A Brief History…

By Bradley J. Fikes

The “birther” controversy over whether Barack Obama is legally qualified to be president is heating up again, and I just found out why you have to be extremely careful with facts. I’d taken the view that regardless of where he was born, Obama’s American mother automatically made him a citizen, a view supporting by reading the applicable US law.

An Oct. 30 Chicago Tribune article quoted noted blawger Eugene Volokh to that effect:

Even if a person is born outside the United States, courts have ruled any child born to at least one U.S. citizen is a U.S. citizen, Volokh said. Stanley Ann Dunham would have counted even if Obama’s Kenyan father did not.

If this becomes an issue in a post-election eligibility challenge, expect a likely sticking point to be the legal definition in 1961 of how parents could be called U.S. citizens for this purpose, Volokh said. At the time Obama was born, the law stated that a person would be considered a “natural born citizen” if either parent was a citizen who had lived at least 10 years in the U.S., including five years after the age of 14—in other words, 19.

Dunham was three months shy of her 19th birthday when Obama was born. But subsequent acts of Congress relaxed the requirement to five years in the U.S., including just two years after the age of 14, meaning Dunham could have been 16 and still qualified even if Obama was born in another country, Volokh said. Congress made the law retroactive to 1952, doubly covering Obama.

Any legal challenge would have to argue that Congress can’t make someone retroactively a citizen at birth, and prove Obama was born outside of the U.S. after all.

However, Volokh decided later he had made an error in reasoning, an error he painstakingly explained on his blog.

Read the whole thing for the details. The gist is that the relaxed requirements only apply to someone born on or after Nov. 14, 1986. Since Obama was born before that date, the original, stricter law applies.

Worse, the Chicago Tribune story remains uncorrected to this day, as you can read by clicking on its link. Does the Tribune not know or care that its main source has changed his mind? I presume Volohk tried to alert the Tribune, but it doesn’t seem to have had any effect.

Like Volokh, I don’t doubt that Obama was born in Hawaii, something the state has officially confirmed. And the Supreme Court has declined to hear challenges to his eligibility for the presidency. Since the court interprets the Constitution, the supreme law of the land, that legally ends the matter — just as its decision in the 2000 election settled questions regarding the election of George W. Bush.

But it’s still a warning to apply healthy skepticism to what you read in the press, even if it seems solidly based.

DISCLAIMER: As with all else I write here, this is my opinion, and not necessarily that of my employer, the North County Times.

This entry was posted on Tuesday, July 21st, 2009 at 8:17 pm and is filed under media, politics. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.