There has been considerable debate in conservative circles as to whether Barak Hussein Obama is eligible to be the President of the U.S. This hinges on the question of whether he was born in the U.S. or elsewhere, whether dual citizenship would disqualify him, or whether he was a citizen of Kenya or Indonesia.
Consider this article to be sort of a Can I Grow up to be President? for Dummies.
To start, one must go back to Article Two, Section 1 of the United States Constitution, which states exactly what sort of person would be eligible to be the President of the U.S.:
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.
We will deal with the easiest of these requirements first.
1.) The President has to be at least 35 years of age.
I was born and raised in a Commonwealth where our courts utilize a Conservative Construction of the Law. In the simplest terms, what that means is that if something is not expressly forbidden by a law, it is legal. I will use a Conservative rather than a Liberal Construction throughout my analysis.
The 35 years of age eligibility requirement was designed to ensure that any Presidential Candidate had the maturity, wisdom, and restraint that the requirements of the position demanded. The Framers would undoubtedly have made the minimum age even higher, had not life expectancy been so much lower at that time. They wanted to draw candidates for the position from the largest possible pool of those within the citizenry who would be fit for the position.
Eligible, using a conservative construction, would mean that the President would have to be at least 35 years of age the moment that the prior President’s term expired. Obama was born on 8-4-61 at 7:24 P.M.
The 20th Amendment to the United States Constitution was ratified on 1-23-33, and went into effect on 10-15-33. Section 1 of the 20th Amendment says,
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Obama’s first inauguration as President was on 1-20-09. The Presidential term is for four years, and ends at noon on the 20th of January, every fourth year. The time of Obama’s birth would only have relevance if he had been born on the 20th of January. At noon on 1-20-09, Obama was 47, so he passes the minimum 35 years of age test.
2.) The president has to have lived in the U.S. for at least fourteen years.
This was to prevent foreign influence in our government. The Framers considered the European model where the head of state need not be born in that country to be dangerous for the citizens of that state (Think: Wo sind meine Brille? and King George III). It was felt that if you lived here for at least fourteen years, you would have identified with and grown to love this country so much, you would do anything for it. Fourteen years before the signing of the Constitution on September 17, 1787 takes you back to 1773. December 16, 1773 was the Boston Tea Party.
From the conservative construction standpoint, this residency requirement is a total of at least fourteen years. They need not be contiguous. They need not be the fourteen years immediately preceding the inauguration, although I am sure that would have become a campaign point pushed by opposing candidates. Only the final total of fourteen years counts.
Obama lived in Hawaii until 1967. He attended kindergarten there from 1966 to 1967. After kindergarten until he was ten years old, he lived in Indonesia. When he was ten, he was sent back to Hawaii to live with his grandparents and to attend school there. He attended Columbia University and Harvard Law School. At Harvard, he was president of the Harvard Law Review. After graduation, Obama worked as a civil rights attorney in Chicago. He taught constitutional law at the University of Chicago Law School from 1992 to 2004. He served three terms in the Illinois Senate, from 1-8-97 to 11-16-08. He was a U.S. Senator from 1-4-05 to 11-16-08. There are plenty of newspaper articles, income tax records, and school records that have undoubtedly been looked at which would indicate that he has spent most of his 47 years prior to the inauguration on U.S. soil. There is no aggregate total 33 year span wherein he did not live in the U.S. So, he passes the minimum fourteen year residency requirement.
3.) The president has to have been a citizen of this country at the time of the adoption of the Constitution.
You can argue whether this means September 17, 1787, when 39 of the 55 delegates to the Constitutional Convention signed the Constitution, or June 21, 1788, when New Hampshire became the ninth of the thirteen original colonies to ratify it by a vote of 57 for, to 47 against. Since no one still living in this country was born yet on either date, this is a question reserved strictly for Constitutional scholars. It is irrelevant to the concerns at hand. The point the Framers were making is that the leader of this country had to be a U.S. citizen. Our government, and especially our Armed Services, could not be headed by any citizen of a foreign power. No king would wear a second, American crown in addition to the one he already had.
