Researchers target 'eligibility,' say 'native born' really is 'natural born'
By Bob Unruh
© 2011 WND
 Barack Obama |
The Congressional Research Service, the research arm of Congress, has launched a defense of Barack Obama's presidential eligibility with a 50-page report that "Where's the Birth Certificate?" author Jerome Corsi has described as a "polemic aimed at convincing readers" Obama meets the requirements to be president.
Shortly after Obama took office, it was CRS staffer Jerry W. Mansfield, an information research specialist in the Knowledge Services Group, who wrote a memo titled "Qualifications of Barack Obama to Be President of the United States" that seemed aimed at providing talking points for members of Congress whose constituents who were questioning the absence of documentation for Obama.
Now comes the new campaign from CRS Legislative Attorney Jack Maskell, which seems to redefine eligibility, equating "native born" with the constitutional "natural born" citizen.
He cites the questions that have plagued Obama from before his 2008 election – the location of his birth and the status of his parents. The Constitution requires a president to be a "natural born citizen," and a common definition at the time the Constitution was written was an offspring of two citizen parents.
While Obama has released a purported "Certificate of Live Birth" from Hawaii, there are experts who have questioned whether it is genuine. Others say even if he was born in Hawaii, he would not be eligible because his father was a Kenyan subject to the jurisdiction of the United Kingdom at the time of the birth. They argue the inclusion of "natural born" in the Constitution precluded dual citizens from occupying the Oval Office.
The definition of the status was addressed in 1875 in the U.S. Supreme Court decision Minor v. Happersett, which concluded it was a child born of two U.S. citizens – regardless of location of the birth.
That decision said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners."
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The current Supreme Court has avoided addressing the question directly, according to one of its members, by refusing to hear any of the dozens of cases that have been brought specifically on the question of the application of "natural born citizen" to a child whose father was a foreign national, whether he was born on U.S. soil or not.
But Maskell states that "the Supreme Court has never needed to address this particular issue within the specific context of a challenge to the eligibility of a candidate under Article II, Section 1, clause 5, the only place in the entire Constitution that the phrase appears."
He said that because the Supreme Court "has never needed to address this particular issue," there is "certain speculation on the scope of the language."
Corsi notes that Maskell simply advances the argument that "native born" is equivalent to "natural born" and that "being a 'U.S. citizen at birth' is equivalent to 'natural born citizen.'"
"The end result of Maskell's analysis is that an anchor baby born to two illegal immigrants, or a baby born in 'birth tourism' to two foreign national parents and raised outside the United States would both be eligible to be president, provided the person was 35 years old and had spent 14 years as a resident living within the United States before running for president," Corsi writes.
"Maskell typically states as established fact legal principles that truthfully remain in dispute, for instance, on page 1 of the report, where he asserts that a person born 'in' the United States of one or more alien parents is 'clearly a U.S. citizen 'at birth' by the Fourteenth Amendment,'" Corsi continues.
"In so concluding, Maskell intentionally ignores the 'and subject to the jurisdiction thereof' qualification with the language of the Fourteenth Amendment that opponents to anchor babies and birth tourism feel invalidates the entire concept that being born in the U.S. is sufficient to being deemed a 'U.S. citizen at birth,'" he says.
Corsi continues, "Similarly, Maskell wants to read English Common Law into the 'natural born citizen' requirement of Article 2, Section 1, because under English Common Law a 'natural born subject' is anyone born on English soil, a principle known as jus soli – a right conferred by place of birth – rather than jus sanguinis – a right conferred by blood, requiring an inquiry into the citizenship of the parents when a child is born."
He notes that Maskell, "in his pro-Obama advocacy," asserted the two-citizen parent requirement would "entail the unique notion that under American jurisprudence parental citizenship or lineage is the determining factor for eligibility to the presidency for native born U.S. citizens."
"In so doing, Maskell failed to acknowledge the concern the Founders had when inserting into the Constitution the 'natural born citizen' requirement that being a citizen was not sufficient for a person to ascend to the presidency," Corsi says.
Maskell argues that "natural born" citizens probably were considered by the early members of Congress "to include more than merely the 'native born,' that is, those born in the country."
And he notes at the time of the Dredd Scott decision by the U.S. Supreme Court affirming slavery, the U.S. attorney general wrote, "I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship."
The Constitution, however, requires "natural born," not only "native born."
That's no problem, Maskell said, as various commentators, such as James Kent in his "Commentaries on American Law," equated the two terms.
And he said the U.S. Supreme Court did the same thing in an opinion, quoting, "We start with the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be president."
In Obama's case, he says, "there is currently no requirement under federal law … for any federal candidate, that is, candidates to the U.S. Senate, the House of Representatives, of the office of president, to publish, produce, or release an official 'birth certificate.'"
He writes, "The initial burden of proof is always upon those who challenge a candidate's eligibility, and not on a candidate to 'prove' eligibility."
He continues by noting that "no official record" … is around that places "President Obama's mother in a foreign country at the time of the president's birth."
He also moves on to arguments that are thin, Corsi says, quoting the U.S. 3rd Circuit Court of Appeals in the Kerchner v. Obama eligibility case that "because we have decided that this appeal is frivolous, we will order counsel for appellants to show cause why just damages and costs should not be imposed."
However, in that case, when the Kerchner side pointed out that under the rules of the court, a threat of sanctions comes with a right to discovery regarding the allegations, the court retreated from its position.
That also happened in a previous case involving Gregory S. Hollister, who brought a challenge to Obama's eligibility. A threat of sanctions was met with approval by Hollister's attorney, because then he would have the right of discovery. Again, the court retreated.
Concludes Maskell, "Every child born in and subject to the jurisdiction of the United States … is a native born U.S. citizen and thus a 'natural born citizen' eligible to be president … regardless of the nationality or citizenship of one's parents."
However, Maskell makes no reference to an effort by a Chicago firm led by an Obama fundraiser to remove the "natural born citizen" requirement from the U.S. Constitution – a move that seems to betray doubt about Obama's eligibility.
The article in 2006 by Sarah Herlihy stated: "The natural born citizen requirement in Article II of the United States Constitution has been called the 'stupidest provision' in the Constitution, 'decidedly un-American,' 'blatantly discriminatory,' and the 'Constitution's worst provision.'"
She said "emotional" reasons were defeating attempts by "rational" arguments to remove it.
She was listed as an associate at the Chicago firm Kirkland & Ellis, where partner Bruce I. Ettelson cited his membership on the finance committee for Obama. Her writings were available online under law review articles from Kent University until after WND reported on the statements.
In the earlier memo by Mansfield, posted on Scribd.com for download, he suggested questions raised about Obama's eligibility have been conclusively dismissed as Internet falsehoods that are taking on mythical proportions.
Mansfield told WND that he had written the memo to give to congressional constituents who were peppering congressional offices for a response to eligibility challenges.
WND also has reported that there have been at least eight attempts by members of Congress, during the past few years as Obama was developing his power base and running for president, to remove the Constitution's requirement that a president be a "natural born citizen."
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