Common Law Iceberg

The claims of so-called "birthers" questioning President Obama's citizenship status and by extension his eligibility for office are among the cockroaches of American politics. However repetitive and discredited the claims are, no court decision nor release of documents can seem to kill them. Against that backdrop, you have to give Pennsylvania resident Thomas Barchfeld credit for finding a somewhat novel approach to trying to keep the President off the ballot in that state, even if it is nonsense.

Instead of claiming that President Obama wasn't born in the United States, Barchfeld asserts that the President isn't a "natural born citizen" because only one of his parents was an American citizen. The "basis" for this is a passage from the Supreme Court's written opinion in an 1874 case (Minor v Happersett) about voting rights for women. While giving historical context about how citizenship and the rights of citizens have been determined in accordance with the US Constitution, the court noted that in the absence of a specific definition for the term "natural born citizen" common law practice prevails. The justices then discussed some of the ways in which citizenship status has been defined under common law and acknowledged questions that had arisen about how foreign citizenship of one or both parents might impact someone's status as a "natural born citizen".

At first glance, and as reported in many outlets without any apparent attempt at fact-checking, it comes across as a credible claim. What Barchfeld (and many of those reporting his efforts) overlooks is that the legal and historical background for the 1874 case is just that, background. The case itself and the court's decision in the matter is not about how citizenship status is determined but rather whether citizenship automatically conveys voting rights under the Constitution (as it stood in the late 19th century, at least). In fact, the members of the court specifically state in the decision that they are not making any specific ruling on the question of who qualifies as "a natural born citizen", deferring again to common law, making this contemporary claim not just foolish but also ill-informed.

Ill-informed though Barchfeld may be, his words certainly show him to be passionate about this cause. "I am saddened that it seems very possible that the largest hoax in American history has been perpetrated on the people of America, undoubtedly this is just the tip of the iceberg in a very sordid tale I am just a citizen of this State, and I only needed mere hours to find this information which is readily available."

At first, I found myself wondering how much more he could have achieved if he'd spent just a few more minutes reading the next few, equally available sentences in the court decision and realized that he had no case. On reflection, though, it might be better to have him engaged in an effort like this where he can't do any real harm.