So, the question becomes, a citizen of which country? It is postulated that the Framers considered the Boston Tea Party to be the pivotal moment when we gained a national consciousness, the moment wherein we as a group envisioned the U.S. as being a sovereign nation independent of the Crown. I hypothesize that December 16, 1773 is the date upon which the Founding Fathers considered the U.S. to be born.No matter how you look at it, this particular naturalization requirement does not apply to anyone living in the U.S. today.
As a nation of immigrants, it was important for the Framers of the Constitution to include as many of the people who had immigrated here as possible within the category of U.S. citizen. Never mind the actual formalities, if you were in this country at the close of 1773, and identified with our values, you were thought to be at heart a citizen of the U.S., and no longer a citizen of the nation you came from. That is the conservative construction of it. No one living today can actually meet this test, due to the passage of time. This test also does not exclude any of us from becoming the President for the same reason. There is a second test of citizenship that is more relevant to our time. From the Framers’ point of view, it is an either/or consideration concerning the two tests.
4.) The alternative to becoming a naturalized citizen would be if you were actually born in this country.
The terminology used here is a natural born Citizen. Under a conservative construction, it does not matter if you were born here before, during, or after the Constitution was signed or was ratified, you still pass this part of the eligibility test for being the President. All of us who are still alive and who were born here after the ratification of the Constitution meet this test. Due to the passage of time, the other parts of the test, specifically of one’s birth before the signing or ratification, is for practical purposes a moot point, except for Constitutional scholars. It is important to remember that the Framers were guaranteeing that no citizen who had been, or who would be, born in this country could be excluded from the pool of possible candidates who could become the President. Again, this draws candidates for the position from the largest possible pool of qualified individuals. It was though that this would ensure that the position was filled by the most qualified candidates.
The Constitution does not define natural born. The subject has never come up before the Supreme Court of the U.S. as concerns any President or Vice President. We will deal with natural born one concept at a time.
The Naturalization Act of 1790 gives some insight into the mind-set of the times. If you were the child of a citizen of the U.S., and were born here, you automatically were a citizen of the U.S. yourself. An immigrant could become a citizen, but there was one insurmountable exclusion to that possibility. The Act denied the possibility of naturalization to persons whose fathers have never been resident in the United States. There are other stipulations concerning the location of your residence, which are family based. This also leans toward the family unit as being defined as all of those resident in a house that is in the vast majority of cases headed by the father or a father figure. So, if your father had never been a resident of the U.S., you could never become a citizen. Citizenship thus descended through the line of the father.
This was designed to prevent the influence of, as an example, a foreigner who may be a younger, disenfranchised prince in another country from immigrating here, becoming a citizen, and then running the country to the benefit of his royal family back home, or to the benefit of his home country.
Note that resident is not the same as citizen. While I have not looked into this all that closely, others can. Obama’s Kenyan father, as a college student, spent several years here. Under a conservative construction, you can conclude that Obama’s father, while not a citizen of the U.S., most certainly met the criteria of U.S. resident, albeit as an alien resident. So, even if Obama was born overseas, he could become a naturalized citizen through his resident father, provided that his father was a U.S. resident at the time of this birth. But this foreign birth would prevent him from being eligible to be President of the U.S. According to the Act of 1790, there was a requirement that the father be a citizen of the U.S. before any of his children who were born overseas could be considered to be natural born citizens.
A Congressional Research Service Report of 2011 tried to clarify what a natural born citizen was. The report stated that:
The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth”, either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth”. Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.
This interpretation, coupled with the various Acts following the 1790 Act, is significant in that it uses the plural term parents twice in this excerpt. Under a conservative construction of this and all of the later incarnations of the Naturalization Acts considered collectively, if you are born overseas, you have to have two parents who are U.S. citizens before you can be considered to be a U.S. citizen yourself. A slightly looser construction would say that “parents” means “parent(s)”. This Act has since been revamped. I am only concerning myself with the historical context of colonial times and shortly after in this article.
If you were born here, it is inconsequential whether your parents were aliens or not, you are a U.S. citizen. Under a conservative construction, a child of illegal aliens who was born here and lived at least fourteen years here and was at least 35 at the time of his or her inauguration could be the President of the U.S. A child who is born overseas whose father was not a U.S. citizen also is not a U.S. citizen who, under a conservative construction of the Constitution, is eligible to be the President.
