The government should have an affirmative duty to investigate candidate qualifications and to make public any documentation thereof; after all, when they apply for the highest office in the land, they should be held to the strict constitutional standard and every citizen has a right to see that the Constitution is followed.
Certain elements of the blogosphere have recently paid a tremendous amount of attention to the question of whether or not the state of Hawaii should be required to produce the original birth certificate of president elect Obama. Regardless of claims that this is a red herring, or assertions that Phillip Berg is a crackpot who should be ignored because he is a “911 truther,” the certificate should be produced. Secondly, Berg’s suit should be taken seriously, and his standing to sue should be affirmed.
While the courts have generally looked with disfavor on suits such as his, they have been wrong to do so, and they should allow this suit for a very simple reason. When no one else, i.e. government agencies, is enforcing the law of the land, only private citizens may do so, and the only manner in which they may do so, short of armed insurrection is in the courts. Within this context, Berg is effectively acting as a “Private Attorney General” acting on behalf of all of the citizens of the United States. He does so because the Federal Election Commission, the other candidates and the U.S. Attorney General have done nothing to determine Mr. Obama’s eligibility. All of them could have and should have. The situation is similar to that which occurred in 1968, when the Peace and Freedom Party submitted the name of Eldridge Cleaver as a qualified candidate for President of the United States. California Secretary of State Frank Jordan, discovered that according to Mr. Cleaver's birth certificate, he was one year short of the required 35 years needed to run. Cleaver was removed from the ballot and Jordan’s actions were upheld in the courts.
The concept of the private attorney general has existed for a long time. Frequently, it has been found in class actions where someone seeks to force the government to follow its own rules. The courts have frequently allowed private attorney general lawsuits to proceed where civil rights violations are concerned. This situation is not significantly different, as the rights of the entire population to see the constitution followed should trump any other consideration. We must ask, if the government is not going to enforce its own rules, then who will, if the courts say that private citizens cannot.
As I have not seen Berg’s paperwork, I cannot state whether or not he used this approach in his petition, and if not, it may have been a fatal error. None-the-less, Berg is right in making his request and his suit should be allowed to proceed because he is certainly asserting a case based on reasonable doubt, and a presidential candidate should be required to prove that he or she is eligible for the office they seek. And, the government should have an affirmative duty to investigate candidate qualifications. After all, a person seeking much lower privileges, such a driver’s license or voter registration must produce a birth certificate; why not a candidate for the highest office in the land. Which situation implies a higher duty by government officials; state statutes or the national constitution?
A second approach, favored by Dean John Eastman of Chapman University Law School, which he discussed with Hugh Hewitt on the Salem Network, December 3, 2008 is based on the corporate law principle that the shareholders can sue to force the officers or directors to follow the corporate charter or bylaws. The Supreme Court has never accepted this view, with respect to constitutional issues, either. Its view that citizens have no standing has allowed it to dodge difficult issues where the Constitution is concerned, despite the fact that they should undertake enforcement of the “supreme law of the land” as Chief Justice Marshall put it many years ago.
The state of Hawaii is asserting that privacy laws forbid it from revealing the certificate. This should be considered a bogus claim. Anyone running for the presidency has placed himself in the arena of a public, rather than a private citizen. A candidate is, for all practical purposes, giving up his privacy rights, and making his or her entire life open to scrutiny by the public and the press. Their personal records should and must be part of this. If Obama supporters are allowed to investigate and report on “Joe the Plumber” with impunity, the public has an equal and reciprocal right to investigate a candidate.
There is a second and even more important reason why the certificate must be produced. As Berg’s suit, and those of other parties have pointed out, birth status is a constitutional requirement to hold the office of president. If this rule is not followed, then it brings into question the issue of whether or not any aspect of the Constitution, at all, must be followed. Already we have seen challenges in the courts and in the overall media environment of certain government actions. Whether we are dealing with establishing the Federal Reserve Bank, removing Saddam Hussein from power in Iraq, or bailing out the financial and automobile industries, people have valid questions. Sometimes it is not enough to say “you have no standing to sue” or “this is covered under the legislative interstate commerce clause and is settled law.” It is a slippery slope argument, but such arguments are not invalid simply because of the foundation they are built on. The courts should regularly review such actions to prevent legislative power from running unchecked. The intent of the framers of the document should carry significant weight in such review.
As for the Obama birth certificate, I, personally, have no interest in the thing beyond silencing the argument over it once and for all. If the certificate is never produced, and proper birth status is never verified, one way or the other, it will likely become the core of another Great American Conspiracy Theory such as those surrounding the death of John F. Kennedy. The Kennedy assassination conspiracies have been debunked, for all practical purposes, but they haven’t gone away. We don’t need another one of these things. We need openness, we need transparency and we need honesty. If there is a valid certificate, stating all of the relevant information as the state of Hawaii asserts, the Supreme Court or any other court should support its production for public view. I doing so, it can state a compelling public interest; the interest that the Constitution must be followed, and that anyone who seeks office governed by the Constitution must prove their eligibility, or it calls constitutional authority into question. In fact, every candidate from Hilary Clinton to Rudy Giuliani should have been required to produce their certificates when filing as candidates. The matter should not be subject to question because of the constitutional requirement.
