In sum, I always felt that the birthers had an intellectually defensible position and that the administration and the media which was carrying water for the administration were in an indefensible common-sense position. But, as was the point of my last exchange with you, common sense is the first victim of race in America.
It always seemed to me that there was a plausible scenario in which Obama could have been born abroad and his mother or grandparents could have obtained documents from the state of Hawaii under existing Hawaiian law in 1961 that generated a Certification of Live Birth, announcements in the newspaper, and the statements of the officials in Hawaii concerning Obama's provenance, and all would have been consistent with Hawaiian law and the duties of those officials.
However, I always put this in the context that there was simply no credible affirmative evidence that Obama was born anywhere but in Hawaii. The common sense inference that he must have been hiding something because he was hiding his original birth certificate is not evidence, it is merely an inference. It is important to concede that all the evidence that was extant tended to prove Hawaiian birth. There was literally no evidence of birth elsewhere except the confusing tape-recording of his aunt's telephone conversation in which she first asserted then recanted her assertion that he was born in Kenya. I always dismissed this tape-recording as not credible. I suffered many slings and arrows on these threads for pointing out that an inference or a motive is just not proof.
The issue of proof is important, or was important assuming as Andrew McCarthy says we must accept that the long form certificate is genuine, because introducing the issue of proof brings up the issue of who is going to determine the validity of the proof? In other words, what forum should decide these issues?
There were several steps along the way when the eligibility of Barack Obama should have been contested and resolved. One starts with the Democrat party and moves to the secretaries of the individual states and then on to the college of electors and finally onto the House of Representatives and the Senate. There is nothing in the Constitution which suggests that it is the 3rd branch of government rather than these entities which are constitutionally responsible for determining Barack Obama's eligibility to be president of the United States. In fact, my reading of the Constitution suggests to me that this is primarily a political question and the founders considered that it would be decided by the states and/or the Article One branch of government.
This is the equivalent of saying that it is a political question and we are all well aware that the Supreme Court is allergic to deciding political questions. I posted often that it was unlikely that the Court would take this matter up for this very reason. The issue of standing was only one weapon the court had to shirk a moral responsibility to get to this issue. It also opened the way for the worst possible spokesperson for the Birther movement, a wack job named Orley Tabitz (spelling?) to be the poster girl for the eligibility issue.
That we would think that the court was the place to decide this issue shows us how much our culture has been conditioned to accept federal court rulings as Delphic. If you want to know why I so tediously recite Nathan Bedford's first maxim of American politics: "all politics in America is not local but ultimately racial," it is partly because the Supreme Court has extended its authority and its cultural legitimacy as a Delphic oracle through its rulings on civil rights. In a pattern similar to its "switch in time to save nine," when the Supreme Court reversed itself on new deal legislation and ultimately distorted the Constitution, so the Supreme Court radically changed the federal system under the justification of civil rights. Ron Paul was right in his criticism but it was politically deadly. Another example of hard cases making bad law.
There has always been a parallel question about Obama's eligibility and you alluded to it. Can Obama be a Natural Born Citizen even though physically born in the United States, if one of his parents was not an American citizen? Again, I revert back to the first question: who will decide this issue? Do not rely on the Supreme Court to do this because it is acutely aware of the implications of Stalin's question: "how many divisions does the Pope have?" The Supreme Court knows that it cannot send a federal marshal to 1600 Pennsylvania Ave. to eject the president from the premises. Therefore it will not touch the issue because it has no place to go with it and it is not in the business of issuing advisory opinions. It will call it a political question or seize on the issue of standing to dodge the case.
Ultimately, whether Obama is a natural born citizen because his father was not an American comes down to politics. It is in my judgment perfectly legitimate to accept that the definition of natural born citizen should be that which was understood by the founding fathers and that which was outlined by Vattel. That, of course, would be in keeping with my belief that the understanding of the founders and the authors and ratifiers of the amendments of the Constitution should guide when ascertainable. I believe it is ascertainable in this case. We routinely incorporate Anglo-Saxon common law and English constitutional history into our common law, our common understanding and constitutional interpretation. This is quite a different issue from importing contemporary foreign laws to inform our present jurisprudence which is an illegitimate modus operandi and a direct assault on the Constitution.
