Birther Stuff and possible consequences

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.

I am The Won!

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 has 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.

There is no problem.

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.

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About danmillerinpanama

I was graduated from Yale University in 1963 with a B.A. in economics and from the University of Virginia School of law, where I was the notes editor of the Virginia Law Review in 1966. Following four years of active duty with the Army JAG Corps, with two tours in Korea, I entered private practice in Washington, D.C. specializing in communications law. I retired in 1996 to sail with my wife, Jeanie, on our sailboat Namaste to and in the Caribbean. In 2002, we settled in the Republic of Panama and live in a very rural area up in the mountains. I have contributed to Pajamas Media and Pajamas Tatler. In addition to my own blog, Dan Miller in Panama, I an an editor of Warsclerotic and contribute to China Daily Mail when I have something to write about North Korea.
This entry was posted in Abuse of Power, Birthers, Conservatives, Constitution, Courts, Democracy, Elections, Free Press, Freedom, History, Impeachment, Justice, Law and Order, Obama, Political Correctness, Politics, Republicans, Society, Supreme Court, the Basics, United States and tagged . Bookmark the permalink.

19 Responses to Birther Stuff and possible consequences

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  6. ehancock says:

    Re: “If born in Hawaii, he probably qualifies as a “natural born citizen” regardless of the citizenship of either or both of his parents. ”

    Precisely. And Obama was born in Hawaii, as his birth certificate, the confirmation of three Republican (and several democrat) officials in Hawaii and the birth notices in the Hawaii newspapers in 1961 all show. (in 1961 Hawaii newspapers did not accept birth notice ads nor did they take notices from relatives; they only took the official notices sent to them by the DOH of Hawaii, which only sent out notices for persons who had birth certificates, and which in 1961 did not issue birth certificates to persons born outside of Hawaii.)

    And as noted, there is no evidence from Kenya or any other country that Obama was born there or that his mother was there in 1961 and no US travel documents showing that she traveled outside the USA in 1961 or that a US travel document was given to Obama, or that the US INS checked her or him in or out of the USA in 1961.

  7. ehancock says:

    Re: “A friend of mine sent me an e-mail claiming that Occidental College had released Obama’s transcripts and that he was (as Barry Soetoro) a Fulbright Scholar..”

    That was originally published as an April Fool’s article on April 1, 2009. None of it is true. Oh, and by the way, Fulbright Scholarships are given only to graduate students and Occidental has said that Obama used the name Obama while attending Occidental.

  8. ehancock says:

    You have said that you do not know where Obama was born. Therefore you must believe that there was a chance that he was born outside of the USA. If you really believe that is possible, then you should have explanations for the following.

    For those of you who still believe that Obama could have been born in Kenya, or in fact in any foreign country, a question for you:

    I’ll bet that you know (but, actually, you may have forgotten) that the US government requires, and has long required, that a child being carried into the USA must have some kind of official travel document to be admitted. This is usually a US passport for the child. Or, it could be the fact that the child is entered on the mother’s US passport. Or, it could be a US visa for the child on a foreign passport. Without one of those, we would not let the child into the country.

    So, IF Obama really had been born in Kenya (or in any country other than the USA), he would have had to have one of those documents–wouldn’t he? His family would have had to show the passport, wouldn’t they? To show the passport, they would have had to have applied for the passport or the visa for Obama. And, if Obama really were born in Kenya (or another country), they would have had to have applied for it in the US consulate or embassy there, wouldn’t they?

    Such applications are FILED by the US government. The documents exist in multiple files, the actual application itself, communication about it with Washington, entries in the passport file, entries in the application file, entries in the places where the child is carried into the USA. The Bush Administration was in charge of the State Department and the INS for eight years before Obama was elected. Don’t you think that they would have checked the claim that he was born outside the USA?

    All they had to do was find one of those files and McCain would win the election.

    Well, they never did. There is no such file.

    So the question is, do you think that the Bush Administration was part of the plot?

    Do you think that the files, the documents, the application for the documents, the communications about the documents were all lost or hidden? Remember, they are in multiple files, the file of the passport holder, the files of applications for passports, the files in the US embassy in foreign countries, the files in the State Department and in the INS (which would have checked in Obama at an entry point if he had actually traveled in 1961)–and yet no document has been found. Why not?

    The absence of the travel document, plus the Hawaii birth certificate, plus the confirmation of the facts on it by three Republican (and several Democrat) officials, plus the birth notices in the Hawaii newspapers in 1961, plus the witness who remembers being told of the birth and writing home about it (to her father, named Stanley, about the unusual event of a birth to a woman named Stanley). All this is evidence that Obama was born in Hawaii. Oh, and by the way, Obama’s Kenyan grandmother NEVER said that Obama was born in Kenya. That was the first of the birther lies. She said repeatedly in the taped interview that he was born in Hawaii. And she said in another interview, with the Hartford Courtant newspaper, that the first that her family had heard of Obama’s birth was IN A LETTER FROM HAWAII.

    So the odds are overwhelming that in fact Obama was born in the USA. In contrast, none of the Republican candidates for president has shown his birth certificate. What are the odds that one of them was in fact not born in the USA?

    Re the definition of Natural Born Citizen. The meaning comes from the common law, not from Vattel (who is not even mentioned once in the Federalist Papers, while the common law is mentioned about twenty times and whose words were not even translated to read “Natural Born Citizen” in English until ten years after the Constitution was written). The meaning of Natural Born in the common law goes back about 300 years and refers to the PLACE of birth, not to the parents.

