If the Fourteenth Amendment didn’t exist, could Obama still be President? (Yes)

By Kristopher A. Nelson
in February 2012

1300 words / 7 min.
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Periodically various lay people attempt to interpret the law in ways that fit their version of (un)reality. While I appreciate the mainstream media simply ignoring these people (in general), it can occasionally be educational to refute its points as if they were logical and rational.

Please note that this post is from 2012. Evaluate with care and in light of later events.

Periodically various lay people attempt to interpret the law in ways that fit their version of (un)reality. While I appreciate the mainstream media simply ignoring these people (in general), it can occasionally be educational to refute its points as if they were logical and rational. A good example of this is the lawsuit Gordon Warren Epperly filed in Alaska challenging President Obama’s inclusion on the 2012 presidential ballot. It shows a fuzzy grasp of the law, legal terminology, logic, and history (a little reading of case law is a dangerous thing!), but pointing out some of its flaws can help illustrate these concepts.

Let’s begin with Epperly’s argument that, because Obama is “mulatto,” the 1857 case of Dred Scott means — assuming the Fourteenth Amendment never passed — he cannot be president because he cannot be a citizen:

As Barack Hussein Obama II is of the “mulatto” race, his status of citizenship is founded upon the Fourteenth Amendment to the United States Constitution. Before the [purported] ratification of the Fourteenth Amendment, the race of “Negro” or “mulatto” had no standing to be citizens of the United States under the United States Constitution.

There are many problems with this claim. First, and most obviously, Dred Scott, by its own admission, does not apply to the case of Barack Obama:

And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves. Dred Scott v. Sandford, 60 US 393, 403 (1857).

Since Barack Obama is not the descendant of an African imported to the United States to be sold as a slave — his father was a Kenyan who went to Hawaii to study at the university, not to be a slave — Dred Scott itself says it is inapplicable.

If we go ahead and ignore the Fourteenth Amendment, and look at early 19th-century law to see if Obama could have run for president, we are also forced to conclude that, at least theoretically, he could have done so. Before that amendment, states determined who was a citizen, not the federal government, though the Constitution then makes rules about who can become president:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.

When admitted to the Union in 1818, Illinois did not exclude either “Negroes” nor “mulattos” from citizenship nor from voting, although its 1848 constitution restricted voting to only “white males.” Thus, in Illinois after 1848, Barack Obama may have been a citizen, but neither he nor his mother (born in Kansas) could have voted. It is unlikely he could have been elected, but not explicitly forbidden. (Perhaps this is the state of society Epperly would like to return to?)  The modern Illinois constitution has no such restriction, of course.

Generally, in most states, all men — white or otherwise — who owned property could vote in early America. Later on, in the 1820s – 1840s, property restrictions were lifted, and new limitations on race were instituted instead. Thus, Obama — a property owner — could have voted in many or most states until at least the 1820s, despite being part African. (Later, of course, he would have been excluded under many state constitutions, even as a property owner.)

The Naturalization Law of March 26, 1790 (1 Stat. 103) — and subsequent naturalization laws before the Civil War — only allowed “free white men” to become citizens through naturalization. But that would only restrict Obama’s father, since Obama himself was born in the United States (although not until 1961, two years after Hawaii became a state). He had no need to be “naturalized.”

The Supreme Court has never ruled on the meaning of “natural-born citizen,” but even commentators in the nineteenth century assumed that anyone born in the United States was a “citizen,” whatever their color — and whether they could vote or not. As early as 1829, William Rawle agreed with this, as did Attorney General Edward Bates in 1862. The 1898 case of United States v. Wong Kim Ark, 169 US 649 cites an earlier (1844), antebellum New York case to establish that those born in the country are citizens, regardless of race:

That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke, (1844) 1 Sandf. Ch. 583.

Epperly attempts to argue that this part of Wong Kim Ark is mere dicta, and therefore not binding, but that does not change its persuasive authority, nor does negating its binding authority mean that its opposite is therefore true. He attempts to argue that two other cases are instead controlling (although his quotations are at least as much obiter dicta as are those of Wong Kim Ark).

The first, Minor v. Happersett, 88 U.S. 162 (1874), says that those born of two citizen-parents are definitely citizens. It says that “doubts have been raised” about children not born of citizen-parents — but then goes on to say, “For the purposes of this case it is not necessary to solve these doubts,” Id. at 168. In other words, Minor says nothing at all about Obama’s situation, and in fact disclaims any attempt to say that it does. (Interestingly, I’d say the case actually strengthens the arguments against Epperly in some sense, because it makes it clear that women have always been citizens, even when they couldn’t vote — so even if “mulattos” couldn’t vote, they could be citizens, just like women.)

The second, Perkins v. Elg, 307 US 325  (1939) is of limited relevance for similar reasons, since its holding involves a child of two United States citizens, not a child of a citizen and non-citizen. This is the exact point Epperly emphasizes — but fails to realize that Perkin’s holding says little or nothing about Obama. If Elg is a citizen because both her parents were citizens, it is a logical fallacy to say that Obama is not a citizen because one of his parents was not a citizen. Put another way, simply because it is sufficient to have two parents who are citizens does not mean it is necessary. Proving sufficiency does not prove necessity, in law or in life.

In short, Obama was born in the United States. Regardless of the citizenship status of his parents, that would make him a citizen according to standards of the nineteenth century and today — even without the Fourteenth Amendment.

As a side note, I tried to figure out his differentiation between “political rights” and “civil rights,” but I couldn’t follow his (non-)logic. The best approximation I could find came from Epperly’s site, in an article he wrote on citizenship, which claims that the 14th Amendment granted “civil rights” and the 15th (for African-Americans) and 19th (for women) granted “political rights,” but neither granted the “natural rights” required to hold office. In other words, neither women nor African-Americans should be able to hold elected office. I could find no independent support for this in the law. 

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