Opinion Forum

Birther Stuff and Possible Consequences

March 25th, 2012

I don’t know how big a problem we have now, but the Birther stuff is being pursued more vigorously and more effectively than previously. If not wisely done it could get out of control with potentially disastrous consequences for the nation.

Whether President Obama is a “natural born citizen” for purposes of Article II of the United States Constitution has been much ventilated recently in the conservative blog sphere but far less in the mainstream media. I do not know where President Obama was born and many claims have been made. I do not even know absolutely where I was born — I do know that my birth certificate (that I needed to produce to get a U.S. Passport) and hospital records (one with an imprint of my cute little baby foot) state that I was born in Washington, D.C. at Columbia Hospital for Women in 1941; my parents confirmed that. I believe that’s where and when I was born, but belief and absolute knowledge are different.

I suppose that it is possible to know with substantial certainty where one was not born. For example, had a birth certificate been fabricated to show that I was born in Montreal (rather than in Washington, D.C.), if I were aware of that fabrication, if I used it because having been born in Montreal would afford me rights having been born in Washington, D.C. would not afford me, and if I knowingly took advantage of those rights then I probably would know with substantial certainty that I was not born in Montreal.

Questions of whether President Obama is an imposter are asked here. Substantial speculation would be required to answer those questions for many of the same reasons that substantial speculation is presently necessary to attempt to learn whether President Obama is constitutionally qualified as President.

Some have claimed that even if born in the United States, President Obama is not a natural born citizen because his father was not a United States citizen.

According to Article II,

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.

Unfortunately, there has been no definitive Supreme Court determination of what “natural born Citizen” means for purposes of Article II. By “definitive determination,” I refer to a statement by the Court upon which its decision is based — not obiter dicta, said perhaps in passing but unnecessary to the decision. There is a good discussion of what that means here.

Holdings, or ratio decidendi (Latin for “the rationale for the decision), are those parts of a court’s opinion that are binding on lower courts and later courts. This binding is referred to as the doctrine of stare decisis which provides hierarchical (vertical) and temporal (horizontal) continuity throughout the judicial system. Obiter Dicta (Latin for a statement “said in passing”), or dicta, are those parts of a court’s opinion that are not binding on lower courts and later courts. Dicta may suggest an interpretation of the law that may prove useful in future cases. …

Consider the example found in Minor v. Happersett (1875), a Supreme Court case dealing with the constitution of the State of Missouri that ordains: “Every male citizen of the United States shall be entitled to vote.” The following passage is from J. Waite’s opinion:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. (Emphasis added)

That case, most often cited on the point, contains only dictum as to whether a child born in the United States must also be the child of one or more United States citizens. For purposes of this article, the meaning of “natural born citizen” need not be explored further. It is not particularly useful to explore whether President Obama’s mother (who was) but not his father (who wasn’t) was a United States citizen when President Obama was conceived or born, until we have reliable evidence as to where, in fact, he was born. And there is the rub: we thus far do not have that. If born in Hawaii, he probably qualifies as a “natural born citizen” regardless of the citizenship of either or both of his parents. If born outside the United States, to a non-citizen father and citizen mother not serving the United States in some official or even quasi-official capacity, he very probably does not.

These matters should have been, but were not, explored before President Obama was nominated and certainly before he was inaugurated.

The matter was then ignored by the mass media and, somewhat strangely, by the Republican party. After that, it became too late — until now — for at least the following reasons:

1. A debilitating constitutional crisis would have arisen had President Obama been found constitutionally unqualified for the office after assuming it.

2. In particular, the status of every presidential act, including every executive order, every appointment and every piece of legislation he signed or vetoed, would have become highly questionable. There is no legal precedent adequate to provide appropriate guidance and fixing the mess after the fact would have been worse than trying, while wearing mittens and a blindfold, to put toothpaste back into the tube.

3. The nation’s relations with foreign countries, poor as they have already become, would probably have become even worse very quickly.

4. The courts would most likely have declined to consider the issue after the presidential inauguration, labeling it a political question already decided by the Congress under the Twelfth Amendment and/or by the state electors when they voted. The courts generally decline to hear “political issues.”

It may not be too late now.

If President Obama is reelected this year and is inaugurated in January of 2013, it will again be too late to escape these constitutional crises, for the same reasons.

Therefore, it would be best for them to be resolved promptly. Were President Obama to sign whatever may be necessary to authorize the State of Hawaii to release his original, paper long form birth certificate (not just a digital or paper copy). Then there could be proper independent forensic examinations and the matter might be resolved satisfactorily. President Obama’s consent to the release of an original document seems less than likely and such a birth certificate may or may not exist — whether it does has been a blogging football.

