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Eligibility and the American Presidency


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Illinois Review:

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By John F. Di Leo

What does it really take to be a president?

Well, we can argue all we want about the relative importance of private sector experience vs. public sector... legislative vs. executive… social issues. vs. economic vs. foreign policy…

The one place on which we must agree is the Constitutional requirements in Article II for the president and vice president: each must be at least 35, must be a natural born U.S. citizen, must have lived at least the prior fourteen years as a resident of the USA, and must be from a different state than his runningmate. Doesn’t sound hard, does it?

One we can get out of easily – two people can run from the same state if they’re certain they could easily win without it. A Pawlenty-Bachmann ticket could be nominated, and could be elected; they’d just have to do it without Minnesota’s electors, all of whom would be unable to legally vote for them. We’ve elected GOP presidents without Minnesota before; we could live (though we couldn’t say the same thing about two Texans!).

But there’s no such escape hatch for the other rules. Fourteen years a resident of the USA… that lets out a lot of corporate executives, writers, actors, and professors who might have recently spent a few years abroad. Fourteen years of nonstop USA residency is required for the presidency. Don’t take that job offer for a dean’s gig in Ireland or a plant manager posting in Italy if you want to run for president in a decade’s time.

The minimum age of 35 is inescapable as well, though it produces even less of an obstacle. It’s difficult to imagine a legitimate candidate for the presidency who isn’t at least forty. It takes a while to establish oneself enough to compete for the top job.

Now comes the challenging one: they must be natural born citizens. What does that mean?

A requirement without a definition?

The requirement to be a natural born citizen only appears there, in Article II. Senators, members of the House, Supreme Court justices all just have to be citizens. This means they could easily be immigrants who were naturalized at some point, even perhaps the week before the election. But not presidents.

The problem is that the Framers didn’t provide a definition for the term. There’s a legal tradition that everything in the Constitution matters, that nothing is placed there for poetry or fluff, so if the words differ, then there’s a stricter requirement there, no doubt about it. Gouverneur Morris, author of the Constitution and the greatest editor in American history, took his scalpel to a summer of notes and framed that document with care. If it says “natural born citizen,” then that term must mean something special.

Since they didn’t define it within the document, we have two choices: to assume that the Framers thought the meaning was obvious from context, or to assume that the Framers relied on the legal understanding of the time.

Reading it from context, most would assume it means a person who was legally born in the country as a citizen, as opposed to a person who was born a citizen of some other country but later gained citizenship through naturalization. This would appear to be borne out by the Naturalization Acts of 1790 and 1795, which set forth some clarifications about citizenship, but sadly still didn’t address every question about the “natural born citizen” term.

The originalist view of the Contitution – the only logical view of the document, really – is that we should read the document using the words and terms as they were understood at the time. And at the time, fortunately, the term “natural born citizen” did indeed have an English definition. It was defined in Vattel’s “The Law of Nations” (1758) as “those born in the country of parents who are citizens.” This reading of the Framers’ intent would seem to indicate that only a person born on U.S. territory to parents who are both U.S. citizens already would be eligible for the presidency.

Unfortunately, while many today assume that this latter definition was the likely meaning of the Framers, there is the fact that, even if lawyers like Hamilton, Madison, and Morris meant it, there’s no way to be certain that all the ratifiers did. It wasn’t stated in any of the delegates’ notes; no helpful clarification was placed in the statutes. Nevertheless, since the American justice system was based on the British system, the British common law definition, when there was one, always stands as binding unless US law specifically overrides it. Under this reading of the law, which has arguably the most extensive precedent in support, there should be no question: “natural born citizen” means those born in the country of parents who are already citizens – both of them. They don’t have to be natural born; they can be naturalized. But they must both be citizens.

The Big Picture

Let’s step back to the view from 30,000 feet. The reason for the requirement was that there was a genuine fear during the founding era that other countries might place representatives here with the intention of gaining a following and running for president, with the eventual result that our president would owe his allegiance to a foreign power.

This isn’t as far-fetched as it might seem: We had plenty of politicians in those early days who were either outright foreign agents or sponsored relationships that would have made a foreign country the senior partner in any deal. Aaron Burr, James Wilkinson, and thousands of unrepentant loyalists would gladly have represented Spanish, French, or British interests in the White House if it served their feelings of loyalty or the call of their wallets. So the Framers set rules in place to ensure that the presidency had a higher threshold to meet.

They wanted a president to be free of divided loyalty, to be an American from birth, solely and completely. This much is certain.

