05/13/2010 12:56 am ET Updated May 25, 2011

Meet the Dualers: Birther Splinter Group Believes President Obama is not a Natural Born Citizen

By now we've all heard of the "birthers" and their leader, the wackily accented dentist/lawyer/real estate agent Orly Taitz. The birther theory is simple enough: Barack Obama was not born in Hawaii, he was born in Kenya. His birth certificate is a forgery and the birth announcement placed by his grandparents in a Honolulu newspaper a farsighted and clever ruse. Their proof is that Obama will not release a so-called long form birth certificate, and their demand is that he do so.

But the birthers are not alone in claiming that Barack Obama is constitutionally ineligible to be president. Meet the..... "dualers"? Ok, they don't really have a name yet. But they will. Here's their theory: among other requirements, the Constitution of the United States demands that the president be either a natural born citizen or have been born before 1776.* Barack Obama is older than he looks, but not that old. So he needs to be a natural born citizen.

Easy enough, you say. He was born in Hawaii. Case closed. Well, not according to the dualers. Dualers argue that because Obama's father was a British citizen at the time of his birth, Obama was a dual citizen and dual citizens cannot be natural born citizens.

Our dualer friends are in the news today, due to reporting by Zack Roth at Talking Points Memo. Roth reports:

The bizarre sequence of events began on April 1, when Walter Fitzpatrick walked into the Monroe county courthouse in Madisonville, Tenn., and approached Grand Jury foreman Gary Pettway. "I'm charging you with official misconduct," Fitzpatrick calmly told Pettway. "I'm placing you under arrest. You must now come with me."

Fitzpatrick was motivated by his belief that President Obama is not a natural born citizen due to the fact that his father was a British citizen, who conferred British citizenship on the future President.

As luck would have it, back in November of 2009, I conducted a lengthy and polite correspondence with one of the leading dualers.

According to her, language in an obscure Supreme Court decision, Wong Ark Kim (169 U.S. 469, 1898), defines a natural born citizen as someone who has not only one U.S. citizen parent but two. Their hopes attach to this passage:

"The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it.

Such children are born to a double character: the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father."

To which I responded:

I think it's always important to understand that very old Supreme Court cases may control very little in terms of practical law today. Famously, Plessy v. Ferguson, a contemporary case to Wong Kim Ark, would be very detrimental to any space alien who attempted to reach a conclusion about the state of lawful racial segregation in America without reference to Brown v. Board of Education. Of course, cases are not necessarily bad because they are old, but we have to be extra careful with them.

If we put aside the issue of whether the case is still good law, I think we need to note that the passage that you cite is not the Court's opinion, but rather something that they quote in order to analyze what other branches of government are thinking. The text comes from a letter issued by the U.S. Secretary of State at the time. Just as strict constructionists caution us against Justices who use sources of foreign law, we should not mistake a citation to a executive branch document as controlling the Court's opinion.

Indeed, the passage immediately follows expresses the Court's opinion and reaches a conclusion somewhat different from the one you drew from the case:

These opinions go to show that, since the adoption of the Fourteenth Amendment, the executive branch of the Government, the one charged with the duty of protecting American citizens abroad against unjust treatment by other nations, has taken the same view of the act of Congress of 1855, declaring children born abroad of American citizens to be themselves citizens, which, as mentioned in a former part of this opinion, the British Foreign Office has taken of similar acts of Parliament -- holding that such statutes cannot, consistently with our own established rule of citizenship by birth in this country, operate extraterritorially so far as to relieve any person born and residing in a foreign country and subject to its government, from his allegiance to that country.

The argument that Obama became a dual citizen by virtue of his father being a British citizen and the consequence of that is that he cannot be a natural born citizen is a very confused one. First of all, I don't believe there is any case law to indicate that a child born on American soil can NOT be a natural born citizen. Perhaps the argument is instead that Obama by virtue of being a British citizen renounced his American citizenship. But that does not work either. Modern U.S. Immigration and Nationality law suggests that American citizens cannot involuntarily give up their citizenship. A minor cannot give up his American citizenship at all.

In fact, if an American citizen renounces their citizenship before a foreign official, this is not considered binding because it is considered coerced. They must appear before a consular official and renounce their citizenship for this renunciation to take effect.

There's no reason to believe that the founding fathers wanted to deny the children of aliens the status of natural born citizen. There are two principles of citizenship that are generally accepted: jus solis and jus sanguinis. The right of soil and the right of blood. It just doesn't matter who your parents are. The reason that there is some discussion of people with foreign allegiances in cases like this is to account for the children of foreign diplomats and such. Even then, you cannot find a single case or legal authority that would deny the child of an American mother the right of natural born citizenship.