Phillip Berg isn’t entirely a crackpot. His case has merit, as do the others seeking production of the certificate. If it is produced and everything is in order, the case disappears along with the conspiracy theorists and the office of the presidency goes on without a hitch. If it is not produced, the potential for future complications could be very significant. We might even end up with President Ahhnold, who could claim that he wasn’t really born in Austria, and that he doesn’t have to prove he was born here. See what I mean?
A) Hawaiian law, at the time of Obama's birth, allowed for FOREIGN born baby's to be registered in Hawaii via a 'Certificate of Live Birth':
"[§338-17.8] Certificates for children born out of State…"
http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0338/HRS_0338-0017_0008.htm
B) The Hawaiian govt' officials NEVER stated that Obama was born in Hawaii. They only stated that they have seen his birth certificate on file. But a B.C. from where?? (see #1 above).
On October 31, 2008, Dr Chiyome Fukino, Department of Health:
"Therefore, I as Director of Health for the State of Hawai‘i, along with the Registrar of Vital Statistics who has statutory authority to oversee and maintain these type of vital records, have personally seen and verified that the Hawai‘i State Department of Health has Sen. Obama’s original birth certificate on record in accordance with state policies and procedures."
http://hawaii.gov/health/about/pr/2008/08-93.pdf
For the Hawaiian 'Policies and Procedures' she refereed to…see item #1 above which, again, affords foreign born babies to obtain a Hawaiian COLB.
Legally, the Hawaiian Governor & the Dpt of Health official merely stated fact based on their own laws. One can obviously see that a Kenyan B.C. from 1961 would be legal and valid per Hawaiian law. This would also allow Obama to obtain a U.S. Passport.
C) Examples of Hawaiian Long Form COLB's:
1963 Hawaiian Long Form COLB:
http://a5.vox.com/6a00c2252293c4604a0100a80270e5000e-pi
1962 Hawaiian Long Form COLB:
http://passportsusa.com/wp-content/gallery/passportusa/edith_front.jpg
Obviously, what the Obama camp has released looks nothing like those two Hawaiian COLB's from that time. Where's his?
D) If it's proven Obama was indeed foreign born (Kenya), He would NOT have received U.S. citizenship based, only, on his mother's citizenship status. Per U.S. law at the time of his birth (December 24, 1952 to November 13, 1986).
"If only one parent was a U.S. citizen at the time of your birth, that parent must have resided in the United States for at least ten years, at least five of which had to be after the age of 16."
http://immigration.findlaw.com/immigration/immigration-citizenship-naturalization/immigration-citizenship-naturalization-did-you-know(1).html
Obama's mother didn't give birth to him at 21 (16 + 5). Therefore, Obama could not obtain U.S. citizenship based only by virtue his mother's citizenship.
E) And then there is the dual citizenship issue (which could make the above totally irrelevant). Factcheck themselves state that Obama was indeed a British subject and did in fact hold dual citizenship AT Birth.
http://www.factcheck.org/askfactcheck/does_barack_obama_have_kenyan_citizenship.html
"In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen … and a citizen of the United Kingdom and Colonies (or the UKC)"
So even IF he was indeed born in Hawaii (would be easy for him to prove but hasn't so far), Obama could therefore not be a Natural Born citizen because Natural Born citizens can not hold dual citizenship at birth. It has to do with the potential for divided loyalties and the very reason the
writers of the Constitution themselves allowed for their exception (grandfathered in) because all of them were British Subjects at birth.
He might be a "Naturalized" Citizen, but there is nothing (to date) in the public sector to suggest he is a 'Natural Born" Citizen, the Constitution clearly requires for one to become POTUS.
F) Without question, the Secretary of State of New Jersey (& possibly other SoS's) did NOT do their job in making sure the presidential candidates (including Obama) were qualified and eligible to be on their states' ballot. [This is, in part, the subject of Leo Donofrio's lawsuit.]
Why?
How would the SoS from NJ explain that Roger Calero was on their ballet as a candidate?
Socialist Workers Party candidate Roger Calero isn't even a U.S. citizen (Naturalized OR Natural Born), yet appeared on NJ’s presidential ballot.
Calero was also allowed on the state ballot in: Delaware, Minnesota, New York and Vermont.