Our question is therefore What would the Framers have thought necessary to accomplish that goal? Well, certainly being born on American soil would be a requirement, and having parents who themselves felt loyal to America would be crucial; they would not risk a candidate who had been raised at the knee of someone likely to have raised him to be a loyal subject of any other nation. Knowing that this issue was the Framers’ concern, it only makes sense to assume that the parentage matters, that either the parents must have been US citizens, or at least, must have been people who had renounced their foreign ties, such as a person who held a green card, having applied for U.S. citizenship. The concept of the green card didn’t exist in those unbureaucratic days of our Founding, of course, but it meets the intention that the child be raised by people who had established an allegiance to the USA either from birth or conscious choice.

Viewed this way, a case could be made that Senator Marco Rubio (R, FL), and Governor Bobby Jindal (R, LA) whose parents had applied for citizenship but didn’t receive it until their childhoods, should be considered acceptable… But that’s not the law, just an interpretation of the spirit. We don’t quite know for certain what the law is, and it may well shut the doors on these fine men. The fact is, there’s simply a lot that the Framers didn’t consider.

They didn’t have a seven to ten year green card concept in the Founding era (Jindal’s and Rubio’s problems). They didn’t have US territories with status but not statehood as we do today (Charles Curtis’ and Barry Goldwater’s problems). The Framers did think of American citizens living or serving abroad temporarily when their children were born (John McCain’s and George Romney’s problems) and they tried to deal with that in the Naturalization Acts of 1790 and 1795, however clumsily.
The Framers just didn’t deal with the “parents with green cards” issue, or the “one US citizen parent, one non-citizen parent” issue that Barack Obama shares with Charles Evans Hughes a century earlier. They didn’t think of it, and no subsequent law has fixed the problem.

A case can be made that a simple law declaring that Vattel’s definition applies would settle the Presidential question, though, arguably, it would take a Constitutional amendment to clarify it in any other way.

Barack Obama, problem child

The problems with President Obama’s eligibility are many. With so many court challenges and books about it, there’s no room to list them all here in any detail, so let’s just summarize:

1. Barack Obama was presumably born in Hawaii when his parents were students there, though some have accused him of having been born in Africa, his parents having arranged a forgery of a Hawaiian birth certificate shortly upon returning to Hawaii. Obama has never been able to provide a believable original Hawaiian birth certificate that would pass a reasonable expert inspection. The Framers did not foresee such a circumstance, so they provided no answer for us.

2. Barack Obama’s mother was a US citizen, but she had (presumably) married Barack Obama Sr, a man of Kenyan origin and therefore a British citizen. Obama Jr. therefore has one U.S. parent and one foreign parent, providing him with dual citizenship, exactly what the Framers wanted to avoid in a potential president.

3. Barack Obama’s father was already married, in Kenya, and had not divorced his Kenyan wife (or wives) at the time of his marriage to Obama Jr.’s mother. This makes his marriage in the USA illegal as bigamy. This could actually help his case for being considered a natural born citizen, under some readings, unless the acknowledged unmarried father on the birth certificate is considered relevant. State and local laws and other rules on bigamy make it particularly murky. The Framers certainly didn’t think of this possibility.

4. Barack Obama’s stepfather, Indonesian citizen Lolo Soetaro, moved the family to Indonesia when Obama was six, possibly changing Obama’s name to his, and renouncing Obama’s American citizenship on his behalf. Now, whether a stepfather has any right to renounce his stepson’s citizenship for him is an open question. The boy was six, and could hardly be expected to have meant it, or have even been conscious of his stepfather’s action. Most objective observers – and indeed U.S. law – would require that the boy choose for himself when he reached his majority. So let’s call this one a potential black mark… depending on what he did when he turned eighteen. Another odd scenario that the Framers never dreamed of.

5. By some reports, Barack Obama applied for and attended at least his first college, Occidental, as a foreign student, presumably because foreign students often obtain easier college acceptance and generous financial aid through such programs as the Fulbright Scholarships. If he did in fact apply for and accept such favorable treatment on the basis of being a non-citizen, that would settle the issue of Soetaro’s renunciation of his citizenship a decade earlier. Now he’s an adult college student; he can decide for himself, and he decided he’d rather be Indonesian. Even if it was just for crass financial shenanigans, a choice is a choice. The problem here is that Obama has never released his college records for scrutiny. They might exonerate him if they show him to have identified himself as a US citizen; they would damn his eligibility if they support the contrary position. Since Obama has blocked all such records from release, we are forced to choose whether to consider his glass half-empty or half-full; he has personally denied us any ability to make an informed analysis. The Framers could never have been expected to dream of anything like this!

As we see, the Obama citizenship narrative is amazingly complex, with twists and turns no other candidate could boast.

Now, some onlookers (this writer included) think that the claim of a Kenyan birth and a Hawaiian forgery to claim an undeserved American birth identity is simply insane. Even today, the idea of surreptitiously flying a newborn from Kenya to Hawaii and sneaking in a fraudulent birth announcement would be a logistical nightmare and a massive financial expense; imagine the logistics fifty years ago! There is absolutely no material advantage to being born the child of an American citizen mother on US soil vs foreign soil, other than to shore up a dubious claim to presidential eligibility, which at that time, for this child, would have seemed utterly impossible. It simply makes no sense for them to have faked the Hawaiian birth… but the Obama camp has done nothing to prove it wasn’t faked, which has simply stirred up the so-called Birthers to attack his eligibility from this base.

