there's historical precedent. There have been at least four previous presidents with one parent born in a foreign country. Andrew Jackson's father was born in Northern Ireland. James Buchanan's father was born in Ireland, as was Chester A. Arthur's. Herbert Hoover's mother emigrated to the United States from Canada when she was 11 years old.

A 2009 report from the Congressional Research Service on the definition of "natural-born citizen" concluded that the "weight of scholarly legal and historical opinion appears to support the notion that 'natural born Citizen' means one who is entitled under the Constitution or laws of the United States to U.S. citizenship 'at birth' or 'by birth,' including any child born 'in' the United States (other than to foreign diplomats serving their country)."

As a side note: The post-birthers do have one Supreme Court ruling they can cite supporting the notion that certain persons born within the territorial United States are not entitled to the full privileges of citizenship, but it's a case that hasn't really been cited very much in the past 150 years.

Relocating To A Foreign Country -- Like Indonesia -- As A Minor

Another argument challenging President Obama's citizenship status is that, as a young boy, he spent several years abroad in Indonesia. In teasing Jerome Corsi's unfortunately titled book, Where's The Birth Certificate?, WorldNetDaily wrote: "As a boy, Obama was officially registered in school as a Muslim and Indonesian citizen, another barrier to U.S. natural-born citizenship."

This is straight-out false. Young Obama's registration status at an Indonesian school is immaterial to his citizenship status, as recognized by the United States. The only way a person abroad can give up their citizenship is to actively renounce it after having attained legal adulthood. That is the position the Supreme Court laid out in Perkins v. Elg (1939), as explained by the Congressional Research Service:

[T]he Supreme Court has clearly ruled that a citizen at birth, such as one born "in" the United States, does not forfeit his or her citizenship-at-birth status because of removal as a minor to a foreign country, even a country in which one or both parents are or become citizens and nationals. Rather, citizenship may only be forfeited by a citizen of the United States by an affirmative action of renunciation by one having that capacity (that is, as an adult).

That Obama returned to the United States when he was still a minor and has resided in the country ever since renders this whole line of inquiry moot.

Dual Citizenship With A Foreign Country -- Like Kenya

As you may have heard, the president's father, Barack Obama Sr., was a citizen of Kenya. At the time of his son's birth, Obama Sr. was actually a British subject given that Kenya, in 1961, was still part of the British empire. As FactCheck.org explained, British law conferred upon young Obama citizenship in the United Kingdom, and when Kenya gained its independence in 1963, the Kenyan Constitution swapped Obama's UK citizenship for Kenyan citizenship.

However, dual-citizenship for adults was prohibited by Kenyan law, which stated that children with dual citizenship had to renounce their non-Kenyan citizenship and swear allegiance to Kenya by their 23rd birthday, or they automatically lose their Kenyan citizenship. Obama never renounced his U.S. citizenship and never swore allegiance to Kenya, so he lost that citizenship in 1984.

The argument from the birther holdouts, however, is that the very fact that Obama was a dual-citizen disqualifies him as a "natural-born citizen" of the United States, rendering him ineligible for the presidency. There is historical precedent and solid legal reasoning, however, to suggest that this is not the case. Once again, we look to Perkins v. Elg.

The Court determined that if a child born in the U.S. "is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States." They cited the example of a naturalized Prussian immigrant called Steinklauer who had a child in the U.S., and then took the child back to Germany. Steinklauer renounced his own U.S. citizenship and acquired German citizenship for himself and his son. As the Court noted, the Attorney General at the time, Edwards Pierrepont, reviewed the facts of the case and determined:

Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States.

Pierrepont's reasoning was that the younger Steinklauer was, by U.S. law, an American citizen by birth, and neither Steinklauer's father nor the German government had any sway over that determination. And that reasoning makes sense. By claiming that the accident of Obama's childhood dual citizenship renders him ineligible to be president, the post-birthers are essentially arguing that foreign governments have the authority to determine the citizenship status of Americans.

Consider this real-world scenario taken to a ridiculous conclusion: Kenya recently adopted a new constitution that removes the country's ban on dual citizenship and extends to all persons born to a Kenyan citizen (mother or father) automatic Kenyan citizenship regardless of where they are born. (It also permits the parliament to limit the effects of those clauses on persons born outside the country, but let's assume that no such controls exist.) With no restrictions on that policy, that means that the American-born children of a Kenyan citizen would have Kenyan citizenship, and their American-born children would have Kenyan citizenship, and so on.

Thus, according to post-birther logic, we could have entire generations of Americans who are U.S. citizens by birth but ineligible for the presidency because they had one direct ancestor who was a citizen of Kenya.

Again, it's a ludicrous scenario, but it illustrates the foolishness of letting foreign law determine citizenship status.

So that's basically it. If you were born inside the U.S. to non-diplomat parents, then the Constitution, legal precedent, scholarly examination, the historical record, and common sense say you are a citizen who is qualified to run for president.

Posted In
Diversity & Discrimination, Justice & Civil Liberties
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