In my previous commentary on the subject of Barack Obama’s Constitutional eligibility to hold the Office of President of The United States, I touched briefly on the subject of the Fourteenth Amendment to the Constitution, and whether or not it impacts the question of the President-elect meeting the “natural born citizen” standard. To expand on this notion that the XIV Amendment defines the requirement found in Article II, Section 1 of The Constitution, let’s examine the pertinent text:
“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
So then, all persons born or naturalized are citizens, and no State shall enact laws that abridges their privileges.
The defense of Barack Obama’s eligibility is centered on his being born on US soil (Hawaii), and that neither his dual citizenship, nor his father being a British subject, owing allegiance to the Crown, alter the fact that he meets the Constitutional requirement of “natural born citizen.” Thus the argument that a Birth Certificate showing him being born in Hawaii, settles the issue.
In order for this argument to work, one must then assume that the term “natural born citizen” found in the Constitution, has the exact same meaning as the term “persons born” found in the Amendment.
Let’s work that notion out.
The Fourteenth Amendment clearly states that “persons born” and “naturalized” and subject to the jurisdiction of the nation, are both “citizens of The United States”, so the Amendment creates an equality in the definition of citizen between those who are citizens by accident of birth, and those who become citizens by act of legislature, so long as they are “subject to the the jurisdiction” of the United States.
The Amendment goes on to forbid the States from enacting any laws abridging the “privileges” of citizens of The United States, that we now understand to mean both citizens by birth (persons born), and naturalized citizens. Keeping that definition in mind, and with the understanding that under our system of government, the individual States are Constitutionally charged with conducting elections, and electing the President via the Electoral College, then it stands to reason that it is unconstitutional for the States to not allow a naturalized citizen to run, be elected, and occupy the Office of President of The United States.
This is obviously wrong. It is an unquestionable fact that naturalized citizens are not Constitutionally qualified to hold the Office of President, or Vice-President. Yet, Amendment XIV tells us that “persons born” and persons “naturalized” enjoy equal standing as citizens, whose “privileges and immunities” can not be abridged by the States. This inconsistency forces our attention to be turned to that third “type” of citizen mentioned in the Constitution, the “natural born” citizen. This citizen is unique, enjoying a privilege beyond those equally and Constitutionally protected for “persons born” and “naturalized”…the privilege of serving as Head of the Executive Branch, and Commander in Chief of the Armed Forces.
What sets this citizen apart from the rest?
Is the answer to be found under that yet-to-be-discussed qualification of “subject to the jurisdiction thereof”?
The Oath of Citizenship, sworn by naturalized citizens during the Naturalization process, settles the question of jurisdiction to a higher degree than even for “persons born”, as the “naturalized” citizen is required to ”… absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen…”, but a “person born” may in fact posses dual citizenship, and as a result, dual allegiance.
Is the concept of “allegiance” then what differentiates this “natural born” citizen, from the “person born” and the “naturalized” one?
The answer may be found rooted in international law, Common Law, and the commentaries surrounding the ratification of the XIV Amendment.
Emerich de Vatel’s “The Law of Nations”, the 18th century treatise recognized as the foundation of modern international law, states the following on Chapter XIX, paragraph 212:
“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.”
In “Commentaries on the Laws of England”, the seminal work on the Common Law that constitutes the basis of our own Constitution, Sir William Blackstone comments on the subject of allegiance:
”Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth.” ~~~ “Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection: and it ceases, the instant such stranger transfers himself from this kingdom to another.”
Sir William continues:
”… all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception.’
This idea is perpetuated in current British Law:
”British Nationality Act of 1948, Part II, Section 5 (1) — Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.”
How do we apply these concepts to the question of whether or not Barack Obama meets the Constitutional standard of “natural born citizen” found under Article II, Section 1 of our Constitution?
Let’s examine two more pieces of the puzzle.
While relatively sparse debate is on record surrounding the introduction and ratification of the Fourteenth Amendment, what records we have give us clues as to both the meaning of “jurisdiction” with the context of the Amendment, and the historical traits which separates the “natural born” citizen, from the “person born” citizen.
When pressed about whether Indians living on reservations would be covered by the clause since they were “most clearly subject to our jurisdiction, both civil and military,” Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that “‘subject to the jurisdiction’” of the United States meant subject to its ‘complete’jurisdiction, “[n]ot owing allegiance to anybody else.”
Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction . . . the same jurisdiction in extent and quality as applies to every citizen of the United States now” (i.e., under the 1866 Act).59 That meant that the children of Indians who still “belong[ed] to a tribe” and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the Clause.”
Sen. John Bingham, the man generalized recognized as being the father of the Amendment, had this to say on the subject of the jurisdiction clause: ”Every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”
These quotes from the men authoring the Amendment, give a much clearer picture of that quality separating a “person born” from a “natural born” citizen…natural born citizens owe no allegiance to any other country at the time of their birth, nor are they the children of a parent owing allegiance to any foreign sovereignty. A natural born citizen is the child of American citizens, born owing allegiance to the United States and no other nation.
In addition, from the words of the auhors of the XIV Amendment themselves, we are able to determine that it does not change the Constitutional requirement to hold office found in Article II, Section 1 of the Constitution.
Barack Obama Sr. was a citizen of Kenya, and as such a British subject, under the temporary jurisdiction of the United States, who transferred his British citizenship to President-elect Barack Obama at birth.
Under the Law of Nations, English Law, and American Constitutional Law, Barack Obama is not a natural born citizen of the United States, and as a result, does not meet the Constitutional requirements to hold the office he’s been elected to.