What if an American woman was raped by a foreigner? Would the child of that involuntary union be denied the right of natural born citizenship? Why did no one discuss the fact that Bill Richardson's father was a citizen of Nicaragua and his mother a Mexican citizen? Because it just doesn't matter. It's all about where you were born.

If any court ever thought that a US citizen parent's child could have his or her rights limited by virtue of having a foreigner parent there would be some discussion about it somewhere. Even the technicalities of it. For example, what if you had a child born out of wedlock to a US citizen mother?

If the father is a foreigner, should the child be considered natural born? But if not, then you just encourage children to be born out of wedlock and fathers to be absentee. Then should we bar all children born out of wedlock from the presidency on the chance that their fathers might be foreigners?

What if the mother isn't sure who the father is? What about children conceived via adultery? Should we give DNA tests to presidential candidates to make sure that their US citizen mothers were faithful to their US citizen fathers?

All the founding fathers were British citizens. They may have renounced their British citizenship by the act of rebellion, but they were certainly British citizens at birth. At best, the founders would have demanded that Presidents renounce their foreign allegiances if they intended to address this issue.

Furthermore, if we look at the way the United States deals with citizenship generally as well as historically, we can see that it is extremely hard to lose your American citizenship. Minors cannot renounce their American citizenship.

One of the main reasons that I think that the dual citizen at birth argument has to fail is that it would disenfranchise an American citizen parent. Even if the government might wish to limit the rights of a foreigner parent, it would not want to limit the rights of an American citizen parent. The Wong Kim Ark case deals with a citizen child with two foreign parents, but nevertheless reaches the conclusion that the child is in fact a citizen with, as it observes, the same rights as a natural born citizen child of citizen parents. It is a stretch to read that as saying that the child of a foreigner parent is a non-natural born citizen, instead of saying that the child of a foreigner parent is identical in rights and status as the child of citizen parents.

The difficulty in reading cases, especially old cases, is that judges love to play devil's advocate and run through a number of scenarios before reaching their conclusions. One of the skills that law school teaches is the ability to filter through these arguments and determine what the court ultimately decided and what it was just trying on for size. Of course, there is often disagreement about what constitutes the "holding" of the case and what constitutes "dicta."

As I am not a constitutional scholar, I thought I would enlist some professional help. So I wrote to several law professors. I included Eugene Volokh and John Yoo, rather prominent conservative legal thinkers, thinking that if they would comment, it might help settle the issue. Unfortunately they didn't write back, perhaps thinking that the question itself was nutty. I was able to secure comment from another prominent legal scholar, Peter Spiro of Temple Law School.

Professor Spiro's email sounded incredulous: "Two citizen parents? There's no basis for asserting such a requirement (and indeed it's pretty clear that there would be no constitutional bar to a dual citizen president)."

Those are the legal facts.

All this still leaves one important question. Why is it so important to dualers that to be a natural born citizen, you have to have two American citizen parents in addition to being born in the United States?

With all due respect to the dualers, who consider themselves selfless patriots, it doesn't take much to unpack the dualer argument and see it for what it is: ultra-nationalist, anti-immigration xenophobia.

If you're worried about immigrants taking over the country, you need something to slow down the process. In corporate law parlance, the requirement that both parents of a citizen be citizens themselves places a "slow-hand" on the transfer of power from the old white power structure to a more multi-racial America.

What the dualers are really trying to do is create a third category between born on American soil (natural born citizen) and a citizen by naturalization. But nothing in our legal history, nothing in Anglo-American legal history supports this interpretation. Suggesting that one can at birth involuntarily relinquish a right is positively unAmerican both in the spirit of our nation and in our legal system.

There is absolutely no evidence to suggest that Barack Obama is not constitutionally eligible to be President of the United States.

It is important to give ideas a full and fair hearing. Dismissing people as crazies does no one any good.

Yet it is intellectually dishonest to promote these ideas without any real foundation. One might also conclude that it is unpatriotic to undermine the legitimacy of the President during a time of war.

So to the dualers I say: If you feel passionately that Barack Obama is wrong for America, you should continue to support your Congressional candidate, continue to write fair, evidence based arguments, and work to defeat Obama in 2012. But please don't question his legitimacy to serve. Or if you do, do so on a much sounder basis than a few distorted excerpts from a case decided one hundred and twenty years ago with a quite different subject matter.

And in return, we will take you seriously and not call you crazy. Deal?

*A sharp eyed commentator named GVA at the WND forum was kind enough to remind me that the time of adoption was 1787. Thanks for the correction.