Thursday, April 28, 2011

What Part of the 14th Amendment Don't We Understand?

So, in the wake of Obama releasing his birth certificate and my total frustration with this as an issue, I thought I'd look over Article 2 and the 14th Amendment. The relevant part of Article II, Section I reads like this:

"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." 

The 14th Amendment reads like this:

Section 1. 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; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
 There are a couple fine, but lengthy articles from The Federalist Blog. The relevant articles articles are: What "Subject To The Jurisdiction" Means and Defining Natural Born Citizen. You should also consider an article published in 1916 by a partisan Democrat that GOP Presidential nominee Charles E Hughes was not eligible to serve because both of his parents were British citizens at his birth. It is The Case Against Charles E Hughes. That article, quite partisan tries to split hairs between native born and natural born citizen. Ironic because of all people, Mr. Hughes was a member of the Supreme Court prior to his nod for President. He would later, in 1930 be appointed by Herbert Hoover to be Chief Justice of that same court.

Article II is clear: "No Person except a natural born Citizen...."(see above) So what is the definition of a natural born citizen? The links provided above will suggest that "natural born" means both parents are citizens of the United States in order to be considered "natural born".

The problem with that point is that the 14th Amendment says this: "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."  This is where critics of Obama's eligibility fall apart. Citizenship is clearly defined as "born" in the United States. Nowhere in the Amendment is there a qualified definition of "naturalized", therefore "born" in the United States is sufficient to determine citizenship and eligibility for the office of President. The 14th Amendment to the Constitution prevails over Article II.

Critics will suggest that the 14th Amendment is relevant to the right of freed slaves, preventing the states from depriving them of their rights under the Constitution. There is a case for this and it has been rolled out against the "anchor babies" of illegal immigrants. It is true that the law will consider the history, "the spirit" in which the legislation was created. Prior to the 14th Amendment being passed, it was up to the states, not the Federal Government to determine citizenship. The authors of the 14th Amendment, however did not provide any criteria to distinguish  the boundaries of "born" with qualifying distinctions of "natural" or "native". Lacking a clear definition embodying the "spirit", the "letter" must apply. The 14th Amendment is clear: Being "born" in the United States qualifies you as a citizen. To date, has there been a successful case that has sought and received clarity?

Why has no one ever challenged the eligibility of a candidate for President? Even in 1916, no one went to court over Hughes's eligibility. I'm pretty sure a Supreme Court Justice like Hughes would have been aware of the law to determine his qualifications. Is there any evidence that had he won as he was originally declared the winner that the Democrats were going to challenge his eligibility? Nope.

Barry Goldwater was born in Arizona when it was a territory, not a state. John McCain was born in the Panama Canal Zone. They were eligible to serve because they were born on US territory (the canal was ours), and we grant citizenship to children of American parents regardless of the place of birth. The 14th Amendment took the unprecedented step in the wake of Emancipation to also extend it to those "born" in the United States, regardless of parental citizenship. Of course the United States rejected dual citizenship and anyone born here would be expected to engage fully as a citizen and end any conflicting loyalties.

Barack Obama's mother was born in the United States. His father was born in Kenya. Some have argued that the "citizenship" of the father falls to the son. That is true, traditionally, but the 14th Amendment extends citizenship to the child physically born in the country. It is true that the amendment was inspired to aid freed slaves, but unfortunately that is not specified. Therefore, it applies to all. At least, it's arguable.

Obama by any reasonable measure was born in Hawaii when it was a state. He is a citizen therefore under the terms of the 14th Amendment. Under Article II, being "naturally born" in this country he is in fact eligible to serve as President. If you disagree you are free to file in Federal Court as to his eligibility. No one has succeeded in advancing such a case. In the meantime, he's the President. I'd rather he weren't but to my mind the Constitution is clear.

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