Thursday, March 03, 2011

Where's the B(irth Certificate)eef?

Every time I see one of those bumper stickers I laugh. I’m not quite sure why but I find that very funny. In case you’re not hip to the discussion that’s been smoldering for a few years now, some people believe that President Barack Obama II wasn’t born in the United States. He claims to have been born in Hawaii, but critics have claimed that he was either born in Kenya or Indonesia (or both?).

Obama II was born to Barack Obama Sr., a Kenya native (which was a British Possession at that time, and therefore was a British subject) and Ann Dunham, a Kansas native. Ann Dunham was an anthropologist with a PhD from the University of Hawaii, whose research interest was in Indonesia, where she spent much time. Barack Obama Sr. was an economist with a Master’s Degree from Harvard. In 1965, after Barack II’s birth in 1961, Barack Sr. went back to Kenya where he worked for the Kenyan government for many years. So although I think the image of Pres Obama’s background is “everyman”, certainly he came from a family (albeit broken) with advanced degrees from top U.S. universities. President Obama himself is a graduate of Columbia and Harvard Law.

As I mentioned, some believe that Barack II was born in Indonesia, which isn’t a ludicrous claim, since he did live there as a small child along with his mother. Some believe that Barack II was born in Kenya, which also isn’t a ludicrous claim, since his father was from Kenya. It’s unlikely that he was born either place, but claiming that someone might have been born in a place that they have ties to is not out of the question.

What difference does it make if Barack II was born in the United States? For one, citizenship is on the line. If Barack II was born in the United States then technically he is a citizen. If he was not born in the U.S. then he is not a citizen. Now I know what you must be thinking, “Wait a minute. If his mom was a U.S. citizen [which she was] then he’s automatically a citizen, right?” Wrong. You are not granted citizenship in the United States just because you have one parent that is a citizen. Your citizenship is established through your birth on U.S. soil (a sticky wicket with the folks against illegal immigrants having children in the U.S. and them instantly becoming U.S. citizens a/k/a “anchor babies”), but if you were not actually born on U.S. soil, citizenship is legally more complexly defined.

Birthright citizenship is granted to us by the 14th Amendment.  Prior to 1868 the Constitution had no definition of citizenship, but thanks to the 14th Amendment, that is now codified. The 14th Amendment reads, “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.” Exemptions to the 14th Amendment are children born to enemy aliens during war time and children born to foreign diplomats.

For those not born on U.S. soil, citizenship is still possible, according to U.S. Legal Code Title 8 Chapter 12 Subchapter III Part I Section 1401, if you meet certain conditions. For our purposes, I’ll focus only on the case of a child being born outside of the United States to a married couple, one of whom is a citizen and the other of whom is not (as is the case with citizen Ann Dunham and non-citizen Barack Obama Sr.).

In this case the foreign-born child is a U.S. citizen if his citizen parent (Ann Dunham) has lived in the United States for a total of at least 5 years of their life, with two of those years being after the age of 14. Ann Dunham lived in the Continental U.S. at least until she graduated High School in 1960, which makes any of her foreign-born children, born in wedlock, automatic citizens of the U.S., regardless of where the children were born. Specifically she meets this requirement because she lived in the U.S. for at least 5 years prior to the birth of Barack II, her first child, with at least two of those years being after the age of 14.

So in this instance, regardless of whether Barack Obama II was born in Hawaii, Kenya, Indonesia or anywhere else, he is a citizen of the United States.

However, there are other controversies surrounding the citizenship of Barack Obama II. When his father, Barack Obama Sr. and his mother, Ann Dunham were married in 1961, Barack Sr. was “technically” still married to his first wife, Kezia Aoko, whom he abandoned when he moved to the U.S. Aoko and Obama were married in Kenya in a traditional ceremony in 1954. So there is a possibility, depending on how the law is interpreted that Obama & Dunham’s marriage was not legal in the U.S. under the 1862 Morrill Anti-Bigamy Act, so that Ann Dunham would not have been married when Barack II was born.

This type of situation is handled by a different section of U.S. Legal Code. Title 8 Chapter 12 Subchapter III Part I Section 1409 says that for “children born abroad after December 24, 1952 to unmarried American mothers are US citizens, as long as the mother has lived in the US for a continuous period of at least one year at any time prior to the birth.” So the requirements for citizenship in this case are even less stringent than if the parents of the foreign-born child were married.

So in this instance also, regardless whether or not Obama Sr. and Ann Dunham were legally married at the time of Barack Obama II’s birth, Obama II is a citizen of the United States.

Now that it has been proven unequivocally that regardless of his place of birth or marital status of his parents he is a citizen let’s move on to another controversial point: does he meet the constitutional qualifications to be U.S. president?

Article 2 Section 5 of the U.S. Constitution outlines the qualifications for President of the United States. It says that to be eligible a person must be a “natural born” citizen and at least 35 years old, and has lived in the U.S. for at least the past 14 years. Barack Obama was older than 35 in 2008 when elected, and had lived in Chicago for at least 14 years prior to 2008, but what does it mean to be a ”natural born” citizen?

Some do not consider “natural born” citizenship to extend to anyone but those who have two parents that were citizens, and not just one as in the case of Barack Obama II. Justification for this position comes from Swiss philosopher Emer de Vattel in his 1758 book, “The Law of Nations” which espouses that in order for a child to be a citizen his father must also be a citizen. However, U.S. law is not based on Swiss law. U.S. law is largely based on English Common Law. However, regardless of the system on which our law is based, in the U.S. legal system our law is written by our legislators and interpreted by our court system.

Whether one relies on English Common Law tradition or various U.S. Supreme Court cases addressing citizenship (Dred Scot v. Sanford, 1856; Slaughterhouse Cases, 1872; Minor v. Happersett, 1874; U.S. v. Wong Kim Ark, 1898, Perkins v. Elg, 1939; Schneider v. Rusk, 1964; Ankeny v. Governor, 2009) it is evident that there are two types of citizens a) established at birth and b) established after birth (or naturalized). If you are not a naturalized citizen, then you are a citizen from birth and therefore a “natural born” citizen.

Since Barack Obama II is a natural born citizen, meaning that he was a citizen since birth, under U.S. law, he is eligible to be President of the U.S. under Article 2 Section 5 of the U.S. Constitution.

Post title, is from Wendy's Old Fashioned Hamburger's iconic 1984 advertising campaign that centered around the question, "Where's the beef?"


Betty said...

Very nice analysis of the Prez's citizenship status. I personally feel after his being in office so long, the point is moot, but this is still a very nice card to have up your sleeve in debates!

Also, kudos on the title...I caught it before you explained it, and loved it!

LBerteau said...

Well played, old boy.

More than anything, this reminds me of the story you tell about a certain Crescent City Baptist basketball game, in which several youths in the crowd were vocal about one of the opposing team's players looked too old to be in high school. They thought the referee should ask to see his birth certificate. So instead of chanting whatever school spirit-ish nonsense they had been chanting, they began to chant "Birth-Cer-tif-i-cate" along with clapping.

I think the birthers would have been in good company at that game.

curia_regis said...

You know, LBerteau, Moseley also referenced the birth-cer-tif-i-cate guys...I don't know why I didn't include them.

Usually I only like to post funny stuff, but the occasional serious one slips out (mostly unnoticed, and always uncommented on (other than this one) - so I should have included the humor, but since I spent a lot of time and research on this, I guess I just didn't think about it.