    “Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President….”—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]

    • I do not know where President Obama was born. You say, For those of you who still believe that Obama could have been born in Kenya. . . . I don’t believe that he was born in Kenya; belief is a religious matter, and I am an Agnostic on that as on many other matters.

      For the reasons stated in the article, I very much hope that the matter will be clarified, and soon. Apparently President Obama is the only person who can authorize the release of the original, paper version, of his birth certificate for appropriate forensic analysis. He has thus far refused to do that.

      • ehancock says:

        Neither Obama nor anyone can release the original birth certificate of Hawaii.

        Original birth certificates are held by the state of Hawaii and not shown to anyone outside of government.

        The law specifies that they can only send out copies of the original, and only to select people on a list (the person and relatives mainly). Then the person who receives the birth certificate can show it.

        This is what Hawaii has done already, twice–short form and long form. It sent both of them to Obama, and Obama has shown each of them, both images of the document on the Web and the actual physical copies. Three Republican and several Democrat officials in Hawaii have confirmed the facts on Obama’s birth certificate. The fact that Obama had a birth certificate in 1961 is further confirmed by the birth notices in the Hawaii newspapers (which in those days were only from official notices of the DOH; the papers did not accept birth notice ads at the time, and the DOH only sent out notices for people who were born in Hawaii. And there is even a witness who recalls being told of Obama’s birth and writing home about it.

        All these are facts that show that Obama was born in Hawaii.

        Conversely, there is no evidence that Obama was born in Kenya or in any other country. There is evidence that Obama’s mother traveled outside of the country or that she returned or that he was checked in by the INS or that he received a US travel document such as being entered on his mother’s US passport or getting his own or receiving a US visa on a foreign passport.

        All the claims that Obama could have been born outside of the USA come from people who hate Obama. Three times birthers have published forged “Kenyan birth certificates.” Often they claim that Obama’s grandmother said that he was born in Kenya—when the text of the interview says that she said that he was born in Hawaii repeatedly. Kenya is thousands of miles from Hawaii, and the trip would have been terribly expensive—and risky late in pregnancy—and yet they keep repeating that claim.

        All the doubts about Obama’s place of birth come from people who hate him, many of whom are willing to lie about the facts. Obama’s Hawaii birth certificate exists and must of existed in 1961 as the birth notices in the newspapers show. Many officials from the opposing party even before the election confirmed the facts on Obama’s birth certificate, and yet you still have doubts.

        Belief is a RATIONAL matter. The earth is round. The USA sent astronauts that landed on the moon. 2+1=3–or do you still have doubts?

  9. Ruvy says:

    Hi Dan,

    A friend of mine sent me an e-mail claiming that Occidental College had released Obama’s transcripts and that he was (as Barry Soetoro) a Fulbright Scholar there as an Indonesian citizen ( I still remember the days the New York Daily News would talk about Senator “Halfbright” – or Senator “Quarerbright”). My e-mail searches on this were fruitless. Either the data had been scrubbed or Snopes had “debunked” it. I have ceased believing Snopes regarding Obama. Other similar items were hard to find. I’m not a birther. But a man who seals his citizenship records and every damned thing that might indicate what he has done in his short life is acting as a man with something to hide. The bad smell from Obama stinks all the way up here in the windy mountains of Samaria, it is that bad.

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  12. Diva says:

    “If Obama isn’t a natural born citizen because his father wasn’t a citizen, then what about Mitt Romney, who’s father was born in Mexico?”

    Mitt Romney’s father, George Romney, was born in Mexico to two American citizens. George’s American citizenship was automatically bestowed upon him from his American citizen parents even though they were temporarily residing in a foreign country. Ditto for John McCain who was born in Panama.

  13. Mike says:

    I can’t accept the birther premise, and even less the “not a natural born citizen” premise. If Obama isn’t a natural born citizen because his father wasn’t a citizen, then what about Mitt Romney, who’s father was born in Mexico? Plus, any conspiracy theory that originated with pro Hillary Democrats should be held suspect on those grounds alone.

    You did raise an interesting constitutional issue, “A debilitating constitutional crisis would have arisen had President Obama been found constitutionally unqualified for the office after assuming it.” However since the House accepted and ratified the electoral college vote, that makes Obama the President, even if he had been born somewhere else. With only a few months to go to the election, I think the concentration should be on removing him from office the old fashioned way, by voting him out of office.

    • The presidential candidacy of Governor Romney should raise no “Birther” issues. I have seen no questions raised as to this:

      Romney was born in Detroit, Michigan.[1] He was the youngest child of George W. Romney, who by 1948 had become an automobile executive, and Lenore Romney (née LaFount). His mother was a native of Logan, Utah, and his father had been born in a Mormon colony in Chihuahua, Mexico, to American parents.[2][3][4]

      Even if Governor Romney’s father did not become a U.S. citizen at birth, and even if he had never thereafter been naturalized, his mother’s U.S. citizenship should suffice to make Governor Romney a “natural born” U.S. Citizen. I am unaware of any judicial decision suggesting otherwise.

      I agree that the principal focus must be on not reelecting President Obama. He has been bad enough during his first term and would almost certainly be worse during a second. His recent “off mike” statement to Dmitri Medvedev is shocking but hardly surprising. Here is the exchange:

      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.

      In what other areas would President Obama have “more flexibility” to do what after his reelection? I do not want to find out.

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