Posted by
Andrews on Saturday, September 12, 2009 1:00:45 PM
I realized as yesterday drew to a close I had written none of what I promised. And I doubt I will do any better today, as my health seems to be taking one of those turns for the worse. I won't go into the litany of minor annoyances besetting me, just state that I doubt I will be doing much writing for the next few days.
But a comment today has inspired me to ask my readers to participate in a little project.
Those arguing that Obama is ineligible to be president often claim (among many other things) that "natural born" in the constitution means something other than native born (that is, not naturalized). Most legal sources dismiss this, claiming that the Wong Kim Ark case pretty clearly shows "natural born" and "native born" mean the same thing.
And, as far as my reading goes, and I admit to not obsessively tracking down every source available, the common law cases preceding the drafting of the Constitution do suggest that "natural born" and "native born" were both terms used interchangeably in court cases in England. There aren't that many cases which even use the term, and certainly none on point, so the best we can do is see how the terms were used, and from that draw assumptions about the usage intended by the founders. And, as far as legal cases go, it appears the terms were used without distinction.
And, if one looks without the intent of finding a reason to disqualify Obama, it appears that is all that was intended in the Constitution. The presidency is limited to those who were citizens at the time of the adoption of the constitution , or "natural born citizens". It suggests the term "natural born" means nothing more than "native born", because they grandfather in those who not born citizens, as such birth was impossible, and then include everyone who is born a citizen after. If we accept that "natural born" means one's parents had to be native born citizens, that would cause something of a crisis for the second generation, as everyone would have parents who had been, at some time, citizens of other nations. So if they intended "natural born" to mean, citizens born of native born citizens, it would seem they would have to have two grandfather clauses, not the one they have.
Still, I want to be fair, so I ask that anyone arguing that natural born means something other than native born, please put a comment under this post, explaining why and giving sources. I have seen de Vattel and Bingham, but neither is convincing. de Vattel is both Swiss and not a common law jurist, so has no legal bearing on the meaning of the terms. He may have had influence on the founders, but between de Vattel and the common meaning in British common law, I would think they would favor the latter. (Eg. If a theorist used "assault" to mean something other than a threat, I would still assume that any modern legal documents used "assault" in the technical sense, unless they stated otherwise, regardless of how influential the person misusing "assault" was.)
And Bingham is clearly not relevant, as he spoke a century after the constitution was drafted, so could not be used as a source for the founders' interpretation.
But perhaps there are other arguments, one I have not seen. So please, let me know your reasoning. When I feel better, I will go through all of them and present a summary of the arguments for Obama's ineligibility and my reaction to each.
Hopefully I will mend quickly, so please tell me your arguments, I really am curious what sources have been found to support these arguments. As far as I have seen the common law at the time of the founding of the US argues in favor of the terms being identical, but if I missed something, please let me know.
POSTSCRIPT
For those who read the first version of this, apologies for all the typos. I cut and pasted bits from elsewhere and appear to have dropped a lot of words. It should be right now, but if you find an omission, please let me know in comments.