Obama Birth Certificate - Hawaii Revised Law

This post addresses unanswered legal and factual questions about the Article II, Section 1, Clause 5 of the U.S. Constitution's requirement that a President be a natural born citizen, and how they relate to President Obama. It is by no means a complete analysis of the facts and issues. I welcome any editing suggestions and response posts. Input is welcome, criticism is expected.

Mr. Obama claims that he was born in Hawaii on August 4, 1961. As his only evidence that he meets the Article II, Section 1, Clause 5 of the U.S. Constitution's requirement that a President be a natural born citizen, he produced a document called a "Certification of Live Birth," which he posted on his website under the title: "Barack Obama's Official Birth Certificate."

At first blush, it is case closed. A closer examination of the facts, however, reveals that Mr. Obama failed to point out on his website that his posted "Official Birth Certificate," as he called it, is actually a 2007 computer-generated, laser-printed summary document of his 1961 vital record(s) on file with the Hawaii State Department of Health. What we do not know, however, is what 1961 vital record the Certification of Live Birth is summarizing.

In 1961 there were at least six different procedures available to obtain a vital record (birth certificate) that the Certification of Live Birth could be summarizing. The following citations are from the original Hawaii Session Laws books recorded on microform. All of the citations can be found on one page here. The other red links below contain the complete history of these laws from before Obama was born to present day:

1. Certificate of Live Birth (Long Form, vault, not to be confused with the Certification of Live Birth that Obama posted on his website).  In Hawaii, a Certificate of Live Birth resulted from hospital documentation, including a signature of an attending physician.

The Certificate of Live Birth is the most trustworthy and reliable birth certificate because the doctor's signature and supporting hospital information can be verified to a reasonable degree of certainty. One would think that if Obama, who claims that he was born in a specific hospital in Hawaii, had one of these, he would produce it to put the matter to rest.  The truth is, he has refused to disclose anything other than his posted Certification of Live Birth, a summary.  His act is suspect because it raises the question - what is he hiding?

2. Compulsory registration of births, authorized by Hawaii Revised Law §57-8 (second citation down in left column), enacted 1955, reads:

§57-8 Compulsory registration of births. Within the time prescribed by the board, a certificate of every birth shall be filed with the local registrar of the district in which the birth occurred, by the physician, midwife or other legally authorized person in attendance at the birth, or if not so attended, by one of the parents.

This law allowed one of the parents to file a birth certificate for a claimed unattended birth. This procedure is arguably fraught with the potential for fraud because a parent could have given birth to a baby outside of the U.S., brought him to Hawaii, and then claimed that she had an unattended birth (no witnesses) in Honolulu.

3. Local registrar to prepare birth certificate, authorized by Hawaii Revised Law §57-9 (second citation down in left column), enacted 1955, reads:

Local registrar to prepare birth certificate.
(a) If neither parent of the newborn child whose birth is unattended as above provided (referring to 57-8), is able to prepare a birth certificate, the local registrar shall secure the necessary information from any person having knowledge of the birth and prepare and file the certificate.

(b) The board shall prescribe the time within which a supplementary report furnishing information omitted on the original certificate may be returned for the purpose of completing the certificate. Certificates of birth completed by a supplementary report shall not be considered as "delayed" or "altered."

This procedure is arguably fraught with the potential for fraud because it allowed the local registrar to prepare a birth certificate for a claimed unattended birth using information from anyone claiming to have had knowledge of the birth. Under this law, a parent could have given birth outside of the U.S., brought the baby back into the country, and then had anyone supply the false information to the local registrar. Furthermore, anyone could have supplied that same information to the registrar while the woman and baby were outside of the country. For all we know, Ann could have been in Kenya, given birth to Barack, instructed someone to supply the information to the local registrar, and then returned to the US at her leisure later on.

4. Delayed or altered certificates, authorized by Hawaii Revised Law §57-18 (second citation down in left column), enacted 1955 reads:

§57-18. Delayed or altered certificates. A person born in the Territory may file or amend a certificate after the time prescribed, upon submitting such proof as shall be required by the board, except that no certificate of birth may be filed later than one year after birth.

This procedure is arguably fraught with the potential for fraud. Under this law, a parent could have given birth to a baby outside of the U.S. and brought him back into the country up to a year after his stated DOB, and then filed for the BC using §57-8 or §57-9.