Calero is a permanent resident alien (holding a green card).
http://en.wikipedia.org/wiki/R%C3%B3ger_Calero
There are two points you made that I take specific issue with. First:
The Hawaiian law you refer to is neither too general nor ambiguous. It is clear and specific. It refers to all person's, including famous people and political figures. The life of presidents are certainly more "open" as they are followed by the press, etc., but I don't believe they legally relinquish privacy rights regarding specific documents (e.g. health records). They often do release these records, as they feel compelled to do so by the public, but the idea that the Hawaiian law is a "bogus claim," is itself, a bogus claim.
To whom are you arguing this point? I don't believe anyone is suggesting that the President-elect cannot be investigated and reported on. I'm not familiar with Ohio law, but if Joe The Plumber happened to have been born in Hawaii, you wouldn't be able to get his birth certificate either.
No, I don't. "Ahhnold", just like Obama has, would have to prove his citizenship. Obama's proof is good enough for millions of people, election officials, and the likes of Hillary Clinton, John McCain, and President Bush just to name a few.
Conspiracy theories never die. Even if Obama were to present is "long form"/"vault" certificate the theory would live on. The fringe would then start question the authenticity of that document. Who is the doctor who signed it? Perhaps he was paid of by Obama's parents? Maybe the State gov't of Hawaii is in on this whole charade so their "native son" can be President. That is the way conspiracy theories work.
There is a lot of confusion, misinformation and intentional omission on this controversy. Your article goes to the heart of the matter.
One issue that is a surprise to many of us is the issue of “standing”. It appears that, the plaintiff must prove “irreparable damage” (or some kind of damage) to gain “standing” when asking the court to check the Constitutional validity of an issue, and for ordinary citizens, under current law that is impossible. Consequently, an ordinary citizen is prohibited to initiate any action to enforce the Constitution.
Congress can make law to eliminate this hurdle, according to the opinion of the “Berg Case” judges. However, if Congress does not provide such law and if Congress itself does not question the issue, for all practical purposes the Constitution is unenforceable. That is the big surprise for an ordinary citizen: The supreme law of the land is not enforceable?
There is speculation that the Alen Keyes lawsuit overcomes the “standing” issue, because he was a candidate. So how is he going to prove “damage”? Theoretically, a president is serving the people. So is Keyes claiming that he is going to suffer damage, because he could serve the people better, or how is he going to beat “standing”? Can you throw some light on this?
You pointed out that there are two possible additional avenues: the concept of the “private attorney general” and the “Dean John Eastman corporate law principle”. You said the first one has a precedent the second does not.
Three more questions:
There are 16 lawsuits and just about every week there is a new one. Most of them which reached ruling by state courts have been thrown out due to the qualification of “standing”.
Even if the Berg lawsuit did not use the “private attorney general” approach, future suits are likely to do so. Is it your opinion that they would be more likely to succeed?
It seems that all courts avoid difficult or politically sensitive cases and find technicalities like the “standing” issue to throw out the case. This is nothing more than sabotage at worst or avoidance of work at best. Can these judges be impeached or recalled?
According to some researchers, Chester Arthur (21st Pres.) was born in Canada not in Vermont, because he misrepresented his birthplace and date of birth. He served his term and his opponents were unsuccessful in throwing him out of office. It seems that due to the current judges’ disposition the current President Elect will take office on the 20th of January. Now assume, that the new president signs some new law under which some citizen would become a defendant. Could this citizen claim successfully that the law is not valid because the president took office violating the constitution (and avoid the “standing” issue)?
[...] Steven D. Laib argues that Obama's birth certificate (long form) must be made public. [...]
This discussion can be settled with a simple gesture on the Omessiah's part; show the full birth details! Failure to take this simple step suggests a massive cover up. Our constitution and associated governing laws are very clear on qualifications but very fuzzy on who has "status" to question those qualifications. Therin lies the real rub.
Is this a knowing fraud on the American people? Will Obama be commiting perjury when sworn in as president. Will there be a constitutional crisis?
Beyond the basic questions will there be bloodshed? If we can pick and choose those parts of the constitution we wish to follow then it should allow secession or other action since the constitution is only an imperfect guideline to be interpreted by those far wiser than all of us.
Take steps to protect your family and loved ones. Be ready for the lashback when this issue becomes the spark for a civil war (the bloodiest and most repellent form of warfare) all because of an ego and lack of belief in the constitution ostensibly from a constitutional lawyer.
Go figure.
[...] http://www.intellectualconservative.com/2008/12/06/that-bleeping-birth-certificate/ [...]
