To be eligible to be president of the US, one must meet the ‘natural born citizen’ constitutional requirement of Article II, Section 1. It is accepted that if one is born in the US, then this status is automatically conferred on you. This is why the birthers are so desperate to show that Obama’s birth occurred elsewhere.
But isn’t the fact that his mother was a citizen (and no one as yet has challenged that, as far as I know) mean that he is a natural born citizen, irrespective of where in the world he was born or the citizenship status of his father? Yes, that is usually true, even though some birthers like Orly Taitz seems to be under the mistaken impression that both parents need to be citizens and since his father was not, that disqualifies Obama.
But if, for the sake of the argument, one concedes that Obama was born overseas to just one American parent, there is an interesting legal wrinkle about how natural born citizenship is determined is such cases. It is then not conferred automatically but requires that certain additional criteria (set by Congress) be met and those criteria have changed over the years. At the time of Obama’s birth, if he was born outside the US, a technical and narrow reading of the eligibility criteria could be used to assert that he did not meet the criteria to be a natural born citizen, though I doubt that a court would rule that way. For those interested in such legal fine points, and if you want to impress your friends at parties with legal esoterica, I went through all this in some detail back in July 2009 (see part 1 and especially part 2).
As I said in part 2, in addition to all its problems of fact, the birther case suffers from serious plausibility problems.
Like all such elaborate theories, the birthers’ case first requires you to accept a highly implausible premise. In reality, all this is moot since no reasonable person could doubt that Obama was born in Hawaii. To think otherwise is to create a preposterous scenario in which Obama’s mother secretly went to Kenya (without leaving any discernible trail) to deliver her baby there (why?) and yet was savvy and influential enough to create an elaborate scheme with the collusion of Hawaii government officials to have his birth recorded in Hawaii and provide him with faked birth certificates even now. They also must have colluded with two Hawaiian newspapers to run contemporary birth notices of Obama’s birth. All this in order to make him eligible to run for president decades in the future.
Remember that even if Obama had been born in Kenya and did not meet the criteria for being a ‘natural born’ citizen, it would have been easy for him to become a naturalized citizen because his mother was a citizen. The only reason for this elaborate charade on his mother’s part is to make him eligible to run for president, the one and only job in the US that requires ‘natural born’ citizenship. If she was ambitious, smart, far-sighted, and knowledgeable enough to go to all this trouble to make her son appear eligible for the presidency, surely she would have simply had the baby in the US and been done with it?
The birthers’ would benefit from studying the logic of David Hume who explained how to judge the credibility of extraordinary claims: “No testimony is sufficient to establish a miracle, unless the testimony be of such a kind, that its falsehood would be more miraculous than the fact which it endeavours to establish.”
We should at least be thankful that no one is urging that the body of Obama’s mother be exhumed and DNA tests done to establish that he is actually her son and not some changeling. We should also be thankful that Obama’s citizenship did not come via an American father and foreign mother. One shudders at the ghastly additional theories and demands for proof that would have been proposed in such a case.
And as an added bonus, here is a two-part segment on the birthers on The Colbert Report from July 2009 where in the second part Colbert interviews Taitz. I did not realize until I watched it again that in addition to being a lawyer, real estate agent, and dentist, she also has a black belt in Tae Kwon Do. Truly she’s a renaissance woman.
In part 1, Colbert reviews the birther case.
The Colbert Report
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In part 2, he interviews Taitz.
The Colbert Report
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(These clips were aired on July 28, 2009. To get suggestions on how to view clips of The Daily Show and The Colbert Report outside the US, please see this earlier post.)
The birthers will probably never be persuaded by facts, so I just ask them one practical question: if there really is any evidence casting doubt on Obama’s eligibility to be President, why didn’t Karl Rove and the entire Republican Party pick up on it BEFORE the 2008 election? Obama has been talked about as a serious potential candidate for President since he made that speech in 2004, so no one can claim the Republicans were caught by surprise. Four years isn’t enough time to look up a birth certificate and do a background check?
Seriously, if you don’t even have enough material for Karl Rove to use, then you got nothing. What else do we need to say?
I guess those born by Caesarean are ruled out. :O
One rule of thumb about conspiracy theories is that there’s a point at which the conspiracy would have to be so powerful and so widespread that it would no longer need to operate in secret, or through ridiculously complicated scenarios. In this case the conspiracy apparently includes the Clintons AND John McCain AND Mitt Romney, all of whom would otherwise have benefited from disqualifying Obama.
Another rule of thumb is that you can dismiss overly complicated conspiracies that could have been achieved through much easier means and with less obviously dumb components. A massive decades-long conspiracy to install a “Manchurian candidate” wouldn’t have picked a half-Kenyan baby named Barack Hussein Obama to rest all of its hopes and dreams on. They would have found a white kid with an Anglo-sounding name.