5. Certificate of Hawaiian Birth (2010 Hawaii DOH website talks about it), authorized by the 1911 Hawaii law called Act 96, established the Certificate of Hawaiian Birth in 1911 and terminated it in 1972. An analysis of these two documents is made in the Keyes v. Bowen lawsuit. Paragraph 75 of the Keyes complaint reads, in part:

In Hawaii, a Certificate of Live Birth resulting from hospital documentation, including a signature of an attending physician, is different from a Certificate of Hawaiian Birth. For births prior to 1972, a Certificate of Hawaiian Birth was the result of the uncorroborated testimony of one witness and was not generated by a hospital. Such a Certificate could be obtained up to one year from the date of the child's birth. For that reason, its value as prima facie evidence is limited and could be overcome if any of the allegations of substantial evidence of birth outside Hawaii can be obtained...

Therefore, the only way to verify the exact location of birth is to review a certified copy or the original vault Certificate of Live Birth and compare the name of the hospital and the name and the signature of the doctor against the birthing records on file at the hospital noted on the Certificate of the Live Birth.

This Certificate of Hawaiian Birth procedure is arguably fraught with the potential for fraud.

6. Foundling Report, authorized by Hawaii Revised Law §57-10, (second citation down in left column), enacted 1955 reads:

Registration of foundlings; foundling report.
(a) Whoever assumes custody of a living child of unknown parentage shall immediately report, on a form to be approved by the board, to the local registrar, the following:
     (1) Date and place of finding or assumption of custody;
     (2) Sex;
     (3) Color or race;
     (4) Approximate age of child;
     (5) Name and address of the person or institution with whom the child has been placed for care;
     (6) Name given to the child by the finder or custodian.
(b) The place where the child was found or custody assumed shall be known as the place of birth, and the date of birth shall be determined by approximation.
(c) The foundling report shall constitute the certificate of birth.
(d) If a foundling child is identified and a regular certificate of birth is found or obtained, the report shall be sealed and filed and may be open only upon order of a court of competent jurisdiction.

This procedure allowed anyone to fill out a foundling report, walk into the local registrar's office and claim that he or she found or assumed custody of a child. The statute required the state to assume that the birthplace was where the child (of any age) was reportedly found, or custody assumed . Furthermore, the statute allowed the finder to name him, approximate his age and the foundling report itself "shall constitute the certificate of birth."

On a purely speculative note regarding the foundling report statute, Ann Dunham could have brought Barack into the US after he was allegedly born in Kenya, then used the foundling statute to get Barack a Foundling report birth certificate. Ann could have given Barack/Barry any name she wanted, including her or her husband’s last name. The statute does not appear to prohibit the finder from giving the foundling a last name as well as a first name. His age could also have been estimated under the statute (effect is to backdate a birth certificate), and the birth certificate could have read Honolulu, Hawaii, as the place of birth, or where custody was assumed.  Anyone else could have also done the same thing by claiming that she assumed custody of a foundling. What an end run around immigration laws that would have been. This might be why Mr. Obama does not want his original 1961 birth certificate disclosed.

Moving along, it should be noted that in any jurisdiction, there is also the possibility of a seventh way to obtain a birth certificate. For example, former Hudson County New Jersey Deputy Registrar Jean Anderson pleaded guilty for illegally transferring birth certificates. As part of the scheme, an illegal alien who paid Anderson and her co-conspirators for the service of creating the false birth records could then go to Office of Vital Statistics to receive a birth certificate. Read the United States Department of Justice press release here.  That said, any summary of it, like a Certification of Live Birth, would be masking a fraudulent document.

From an evidence standpoint, five of the six above vital records procedures support the argument that Hawaii's birth certificate printout, called a Certification of Live Birth, is a summary derived from 1961 business records that lack an adequate indicia of reliability that would afford the trier of fact a satisfactory basis for evaluating the truth of document's statements. In other words, Obama's Certification of Live Birth must be excluded as evidence of his alleged natural born citizen status, at least absent a showing of particularized guarantees of trustworthiness, which he is not willing to do, despite numerous lawsuits asking him to do so -- Keyes v. Bowen, Berg v. Obama, Donofrio v. Wells, Wrotnowski v. Bysiewicz, and Kerchner v. Obama, to name a few. The Kerchner v. Obama court filings can be found on the right hand side of attorney Mario Apuzzo's website.

Mr. Obama’s posted Certification of Live Birth does indeed call into question his eligibility to be President, however, the most important foundation question is what is any candidate's burden of proof that he meets the Article II, Section 1, Clause 5 of the U.S. Constitution's requirement that a President be a natural born citizen? In determining which standard of proof applies, it important to remember that the goal should be to set a stable standard of proof that ensures that, we the people, will get a qualified presidential candidate, no matter who he is, no matter which party he is from, no matter what political climate dominates the times, and no matter in which election year he runs for office.

Turning now to the foundation question of what is any candidate's burden of proof that he meets the Article II, Section 1, Clause 5 of the U.S. Constitution's requirement that a President be a natural born citizen? Burden of proof refers to both the burden of production, and the burden of persuasion. Burden of production is the obligation to come forward with evidence to support a claim. The burden of persuasion is the obligation to persuade the trier of fact of the truth of a proposition.