I do not see anything on the political horizon which will support a movement in the states, in Congress, or in the courts which seeks to define Obama as ineligible because he is not "natural born."
Again, all politics in America is not local but ultimately racial.
Finally, I suspect you would expect me to address this issue in the context of whether it is politically beneficial to the conservative cause to keep it before the public? I suppose this is analogous to whether it is advisable to, for example, post under the name and avatar which I use.
I think you suspect you know my answer already. It is not for nothing that I use the motto from Bull Halsey, "attack, repeat, attack!" But, this is not a question of bushido to be mindlessly implemented with a suicide charge but a question for Rovian calculation. In other words, is this the right issue? What would we gain, what are we risking and what are our odds?
The history of this matter has obscured the issue. From the beginning the media has run interference for Obama because of his race. Sensing this, the Republicans cravenly declined to question Obama's biography in any respect and the man whose responsibility it was to carry the attack, John McCain, was the most craven, in fact, he evidently muzzled Sarah Palin who was eager to carry the attack. Somehow, for many months in America it was illegitimate to subject Barack Obama to the same scrutiny as every redecessor in American history received. By default a vacuum formed and into that void strode a wack job, Orley Tabitz, who proceeded to burlesque an otherwise proper constitutional issue.
In the early days of the campaign and of the Obama administration, and in the absence of John McCain acting as our champion, conservatism had no voice except talk radio. It is convenient now for conservatives to criticize Rush Limbaugh for failing to carry the torch on the birth certificate issue but I think he was advised by the likes of Mark Levin who is a reasonable constitutional scholar. Levin probably told Limbaugh much of what I've been reciting at the top of this reply, that it was unlikely that the courts would handle this issue, that it was a nonstarter, and therefore a loser, too risky in terms of reputation and, a racial minefield .
It is interesting that entire situation was reversed by Donald Trump. Many conservatives argue that this is a function of a candidate who speaks out forcefully-finally! I could argue that proves my case that a vigorous exposition of conservative principles will prevail and that appeasement of the left and the media is ultimately self-defeating. But the birthers had been speaking out forcefully since 2008, why didn't it work for them?. I suspect that the resonance which Donald Trump obtained had as much to do with the price of gasoline at the pump as with his own rhetorical skills. As I posted long ago, it is in the nature of the American electorate to sleep passively through political outrage after outrage and then to wax indignant over a triviality. Do you remember the House banking scandal? The reaction to the birth certificate issue raised by Donald Trump had not so much to do with that issue rather it was the analogy seized upon by the people to voice their frustration over a catalogue of outrages committed by the Obama administration.
I have heard conservative commentators recently say that the contest with Obama should be waged over real issues and not "trivialities" like the birth certificate issue. The issue is really constitutional eligibility. The issue is whether the Constitution is optional? Conservatives have a great principle at stake which is the primacy of the Constitution. We lost that battle, or at least we lost the battle over the primacy of the rule of law, in the impeachment of Bill Clinton. Every trial lawyer will tell you, if you ask the right question you will get the right answer. Republicans routinely fail to frame the issues properly.
So the left, magnified by the media, frames the questions. In this case, their version of the issue is whether the treatment of Obama is racist? We lose on that issue. So the choice is either to effectively play the game or forfeit. The worst approach is the mea culpa. If the matter cannot be effectively represented as a matter of the integrity of the Constitution, then leave it alone. But our culture has become conditioned to see issues as personalities. So the media personalizes issues and it becomes Donald Trump vs. Barack Obama. That is certainly better than Orley Tabitz vs. Barack Obama but it is not ideal.
Our main problem is that the definition of "natural born citizen" is the kind of issue that belongs in a courtroom but it probably will never get there. If we push it to the political front with a champion like Donald Trump we are very likely to get a black eye. That is not to say the Trump cannot perform a service in otherwise roughing up Obama and making it legitimate to attack him personally, although I repeat, I think Trump is getting credit for courage when he is only lucky in timing.
To conclude at long last, I think there is a legitimate question about Barack Obama's natural born status. I do not think he qualifies as a natural born citizen. I think mine is a minority view which will never be adopted. I think the plain reading of the 14th amendment making place of birth a determiner of citizenship will be wrongly applied to natural born citizenship. I think to make a big political cause of this strictly defined issue is a political loser and a judicial nonstarter and, in the end, will produce no upside gain.
