I must admit I had to stop laughing at some of the trolls and calm down before I was able to write this diary. It has been briefly reported in a diary elsewhere, but I thought it might be useful to address the issues directly.
There’s an old rumor that has been resurrected by McCain trolls, that Senator Barack Obama isn’t eligible to be President by virtue of his birth since he hasn’t release his Birth Certificate.
Here I will consider the legal framework behind ‘presidential eligibility by birth’, giving background information and references. I will then proceed to ‘debunk’ each of the rumors in turn.
As you will see below, there is no need to see his Birth Certificate to know he's eligible:
At issue is the constitutional requirement that only a "natural born Citizen" of the United States may become President (or Vice President).
Before considering the rumors in detail it might be instructive to consider why it’s even an issue.
According to Wikipedia, this requirement stems from discussions held during the original framing of the constitution:
It is thought the origin of the natural-born citizen clause can be traced to a July 25, 1787, letter from John Jay to George Washington, presiding officer of the Constitutional Convention. John Jay wrote: "Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen." There was no debate, and this qualification for the office of the Presidency was introduced by the drafting Committee of Eleven, and then adopted without discussion by the Constitutional Convention.
Bear in mind their fresh memories of the recent war for independence from British rule. It is interesting to note that the concern expressed was specifically for the "Commander in Chief" role rather than a determination of fitness to govern or generic political intent. As a result, the "natural born citizen" restriction does not apply to eligibility for any other governing or law making office than the presidency but rather the lesser restriction of "citizenship" is required.
In reality, this restriction is little more than arbitrary as it also doesn’t apply to any other military position, nor does it identify a compelling reason why the place of one’s birth should determine one’s allegiance. In fact, the relevance of birthplace is slightly undermined by the declared waiver for anyone born prior to the adoption of the constitution. By definition, the framers acknowledged that it is conceivable that a person other than a "natural born citizen" could be a legitimate Commander in Chief.
However, it is an emotional restriction bred from patriotism rather than from logic, and as such, one that is unlikely to ever be amended or repealed.
At the end of the day, the ultimate standard to which all presidents must be held is enshrined by just one sentence in the oath of office:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
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Enough of the pre-amble, let’s dive in to the details:
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1) Legal Requirement
As suggested above, there are a number of criteria that define presidential eligibility based on place of birth:
Clause 5 Section 1 of Article II of the Constitution
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 legal foundation for citizenship is enshrined in the IMMIGRATION AND NATIONALITY ACT
The Immigration and Nationality Act, or INA, was created in 1952. Before the INA, a variety of statutes governed immigration law but were not organized in one location. The McCarran-Walter bill of 1952, Public Law No. 82-414, collected and codified many existing provisions and reorganized the structure of immigration law. The Act has been amended many times over the years, but is still the basic body of immigration law.
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Although it stands alone as a body of law, the Act is also contained in the United States Code (U.S.C.). The code is a collection of all the laws of the United States.
Here are the specific sections that are relevant to our discussion:
US Code TITLE 8 CHAPTER 12 SUBCHAPTER III Part I 1401
Nationals and citizens of United States at birth
The following shall be nationals and citizens of the United States at birth:
a) a person born in the United States, and subject to the jurisdiction thereof;
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e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
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g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person
A) honorably serving with the Armed Forces of the United States, or
B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.
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2) Summary of Senator Obama’s Personal Background
From Wikipedia:
Father:
Barack Hussein Obama, Sr., was born in 1936 on the shores of Lake Victoria in Nyangoma-Kogelo, Siaya District (now in Bondo District), Kenya.
Obama Sr. was awarded a scholarship in economics, and at the age of 23 he enrolled at the University of Hawaii (in 1959). By 1961, he was on a graduate course at the same university.
(NB: above words in italics are mine)
Mother:
Stanley (S.) Ann Dunham Soetoro (November 29, 1942 – November 7, 1995), known as (S.) Ann Dunham, and later as (S.) Ann Sutoro was the mother of United States Senator and presidential candidate Barack Obama.
