Berg v. Obama Update — Wednesday, October 1

Shedding Some Light on Presidential Eligibility and the Courts

First Impressions, an online companion to the Michigan Law Review, just this month put together an online symposium on Arizona Sen. John McCain, “natural-born citizenship,” and eligibility for the presidency pursuant to Article II, Section 1 of the U.S. Constitution.

Five commentaries were chosen, and from a preliminary look, the kind–and stunningly attractive–people at First Impressions and the Law Review put together an in-depth look from any and all perspectives. For a PDF copy of the commentaries, click on the titles of each. Those of you interested in the relationship between the judiciary and the political process with regard to this particular issue–citizenship–stand to learn much from the hard work put forth by the authors.

Why Senator McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship
By Gabriel Chin, University of Arizona Law School

According to Mr. Chin, the laws on the books in 1936 prevent John McCain from consideration as a natural-born citizen of the United States of America.

For a number of reasons, it is a bitter irony that McCain should find himself in this legal gap. He has a reputation for advocating moderate policies with regard to immigration. In addition, it is preposterous that in 2008, a presidential candidate—a Caucasian no less—should be caught up in antique technicalities of the legal regulation of race … [a]nd now, it appears, racial considerations have frustrated his legal ability to be president by keeping him from being deemed a citizen at birth. First, the doctrines of the Insular Cases, predicated on race, kept the Canal Zone from being part of the United States for purposes of the citizenship clause of the Fourteenth Amendment. In addition, the plenary power doctrine, predicated on race, now precludes successful challenges to irrational citizenship laws. Finally, Congress and the Canal Zone authorities delayed legislation for years, the former because of government inertia and anti-immigrant sentiment, the latter until they could ensure the law would not benefit non-whites. These decisions left McCain a non-citizen at birth.

To support his argument, Chin assesses whether the Panama Canal Zone, at that time, could be considered part of “the United States” so far as Article II, Section 1 is concerned. He looks into the statutory implications and politics of citizenship, as well as the role Congress has played in McCain’s current status.

Originalism and the Natural Born Clause

By Lawrence Solum, University of Illinois Law School

In this commentary, Mr. Solum addresses how an originalist such as Justice Antonin Scalia would weigh the original meaning of the Citizenship Clause as it relates to the eligbility of those born abroad to American parents. This, of course, applies to Sen. McCain and, if you believe the allegations put forth by Philip Berg (and subtract one American parent), Barack Obama.

Solum, in order to address the question presented, looks at the Citizenship Clause as a semantic originalist would, considers the words “natural born citizen” as they appear within and contemporarily without the Constitution and concludes that the phrase is “semantically inaccessible” to modern readers and therefore must be perceived as a term of art. All in all, he concludes:

Grasping the original meaning of the natural born citizen clause may lead us to the conclusion that
the constitutional text does not provide the answer to all of our questions about eligibility for the office of President. Constitutional practice may re-quire both interpretation and construction: The original public meaning of the natural born citizen clause may not suffice to answer the question whether John McCain is eligible for the office of President of the United States.

The Justiciability of Eligibility: May Courts Decide Who Can be President?
By Daniel Tokaji, The Ohio State University — Moritz College of Law

This was my favorite, as it addresses many of the legal and procedural rules and conclusions I’ve been trying to wrap my head around for more than a month now. All three cases against John McCain are mentioned, as is Berg’s case against Barack Obama:

Another case challenged Senator Obama’s eligibility to serve as president. The complaint in Berg v. Obama was filed in the U.S. District Court for the Eastern District of Pennsylvania shortly before the 2008 Democratic National Convention. It alleged that Obama does not satisfy the Constitution’s natural born citizen requirement because he was born in Kenya, not Hawaii as he claims. The complaint also claimed that, by virtue of Obama’s moving to Indonesia with his mother as a child, he lost his U.S. citizenship. Although the assertions in this complaint are extremely far-fetched, in the highly unlikely event that these allegations could be proven, they appear to present a strong argument against Obama’s eligibility.