The situation that would occur if the birthers could ever come up with some clear and convincing evidence that Obama was born in Kenya is rather interesting to constitutional scholars. Since the Constitution doesn’t define what the phrase “natural born” means, there are court decisions and legislation relevant to the matter. If Obama was born in Hawaii, he is a natural born citizen even if neither parent was a citizen at the time, according to a Supreme Court decision which relied on the 14th amendment.
1. At the time of Obama’s birth there was a statute in place that, among other things, required that, if he was born outside US jurisdiction and his father was not a US citizen, in order for him to be considered a natural born citizen, his mother would have to have been in resident continuously for a period a 5 years starting with her 14th birthday. However, his mother had not attained her 18th birthday at the time of his birth so she did not satisfy that requirement..
2. Later the law was changed to, among other things, reduce the residential period from 5 years to 2 years.
So the question is, which law should be applied. The arguments generally devolve along the following considerations. Some argue that the earlier law applied and that, therefore, Obama is not a natural born citizen. On the other hand others argue that the equal protection clause of the 14th amendment requires that the later law should be applied, even though it appears to be ex post facto. My suspicion is that the Supreme Court would dodge the question by claiming lack of jurisdiction as only the Congress has the power to remove the president from office.
I don’t know of a federal precedent on this matter but there is a state precedent from Connecticut which devolved from the Moxley murder case. Here, Michael Skakel was tried and convicted of the murder of Martha Moxley in an adult court some 25 years after the crime, even though, at the time of the crime, he was 15 years old and the threshold age to trial in an adult court was 16. Subsequent to the crime, the law was changed to lower the age to 14. The judge in the case ruled that the later law should be applied as Skakel was now over 40 years old and it appeared inappropriate to try him in a juvenile court. Some 7 years after the trial, the appellant lawyers have finally gotten around to appealing the verdict on the basis of the application of a statute ex post facto. I suspect that,l by the time this gets adjudicated, Skakel will be eligible for early release for good behavior. He has already been denied parole because he refuses to confess his guilt.
The situation that would occur if the birthers could ever come up with some clear and convincing evidence that Obama was born in Kenya is rather interesting to constitutional scholars.
…who have nothing better to do with their time, and no desire to get their hands dirty with any of the REAL con-law issues that are causing real harm to people today.
If these so-called scholars want to mind-wank over hypotheticals, can’t they at least find something fun to argue about, like whether mutants or extraterrestrials with superpowers are entitled to “equal protection of the law?”
Well such well known scholars as Eugene Volokh have weighed in on this issue. Ed Brayton certainly has a high opinion of him.
As for what would happen if it could really be proven that Obama was born in Kenya…I’m pretty sure he’d still get a pass, because his mother was living in the US, as a citizen, both before and after he was born, and raised him in the US; so it would be just like a woman who lived in Niagra Falls, NY, got pregnant in New York, never changed her residence, but just happened to give birth while visiting friends on the other side of Niagra Falls, before she could return to US soil.
As I stated, I would suspect that the Supreme Court would punt if such a case would be brought to their attention, either on lack of jurisdiction or standing grounds. I suspect that not even a schmuck like Clarence Thomas would want to enter that political thicket.
Yeah, the interpretation I have always found the most amusing is that they mean like in Macbeth.
Your statement ” 1. At the time of Obama’s birth there was a statute in place that, among other things, required that, if he was born outside US jurisdiction and his father was not a US citizen”
It says AND. As in “he was born outside the US AND his father was not a US citizen.” He was born within the US so that is irrelevant.
He was born in the US so he qualifies. His mother’s residency and age doesn’t affect this.
Did you even bother to read the first sentence?
Hypothetically, in this fictional case of Obama being born outside the US…
I wonder if an argument could be raised on a basis of the inherent inequality in the law at that time. If I understand it, different tests are applied to the father (just US citizenship) and the mother (citizenship and length of residency). If that’s correct, and the courts or Congress ruled that Obama was not a citizen, I would envision a court challenge on the basis of that inequity.
Of course, I could be wrong here; maybe the law was symmetrical so that in the case of a non-citizen mother, the father would then have residency/age requirements.
Regarding the attention paid by constitutional scholars — well, duh! What would you expect, complete disinterest? These people live for cases like this.
The law is gender-neutral with regard to the residency requirement.
I once encountered someone who thought that Obama’s mother had changed her citizenship while in another country, but this was still after he had been born. For some reason, this guy thought that the baby’s citizenship was tied to the mother’s automatically even after birth. Considering how much Fox News has hyped up the idea of “anchor babies”, this means this person was misinformed enough that even Fox would have educated him.
Historical, legal, and other papers discussing meaning of “natural born Citizen”. Neither Ted Cruz, Marco Rubio, Bobby Jindal, or Obama is one: http://www.scribd.com/collections/3301209/