Article II, Section 1, Clause 5 provides: “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 current debate is whether Putative President Obama is a “natural born Citizen” under this Presidential eligibility article.

There has been much confusion regarding the role that Obama's place of birth (represented by his birth certificate) or parentage (represented by his alien father) plays in his being a "natural born Citizen." A “natural born Citizen” must be born in the United States or what is deemed its equivalent. This is called the jus soli requirement. We know that while Obama maintains that he was born in Hawaii, there exists a considerable amount of evidence that he was born in Kenya. Some argue that Obama has to date not yet conclusively shown that he was born in Hawaii and that on the contrary, he was born in Kenya. They argue that since Obama was born in Kenya, he is not and cannot be a “natural born Citizen.” Hence, some focus on Obama's place of birth as the only factor that needs to be considered in the question of whether he is a "natural born Citizen." However, as I will explain below, being born in the USA is only one part of the issue.  Being born in the USA is a necessary but not sufficient part of being a "natural born Citizen."

The original and only definition of an Article II "natural born Citizen" is that one must be born in the country, or what is deemed its equivalent, to citizen parents (mother and father). Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (1758), Section 212 (“The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. . . .”). As we can see, this definition contains two factors, place of birth and parentage or what is known as the jus soli and jus sanguinis factors. While Obama's mother was born in the United States and was a "natural born Citizen," Obama has admitted that under the British Nationality Act 1948, when Obama was born in 1961, his father, who was born in the then-British colony of Kenya, was a British subject/citizen and that Obama himself by descent from his father was also born a British subject/citizen. Hence, since his father was not a United States citizen when Obama was born and he himself was a British subject/citizen by descent from his father, Obama is not and cannot be a “natural born Citizen.” Given Obama’s admission, some therefore focus only on Obama’s parentage (alien father) factor and maintain that it is not necessary to know his place of birth wherever that may be because Obama is not and cannot be a "natural born Citizen" because his father was not a United States citizen when Obama was born. Under this argument, Obama is not a “natural born Citizen” because he is missing the parentage factor, a necessary condition found in the original and only definition of a “natural born Citizen.”

The Fourteenth Amendment citizenship clause also causes further confusion in the Obama eligibility question, for some incorrectly ascribe a controlling effect to it. The Fourteenth Amendment requires that one be born in the United States and be “subject to the jurisdiction thereof” in order to be a born “citizen of the United States” thereunder. The way that the Amendment’s “subject to the jurisdiction thereof” clause is currently interpreted, it does not contain any parentage requirement. But a simple reading of the Amendment’s text shows that it only deals with a “citizen of the United States” and not a “natural born Citizen.” Hence, showing that Obama is a Fourteenth Amendment born “citizen of the United States” (the Fourteenth Amendment born “citizen of the United States” standard) without more is not sufficient to demonstrate that he is an Article II “natural born Citizen” (the Article II “natural born Citizen” standard). Nevertheless, Obama must at least prove that he is a born “citizen of the United States” (born in the United States) before he can prove that he is an Article II “natural born Citizen."

What this means is that proving that Obama was born in the United States is a necessary condition for proving that he is a "natural born Citizen" but is not a sufficient condition. Hence, that Obama may have been born in the United States does not necessarily make him a "natural born Citizen." Rather, with his being born in the United States being a necessary condition, his not being born there would disqualify him from being both a Fourteenth Amendment born “citizen of the United States” and also an Article II "natural born Citizen." In such a case, he would be disqualified from being President. But since we might in the end learn that Obama was born in Hawaii, it is not wise to rely solely on the place of birth factor when questioning whether Obama is a “natural born Citizen” and to completely disregard the parentage factor contained in the original definition of a "natural born Citizen." Likewise, since the United States Supreme Court has yet to rule on the definition of an Article II "natural born Citizen" within the context of a case raising the question of whether a person is eligible to be President and Commander in Chief of the Military, it is not wise to rely only on the parentage factor when questioning whether Obama is a “natural born Citizen” and to totally discount the place of birth factor.

Please note that the Kerchner et al. v. Obama/Congress et al. case which was filed on January 20, 2009, after Congress confirmed Obama but before Chief Justice Roberts swore him in, and which is currently pending before the Third Circuit Court of Appeals in Philadelphia with a tentative oral argument dated of June 29, 2010, argues both the place of birth and parentage factors.

Mario Apuzzo, Esq.
May 28, 2010
http://puzo1.blogspot.com
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Kerchner v Obama Appeal - Motion for Leave to File Supplemental Appendix Filed 10 Apr 2010 w/Appx