28 August 2008

It seems that you don’t need to know much about the law to be a Deputy Attorney General of Pennsylvania.

A 9/11 conspiracy theorist named Philip J. Berg has filed suit in federal court in Philadelphia, seeking an injunction to prevent Barack Obama from continuing his candidacy on grounds of Constitutional ineligibility. In itself, this isn’t very surprising: cranks file frivolous lawsuits all the time. What is remarkable is that Berg was apparently a Deputy Attorney General of Pennsylvania for five years. If one keeps that fact in mind, the complaint that he submitted makes for rather astounding reading. That the factual claims are crazy is to be expected; but that anyone who graduated from law school, let alone served as a former deputy state attorney general, could seriously advance the legal arguments that Berg makes in this text—couched in syntax that is barbaric even by the standards of Internet mountebanks—is shocking. The complaint does not make reference to a single relevant court case, and blandly asserts straightforwardly false propositions of law without any argument at all. Here are a few of the most egregious examples (the grammatical errors stand as printed in the original):

Obama is a representative of the Democratic People. However, the Obama must meet the Qualifications specified for the United States Office of the President, which is he must be a “natural born” citizen. Unfortunately, Obama is not a “natural born” citizen. Just to name one of the problems, Obama lost his U.S. citizenship when his mother married an Indonesian citizen and relocated herself and Obama to Indonesia wherein Obama’s mother naturalized in Indonesia and Obama followed her naturalization, as he was a minor and in the custody of his mother. Obama failed to take the oath of allegiance when he turned eighteen (18) years to regain his United States Citizenship status. [¶3]

The Nationality Act of 1940 provided for the loss of citizenship when the person became naturalized upon the naturalization of his or her parent having custody of such person. Obama’s mother expatriated her U.S. Citizenship when she married Lolo Soetoro, a citizen of Indonesia and relocated her and her son (Obama) to Indonesia. [¶27]

An native-born American citizen cannot lose his citizenship except by explicit voluntary renunciation, as the Supreme Court decided in Afroyim v. Rusk, 387 U.S. 253 (1967). The provisions of the Nationality Act of 1940 that say otherwise are simply unconstitutional; this has been settled law for forty years.

Since the beginning of the United States Constitution, in order to run for Office of President, you must be a “natural born citizen” and you may not hold dual citizenship or multiple citizenships with foreign countries. U. S. Constitution, Article II, Section 1. [¶14]

The “since the beginning” construction was apparently inserted just for rhetorical effect, but even there Berg gets his facts wrong. At the “beginning of the United States Constitution”, it was not necessary to be a natural-born citizen: as Article II, §1, cl. 5 states,

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.

Presumably the last person able to profit from the alternative ground for eligibility died in the 1880s or 1890s.

As far as the claim that one may not become President if one is a dual national, this is simple fantasy. Article II, §1, cl. 5 means just what it says: the only eligibility requirement for the Presidency, other than age and residency, is being a natural-born citizen.

A dual national is not, as is occasionally assumed, a half-citizen of each of two nations. Rather, someone who, in common parlance, has ‘dual citizenship of states A and B’ is just a person who, according to the legal system of state A, is a citizen of A and who, according to the legal system of state B, is a citizen of B. If Barack Obama is a Kenyan, Indonesian, or Ruritanian citizen according to Kenyan, Indonesian, or Ruritanian law, that is a matter of utter irrelevance to his status under the American Constitution; as long as he is a citizen of the United States according to American law, and as long as his citizenship was acquired as of right at birth, then he is patently a “natural born Citizen” under the only criteria that count with respect to his eligibility for the Presidency. If he was born in the United States and “subject to the jurisdiction thereof”—that is to say, not the child of foreign ambassadors or invading enemies—then, according to the Fourteenth Amendment, then he is indeed a citizen and did acquire that citizenship as of right at birth. Nothing else matters.

In fact, it seems that Berg doesn’t think that Obama was genuinely born in Hawaii. He thinks that his birth certificate is a forgery, and that “[t]here are questions as to where Obama was actually born” (¶15). His evidence for these propositions? “Upon investigation into the birth of Barack Hussein Obama in Honolulu, Hawaii, Obama’s birth is reported as occurring at two (2) separate hospitals, Kapiolani Hospital and Queens Hospital. Wikipedia English Version under the subject 'Barack Obama' states Obama was born at Kapiolani Hospital. Wikipedia Italian Version under the subject 'Queens Hospital' states Barack Obama was born in Queens Hospital” (¶18); “There are further references circulating on the internet claiming examination of the hospital’s records in Hawaii show no birthing records for Stanley Ann Dunham (Obama) [ . . . ] ” (¶19); “After many attempts of the public to obtain Obama’s Certificate of Birth, a Hawaiian Certificate of Live Birth (COLB) was placed on Obama’s campaign website. However, as posted all over the internet, three (3) independent Document Forensic Experts performed extensive Forensic testing on the Certificate of Live Birth posted on Obama’s campaign website” (¶35, emphasis added). However, perhaps realizing what might charitably be called the tenuous status of these speculations, Berg is quite willing to argue in the alternative: even if Obama was born in the United States, the complaint argues, he is still ineligible to be President—and it is in formulating this claim that Berg's legal lunacy reaches full stride.

Berg’s errors are not terribly interesting in themselves; I have written about them for two reasons. First of all, they offer the chance to offer a few brief notes about the notion of ‘natural-born citizenship’ and its legal history. This is an interesting topic, and one on which a number of people seem to be profoundly confused. This appendix is not quite finished, so I shall add it as a supplementary post. Second, they afford a striking new example of a phenomenon which I have always found particularly dismaying: spectacular ignorance of constitutional law on the part of many of those who most vociferously define themselves politically as ‘defenders of the Constitution’.

Trawling by search engine through political blogs (a tedious habit to which I return again and again, like Svevo’s Zeno enkindling la sua ultima sigaretta—always promising myself, in semi-demi-conscious bad faith, to quit after just one more) makes me worry that this phenomenon is growing. In fact, a Google search of blogs for ‘Obama’ and ‘dual citizenship’ yields more than 1,300 results. The story has even been picked up by (using the term loosely) a national newspaper.


Anonymous said...

A Google search for Obama and "dual citizenship" now returns 101,000 pages.(Of course one of them is yours and one is mine) ')


AuBricker said...

Great post. At first, the Birthers amused me, but now that I see the extent of their reach and elected officials responding to their madness, I tire of them.

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