I now think Biden, McCain, Obama and Palin have had me direct a joke at them. I am an equal opportunity critic.
   I like to think, therefore, that I can comment on certain US issues in a bipartisan fashion.
   On a friend’s blog, I noticed she had republished, with permission, an article about whether Sen. Barack Obama’s possible dual nationality excludes him from the presidency.
   I attempted to answer this myself in her comments because I believed the original writer may have confused domicile with nationality as concepts.
   I am neither Cheshire nor North and it was 13 years since I studied private international law, which covers some of these ideas, so please take what I write below with a grain of salt.

Article II, section 1 has never properly been tested.
   A person is born with a domicile of origin and it is usually that of his father, so Barack Obama is British from that perspective by virtue of pre-independence Kenya. But domicile and nationality are different concepts and I wonder if the blogger … has them mixed up. Your Constitution looks at nationality and not domicile, and there are a number of situations in the nineteenth century supporting that. I think we can probably omit the Kenyan or British connection as having significance under these rules, but we should look at the Indonesian one.
   As you’ve detailed above, we simply do not know what nationality Barack Obama held when he was in Indonesia. Was he there as a visitor, resident or national?
   To be fair, we need to inquire briefly into John McCain as well. He was born on a US base in the Panama Canal Zone to US parents. There is no question his domicile of origin is American. It is generally accepted that a US base is as good as US soil, though under public international law, I am not so sure. Regardless of that, it is likely he acquired an American nationality at the earliest possibility through his parents’ actions (e.g. registration at a consulate) and he has only ever sworn allegiance to the United States.
   The words in the Constitution are ‘natural born citizen’. This was not a common term and still isn’t. [The Founding Fathers] never defined it but because nationality was important to them, there is some strength for saying that they wished to exclude dual nationals. The problem back in those days was that countries did want to claim subjects as their own for two things: military draft, and for money (whatever they earned, countries wanted to tax) and it may have been preferable for a nation to have certainty over the allegiance of its subjects. …
   But if they were silent, is there a clue in the Constitution itself? Can we say that because they didn’t say anything, they didn’t want this requirement to be stuck in 1787? I believe this is the case: that while the Constitution should be subject to very strict interpretations, what is not codified into it is meant to be regarded as living and moving with the times. These were smart guys, so if they wanted something to be strictly considered, they would have written it in. That is the beauty of this document: it is tight (on some things such as the separation of powers) and loose (on other things like how laws themselves work) at the same time.
   If we go to Art. I, s. 8, Congress is empowered to establish naturalization rules, i.e. setting rules on what it takes to be an American national, and I believe the Founding Fathers expected these rules to change over time. It’s why they were not put into the Constitution itself.
   That means we need to look at your immigration laws. Also, the idea of the birthright citizenship is well established in the US, and your Fourteenth Amendment is pretty clear in codifying that into your Constitution.
   So in that real round-about way, we can conclude that Barack Obama is a natural-born citizen of the United States. We can conclude that John McCain is a natural-born citizen of the United States.
   We’re only left with your original question of dual nationality, which we must return to your legislation with. Your Immigration and Nationality Act accepts dual nationals, and your Supreme Court has permitted them, too. So, after all that analysis, I personally would have to conclude that Barack Obama is eligible for the presidency even if he were a dual national [with connections to Indonesia]. Posted by Jack Yan, 09:44  permalink

comments

Post a Comment  Links to this post