It’s the other issues that make Obama’s qualifications shaky at best. His failure to meet the understanding of the words “natural born citizen” by having a British-Kenyan father is arguably sufficient to shut him out of the presidency all by itself, and his apparent renunciation of his U.S. citizenship later – by his apparent college admission and funding applications – appear to settle the issue in case it wasn’t settled before. Even if the 18th century understanding of the term “natural-born citizenship” is not used, he gave up his citizenship by declaring himself a foreign student to enter college.

These interpretations might be wrong. They might. But instead of producing evidence to show that the accusations are false, the Obama machine has simply used all the weight of the federal government to squash the attempts. If his birth certificate, his parents’ travel records, his passports, and his college records weren’t damning evidence, it’s impossible to imagine why he wouldn’t have released them all to put these matters behind him.

The Republican Field

By contrast, consider how the Republican field has handled the issue. While Governor Jindal and Senator Rubio are among the party’s brightest and most popular stars, likely electable by landslide proportion if they ran, they have both sat out this election, awaiting some resolution of the citizenship question first. The Democrats may happily nominate and elect a man with a cloud over his eligibility the size of Kenya; the Republicans choose to be cautious and look first to the law.

The Republican primary electorate has made eligibility a condition of the nominating process, and each of the major Republican candidates’ history is now known, to ensure that the GOP makes no mistake in nominating an ineligible candidate for the fall. Consider:

Newton LeRoy Gingrich –

Newt Gingrich was born in Pennsylvania to two US citizens who were also born in Pennsylvania, (though little is available on his birth father, Newt McPherson, there’s enough to confirm that he was born in Pennsylvania). So Gingrich’s qualification as a presidential candidate is unquestioned.

Richard John Santorum –

Rick Santorum was born in Virginia. His mother was a US born citizen, and his father Aldo was brought over from Italy at 7 by Santorum’s grandfather. It is unclear whether Rick's grandfather included his son Aldo when he gained his own citizenship (a common approach), but Aldo served for three years in WWII, and the tens of thousands of as-yet un-naturalized immigrants who served were given citizenship afterward to show our nation's gratitude. So, Aldo Santorum too was a US citizen long before Rick's birth in Virginia in 1958. So his qualification as a presidential candidate is unquestioned.

Ronald Ernest Paul –

Ron Paul was born in Pennsylvania in 1787, during the Constitutional Convention; Alexander Hamilton's day-long speech on monarchy so bored Mrs. Paul that it drove her into labor, and Benjamin Franklin was the godfather at his baptism. (okay, just kidding, Ron Paul was born in Pennsylvania in 1935). His great grandparents and grandparents were immigrants from Germany and Ireland; both of his parents were certainly born here. So his qualification as a presidential candidate is unquestioned.

Willard Mitt Romney –

Mitt Romney was born in Detroit, Michigan. His mother came from an old Mormon family in Utah, so there's no question about her. His father, onetime presidential candidate George Romney, is the interesting case: George was actually born in Mexico, to US citizen parents who had gone to Mexico for Mormon proselytizing (or who fled the US persecution of polygamist Mormons; depends on how you look at it). George, having been born to two US citizen parents while living in a foreign country without a US service explanation (such as McCain’s) to justify it, might indeed have been challenged. Still, even though the case for George Romney's candidacy in 1968 could have been debated, there's no question about our Mitt. His qualifications as a presidential candidate are unquestioned.

All four of the major Republican candidates in 2012 have unquestioned status in compliance with the Constitutional requirements for the office. If only we could say the same for the incumbent president that one of these four will face on the November ballot.

Telling, isn't it, that conservatives care enough about the Constitution to study and ponder these issues, but the Democrats couldn't care less?

Just might give you an idea of how much respect the Democrats have for the rest of that august document to which they swear an oath every year, doesn't it?

Copyright 2012 John F. Di Leo

John F. Di Leo is a Chicago-based Customs broker and international trade expert. His Northwestern University political science B.A. represents studies in American and national politics; he is not a lawyer, so his commentary does not constitute legal advice. A former county chairman of the Milwaukee County Republican Party, he has now been a recovering politician for nearly fifteen years (but he reminds us that, like any addiction, you’re never really cured).
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Ron Paul was born in Pennsylvania in 1787, during the Constitutional Convention; Alexander Hamilton's day-long speech on monarchy so bored Mrs. Paul that it drove her into labor, and Benjamin Franklin was the godfather at his baptism.


This line alone made the long read worth it!


Actually this was a very interesting article. Thanks for posting.

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