By Cindy Simpson
By avoiding the contentious question of Obama's "natural born" eligibility, America's academic establishment has also stifled discussion on the inextricably related issue of citizenship law in our country, in the greater context of immigration reform.
The first instance of academia's cloak-throwing was noted in an American Thinker
article which described the revision made by Professor Larry Solum to his scholarly paper that addressed Senator McCain's eligibility, "Originalism and the Natural Born Citizenship Clause." The original version was published in 2008. Without saying it explicitly in his footnote of explanation, Solum's revision implied, subtly, that he also supported the eligibility of Obama, with his one citizen parent instead of two -- yet Solum did not include citations or references that defended his rationale for the change, nor has he published papers since that discussed this aspect of the issue. Solum's unsupported rewriting was mentioned again in the more recent article, "The Great American Memory Hole." That column also described the strange and related story of "JustiaGate" -- the "mangling" of text and citations, for approximately a three-year period beginning mid-2008, on Justia's database for 25 Supreme Court decisions that directly cited the particular case of Minor v Happersett. It so happens that Minor contains a succinct definition of "natural born" citizenship (essentially, born in the country to citizen "parents," plural) that attorney Leo Donofrio contends represents binding precedent. In addition to the anomalies noted at Justia, Donofrio discovered a complete block of relevant text missing from Ex Parte Lockwood at Cornell -- a case that Donofrio argues further proves his assertion that Minor's statements on citizenship are binding precedent vs. dicta.
Cornell's Professor William Jacobson countered that Justia is not utilized by "practicing lawyers," but it is revealing to note that both Jacobson's Legal Insurrection blog and the WSJ Law Blog, for example, recently and frequently link to Justia's Supreme decisions, and that Google searches often list Justia as a top hit -- reinforcing the reality that Justia's Supreme Court database does indeed maintain a significant voice in the court of public opinion.
Shortly after Donofrio's findings and further claims regarding the precedent set by Minor, Professor Jonathan Turley published a post by contributor David Drumm entitled "Holdings, Dicta, and Stare Decisis." The last sentence of Drumm's post refers to the Wikipedia article on Minor as further support for his assertion that the "natural born" comments are dicta; however, that particular Wikipedia entry was revised only a couple of months ago (soon after Donofrio's assertions) to include the very paragraph that Drumm cites. Comments on Drumm's post now number over 1,300, bearing witness to an ugly war that continues to rage among anonymous commenters. The revision history for the Wikipedia entry reveals similar battle scars.
"In the Spirit of Truth," Donofrio has, via his "Natural Born Citizen" blog, invited other attorneys to directly challenge his assertions:
The definition of natural born citizen in Minor v. Happersett is binding precedent; Ex Parte Lockwood acknowledged Minor as precedent for the definition of federal citizenship; and the statements in Minor fit the description of precedent established by the Court in Ogilvie Et Al., Minors v. United States.Will any accept the offer, or, along with other legal academics, will attorneys continue the "bizarre birther intellectual dance" described by Jacobson that sidesteps reasonable questions of law and spins around only the infamous birth certificate?
In his original paper, Solum's description of "natural born citizen" closely followed Justice Waite's wording in Minor, yet Solum indicated that the meaning of the term simply derived from "general agreement." (Solum attributed his later revision to "a matter of inclusion.") I have been unable to locate other articles addressing the eligibility of either candidate that examined the Minor definition. That is astonishing, for whether the statements in Minor were dicta or precedent, they were still directly relevant; yet many insisted that the term "natural born" had never been defined by the Court.
In early 2008, at the request of the McCain campaign, Professor Laurence Tribe and former U.S. Solicitor General Theodore Olson presented a memo to Congress stating their opinion that McCain was a natural born citizen, though born in the Canal Zone, "by virtue of his birth ... to US citizen parents." The memo became the basis for Senate Resolution 511, co-sponsored by both Obama and Clinton, clearing the path for McCain's eligibility.
