The birther issue: A Constitutional look

President Barack Obama released his birth certificate on April 27, but “birther” arguments continue.

Election and constitutional law expert Gregory Magarian, JD, professor of law at Washington University in St. Louis, says that Obama clearly meets the constitutional qualifications to hold his office.

Magarian discusses various situations where “natural born citizen” (as required by Art. II, sec., 1 cl. 4 of the Constitution) may come into question during a presidential election.

“Occasionally questions have arisen about the territory this statement covers,” he says. “Senator John McCain, for example, was born in a U.S. territory (the Panama Canal Zone), and some people suggested that he was therefore not a ‘natural born citizen.’ Constitutional law experts very quickly and easily came to the conclusion that ‘of course he was.’”


Magarian says that the McCain controversy suggests that a person born abroad to U.S. citizen parents might have a problem.

“Both of McCain’s parents were U.S. citizens, but the premise of the argument was that he wouldn’t meet the constitutional requirement if he was born outside U.S. territory,” Magarian says.

“I think the best interpretation of the requirement would be that someone born abroad to U.S. citizen parents would satisfy the requirement. The situation would be different if the U.S. citizen parents had dual citizenship, or if the child was otherwise entitled to foreign citizenship.”

Magarian notes that the 14th Amendment makes clear that a child born in the United States even to noncitizen parents is still a U.S. citizen. “A person born here in those circumstances clearly would satisfy the constitutional requirement,” he says.

“Making birth citizenship an issue looks bad if the charge isn’t true. The Obama campaign distanced itself from any question about McCain’s citizenship.

“Most people frankly don’t care much about citizenship technicalities, but if a candidate really was born abroad and lies about it, people will care,” Magarian says. “That’s the spark behind the birther issue.”