Leo Donofrio, a retired lawyer, has convinced Supreme Court Justice, Clarence Thomas, to ask his peers to consider if Barack Obama is a natural born Citizen," within the meaning of Article 2, Section 1, Clause 5 of the Constitution.
Leo Donofrio's basic premise is that the Framers of the Constitution excluded themselves from the category of natural born Citizen because they were previously subject to the jurisdiction of another country. Hence, a natural born Citizen is one who is born in the United States AND who is not subject to the jurisdiction of any other country.
According to Donofrio,
Since the Framers didn't consider themselves to have been "natural born Citizens" due to their having been subject to British jurisdiction at their birth, then Senator Obama, having also been subject to British jurisdiction at the time of his birth, also cannot be considered a "natural born Citizen" of the United States.
The biggest flaw in Leo Donofrio's analysis is that the Framers did not say that they were not natural born Citizens because they were "subject to British jurisdiction at the time of (their) birth." What they said is that:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
And they declined to define natural born Citizen, except by admitting the requirement of an exemption for themselves, thereby acknowledging that they were not included in that category. However, their exclusion could be due to the fact that they were not born in the United States, without regard to whether or not they had been "subject to British jurisdiction."
A compelling argument against the "subject to jurisdiction" idea is that the Framers would have said it, if that's what they meant. Besides, what they did say, contradicts that idea.
The Framers said that a candidate for president must "have been fourteen years a resident within the United States." That means that an eligible candidate may reside under the jurisdiction of another country for 21 years or more." Hence, it is unlikely that the founding fathers were concerned to avoid competing jurisdictional affiliations, since they expressly permitted residence in another country for long periods, including a majority of a candidate's life.
As a matter of common sense, if the Framers wanted dual citizenship, as well as foreign birth, to make one ineligible to be president, they could have easily said so. Why would they make us guess that dual citizenship is as much of a prohibition to executive office, as the place of birth, when all they had to do was to include dual citizenship as another limiting condition.
Leo Donofrio and I agree that "the Framers "didn't want future generations to be Governed by a Commander In Chief who had split loyalty to another Country," consequently, the spirit of the law infers that reasonable issues of compromised loyalty can be raised, on a case by case basis.
In the case of Barack Obama, it is not reasonable to conclude that his loyalty would be compromised, because "British citizenship" was conferred on him at birth, due to his biological relationship to an estranged and unfamiliar father. This is especially true since, there is no evidence that he exercised any rights, burdens or privileges of that citizenship, nor did he confirm that citizenship in any way.
Leo Donofrio's "subject to jurisdiction" theory is at odds with the traditional interpretation of the natural born Citizen, which has consistently been defined as a person who was born within the United States and it's territories and possessions. Barack Obama's birth in Hawaii meets that definition.
The tradition of conferring Citizenship on Americans born in the United States is so fixed, in the interpretation of Article 2, Section 1, Clause 5 of the Constitution until, even when neither parent is a Citizen, if their children were born in the United States, their children are American Citizens.
Surely Barack Obama's birth in Hawaii, to an American citizen, makes him a natural born Citizen, eligible to be President; and the event of a "citizenship," conferred on him because of his father's nationality, does not extinguish his natural born Citizen status.
Finally, Barack Obama's participation in his British Citizenship was non-existent, to the extent that it does not rise to a reasonable issue of compromised loyalty, and consequently, it should not merit a review on that issue. Therefore, Barack Obama should be allowed to assume the Presidency of the United States of America, without judicial interference.