It would also be very good if President Obama were to clarify his status as a college student, particularly as to whether he was registered and received financial or other assistance as a foreign student. Such clarification should, obviously, include the release of appropriate documentation.

Beyond that, it does not seem likely that President Obama can say or do much that he hasn’t already said or done to support the thesis that he is a “natural born citizen.”

Some states might take the position that President Obama has not adequately demonstrated his current eligibility for (re)election and it is conceivable that he might thereby forfeit sufficient electoral ballots to lose the election. However, a court or courts might order the November election postponed pending final judicial review. While perhaps unlikely that a court would do so, final resolution could take most of the next term and would present substantial questions as to what, if any, action a presidential candidate needs to take in order to establish his constitutional qualifications — actions that only President Obama seems to be in a position to take. President Obama might even be permitted to remain in office pending final resolution, maybe even after January 2017, because he would have served only one full elected term and hence, were it ultimately held that he had done everything necessary to establish his constitutional qualifications, he could run again in the next election.

Here are parts I and II of an interview with a Washington Times columnist concerning the Birther kerfuffle. In many ways the speaker seems to come across as a kook, but much of that may well be the result of the disparagement of Birthers as kooks by the mass media in the United States — to an even greater extent than those opposing various of President Obama’s policies and actions have been disparaged as racists. We have read and heard such disparagements with such frequency that many have stuck, like feces thrown against a wall. That’s about all we have read and heard from most of the mass media on these subjects.

I wish that I had some nifty suggestions as to what could be done to avoid such problems; I don’t. Here’s the best I have been able to do.

1. President Obama could decide not run for reelection, on the “noble” ground that Birther, racist and other attacks have become very hurtful to him and to his family as well as divisive for the nation and he that does not want such specious attacks to tear the nation further asunder. That seems unlikely.

2. Alternatively, if the matter gets to an authoritative court soon enough (very unlikely), the court could refuse to decide whether he was or is actually constitutionally qualified and merely find that he has in any event failed adequately to establish his qualifications for the 2012 election. Such a ruling probably would not leave all presidential acts since January of 2009 in limbo and therefore probably would not precipitate a constitutional crisis.

One further thought. In August of last year, I wrote an article asking Shall we have another civil war. I urged that another would probably be unsuccessful, would be grossly destructive to the nation and hence would be very bad. It turned out to be the most widely read article at my insignificant little blog, ever. There were 1,243 views on the first day and it continues to be read — as of today, there have been 2,580 “hits.” For my blog, that’s spectular. Another article, published in December of last year, entitled The U.S. Constitution and Civil War ranks next, with 1,414 total views.

Perhaps we are already coming close to a rebellion. Legal sales of firearms and ammunition are currently up, rather dramatically; I am unaware of any comparable statistics on illegal sales.

Gun shop owners around the nation told FoxNews.com that sales, brisk ever since President Obama was elected, have spiked upward in recent months. And manufacturers are having so much trouble keeping up with the demand that one, Sturm, Ruger & Co., can’t keep up with demand. The Southport, Conn.-based company has had to suspend new orders after taking orders for more than 1 million guns in the first three months of the year. Smith & Wesson sales are way up, as well. …

This year’s uptick comes on top of a record 2011, when nearly 11 million firearms were sold in the U.S., according to the National Shooting Sports Foundation, a trade association for the firearms, ammunition, hunting and shooting sports industry. The group notes the $4 billion firearms business has bucked the weak economy, with robust sales since 2008.

There could be many causes, including fears that if President Obama is reelected Second Amendment rights will be increasingly infringed and that crime will increase as police resources diminish, making self defense more necessary. Whatever may be the causes, we cannot afford to have anything resembling another civil war because the nation as we know and love her still, even with all of her flaws, could be badly damaged. Instead of being a great source of national unity, President Obama has contributed so massively to national divisions that unless the Birther matter is resolved very soon or another candidate is elected, we may well have another.

(This article was also posted at Dan Miller’s Blog.)

Articles written by Dan Miller
Tags: birther, citizenship, Constitution, natural born, President, qualifications
Categories: Law, Politics | Comments (6) | Home

6 Responses to “Birther Stuff and Possible Consequences”

Tom Carter | March 25th, 2012 at 8:20 pm

The question of whether President Obama is eligible to be president has mind-boggling implications and is best left alone. The last thing we need is to find that he’s not constitutionally qualified, either now or in terms of the 2012 election. You mentioned many of the problems that would result, and the whole thing would tear the country apart.

There’s a simple solution. If enough people are against him, for whatever reason, then he’ll be defeated in 2012 and the question becomes moot. If he’s re-elected, then we move on and wait until 2016. Regardless of dire right-wing predictions, he’s not going to irreparably harm the country.