Tokaji, who teaches Election Law–among other things–at Ohio State’s Moritz College of Law, not only addresses the different types and requirements for standing and the challenges faced by the Inland Empire Voters, Fred Hollander, Markham Robinson and Philip Berg, but also takes a look at the other potential avenues for adjudicating the issue of constitutional eligibility and the presidency, as well as the million dollar question of whether the courts are the place for this sort of thing at all.

Read it. I plan on doing so again today when I can devote more time.

McCain’s Citizenship and Constitutional Method

By Peter Spiro, Temple University Beasley School of Law

Alas, I was not accepted by Temple Law, flat-out rejected due to my abysmal undergraduate GPA at Auburn, where I drank my way through college. So, right off the blocks, you know that the folks at the Beasley School of Law are much smarter than I. Now, because McCain was born in the Panama Canal Zone in 1936, eleven months before children born there to U.S. citizen parents were granted citizenship, Professor Spiro begs the question of whether McCain can legally qualify as a natural born citizen despite not being born a citizen at all.

To answer the question, he looks at the arugments put forth by Chin, the author of the first commentary in the symposium, and among other things weighs the definition of “natural born” outside the courts. Spiro, who has written books on the declining spectre of citizenship in the increasing climate of globalism (something I’d like to read next summer, after the law books are put away for a few months), dismisses the fear of a “Trojan-horse candidate usurping
the presidency and serving the interest of a foreign power” exhibited by our founding fathers in the fifth clause of Article II, Section 1 on grounds that the significance of citizenship as a while is rightly fading in an age where “circumstances of birth say nothing about the quality of an individual’s tie to the national community.”

Interestingly enough for those who got their panties in a bunch over the not-so-recent admission by Barack Obama that he had, at one time, dual citizenship with Kenya, Spiro mentions that there is indeed nothing in the U.S. Constitution enjoining a man or woman with dual citizenship from assuming the presidency.

Still, Spiro contends, the significance of citizenship is fading, and the possibility that a man born in the Panama Canal Zone may become 44th president of the United States only perpetuates the trend.

Why John McCain Was a Citizen at Birth
By Stephen Sachs

In this commentary, Sachs rebuts the arguments put forth by Gabriel Chin, suggesting that the statutory “loophole” in which the Arizona senator was born is in fact an “illusion,” and has no effect on McCain’s status as a natural born citizen or his eligibility to serve as president of the United States.

Here, the author looks at the text of the statutes in question, the issues surrounding extraterritorial jurisdiction and at births aboard ships, among other things, and concludes that John McCain was a U.S. Citizen at birth.



  1. Jet says:

    Perhaps you should also include Judah Benjamin’s articles on dual citizenship and how Article II relates to it.

  2. Brian says:

    I think you need to get more sleep. Today is Oct. 1st. Another month closer to disaster…

  3. Jeff Schreiber says:

    HA!! Thanks, Brian.

    Sometimes, the days all blend together. I’ll fix it.


  4. Anonymous says:

    Brad will probably comment eventually but I’ll say thanks for him for the free advertising! –Katherine

  5. halva says:

    When one contemplates the complexities of all these matters it is impossible not to start wondering if the real unacceptability of Hillary Clinton was not her undoubted constitutional right to occupy the post of President of the United States.

    Why have two candidates been favoured with this potential for triggering a barrage of lawsuits in the event of either of them winning?

    Is this to be the post-electoral scenario??

  6. Koyaan says:

    Just some food for thought.

    I would argue that at this point in time, even if one were to assume that Obama is not a “natural born citizen,” there is nothing the judge may do with regard to Article II.

    Article II states that no person shall be “…eligible TO the office of President…” which means to actually hold that position.

    It places no restrictions on who may SEEK the office. Only upon actually holding that position.

    So I see no grounds upon which a judge could prevent anyone from seeking the office of President. And to that end, I don’t see that any constitutional issue would even be triggered until AFTER the requisite number of electoral votes had been cast for that person.

    And even if THAT should occur, statute provides for those votes to be objected to by Congress.