The answer to the burden of proof production question lies with who has this burden of proof, the candidate, or the people? Allocating the burden of proof, is merely a question of policy and fairness based on experience in the different situations."Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973). The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion. 2 J. Strong, McCormick on Evidence §337, 412 (5th ed. 1999). Moreover, in most cases, the burden of proof rests on those who claim something exists.

It seems apparent that a presidential candidate is seeking to change the present state of affairs by wanting to become the new President. The candidate is also the one who is claiming that something exists, which in this case, is that he is a natural born citizen. Furthermore, he is also applying for a job. As such, the burden of proof rests on him.

It takes no stretch of the imagination to understand that it has been a commonly accepted and expected fair practice for any candidate applying for a job to produce evidence that he meets its eligibility requirements. Typically, he produces a resume, certified copies of education transcripts, documents his work history and residences since age 18, and, in cases of classified government jobs, submits to and produces without reservation, documentary evidence such as a birth certificate for use in an extensive and thorough background check. Since the greater includes the lesser, it follows then that a more important job, like being President, would include at least the aforementioned production of documentary evidence of sufficient persuasion. Arguably then, it follows that a presidential candidate has a similar burden of production and persuasion that he meets the eligibility requirements for President. To create a presumption of eligibility that shifts the burden of proof to the People would otherwise defeat the search for the truth about the candidate’s eligibility. This is especially true when the candidate locks down the evidence of his eligibility.

Turning now to the burden of persuasion question, once some evidence has been produced, the question becomes does the evidence submitted persuade the trier of fact that a candidate meets the natural born citizen requirement of Article II, Section 1, Clause 5 of the U.S. Constitution? The degree of proof required depends on the circumstances of the proposition. In this case, the standard that applies should ensure that the candidate meets the eligibility requirements to be President of the United States.

The President of the United States is one of the three branches of government. He is the Executive branch. The nation speaks to all people through one voice, the President's. The President can make treaties, grant pardons, sign and veto legislation, appoint a Cabinet, as well as Supreme Court Justices. In addition to these duties, the President knows the nation's most important and secure secrets, and as the Commander in Chief of the military, has the military's nuclear launch codes at the ready, and who can arguably, either take steps to weaken the nation, or even destroy it. In the words of Vice President Dick Cheney, "The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States. He could launch the kind of devastating attack the world has never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in."

So which burden of persuasion should apply to the evidence submitted by a President elect given the job for which he is qualifying? There are at least three major burdens of persuasion - preponderance of the evidence, clear and convincing, and beyond a reasonable doubt.

Preponderance of the Evidence - (lowest level) This is the lowest standard of proof that uses a more likely than not test. The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. It is used in civil cases such as personal injury lawsuits.

If this standard is accepted, then arguably the President elect will get the opportunity to prove that he meets the requirements to be President by a little more than the odds of a coin toss. Using this standard also seems to equate the importance of a candidate meeting the Constitutional requirements to become President with giving the right private litigant a chance at winning a lawsuit. The ramifications and consequences of being wrong in each one are at opposite ends of the spectrum. This standard, therefore, does not seem high enough.

Even if this standard is accepted, determining which 1961 vital record the Certification of Live Birth is summarizing, the one with doctor and hospital documentation, or the five other ones that lack an adequate indicia of reliability, would be merely a guess. It is arguable then that none of these vital records is more likely to be the source document than the others, so it does not appear to satisfy the more likely than not standard.

Clear and Convincing Evidence - (medium level) The person must convince the trier of fact that it is substantially more likely than not that the thing is in fact true. This standard of proof is used in the termination of parental rights, and restraining orders, among other civil actions. If this standard is accepted, then arguably the President elect will get the opportunity to prove that he meets the requirements to be President by the same standards that are used when two people are either fighting over custody of their children, or seeking an injunction to keep the other away by a few hundred feet. The ramifications and consequences of being wrong in each one are again, at opposite ends of the spectrum. Even if one were to argue that the clear and convincing standard should apply, it is inconceivable that one could argue in good faith that a Certification of Live Birth substantially proves that the unknown 1961 source document is credible and trustworthy. This standard, therefore, does not seem high enough.

Beyond a Reasonable Doubt - (highest level) The proposition being presented must be proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person. This standard has been traditionally applied to criminal defendants not to prove the guilt of a criminal defendant, but rather to ensure that the individual's freedoms of life and liberty are given the highest protections so that he is not deprived of them. True, a presidential candidate is not a criminal, but the justification for applying the beyond a reasonable doubt standard to his Article II qualifications is so that the citizens do not lose their lives or liberties at the hands of an unqualified President. For the highest office in the land, and for arguably the most powerful leadership position in the world, it follows that the highest burden of proof that he is qualified to be President of the United States of America should be required.