Although I do not see this issue leading to a civil war, as most of Obama's supporters could care less if he is in fact a citizen. The fact that he was registered as a dual citizen with the UK seems to already disqualify him from being a natural born citizen. I am happy though that this issue is starting to gain some momentum and support. The "Honolulu Advertiser" has a birth announcement in it for Obama, supposedly found on microfilm and posted on the wikileaks website.
http://wikileaks.org/wiki/Obama_1961_birth_announcement_from_Honolulu_Advertiser
The question of birth on American soil is actually the most difficult for the apologists to kill off. Under laws in effect Obama is not even a citizen today if he was born in Kenya, in fact he could then be classed as an illegal alien subject to possible deportation. The other issues are easier for the apologists to deal with because he would have been a naturalized citizen and we are really dealing with technicalities.
Regarding the potential for civil war, remember the original civil war was fought over state's rights not slavery as the uninformed and government educated seem to think. A documented illegal candidate sworn in via a perjured president would probably drive the other 46% into a frenzy.
Thank you for this excellent commentary.
And for an article covering the Donofrio "natural born Citizen" challenge see this link. It includes background, rationale, constitutional context, and case law:
http://investigatingobama.blogspot.com/2008/12/donofrio-dual-citizenship-natural-born.html
Anyone running for the presidency has placed himself in the arena of a public, rather than a private citizen. A candidate is, for all practical purposes, giving up his privacy rights, and making his or her entire life open to scrutiny by the public and the press. Their personal records should and must be part of this.
So every record from a candiate's birth (or what, age 18 or 21?) — medical records, military records, sealed legal records, tax records, phone records, school records, magazine subscriptions, DVD rentals, book purchases, etc, etc — immediately becomes open to the public the moment a candidate files papers in the first state? And would this be limited to just the candidate but the candidate's spouse and adult children? The candidate's parents and grandparents and the spouse's parents and grandparents?
@rxsid -
I'll let A, B, and C go since they don't actually speak to the facts of the case. However, your point in D is moot. If in fact Obama were born in Kenya his mother's citizenship status would have been governed by the policy stated here (http://travel.state.gov/law/info/info_609.html), and I quote
Obama's parents were not legally married because his father was still married in Kenya. US law doesn't recognize marriages where one of the people are already married, whether their marriage occurred in the US or abroad.
And regarding you F point, the one you think trumps all the others. Can you please point me to the law witch defines "natural-born citizen" as someone who doesn't have dual citizenship? I understand you point, and others, about the framers not wanted someone with British citizenship becoming President (they had just one independence from Britain, for crying out loud) but they never discussed, nor has the law defined "natural-born" as not including dual citizenship. Without evidence, I believe your point is moot.
@harriet.killjoy. Correct, the Constitution or subsequent amendments never explicitly defined 'Natural Born' citizen. Thus the need for this case to be heard and decided by the SCOTUS.
The 'intent' of that Constitutional requirement was to prevent divided loyalties. After all, as Leo Donofrio points out, how can one be a U.S. Natural born citizen but have allegiance and be under governance and jurisdiction of a foreign power? I think we would agree that the founders and framers would not have wanted such a person (past their generation of course) to become POTUS.
Your point about D) advances the point I was making. That is, he could not have received U.S. Citizenship from his mother being a citizen. Some folks have tried to argue that that makes his eligible. Of course, it doesn't.
And, as far as F goes, it was never intended to trump the others. How did you arrive at that conclusion? I was merely stating some points of information. All of which is connected, in some way, to some degree, with the others. Simply points. 'Bullet' points if you will.
Let's put at least part of this issue under the correct law:
December 24, 1952 to November 13, 1986
If, at the time of your birth, both your parents were U.S. citizens and at least one had a prior residence in the United States, you automatically acquired U.S. citizenship with no conditions for retaining it.
If only one parent was a U.S. citizen at the time of your birth, that parent must have resided in the United States for at least ten years, at least five of which had to be after the age of 16. There are no conditions placed on retaining this type of citizenship. If your one U.S. citizen parent is your father and you were born outside of marriage, the same rules apply if your father legally legitimated you before your 21st birthday and you were unmarried at the time. If legitimation occurred after November 14, 1986, your father must have established paternity prior to your 18th birthday, either by acknowledgment or by court order, and must have stated in writing that he would support you financially until your 18th birthday.
"The state of Hawaii is asserting that privacy laws forbid it from revealing the certificate. This should be considered a bogus claim."
What information is on birth certificates that make them private? Social Security numbers were not required until recently. I thought birth records were public information, not to the extent that anyone could get a legal copy or even a photocopy, but that anyone could look at a microfilm version. Anyone out there familiar with privacy laws?
P.S. Why 0bama continues to let this fester is beyond me. He's only perpetuating the impression that he has something to hide.
The view that citizens have no standing in Constitutional issues turns the Constitution from a comptract between Citizens, (as the senior partner) and their government (junior partner) to a contract of government (as the senior partner) with government (junior partner)!
And so, we see the groundwork laid for tyranny, for if government's only overseer is itself we have become slaves, simply to serve at its pleasure.