This is only significant if Obama was not born in Hawaii. The preponderance of evidence suggests that he was. His mother was at the time undeniably a U.S. citizen. The Naturalization Act of 1790 required State and Federal officials to consider American children who were born overseas to be American citizens. Later interpretations of the Act indicate citizenship can also descend through the mother’s line. So by current standards, it would not matter where Obama was born, he is a U.S. citizen via his mother’s U.S. citizenship. The question is strictly one of eligibility to be the U.S. President under the qualifications listed in the Constitution.
The distinction that needs to be drawn is between what is a natural born citizen by current definition versus which groups of natural born citizens are eligible to be President according to the standards of Article 2 Section 1 of the United States Constitution. That is an area of interpretation that is still left open to the Courts.
As it appears that Obama was born in Honolulu, the question as to whether he is natural born becomes moot. There are enough surviving newspapers of the times in enough attics and ephemera shops and elsewhere that his birth announcement should be easy to establish as valid.
The other considerations therefore only come up in the event that he was born in Kenya, as some claim. In that event, he would not be considered to be a U.S. citizen eligible to be the President via a conservative construction of Article 2 Section 1, either from the standpoint that his father is not a U.S. citizen, or that both of his parents are not U.S. citizens. The context of the time when the Constitution was written and the intent of the Framers would have to be taken into consideration by the Court prior to it rendering any decision on this matter. If born overseas to only one parent who is a U.S. citizen, Obama would be a natural born citizen according to the current definition of it. But that still does not settle the question of whether he would be excluded from the office of President due to the usage of the plural parents. Again, this question would be subject to a Supreme Court review and decision.
Note that Obama did have dual citizenship when he was born, as his father as a Kenyan was a citizen of the British Commonwealth and its Colonies. Under a conservative construction, this would not preclude him from being president as long as he had lived in the U.S. for fourteen years, and was at least 35 years of age at noon on inaugural day. He still is a citizen of the U.S. So, Obama passes that test.
There was no Republic of Kenya when Obama was born. On Dec. 12, 1963, Kenya became an independent country. In 1964 the country became a Republic. Obama thus became a Kenyan citizen upon Kenyan independence. Obama could remain a dual citizen until he was 23. Under the laws of the time, Obama would have to renounce his U.S. citizenship and swear an oath of allegiance to Kenyan upon reaching 23 years of age, or he could no longer be a Kenyan citizen.
This in no way affected his U.S. citizenship under U.S. law, unless Kenyan law was enforceable in this circumstance. As he was in the U.S. at that time, it is unlikely he did apply for Kenyan citizenship, but it is not impossible. Interestingly, under current Kenyan law, Obama could reapply for dual citizenship. This in no way would affect his U.S. citizenship. It remains to be seen if this would affect his eligibility under the U.S. Constitution to be President, as this has never been reviewed by the Supreme Court either. Under a conservative construction of the law, this dual citizenship would prohibit him from being the President, as he is also subject to the laws of Kenya, and he would have renounced his U.S. citizenship under those Kenyan laws. The question that arises is the Framers’ concern with preventing those under foreign influences from ruling the country. Under a conservative construction of the law, the fact of a President’s dual citizenship would be contra-intervenient as concerns the actual intent of the Constitution. This would again be up to the Supreme Court to settle.
Now for the final consideration:
Obama’s American mother, Stanley Ann Dunham, married Lolo Soetoro and apparently moved to Indonesia during Obama’s 1966 to 1967 school year or immediately after. Obama would have been five or six years of age. There is limited circumstantial evidence that Lolo may have adopted Obama. He lived there as Barry Soetoro until he was ten. There are, of course, his school records.
If you want to adopt a child out of Indonesia, you have to be of the same religion as the child. Indonesia is predominantly Muslim. Few children are adopted out of the country. This does not necessarily mean that Obama was adopted. And it does not mean that he wasn’t.
Obama attended the Indonesian-language St. Francis of Assisi Catholic School from the first grade to part of the third grade. This was a mostly Catholic school. Obama attended the Indonesian-language government-run Besuki School for the rest of the 3rd grade and for the 4th grade, from 1969 to 1971. The school is of mixed religions. Obama himself said that he first attended a school that was primarily Catholic, and then one that was primarily Muslim.
