So I guess this was a thing briefly: Kansas was for a short time, seriously considering not putting Barack Obama on the ballot because a citizen had complained that Barack Obama was not a citizen. The guy has withdrawn his objection after a strong pubic reaction, but what caught my eye was that his objection appears to be based on the idea of citizenship as patrimony:
[Joe] Montgomery, who works at Kansas State University, filed the objection Monday, claiming Obama was not a “natural born citizen” because his father was a citizen of the United Kingdom and Kenya, and that U.S. citizenship is conferred “primarily” through the father.
I don’t think that’s quite right:
Petitioner Tuan Anh Nguyen was born in Saigon, Vietnam, on September 11, 1969, to copetitioner Joseph Boulais and a Vietnamese citizen. Boulais and Nguyen’s mother were not married. Boulais always has been a citizen of the United States…. In June 1975, Nguyen, then almost six years of age, came to the United States. He became a lawful permanent resident and was raised in Texas by Boulais.
In 1992, when Nguyen was 22, he pleaded guilty in a Texas state court to two counts of sexual assault on a child…. Three years later, the United States Immigration and Naturalization Service (INS) initiated deportation proceedings against Nguyen as an alien who had been convicted of two crimes involving moral turpitude, as well as an aggravated felony….
Nguyen appealed to the Board of Immigration Appeals…. The Board dismissed Nguyen’s appeal, rejecting his claim to United States citizenship because he had failed to establish compliance with 8 U. S. C. § 1409(a), which sets forth the requirements for one who was born out of wedlock and abroad to a citizen father and a noncitizen mother.
Nguyen and Boulais appealed to the Court of Appeals for the Fifth Circuit, arguing that § 1409 violates equal protection by providing different rules for attainment of citizenship by children born abroad and out of wedlock depending upon whether the one parent with American citizenship is the mother or the father….
[The court goes on to find that:]
In the case of the father, the uncontestable fact is that he need not be present at the birth. If he is present, furthermore, that circumstance is not incontrovertible proof of fatherhood. The mother carries and bears the child, and in this sense her parental relationship is clear. The validity of the father’s parental claims must be gauged by other measures…. Fathers and mothers are not similarly situated with regard to the proof of biological parenthood. The imposition of a different set of rules for making that legal determination with respect to fathers and mothers is neither surprising nor troublesome from a constitutional perspective…. Section 1409(a)(4)’s provision of three options for a father seeking to establish paternity-legitimation, paternity oath, and court order of paternity-is designed to ensure an acceptable documentation of paternity.
Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) (citations omitted) (internal quotation marks omitted).
In plain English, the U.S. Code (8 U.S.C. 1409) gives citizen mothers, not fathers, preferential treatment in establishing that their children are also American citizens, and the Court is okay with that, because it’s easier to prove maternity than paternity, especially at the moment of birth. So if you’re a man who fathers a child overseas with a non-citizen mother, you’ll have to jump through a lot of hoops to prove that your child is really yours (and that you claim him) before the U.S. will recognize him as a U.S. citizen. For children born to a citizen mother and non-citizen father, by contrast, the process is much simpler:
[A] person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
All of the above deals with illegitimate children born overseas. What about when the parents are married? In that case, paternity is presumed, and so if either parent is a citizen (regardless of sex, though subject to a residency requirement), the child is also a citizen:
The following shall be nationals and citizens of the United States at birth….
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years
So Montgomery’s assertion that citizenship is passed through the father turns out not to mesh with U.S. law on the subject — and, indeed, where parents are not married, it is mothers, not fathers, whose children are assumed to be U.S. citizens.
How does all this relate to Barack Obama? Well, unless someone has a theory that Barack Obama was actually secretly adopted by Ann Dunham, and therefore is not her biological child (let the calls for exhumation and DNA testing begin! why won’t Barack Obama release his dead mother’s DNA? what is he hiding??), he’d be a U.S. citizen regardless of where he was born or his parents’ marital status, because his mother was a U.S. citizen who had lived in the U.S. for five years, at least two of those years after the age of 14. Of course, none of that matters, because he was indisputably born in Hawaii.