Born abroad

[True Federalist (진정한 연방 주의자)]

The fourteenth amendment has this to say on the issue of American citizenship:

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A minimalist argument would be the natural-born citizens are those born of a parent with legal residence in the United States on territory that is under the jurisdiction of the United States, all others, even if the parent(s) be U.S. citizens are naturalized, and the law provided for naturalization at birth.  Under that theory, neither Weicker (assuming he wasn't born in the Paris embassy) nor a Kenyan-born child of an American mother would be a "natural-born citizen".  Obama, since he was born in Hawaii, and McCain, since he was born in the Canal Zone, both meet the strictest interpretation of what constitutes, natural-born.  Wicker's claim to being "natural-born" depends upon a broader definition, in which all those who acquire citizenship at birth are "natural-born"

Of course, we might all be misinterpreting what the Founders meant by the clause.  Perhaps in their zeal to prevent the President from becoming an Imperial Cæsar, they meant to render those born via a C-section from becoming President.

[True Federalist (진정한 연방 주의자)]

My understanding of the law at the time:
A natural born citizen must be either:
- Born in the US, or
- Born with both parents as citizens, or
- Born to a US citizen who has been a citizen for at least 10 years, with at least 5 of those years being after the age of 14.

Since Obama's mother was 18 when he was born, she could not have been a citizen for 5 years after her 14th birthday and before Barack Obama's birth, and so he would not have been a natural born citizen if born outside the US.

...or something like that.

Your understanding is incorrect.  The relevant provision has been in place and unchanged since at least 1952, which was the last time the Nationality laws were overhauled in full with the passage of the Immigration and Nationality Act. Even if Barack were born in Kenya, all that was required of Ann Dunham for her child to be a citizen at birth was that she be a citizen, that she have resided in the United States for five years, and that two of those years occur after the age of 14.  No matter where Barry was born, he was a citizen at birth.  (The only provision that has changed since 1952 that could have affected him is a requirement that to retain his citizenship he spend at least five years in the United States between the ages of 14 and 28, a requirement that B.O. complied with, and which was reduced to a two year requirement in 1972, and repealed entirely in 1978 in the wake of court rulings that Congress could not provide for a person to lose their citizenship because of a failure to perform some action.

The birth certificate question is a red herring. It doesn't provide proof of Obama meeting the Constitutional requirement; it actually detracts from the real issue and directs the debate to a.

Lacking a precise definition within the Constitution itself, one must search to see what it was that the Framers themselves understood the term to mean. I still return to Vattel because Vattel was widely read by the Framer at the time of the Foundation of the nation.

Benjamin Franklin himself acknowledges that in a letter to Charles Williams Frederic Dumas, dated 12/9/1775:

I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author. Your manuscript "Idee sur le Gouvernement et la Royaute" is also well relished, and may, in time, have its effect. I thank you, likewise, for the other smaller pieces, which accompanied Vattel. 

This is Vattel's definition:

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.

I am sure that all of this has been posted here before, so forgive me for repeating myself, as far as the notion that "most legal scholars agreeing that it would not matter", I have never seen data as to what "most legal scholars" agree to, but if they believe that satisfying one Constitutional requirement is immaterial, then why satisfy any?

Not satisfying one sets precedent for the idea that none should be.

In addition, and supporting the argument that Obama does not satisfy the Constitutional requirement, and that the whole birth certificate thing is a red herring, is the unquestionable FACT that Barrack Obama was a British subject at birth.

British Nationality Act of 1948 (Part II, Section 5): Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.

So, Obama is not born of citizen parents (plural), and was in fact a British subject at birth.

Does it NOT stand to reason that the one situation that the Framers wished to avoid by making natural born citizenship a Constitutional requirement for the Presidency, was a British subject gaining the Presidency?

Lacking case law, or further Constitutional definition, the Framer's understanding of what constitutes a natural born citizen is the current governing Constitutional standard, as Barrack Obama does not meet that standard.

But there is case law. United States v. Wong Kim Ark, 169 U.S. 649 in 1898 established that Wong Kim Ark was a citizen of the United States by virtue of the fact he was born in the United States, even though both his parents were non-citizens and Chinese subjects. This has been upheld and cited as precedent in subsequent rulings.

Furthermore, Obama, having been born in Hawaii, is legally a citizen in accordance with the 14th amendment, which states that the children of legal immigrants and visitors are automatically citizens. The only exceptions are children born to foreign diplomats, untaxed Indians (now obsolete), and enemy forces in hostile occupation of U.S. territory.

The XIVth Amendment does not use the natural-born citizen phraseology because Dred Scott v. Sanford established as precedent that blacks could not be citizens since they could not be "natural-born citizens" because their parents were not citizens.  At most, the XIVth defines who are the citizens whose children are eligible to become "natural-born citizens".

As for Vattel's formulation of "natural-born citizen", one must keep in mind that at the time legally wives were in general little more than the chattel property of their husbands.  I would say in the context of the 20th century a male-centric view of the requirements of "natural-born citizen" is inappropriate.  Females do retain a distinct legal personhood while married.