    Further, the Twentieth Amendment actually anticipates the possibility that a President-elect may ultimately fail to qualify for the office, and provides for who will serve as acting President until a President has qualified.

    So to sum up, first, there is no Constitutional issue to be decided here, and second, if it does become an issue, there are already constitutional and statutory mechanisms in place to deal with it and I see no reason whatsoever for any federal judge to intercede at this time.


  7. Jeff Schreiber says:


    I’d like to get some official comments from him, if possible, so tell your husband to answer his e-mail!

    Thank you, by the way, for the birthday gift. I still have not opened the inner gift box, though from the little card I have an idea of what it is.

    You guys are the best.

    – Jeff

  8. Anonymous says:

    yay! I’m glad you got it! I can’t wait for you to open it! This gift is officially from me because I’m the more political freak than Brad but Brad is working on coming up with something for you as well. :-)

    Oh and Brad is out of town now so that could be the delay. He has interviews in NY.


  9. Anonymous says:

    I took the liberty of recommending Tokaji’s article to Reader Articles at Real Clear Politics. It strikes me as an official publication that the MSM might respond to, and it has some discussion of points in Berg v Obama. You may want to take a look and vote there.

  10. Anonymous says:
  11. Anonymous says:

    Koyaan, your food for thought makes me want to regurgitate!
    Funny, you sound exactly like a poster on Phil Berg’s website!

  12. Jeff Schreiber says:


    Yes. What you see there is a proposed order, a procedural deal.

    Nothing from the judge yet. Once there is, I promise you will know.

    – Jeff

  13. Anonymous says:

    Dear Jeff,
    I am so glad I found myself to your site. I am hugely impressed with quality of the food for thought that I find here. The MSM ought to take note of what you bring to light here.
    In reading the here linked Law Review commentaries as well as the McCain elegibility issue case-rulings and the Obama elegibity issue case-filings in BERG v. OBAMA, it appears to me that the critical difference between the McCain and the Obama cases is key to assessing and determining the justiciability issue. The McCain question is strictly an issue of pure law as there is NO dispute over the facts. The Obama eligibity question, on the other hand, turns on issues of fact, as the law applicable to the Obama facts, (if and when established)is not really disputed.
    As I understand it, the Obama elegibility question would be answered and resolved and the case CLOSED, if Obama were simply to provide the requested proof that he was in fact born in Hawaii (that is, produce his “vault” birth certificate that shows the hospital were he was born and names the witnesses to his birth) and were to, moreover, provide proof that his “born” US citizenship status, if any, was not relinquished and/or left unrestored by his Indonesian years (that is, by his living as the professed “son” of an Indonesian father and going to school for five years as a professed citizen of Indonesia).
    The McCain citizenship elegibility question may indeed be finally resolved and adjudicated for all time only by a ruling from the US Supreme Court speaking on the unique legal issue involved. The Obama question is put to rest much more simply. All it requires is the EVIDENCE that proves Obama is a “natural born” US citizen. Any court with jurisdiction or agreed to trier of fact can resolve that factual dispute.
    Very respectfully,

  14. Koyaan says:

    anonymous wrote:

    Koyaan, your food for thought makes me want to regurgitate!
    Funny, you sound exactly like a poster on Phil Berg’s website!

    I am a poster on Phil Berg’s website.

    And just like virtually all of the other posters on Phil Berg’s website, you can’t seem to address anything I’ve actually said.

    Instead, you can only respond with mindless personal attacks.


  15. Anonymous says:

    I congratulate you as publicist to question what is the most minimum standard B. (BE) Saddam Hussain (?) Obama SHOULD ALREADY HAVE PROVEN.
    Also, visit
    to also see the big picture of “ACORN” and what sure looks like the “origin of the species”.

    Humor. If man evolved from the apes, Democrats seem to have evolved from/as Baboons whose bare behind is completely indistinguishable for that part of Democrats who are confused by any bare ass Baboon/Democrat and confuse that bare ass of the same sex for the opposite sex?

Speak Your Mind