In mid-1971, Obama moved back to Hawaii to live with his grandparents, where he went to the Punahou School for the 5th grade.
Oboma’s mother was spiritual, but studied all religions. Obama’s biological father can best be described as an increasingly non-practicing Muslim. Obama described Lolo as following a brand of Islam that could make room for the remnants of more ancient animist and Hindu faiths.
Obama claims that he has always been a Christian. There is no stipulation in the Constitution requiring that the President be of any one religion. There is no requirement that the President have any religion at all. Obama’s school papers list him as a Muslim.
If Lolo adopted Obama, and Obama was under five years old at the time, he would have automatically become an Indonesian citizen. But the evidence seems to suggest that Obama went to Indonesia when he was six years old. It is currently unestablished whether Lolo Soetoro ever adopted Obama. It is acknowledged that, while living in Indonesia, Obama used the name Barry Soetoro. His paperwork of the time lists him under that name. Whether the family was perpetrating a lie or was just trying to fit in with the conventions of the time and the country to make it easier on Barry is not for me to answer. It is apparent that Obama could have just as easily have been listed as a Catholic, as he was at first attending a Catholic school. The actual reason for the choice of Muslim as his religion on his school paperwork is unclear. It could just as easily have been written in there by a nun who did no consultation with the family.
U.S. law would not have required Obama to relinquish his American citizenry if he became an Indonesian citizen. It is only Indonesia that does not recognize this dual citizenship.
Under the Indonesian Nationality Law of 2006 (I do not know if the following was a part of the 1958 law), a child under the age of 18 actually can have dual citizenship. But neither of Obama’s birth parents are Indonesian. The categories of people who are Indonesian citizens always carry the stipulation of a child of a marriage, where at least one parent is an Indonesian citizen. A child born out-of-wedlock is more or less inconceivable in the cultural context of Indonesia at that time (they do have a category called illegal marriage). As Barry is not Lolo’s biological child, he cannot be an Indonesian citizen by birth. He would have to wait until he was eighteen before he could apply for this citizenship. I did not find anywhere if a child of six can be granted Indonesian citizenship. In the absence of any other information, a conservative construction of the law would result in the answer, “Yes, this can be done.” Others can answer this question for me.
There is a possibility that the family maintained the ruse that Barry was Lolo’s biological child. This would probably violate Indonesian laws in some way. Obama’s school papers list him as a Soetoro. I not know if there is an actual requirement under Indonesian law for Obama as his mother’s son to take the surname of his mother’s husband. This is a possibility. It would certainly make it easier for the child while living within Indonesian culture to be considered as Lolo’s son.
The U.S. recognizes dual U.S./Indonesian citizenship. According to the Bureau of Consular Affairs, Department of State;
U.S. law does not mention dual nationality or require a person to choose one citizenship or another. Also, a person who is automatically granted another citizenship does not risk losing U.S. citizenship. However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship.
The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law, and dual nationality may limit U.S. Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person’s allegiance.
However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.
I have seen no evidence that Obama applied for Indonesian citizenship when he became 18. It would be inconsequential as far as his U.S. citizenship is concerned.
So, as long as Obama was born in Hawaii, it is inconsequential whether he was an Indonesian citizen via adoption or not, as far as his U.S. citizenship is concerned. He would meet the test of a natural-born citizen as required by the Constitution of the U.S. His Hawaiian birth certificate lists where he was born. In my looking at the purported Kenyan birth certificate it appears to be a fake, on more than one ground. So Obama appears to be a legitimate citizen of the U.S.
The question that still remains is if he would be a legitimate President of the U.S. The Department of State itself recognizes that dual citizenship is a problem due to the citizen’s allegiances to both countries. This of itself seems to have been a direct concern of the Framers of the Constitution, which they addressed in their minimum qualifications for the office as they are written down in the Constitution.
