Originally posted by sdcigarpig
That is true, his father is a foreign born citizen, however, according to the constitution of the United States, only one of the parents, who is a
citizen of the United States of America, is required for a child to be considered a citizen of the United States of America. This was further defined
in the Title 8 of the US code.
The conditions you are describing are not in the Constitution, only in the Title of the US Code you mention, namely 8 USC 1401. The Constitution only
talks about persons born or naturalized in the United States (14th Amendment).
Barak Obama is a citizen of the United States, it would not matter where he was born, or who his father is. The fact that his mother, at the
time of his birth, was a Citizen of the United States of America, he is considered a citizen of the United States, no matter where he was
You are entirely correct that it doesn’t matter who his father was, but don’t forget we are not just talking about citizenship. There is a
constitutional requirement to be a natural-born citizen
in order to hold office. So the place of birth is crucial to that constitutional
requirement. Or not... This is where we run into some constitutional uncertainty.
As you’ve described, 8 USC 1401 grants citizenship, at birth, to persons born abroad, as long as some conditions are met, like, for example, one of
the parents be a US citizen and was physically present in the US for a continuous period of one year prior to the birth of the child [8 USC 1401(d)].
So far so good. But analyzing Supreme Court jurisprudence, it is not entirely clear if citizens born abroad could be, for the purposes of the
Constitution, natural-born citizens like someone born in the United States.
In the landmark case United States v. Wong Kim Ark
(1898), the Supreme Court wrote—
The Fourteenth Amendment of the Constitution (...) contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by
naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere
fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof,
becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only
become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised
either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of
citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of
the naturalization acts.
Persons born outside the jurisdiction of the United States are, therefore, naturalized US citizens, even if their
citizenship was acquired at birth. Their citizenship was acquired by “the authority and in the form of law,” by “authority of Congress,”
through one of the subsections of federal statute 8 USC 1401.
In the same case, citing the opinion in Osborn v. Bank of the United States
(1824), the Court noted—
"A naturalized citizen," said Chief Justice Marshall, "becomes a member of the society, possessing all the rights of a native citizen, and
standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those
rights. The simple power of the National Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so
far as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the
United States, precisely under the same circumstances under which a native might sue."
By reading only that excerpt in Wong Kim Ark
especially the first phrase, one could easily get the impression that a naturalized citizen could qualify as a natural-born citizen. Problem is that
reading the opinion in Osborn
, the phrase immediately after the excerpt quoted in Wong Kim Ark
, which is not cited, Chief Justice
He [a naturalized citizen] is distinguishable in nothing from a native citizen except so far as the Constitution makes the
More recently, in Rogers v. Bellei
(1971) the Supreme Court ruled that Bellei, who was born in Italy to an italian father and an american
mother, acquired his citizenship by virtue of one of the subsections of the now 8 USC 1401, “does not come within the Fourteenth Amendment's
definition of citizens as those born or naturalized in the United States
.” The Court explained—
[H]e was born abroad. He was not born in the United States. He was not naturalized in the United States. And he has not been subject to the
jurisdiction of the United States. All this being so, it seems indisputable that the first sentence of the Fourteenth Amendment has no application to
plaintiff Bellei. He simply is not a "Fourteenth Amendment first sentence" citizen.
, the Court also noted, referring to the Court’s opinion in Wong Kim Ark
The Court concluded that "naturalization by descent" was not a common law concept, but was dependent, instead, upon statutory enactment.
One concludes from this that, children born abroad, are not citizens within the citizenship clause of the 14th Amendment. So it’s not entirely clear
if those persons could qualify as natural-born citizens.
Contrary to your assertion, this has implications for Obama, if he wasn’t born in the United States — which I have no reason to believe he
didn’t — and for McCain because he was born in Panama. In McCain’s case, it is even more uncertain because when McCain was born none of the
existing statutes granting citizenship to persons born abroad were applicable to his circumstances. That’s why in August of 1937 Congress then
enacted what is now 8 USC 1403.