Parents Meet & Marry:
Dunham moved to Hawaii to attend the University of Hawaii at Manoa, where she studied anthropology. There she met Barack Hussein Obama, Sr., a graduate student from Kenya and the school's first African student, in a Russian class. When they became engaged, both sets of parents opposed the marriage, with Barack, Sr.'s father in particular objecting. "He didn't want the Obama blood sullied by a white woman", Obama recalls his mother saying, in Dreams from My Father. Nevertheless, the couple married on February 2, 1961 in Maui, Hawaii.
Barack was born in Hawaii on August 4, 1961. Ann was 18 at the time.
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3) The Rumors
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Rumor I – That Obama was born in 1959
This rumor centers around the notion that Hawaii was a territory but not a state until 1959. The state was admitted to the Union on August 21, 1959, making it the 50th state
The argument is that had Barack been born 2 years earlier than claimed, he would not be entitled to be a "Natural Born Citizen" because Hawaii was not yet a state.
However, there are at least three reasons why this is easily debunkable (sic)
a) In 1959, Ann Dunham would have been 16 years old. Too young to be admitted to the University of Hawaii.
b) Barack Obama Sr didn’t enroll at the University of Hawaii until 1959, so he would have been in Kenya at the time of conception.
c) Even if Barack Obama had been born in 1959 before Hawaii became a state, the law states he would be a "national and citizen of the United States at birth" due to:
8 USC 1401 e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
As to whether Hawaii qualifies as an "outlying possession":
Hawaii was an independent republic from 1894 until 1898, when it was annexed by the United States, becoming a territory in 1900, and a state in 1959.
Since there is little dispute that Ann spent at least 1 year of her life in Kansas, and since Hawaii though not a state, was a "possession of the United States" by virtue of being a territory, Senator Obama would still qualify as a "national and citizen of the United States at birth" even if he had been born in 1959.
d) You could try to argue that 8 USC 1401 may have changed since Senator Obama’s birth and the latest version does not apply. However, you will see that this US Code encapsulates special cases that might occur even prior to 1934. Thus, the latest version of USC clearly applies regardless of any prior amendment history.
e) Some versions of this rumor state that Ann would have had to be in the United States for 5 years after she was 16.
First of all, in the rule that mentions a similar condition, it’s 2 years after 16 and 5 in total.
Secondly, that rule only applies to children born of single citizenship parents "outside the geographical limits of the United States and its outlying possessions", and then only to US Citizens living abroad on official government sanctioned business (eg military personnel).
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Rumor II – That Senator Barack Obama was born in Kenya But Was Smuggled Back to Hawaii for Registration
Picture the scenario.
Ann becomes pregnant in December 1960 while at the University of Hawaii, and marries Barack Obama Sr on February 2nd 1961 in Maui.
Ann and Barack Sr. continue their studies at the University without skipping exams so as not to eventually fail their respective courses.
Therefore, according to the rumor, Ann would have left Hawaii, flown for perhaps more than 48 hours while 8 months pregnant, traveling half way around the world to Kenya where Barack Sr’s father had already rejected her, and opt to have her child in a foreign country surrounded by strangers and hostile relatives rather than stay in Hawaii. She would then have had to leave Kenya within a few days of giving birth to her first child at 18 years old, and travel another 2-3 days with a newborn all the way back to Hawaii just to register the baby.
Clearly whoever dreamed up this nonsense rumor has never had the privilege of giving birth!
Oh yes, then there’s the inconvenient fact that it’s usually the hospital or doctor, not the mother, who registers the birth.
In the United States, it is the responsibility of the mother's physician, midwife, or a hospital administrator to prepare the official birth certificate and file it with the appropriate government agency.
So if Senator Obama had been born abroad, there would be no U.S. birth certificate. (see next section for why this is also debunked)
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Rumor III – That Obama has to publicly produce a Birth Certificate
a) In the state of Hawaii, access to records of birth are restricted to the individuals themselves and their immediate close family.
b) There is no mention in the Constitution or the US Code of any Birth Certificate requirement to be a natural born citizen.
c) In a case where there is a dispute over citizenship eligibility, the burden of proof rests on the challenger. Therefore, Senator Obama does not have to produce a Birth Certificate ever.
d) A birth certificate is a state level "vital record". It is not a legal form of identity as it has no self supporting means (eg photo, fingerprint, pin number or even signature) to correlate the document to an individual.
e) Despite it’s shortcomings for identity purposes, it is nonetheless important and is often required as supporting evidence when establishing a legal identity. However, its importance is superseded by more formal identity documents.
f) So here's the final nail in the coffin that should dispel all these rumors:
Given that Barack Obama is known to have traveled abroad, one must assume he has a valid American Passport.