[True Federalist (진정한 연방 주의자)]

As for Vattel's formulation of "natural-born citizen", one must keep in mind that at the time legally wives were in general little more than the chattel property of their husbands.  I would say in the context of the 20th century a male-centric view of the requirements of "natural-born citizen" is inappropriate.  Females do retain a distinct legal personhood while married.

Luis, I note that you chose to rebut only the parts of my post that did not address your claims.  Since we no longer hold that females are legal adjuncts of their husbands, as was the case in 18th century pre-revolutionary France, why should natural-born citizenship exist only if the father be a citizen?

[True Federalist (진정한 연방 주의자)]

As for Vattel's formulation of "natural-born citizen", one must keep in mind that at the time legally wives were in general little more than the chattel property of their husbands.  I would say in the context of the 20th century a male-centric view of the requirements of "natural-born citizen" is inappropriate.  Females do retain a distinct legal personhood while married.

Luis, I note that you chose to rebut only the parts of my post that did not address your claims.  Since we no longer hold that females are legal adjuncts of their husbands, as was the case in 18th century pre-revolutionary France, why should natural-born citizenship exist only if the father be a citizen?

The definition of natural born citizen, came from Vattel, and was applied to the US. Should you chose to ignore the plural form of the word parent used in the text, that is your prerogative, the "s" however, continues to exist.

You're neglecting the reason why Vattel refers so often to the citizenship of the father and never on that of the mother.  In the 18th century since a wife was a legal adjunct of her husband, when she married, her citizenship changed to match that of her husband.  Were we still operating under those principles, then when Ann married Barack Sr., she would have lost her U.S. citizenship and acquired British citizenship.  That legal doctrine no longer applies and clearly is not something that Vattel would have considered in his formulation. So even if one takes Vattel's formulation is taken as definitive, it provides no bar to Obama becoming president.  Legal doctrine today acknowledges that husband and wife may be citizens of different countries and in general provides that they inherit the citizenship of their parents.  Hence, because of the differences in how citizenship and marriage interact between now and Vattel's time, a natural-born citizen under Vattel's formulation need only have one parent be a citizen.

Consider the Naturalization Act of 1790, since it provides a more definitive understanding of what the fathers intended concerning "natural born citizens" than that of French jurist that some may well never had read.

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Italics as in the original.

As you can see, they held to a patrocentric view of citizenship that has long since been abandoned.

While the Act of 1790 was repealed in 1795, no other Act of Congress has ever touched upon attempting to define "natural born citizen" so I would say that it offers the clearest insight into the intent of the founders.

Now unless you want to argue that a person can have more than one father, there is no way that the usage of the plural here implies that the act requires that both parents be citizens.  (Of course, they never considered the possibility that husband and wife would hold different citizenships, since that could not occur in 1790.)

Your argument essentially seems to be that changing from a father-only interpretation of the ius sanguinis based determination of "natural born" to an either-parent interpretation as has already occurred with citizenship in general requires a constitutional amendment.  If you are going to be that literal, then do you hold that the air force is unconstitutional as well since the literal text of the constitution only provides for an army and a navy?

[True Federalist (진정한 연방 주의자)]

Than let's consider the full Vattel, and read beyond the dreaded "s"...

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In that view, Obama's citizenship fails to rise to the level of natural born, even more so when one considers that under British law at the time of his birth, he was born a British subject.

You still are dodging the point I brought up that in Vattel's view and time, a wife's citizenship was linked to that of her husband.  That is why Vattel uses a now anachronistic patriarchal view of citizenship as being descended from the father only. Women have a full and independent citizenship status these days in the United States and did so at the time Obama was born.

I also find you references to British law absurd.  Didn't we fight a war on our right to be independent?  British laws concerning who they consider to be citizens have since 1776 had no bearing on who is an American citizen, whether they be natural born or not.

If you wish to discuss laws pertaining to citizenship, then why discuss a repealed law, and not the prevailing law at the time of Obama's birth?

Because no other law passed since then has use the phraseology "natural born citizen".  Ever since then they have used the phraseology "citizen at birth".  As you have admitted, Obama clearly is a "citizen at birth".  At best a shaky case can be made for the two phrases not being equivalent, in which case only those laws, whether repealed or not, that use the phrase "natural born citizen" can give insight into what was meant by "natural born citizen" by the founders.  (Even if the 1952 act did use the phrase, it would give no insight into original intent.)

[True Federalist (진정한 연방 주의자)]

So the question now becomes, how can Obama be both a natural born citizen, and a British citizen at birth?

Because as I have previously pointed out, unlike the 18th century, the concept of dual citizenship is both well established and accepted today. The concept arose because unlike the 18th century, females today retain their original citizenship when they marry, instead of becoming a mere legal appendage of their husband.  The wording of both the XIVth and XIXth Amendments can be viewed as an implicit incorporation of the doctrine that females hold citizenship independent of any attachment to a male they may have into constitutional practice.