Here is one final consideration. If Obama and his parents lied to the Government of Indonesia by claiming that he was actually Barry Soetoro, Muslim, adopted son of Lolo and Stanley Ann Soetoro, what sort of life lesson was that? Living your life from the first through the fourth grades entirely as a lie, under an assumed identity? This, during some of your most impressionable years? What does one really learn from something like that? That it is okay and actually advantageous to live two lives, one of which is a complete lie? I will not address the dual Social Security numbers claims at this time.
Lolo arrived in Hawaii in September of 1962. Obama’s Hawaiian birth certificate says he was born on 8-4-61. He attended first grade in Hawaii from 1967 to 1968. He was six years old then. Lolo was the father figure in Obama’s life. Although I do not know Obama’s mother and father’s political beliefs, it would appear that their religious beliefs were pretty open-ended. Neither one of them had an overall rigid and particular to one religious conviction belief construct.
Also, Obama was a citizen of Kenya and the U.S. when he lived in Indonesia. If he was also an Indonesian citizen at the time, it would mean that Obama was a citizen of three different countries from the time he was about six years old until he was eighteen years old. He also was listed as a Muslim then, but today attends a Christian church. It can be postulated that Obama considers himself to be a citizen of the world first and a citizen of the U.S. secondarily. It could also be argued that Obama does not have any real or particular religion, that he attends any church. Some would think that the church membership that makes him most electable would be his top choice. Some may imagine that Obama considers himself to be one of the chosen elect who are the first true citizens of the world. It is not unimaginable that such people might do anything in their power to bring to fruition the One World Government, no matter the strength of the birthing pangs.
If Obama did not apply for Kenyan citizenship at 23 and Indonesian citizenship at 18, he is now only a natural born citizen of the U.S., and is eligible to be the President of this country. If he holds dual citizenship in the U.S. and either Kenya or Indonesia, this is the pesky loyalty concern that has the State Department so worked up in their information sheet. If he is to this day the citizen of three different countries…well, we will hear something after 2-15-2013, won’t we? And then, we can put this one to bed, no matter which way the U.S. Supreme Court swings. I fully expect that they will reach my final conclusion. Which is, that he is the legitimate President. Unless of course he is a dual citizen, in which case his true loyalties will be under the microscope. And then, a decision would have to be made as to whether he can actually be the President.
For those wondering where Obama’s school records are, note this. I went to my School District’s Administration Office in 1993 to get my records, to prove what my final GPA was. The University I was applying to wanted them. The records were kept in the basement. The woman came back upstairs, and said that the only thing that was in my folder was a color picture of me in the first grade (I still remember that photo being taken), and a copy of my 11th grade report card (my best year ever for High School grades). Nothing else. They threw all the old records out, and only kept what they thought was interesting. My school career was an almost total blank. Good thing, actually, as I graduated with a 2.41. From college, I graduated Summa, Summa, and Magna. I would want some of my old records sealed, too. The rest are gone forever, in some great cosmic conspiracy.
I pursued this article expecting to be able to find something I could hang my hat on. I admittedly have not seen any original documents. But from what I have seen, there is nothing to definitely prove that Obama was not born in the U.S., and is not a citizen of the U.S. The Kenyan claims I have not investigated thoroughly, because there seems to be a more or less unbroken timeline here. While evidence can be planted, after all these years, it is highly unlikely that sort of thing was done. A lot of the newspaper documentation can probably be picked up in people’s attics, newspapers are everywhere. Also, the purported Kenyan birth certificate looks like it is totally fake to me. As a collector of art, I am pretty attuned to fakes on paper.
If I was on the Supreme Court, in the absence of any further evidence to the contrary, I would opine that Barak Hussein Obama is a natural born citizen of the U.S. by all measures, who meets all the requirements needed to be the President of the United States, provided he does not currently have dual citizenship. If he was a dual citizen at one time, I would apply the 14 years prior to the inauguration as an adult citizen of the U.S only as the measure of fitness. Hey, they can legislate from the bench ever since the first Marshall Court’s landmark ruling. But that is a paper for another day.
The information for this article came from many sources. Wikipedia has been the most helpful. If you can spare a few dollars, send them some. They are pretty factual. If you notify them that they are wrong, and provide them with the source, they correct the information. Wikipedia provides you with knowledge. And knowledge is power.
If you want to dig further into all this, here are the links I used for this article: