In case you did not see this...(and I would really like to know your thoughts.)
This is an excellant scholarly analysis of the Natural Born Citizen topic and for anyone who is really interested in the technical analysis, is well worth reading. Not only page 22 but the last ten pages address what I see as the developing end game topics. If the Supreme Court ever reaches this issue with Obama, the opinion will be couched in these terms--the decision may vary but probably only a little.
In the first place, we all need to understand that the Supreme Court is a political institution--and its decisions are a mixture of legal principles and political reality. The Bar generally is probably 75% Liberal Democrat; the Constitutional Bar is probably closer to 90% Democrat. The author here has that as a basis for his views.
The Court is presently divided 4-4 with a swing Justice, Kennedy, the deciding vote on the close contested issues. So any analysis of how the Court would decide this kind of question will turn on Kennedy's vote. Kennedy generally tends to look for the center of gravity in the precedents.
I have set out an anlysis of Vittel on a number of occassions. Legislative History, in connection with the Constitution is not often the controlling basis for Con Law decisions. Neither is a sense of Congress Resolution.
There isn't any doubt that Vittel was accessible and considered by the founders. Exactly what the founders considered is not certain but as the author points out, the primary focus of the retained communciations among them was on persons "born in" the United States rather than on their historical parentage.
The issue of Natural Born has been actively on the table several times during the period in which I have been in practice--with Goldwater in 64; and Romney to name two examples. There are a number of articles in legal periodicals on the issue although few as well done as this particular piece; and there is a strong center of gravity in the Constitutional Law Bar, perhaps in part founded on the view that the 14th Amendment removed any limitation on the quality of citizenship obtained by a person born in the United States, to the effect that a person born in the US is a Natural Born Citizen, no matter the citizenship or heritage of his parents.
If a challenge to Obama comes down on facts that do not demonstrate that he was born outside the geographical limits of the United States, he will be held Natural Born and eligible under Article II to hold the office of President.
If his father was the man in the moon and his mother a mermaid in the South Pacific, if he was born in Lake Washington, he will be held Natural Born. That simple.
I disagree with the author in one respect--the author would put the burden of proof on the place of birth issue on a complaining party rather than on Obama.
Under circumstances where Obama has produced a number of fraudulent documents regarding his place of birth, where the record also demonstrates that over the years, he has told a number of individuals, and has made many public or semi-public statements that he was born outside the US, I think that a properly pleaded action with appropriate parties is likely to see the trier of fact holding that the burden is on Obama to show where he was born and not on the complaining party.
In context, that issue is likely to have some force, even if Obama now produces real evidence that he was in fact born in the United States. We are likely to see a legitimate inquiry as to the underlying facts before a court is convinced documentary evidence of his US birth is in fact real.
Because a second place in which I disagree with the author is the case which would be presented if Obama were in fact born elsewhere--London for example; with a classic multi-generational US Citizen father; and to a non-US Citizen mother.
In that case, I believe the argument against his being a Natural Born Citizen is persuasive. The place of birth country in any situation in the modern world has significant continuing legal authority over person's born in its jurisdiction; which is probably not cut off even by a naturalization proceeding.
For example, the US taxes worldwide income of all of its citizens. We know of a case where a prominant German investor was born in New York in 1947 to two German parents who were in New York on business when premature birth occurred.
Having accumulated hundreds of millions of dollars of net worth from income which would be taxable in the US over the last 64 years (and never having filed any US tax return), he now proposes to invest a hundred million dollars in a proprietary engine modification invention owned and developed by a US entity. In a routine assessment by his counsel, his place of birth became known and he is presently thought to be liable for criminal and civil tax penalties in nine and ten figure amounts. He is not able to come to the US at present under these circumstances.
I don't think either Obama or McCain would be held to be Natural Born under circumstances where they were born outside the United States under the sovereignty of a foreign power. There is no conclusive authority on this question and although the author here is to the contrary, I believe the center of gravity of the Constitutional Bar is on the ineligible side of the argument.