I don’t know for a hard fact where he was born, but I’m willing to accept the repeated, documented assertions of the State of Hawaii that he was born there. That should be good enough for all but the most hard-core conspiracy theorists.

One point: As you note, it’s never been definitively settled that a person’s parent(s) have to be U.S. citizens in order to gain U.S. citizenship by birth on U.S. soil. However, there are many decades of practical precedence and millions of examples that indicate the citizenship of parents is irrelevant. It happens all the time — an illegal immigrant gives birth in the U.S., sometimes just making it across the line before giving birth, and voila! an “anchor baby” who’s a citizen and has the right to bring in family members as immigrants.

Dan Miller | March 26th, 2012 at 10:11 am

Tom, you say,

I don’t know for a hard fact where he was born, but I’m willing to accept the repeated, documented assertions of the State of Hawaii that he was born there. That should be good enough for all but the most hard-core conspiracy theorists.

Oft repeated statements of fact are not on that account necessarily true. Some turn out to have been true when made and some turn out to have been false when made.

Questions have been raised about whether President Obama was given college scholarships as a foreign student and about whether he traveled on a non-U.S. passport; appropriate documents have not been released. Official documents relating to his and his mother’s post-Indonesia entry into Hawaii have turned up missing. Of probably greater significance, only digital copies of his purported birth certificates have been released and as I understand it there is no way to conduct a suitable forensic analysis of such digital reproductions. While practicing law, I several times employed well qualified document examiners to analyze original typewritten documents and to determine what typewriter was used to type them. That required the originals of the documents because typewriters, unlike modern ink jet or laser printers, make impressions of various depths and at various angles on paper and it can almost always be determined whether a particular typewriter was used. If the particular typewriter in question cannot be located, it can at least be determined whether a typewriter available at the time the document is said to have been typed was used to prepare it. Presumably, back in early 1960s, birth certificates and other documents were prepared by hand or by typewriter. The digital reproductions of President Obama’s claimed birth certificates include typewritten material, which it is impossible to analyze properly.

Apparently only President Obama can authorize the release of various original documents, yet he has inexplicably declined to do so. In view of these and other questions that have been raised, it is not necessary to be among the “most hard-core conspiracy theorists” to have even substantial doubts.

Articles such as this one in Forbes Magazine suggesting that President is a “Manchurian Candidate” have disappeared, as have many rather innocuous articles questioning the expenses we incurred due to President Obama’s daughter’s spring break in Mexico.

President Obama strikes me as a less than highly trustworthy person. I hope he will [a] be defeated if he does run this year, [b] decline to run this year or [c] release/authorize the release of the various documents. Absent one of those events, I remain quite concerned for the future of our country.

Tom Carter | March 26th, 2012 at 1:28 pm

“Questions have been raised….” Questions can be raised about anything and everything, and without proof they mean little or nothing. The mere fact of a question having been raised doesn’t obligate the target of the question to prove anything at all. It’s up to the questioner to prove the validity of his charge.

Those who question Obama’s place of birth haven’t been able to prove anything, and efforts to support their views in courts have failed. If there were state laws requiring a candidate for president to prove his place of birth, then candidates would be obligated to do it. There aren’t, and they aren’t.

Along these lines, I’d like to take this opportunity to question the sanity of Ron Paul. He seems to be crazy, and I demand that he prove otherwise.

Dan Miller | March 26th, 2012 at 1:45 pm

Tom,

President Obama seems to have sole control over whether the documentary evidence is made available. He is not a criminal defendant and, in the interest of resolving the “Birther” issue, he should make that evidence available.

I think that the states should have laws requiring candidates to establish their eligibility. That would go a long way towards keeping “Birther” distractions from arising in the future.

Off point, but did you read about this exchange between President Obama and Russian PM Medvedev?

President Obama: On all these issues, but particularly missile defense, this, this can be solved but it’s important for him to give me space.

President Medvedev: Yeah, I understand. I understand your message about space. Space for you…

President Obama: This is my last election. After my election I have more flexibility.

President Medvedev: I understand. I will transmit this information to Vladimir.

I find it all rather threatening.

abpavelski | March 27th, 2012 at 1:59 pm

The question is which venue or jurisdiction is the Obama Care case being heard is it the U.S. Supreme Court or the Supreme Court of the United States, they are different courts.

I believe one court translates the statutory law as written and interprets the statute for use and if it can actually be applied; the other would determine the (un)constitutionally of the Obama Care law.

I suspect it is in the wrong court ,(U.S. Supreme Court), so it will not be overturned.

The attorney filing the case determines which court hears the case and then Court decides if they will hear it.

Please correct me if i’m wrong.

Tom Carter | March 27th, 2012 at 2:42 pm

That’s incorrect. There’s only one Supreme Court, as provided for in the Constitution. Maybe you’re referring to something else that isn’t obvious?