Professor Gabriel Chin responded to the Tribe/Olson opinion in a lengthy analysis titled "Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship." Chin quoted the Minor natural born definition in a footnote but without further elaboration. In his conclusion, Chin noted that the statutes that precluded the eligibility of McCain, whom he described as "not only not a race-baiter but disapprov[ing] of race discrimination," were the result of "antique technicalities of the legal regulation of race." Although Chin did not mention it, the fact that those who raise the issue of Obama's eligibility are called racist seems even more ironic.
In 2011, describing "birthers" as focused only on Obama's place of birth, Chin asserted that "neither the Supreme Court nor Congress has weighed in on the question" of natural born citizenship -- neglecting to recall his own reference to Minor and specific citation of its definition in his 2008 paper.
Professor Peter Spiro, in his 2008 scholarly article supporting his favorable opinion of McCain's eligibility, concluded with this general remark: "The prospect of a dual-citizen president proves the obsolescence of requiring our chief executives to be natural born citizens." Spiro's statement appears to suggest that dual citizens are not natural born, yet he did not acknowledge the dual citizenship claimed by Obama on his campaign website and further confirmed by the State Department. Factcheck also affirmed Obama's dual citizenship, but dismissed it as irrelevant based on the opinion of an anonymous blogger.
After Obama released his long-form birth certificate in 2011, Spiro published another article, "Birthers' Next Line of Retreat: Obama was a Dual Citizen!" in which he denigrated "birthers" as "conspiracists," called the dual citizenship question a new "bizarre sideshow," and referred readers to the "excellent explanation from factcheck.org."
In the 2008 article on McCain, Spiro asserted: "Constitutional questions do not require constitutional decisions. If non-judicial actors -- including Congress, editorialists, leading members of the bar, and the People themselves -- manage to generate a constitutional consensus, there isn't much that the courts can do about it."
However, Spiro and other academics have failed to similarly address Obama's eligibility, much less with a level of scholarship or seriousness (if Chin's and Spiro's 2011 articles quoted above are any indication) that would appear to justify such a "consensus."
The Congressional Research Service (CRS) circulated three memoranda on presidential qualifications, the first dated April 3, 2009, the second, March 18, 2010. The first report addressed the eligibility of both McCain and Obama; the second focused primarily on Obama's birth certificate and whether citizens had "standing" in the eligibility suits, yet both reports failed to mention Minor.
Following the activity in the blogosphere over whether Minor's definition was binding precedent and the new state ballot challenges, CRS issued a third report, titled "Qualifications for President and the 'Natural Born' Citizenship Eligibility Requirement." Without stating the reasons behind the report's preparation or its requestor, the author, "Legislative Attorney" Jack Maskell, asserts that based on "the nearly unanimous consensus of legal and constitutional scholars," not only are both McCain and Obama natural born citizens, so is anyone born on U.S. soil (irrespective of the citizenship or domicile status of either parent), and even some who were foreign-born, as long as they had at least one citizen parent who fulfilled previous residency requirements.
According to Dr. Jerome Corsi, "rather than advance the eligibility debate with a truly scholarly analysis, Maskell produced ... a footnoted polemic aimed at appearing scholarly to prop up Obama's eligibility defense." And unsurprisingly, this third report dismisses the definition in Minor as mere dicta.
The two-step process followed by the court in Minor (to first answer whether Mrs. Minor was a citizen and secondly whether that status gave her the right to vote) was discussed in another article, "Citizenship Jeopardy." The "presumed" citizenship of Hamdi and Obama's recent drone target, al-Awlaki, was analyzed -- "presumed" being the adjective used by Justice Scalia in his dissent in Hamdi v Rumsfeld, a 2005 case that argued that Hamdi, as a U.S. citizen by virtue of the "birthright citizenship" practice (born in the U.S. to non-U.S. citizens), was entitled to habeas corpus.
The controversy over "birthright citizenship" centers on the citizenship and domicile status of the parents and is thus unavoidably related to the definition of "natural born" citizenship as it pertains to Obama. The political tension surrounding immigration reform and charges of racism levied against the "birthers," combined with the tragic yet effective distraction of the birth certificate, have further contributed to this contentious issue.
