Definition of Natural Born Citizen

Two recent articles on citizenship suggest the chief issue is allegiance, not place of birth. Thus, dual citizenship calls into question Mr. Obama's eligibility to be president.

First, Judah Benjamin of Texas Darlin has an interesting post. The article begins:

"Barack Obama has been a citizen of multiple nations. And even if his citizenship outside the US was renounced, Article II of the U.S. Constitution prohibits him from being President, for the same reason that naturalized citizens are prohibited: divided loyalties."

and

"There is no way a person who has Dual Citizenship, or who has had Dual Citizenship, should be eligible under Article II."

Mr. Benjamin's reasoning is that the United States Naturalization Act of 1790, which was repealed in 1795, states that:

"The children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens”.

Around the same time, John Jay wrote to George Washington:

"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.”

Noting that the chief concern is with divided loyalty concerning defense, Benjamin adds:

"Note that what particularly concerned Jay was not a political issue but a military issue arising because the President is Commander in Chief of the Armed Forces of the United States. He was bothered by issues of National Security."

Benjamin then goes on to quote Supreme Court Justice Noah Haynes in United States v. Rhodes:

In United States v. Rhodes, Supreme Court Justice Noah Haynes Swayne (December 7, 1804 – June 8, 1884) addressed the issue as follows:

“All persons born in the Allegiance of the King are Natural- Born subjects, and all persons born in the Allegiance of the United States are Natural-Born Citizens. Birth and Allegiance go together. Such is the Rule of the Common Law, and it is the Common Law of this country…since as before the Revolution.”

Benjamin concludes:

"To be a Natural Born Citizen one has to be born in a State, or Condition of, Allegiance to the USA. A person with Dual Nationality due to having parents of differing Nationality, who both acknowledged the Birth, is not so born. Their Allegiance is, by definition, divided. Subsequent acquisition of Nationality produces the same problem."

Benjamin goes on to quote Blackstone's Commentaries on the Laws of England:

"And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once.... To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England."

Benjamin also quote the US State Department:

"dual nationals owe allegiance to both the United States and the foreign country"

He argues that:

"The whole point of Article II is that the President must have absolute and total Allegiance to the United States of America and no Foreign Ruler or Government, Church, or Political Entity...The purpose behind the exclusion of Naturalized Citizens is that the President must never even have had such an Allegiance in the past"

Moreover, under the law that governs naturalization, SEC. 337. [8 U.S.C. 1448], to become a citizen you are required:

"(1) to support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the applicant was before a subject or citizen..."

and

"Obama’s behavior in Kenya by campaigning actively for Odinga has to call his Allegiance into question. There is also reason to think that Governor Bill Richardson has the same problem, more or less. This is unprecedented and it should not be allowed to go unchallenged."

Miri sent me a related article by Edward Erler of Cal State San Bernardino that appeared Imprimis Magazine, published by Hillsdale College. Professor Erler points out that the Fourteenth Amendment states:

“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.”

The phrase "'subject to the jurisdiction thereof' meant 'not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.'"

Professor Erler argues that the concept of "birthright citizenship" has feudal origins and was explicitly repudiated. An example is the use of the term "jurisdiction" in the Fourteenth Amendment. He adds that:

"the framers of the Fourteenth Amendment specified that those who are naturalized must owe exclusive allegiance to the U.S. to be included within its jurisdiction. And the citizenship oath taken today still requires a pledge of such allegiance. But in practice dual citizenship—and dual allegiance—is allowed. This is a sign of the decline of American citizenship and of America as a nation-state."