Oh, For Goodness Sake

If you are, like me, someone who finds the Birther natural born citizenship discussion sort of mind-boggling, you might want to read the sharp analysis at a site called Natural Born Citizenship Research, where preparation of an opposition legal brief is underway:

ANTI-BIRTHER BRIEF

QUESTION PRESENTED

Does the term “natural born citizen” under Article II, Section 1, Clause 5 of the United States Constitution require both parents to be citizens of the United States at the time of birth?

SUMMARY OF ARGUMENT

Appellants and their counsel appear to be card-carrying members of the so-called birther movement that seek to prove the President is not a “natural born citizen” and hence ineligible to be President. Apparently unable to prove their preposterous theory that the President was born in Kenya, the movement has spawned a number of equally bizarre alternative theories of ineligibility, including the one now before this court. Here, the Appellants are asking nothing less than for this court to overturn a presidential election on a novel definition of “natural born citizen” that requires one’s parents to be citizens of the United States at the time of birth. Such a definition, of course, has no support from our courts or our history.

The fact that many terms in our Constitution are not specifically defined has sometimes led people to propose novel and inventive definitions to suit their political causes. However, our courts have always recognized that the Constitution was written mostly by common law lawyers, sent to a convention by states that had adopted the common law and is full of undefined terms that were terms of art under, and in some cases had no other meaning other than with respect to, the English common law. Not surprisingly, the Supreme Court has always told us to look primarily to the common law to define terms in the Constitution, including the phrase “natural born citizen.” Thus, the phrase “natural born citizen” has always been understood to descend from the English common law and Lord Coke’s famous report in Calvin’s Case, 77 eng. Rep. 377, 409 (K.B. 1608) which embraced a rule based upon the locality of birth (jus soli) rather than parentage or descent (jus sanguinis) and made natural born subjects of anyone born within the realm regardless of parentage, subject to a few discrete exceptions. The correctness of such conclusion is underscored by the fact there appears that there were no alternative definitions of “natural born” in the founding era or the early republic, the fact that there is overwhelming authority that the English common law defined citizenship generally in the founding period and early republic and that early interpretation of “natural born citizen” in the Constitution uniformly followed the English common law meaning. The correctness of this conclusion is further underscored by the fact that after the debacle of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), the 14th Amendment was adopted to expressly incorporate the English common law rule of Calvin’s Case into the Constitution so it would never be ignored or misinterpreted again.

It is clear that the Appellants have little or no authority to support their two-parent theory. Their primary argument appears to be that the meaning of “natural born citizen” can be traced to the writings of Switzerland’s Emmerich de Vattel. However, they apparently cannot support this claim with any early American authority at all. Their other arguments appear to consist of cherry-picking insubstantial authority such as the opinion of one Congressman 79 years after the federal convention, trying to re-interpret the 14th amendment based on cherry-picking a few snippets of favorable legislative history from the 39th Congress and trying to read support for their theory into court cases that, honestly read, do not support their theory.

What is clear is that our textbooks, dictionaries and case law have long taught us all that the President must be born in the United States and no one in the last election, save a few political partisans on the far fringes of the Internet, ever imagined parentage mattered at all. The native birth requirement is so ingrained in our culture that the Senate thought it necessary to address John McCain’s eligibility due to his foreign born status, even asking two of our foremost constitutional experts to give their opinion on the subject. Apparently, no Senator even thought to question the eligibility of President Obama and the experts the Senate consulted with respect to McCain made clear that birth in the United States alone was sufficient to confer “natural born” status. While electoral losers in banana republics may be able to change the rules after the election results are in, in our democracy we tend to think the rules should not be changed.

Read on for The Argument