The hot button of immigration reform was addressed in another article that mentioned the 2005 congressional hearing, "Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty," in which all participants seemed to agree (some reluctantly) that the 14th Amendment (as well as the really very narrow ruling in Wong Kim Ark) did not guarantee or mandate the grant of citizenship to the children, born in the U.S., of aliens.
Although opinions differ over the application of the amendment as it relates to the temporary or permanent, legal or illegal status of the aliens' presence -- if the "subject to the jurisdiction" phrase is not redundant (to "born in the country") and in fact alludes to the concept of allegiance -- the legality of the non-citizen parent's border-crossing seems far less pertinent than the intent to domicile. In addition, while many claim that the parents' status is irrelevant to the rights of the child, derivative citizenship laws appear to support the opposite view.
A few years after the hearing (and coincidentally, when Obama came on the scene), discussion of citizenship was labeled "birther" talk, with conservative pundits like Mark Steyn referring to "rinky-dink technicalities" and attorneys such as Mark Levin (who led the call for Clinton's impeachment based on the technicality of lying under oath) loudly refusing to even courteously acknowledge what seem to be very valid, interesting, and timely questions:
Does mere birth in the US, regardless of circumstances, guarantee citizenship?
If foreign-born naturalized citizens are required to renounce past foreign citizenship, should a status of dual citizenship at birth (the result of the birthright citizenship practice as well as the 1922 Cable Act which no longer required that women lost their U.S. citizenship upon marriage to an alien) necessitate a renunciation of the foreign citizenship by the child at majority?
Does the dual citizenship of a large and growing proportion of our population have implications for our national security?
And if naturalized citizens are not qualified for the presidency, should dual citizenship at birth likewise preclude eligibility?According to Dr. John Eastman, it was not until around 50 years ago that "popular perception" grew into the "idea that mere birth on American soil alone ensured citizen status." Eastman asserts: "We just gradually started assuming that birth was enough."
Has such "gradual" thinking replaced the Constitution? Will the convoluted reasoning enshrined in Wong Kim Ark and the "unabashedly result-oriented approach" in Plyler v Doe continue to shape the character of our nation's citizenship and sovereignty?
In this nation of immigrants, assimilation was once a cornerstone of our desire to build a cohesive national character. Today, assimilation has been replaced by multiculturalism, "press 2 for Spanish," and voting materials printed in foreign languages. The children of "birth tourists" are granted U.S. citizenship. And the oath sworn by naturalized citizens requiring rejection of past foreign citizenship is no longer enforced.
Concern over whether popular elections should trump valid questions of constitutional law (with related lawsuits dismissed for lack of "standing" or "particularized injury") combined with the apparent absence of a formal mechanism to ensure the legitimacy of candidates creates a slippery slope further heightened by the symbolic nature of the question:
Does the current commander-in-chief, sworn to uphold and protect the Constitution, actually have the right to hold that office? Do the "folks" he serves have a right to ask that question and have it respectfully answered?
Professor Chin wrote: "The rule of law would be mortally wounded if courts, Congress or the executive could legitimately ignore provisions of law they deemed obsolete ... It would be a grim moment in history if the very oath to 'preserve, protect and defend the Constitution' that made a person President was also a falsehood that defied the document." Chin was referring to a McCain presidency, but should not the same sentiment apply to any president, including Obama?
Constitutional experts who were once vocal opponents of birthright citizenship have failed to opine on the very related eligibility issue. Does their silence imply that they now believe that a birth certificate is the only requirement for citizenship? In an article discussing Marco Rubio's eligibility, Solum was quoted as saying that the birthers' "arguments aren't crazy," but declined to elaborate.
Will academia break that silence by addressing the question of Obama's eligibility with at least the same attention and level of scholarship given to McCain's? And will academia assist our nation in reforming immigration policies that comprehensively address and resolve the issues created by the birthright citizenship practice and growing proportion of dual citizens?
According to a new study posted on Professor Turley's blog, teaching law ranks second among professions "that pay the most for the least amount of work." Perhaps law professors can find time in their busy schedules to educate the rest of us on these issues, in a scholarly, and not political, fashion