Diary

Constitutional words: Even if the birthers were right, what difference would it make?

The precise meaning of words and phrases in the Constitution is and has always been a matter of controversy. The recent decision on corporate free speech is a good example. If there is any unambiguous word in our Constitution it is the word “No”. “Congress shall make no law…abridging the freedom of speech…”

It speaks for itself. It makes no distinction based on the source or purpose of the speech. It could have, but it doesn’t. By what stretch of the imagination do you think that GE by virtue of owning NBC has more rights than my LLC?

So what does “natural born citizen” mean? If we refer to British common law, the citizenship of the father is the criterion. That seems strange, since back then there was no test for paternity.

It comes down to whether the citizenship of one or both parents trumps the location of the birth. It has always been held that American territory trumps parental citizenship. But that is logically distinct from whether foreign birth trumps parental citizenship. As far as I can tell, a foreign born child of even one American parent has the right to claim American citizenship without a naturalization process. If that child is not a natural citizen, what is he or she? Being pro-life, I find it hard to think that the geographic location of the birth is the issue. I believe the as yet not born baby should have full protection of the law. How can I hold that baby in the womb of an American Mother can somehow lose American citizenship?

Originalists like to discover what words and phrases meant to the People who ratified the Constitution. Ivy League Professors claim that the words mean whatever they choose to teach to their students. Conservatives embrace the originalist approach. It is what we mean when we say we are bound by the Constitution.

To my knowledge there is no definitive meaning given to the phrase “natural born citizen” in the history books. It seems clear that the original meaning was some combination of parental citizenship and geography. The exact combination is simply ambiguous. It wouldn’t hurt for Congress to legislate that combination and enact a law that would be “necessary and proper” to enforce this Constitutional provision.

So, as much as I have enjoyed the spectacle of Obama refusing to provide a legal birth certificate, I do not see how his eligibility for the office can be denied. Sorry birthers. C’mon and join the tenthers!