United States passports are issued exclusively by the U.S. Department of State.
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Whichever the country of issuance, a passport proves the nationality of the bearer. A passport is connected with the right of a national of the country which issued the passport to consular assistance from the issuing county while the national is abroad, and with the right of the national to enter the country of which is a national. However, the right to assistance does not arise from a passport, nor does the right to enter. Each of the rights arises from nationality.
It follows that a United States passport proves the United States nationality of the bearer, and, consequently, his right to assistance from United States consular officials overseas or his right to return to the United States, as the case may be.
His proof of citizenship, date of birth and place of birth on his passport must have been verified in some form in the past by officials of the Passport Services unit of the Bureau of Consular Affairs within the US Department of State
To Apply in Person for a U.S. Passport You MUST:
- Provide Application for Passport, Form DS-11
- Present Proof of U.S. Citizenship
- Present Proof of Identity
- Provide Two Passport Photos
- Pay the Applicable Fee
- Provide a Social Security Number
In case someone cynically believes there is a workaround by obtaining a passport as a minor:
Special Requirements for Children Under Age 16 Minor Children must Apply in Person
All children regardless of age (including newborns and infants) must have their own passport.
For Minors under Age 16 you [the parent] must establish proof of citizenship AND proof of relationship. Previous U.S. passports are not acceptable as proof of relationship to the applying parent/s or guardian/s. See number 3 below for proof of relationship.
Point 3 in the adult application is moot as a minor need not have legal proof of identity. Therefore the wording is amended to:
- Present Evidence of Child's Relationship to Parents/Guardians (for minors under age 16)
- Provide Parental Identification (for minors under age 16)
- Present Parental Application Permission Documentation (for minors under age 16)
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Therefore, in the absence of a Birth Certificate, his passport may serve as a legally valid alternative. You can rest assured that his passport is one of the first documents that would have been considered when vetting Senator Obama.
In fact, it is not even necessary to have a birth certificate to obtain a passport, as long as sufficient evidence is provided in support:
If you do NOT have a previous U.S. passport or a certified birth certificate, you will need:
1. Letter of No Record
Issued by the State with your name, date of birth, which years were searched for a birth record and that there is no birth certificate on file for you.
1. AND as many of the following as possible:
* Baptismal certificate
* Hospital birth certificate
* Census record
* Early school record
* Family bible record
* Doctor's record of post-natal care
So according to US law, a Birth Certificate is not a necessary pre-qualifier for proof of citizenship.
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Therefore, Obama is a proven citizen by virtue of having a passport, even if no birth certificate could be found, or ever existed.
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g) We also know from news reports that his passport details were accessed inappropriately during the campaign, allegedly for political mis-purposes. So I doubt there is any mystery as to Senator Obama’s Eligibility, other than among rumor-mongering trolls.
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Rumor IV – The man of many names
Among the printable variants of this rumor are that his middle name is Mohammad, or that his first name is really Barry.
Either way, the only thing this rumor proves is the bigoted racist ignorance of the trolls, and their self-obsessive delusion that anyone really cares what his name is.
It’s hardly worth even considering the legal implications, other than the obvious that there is no constitutional list of invalid names for potential presidents. If there was, "George ‘Warmongerer’ Bush" would be at the very very top next to "Dick ‘Embezzler’ Cheyney"!
CT
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P.S.
Lest anyone should ask the same about John McCain, he IS eligible since he was born of formerly resident US citizen parents, regardless of the place of his birth (ie Panama) according to:
The following shall be nationals and citizens of the United States at birth:
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c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
P.P.S
I refuse to link to any site that promotes or encourages the spread of these rumors. If you must see them for yourself, you probably already know where to go.
The majority of the quoted content comes either from the United States Constitution, the United States Code and various entries in Wikipedia. If you feel the need to confirm them, they can be found here.