Paul R. Hollrah
May 7, 2012
For more than three years, those who love the U.S. Constitution and who respect the Rule of Law have debated endlessly the eligibility of Barack Obama to serve as President of the United States. Those who’ve studied the issue with an open mind are convinced, beyond any reasonable doubt, that Obama, born to an American mother and a father of Kenyan/British citizenship, is not a “natural born Citizen” as required by Article II, Section 1 of the U.S. Constitution.
Article II, Section 1 of the U.S. Constitution reads as follows:
“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.”
It is not unusual for liberals and Democrats to argue that the term “natural born Citizen” is undefined. This argument has been most recently advanced by FOX News anchor Bret Baier. It is an argument that fits neatly with the liberal view that the Constitution is a “living” document, meaning nothing more than what they would like it to mean on any given day. However, they ignore U.S. Supreme Court precedent established in Minor v. Happersett, 88 U.S. 162 (1875).
The facts of Minor v. Happersett are these: On October 15, 1872, a woman named Virginia Minor...a white female resident of St. Louis County, Missouri...attempted to register to vote in the November 1872 General Election. However, Missouri law in 1872 did not permit women to vote; women did not win the right to vote until the 19th Amendment was ratified in 1920.
Accordingly, when the St. Louis County voter registrar, Reese Happersett, refused to accept Mrs. Minor’s registration, she filed suit in Missouri state courts, claiming voting rights under the 14th Amendment to the Constitution.
The 14th Amendment reads as follows:
“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. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.”
While the 14th Amendment would appear to protect a broad array of “privileges and immunities” for all citizens, regardless of gender, the Constitution of the State of Missouri stated that, “Every
male citizen of the United States shall be entitled to vote.”
In arguments before the U.S. Supreme Court, attorneys for Mrs. Minor argued that:
1. As a citizen of the United States, Mrs. Minor was entitled to any and all “privileges and immunities” that are held, exercised, and enjoyed by other citizens of the United States.
2. The right to vote is a “privilege” of citizenship; it is the means by which all citizens participate in their government.
3. The denial or abridgment of the right to vote must be sought only in the fundamental charter of government, the U.S. Constitution, and that no inferior power or jurisdiction (e.g., the State of Missouri) could legally claim the right to confer or deny it.
4. The 14th Amendment to the U.S. Constitution expressly declares that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
5. The provisions of the Missouri Constitution and registry laws are in conflict with and must yield to the higher authority of the Constitution of the United States.
As the case proceeded through the courts...the trial court, the Missouri Supreme Court, and the United States Supreme Court...all ruled in favor of the State of Missouri. The U.S. Supreme Court unanimously held that “the Constitution of the United States does not confer the right of suffrage upon anyone,” and that the decision of who should be entitled to vote was left to the Congress and the state legislatures (in 1872, only the State of New Jersey allowed women to vote, and then only those women who were property owners). And although from the perspective of the early 21st century it appears logical to assume that the arguments of Mrs. Minor’s attorneys would prevail, it was not on that basis that the courts decided the case.
In determining whether Mrs. Minor had the right to vote, the Court first determined that she was a U.S. citizen because she was a member of the class of “natural-born” citizens. They then proceeded to define the term “natural born Citizen” by stating, “…(A)ll 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...”
In that differentiation, the Court established binding precedent, making it clear that persons born in the country, of parents (plural) who were citizens, are “natural-born” citizens. By implication, that finding would appear to established the corollary, which is that those born in the country to one or more parents who are not citizens, are not “natural born” citizens
Those who support the notion of Obama and Rubio’s eligibility argue that, if one is at the time of birth, a U.S. citizen, then that person is also a natural-born citizen. That is false because it fails to take into account the nationality of the parents. All natural born citizens are “citizens,” but all citizens are not “natural born” citizens.
Bret Baier’s entry into the debate was brought about by a flood of emails and correspondence complaining that certain FOX News anchors and contributors...Hannity, O’Reilly, Krauthammer, and others...have been promoting Florida Senator Marco Rubio as the 2012 GOP candidate for vice president. This in spite of the fact that Rubio is not a “natural born” citizen of the United States (Rubio’s parents were citizens of Cuba and did not become U.S. citizens until four years after he was born).
In support of his argument that Rubio is eligible to serve as president or vice president, Baier insists that the issue is resolved by federal law. He points to 8 USC § 1401, contending that all that is required for status as a “natural born” citizen is for the mother to be an American citizen who has lived in the U.S. for five years or more, at least two of these years after the age of 14. Baier asserts that those born in the U.S., regardless of the nationality of the parents; those born outside the U.S. to parents who are both citizens, even those born outside the U.S. to one parent who is a U.S. citizen are all “natural born” U.S. citizens.
In refuting Baier’s assertion, constitutional law professor Herb Titus set the record straight. He said, “Under Mr. Baier’s view, a natural born citizen, then, is a citizen of a particular nation only by positive law (emphasis added). If a natural born citizen is defined by statute, as Mr. Baier claims they are, then by statute Congress can take away their natural born citizenship status, subject only to the 14th Amendment’s definition of citizenship by birth. And even that citizenship can be taken away by an amendment to the Constitution…”
What Baer fails to understand is that “natural born” citizenship is inherent. It either exists or it does not. If a child is a natural born citizen at birth, it can never be taken away, and if a child is not a natural born citizen at birth...born to parents who are both U.S. citizens...it can never be acquired.
But what is most significant about Baier’s entry into the eligibility debate is not his opinion on the matter. It is the fact that a news anchor for the top cable news network in America...a network that claims to be engaged in a vetting of Obama, while studiously avoiding any mention of his background and experience prior to his days as a Chicago community organizer, a network which in recent months has taken a decided drift to the left...has finally chosen to comment on the Rubio eligibility question, suggesting that the issue merits a commitment by FOX to air a full debate on the issue.
But what is most significant about Baier’s entry into the eligibility debate is that any debate on the issue of Marco Rubio’s eligibility must, of necessity, include a discussion of Barack Obama’s eligibility. It cannot be avoided. That public discussion is at least four years overdue, and if Baer’s entry into the Marco Rubio debate is only a backdoor way of opening the debate on Barack Obama’s eligibility, then so be it.
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