This is where the road to the White House should have ended for Mr. Obama. He can not meet any burden of persuasion for becoming President with only a 2007 computer-generated, laser-printed Certification of Live Birth. Unfortunately however, to date, not one single person or agency in the Executive, Legislative, or Judicial branches of government has subjected his Certification of Live Birth to any burden of persuasion scrutiny to determine if he meets the United States Constitution's natural born citizen requirement to be President.

Who then, should determine which standard applies? Moreover, who gets to interpret it?

Should the states get to decide this question? If you look to state law for deciding which burden of persuasion applies, then a problem arises because one might foresee not all states using the same burden of persuasion. One might also expect to find up to 50 different interpretations for each of the three burden of persuasion standards. This could result in as many as 150 different interpretations for the three standards. It's arguable then, that having as many as 3 different standards with up to 50 different interpretations of each one could lead to 150 different possible ways to qualify a presidential candidate. Arguably, this outcome would favor some candidates over the others, with each election year providing for unequal treatment of the candidates depending upon from which state's record each candidate seeks to establish his birth (or age), and resulting in unequal risk to the nation that an unqualified President would be elected.

Imagine if one state uses a preponderance of the evidence standard while the other state uses a beyond a reasonable doubt standard. Who has the advantage here and what are the risks to the nation and its citizens? Let's assume that two states require clear and convincing evidence, but one state interprets clear and convincing to mean less than the other state's interpretation. The end result would be unequal treatment of the candidates resulting in different states having the power to gain an advantage over the other state's candidate by lessening or lowering the burden of persuasion and weakening its interpretation. Furthermore, there would be an increased opportunity for planting fraudulent birth records in the states with the weakest burden of proof that have the highest incidents of uncontrolled illegal immigration.

So where does this leave us? Should each state decide what is their native candidate's burden of persuasion? Or should each state agree to have one standard for all candidates? Who gets to decide which standard applies, and who gets to interpret the standard?

Perhaps we should look to the federal courts to establish a standard instead? Keep in mind that the constitutional requirement to be a natural born citizen is a federal one. Article VI of the U.S. Constitution makes federal law the supreme law of the land. Furthermore, the Office of President is one of the three federal branches of government. Perhaps that as such, there should be a federal standard of proof that ensures that only a candidate who meets the Natural Born Citizen requirement of the U.S. Constitution could become President.

Once again, problems arise. There are 13 federal circuit courts in the U.S. Each one could cause the same selection and interpretation problems that were just discussed with the states. Only this time, the candidates would get their advantage or disadvantage by being born in a particular circuit, thus making circuits more or less appealing to the candidates and their respective parties. Furthermore, circuits with a history of identification document fraud by foreign nationals might be more likely to erroneously qualify a foreign born national to be a presidential candidate. Again, different circuit standards would result in unequal treatment of the candidates, and unequal risks to the nation that an unqualified candidate would become President.

Should we leave it to the Federal Election Committee (FEC)? No. The FEC filed a motion to dismiss in the Berg case admitting that it has no oversight over the Constitution's Presidential Qualifications Clause.

What about leaving it to the candidate’s respective party? Should such a bias organization decide the issue of their candidate’s eligibility? Allowing such a process would be tantamount to the fox guarding the henhouse.

What about leaving it to the Electors? Are they any less bias than their respective parties?

What about the United States Supreme Court? The first paragraph of their own website makes the following promise to the American People - “As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.” To date, the United States Supreme Court has failed to do anything in furtherance of the search for the truth about Obama's natural born citizen status.

Even if the Court does indeed have this duty to function as guardian and interpreter of the Constitution, then when must it act to qualify the President elect? Before, during, or after the election? Should it be barred from deciding this issue because of timing, i.e., the candidate has already won the election, so it’s too late?

Perhaps we should turn to the 20^th Amendment for guidance.

“If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”

Section 3 of the 20^th Amendment does allow for the possibility that a President elect might not qualify. The language of the Amendment suggests that the qualification period can come between the period when the candidate wins the election and when he is sworn in.  As the guardian and interpreter of the Constitution, it's arguable that the Court must scrutinize the President elect's natural born citizen evidence during this time period. If the Court, instead, turns a blind eye to it, then just who will be the judge of "if the President elect shall have failed to qualify,...?" If no one gets to determine the natural born citizen issue, then that provision of the Constitution becomes not worth the paper it is printed on. I doubt very much that the framers of the Constitution intended for this to happen.

I'll close this post with a quote: "All that is necessary for evil to triumph is for good men to do nothing."

I find it futile and distractive. We have a socialist in the white house. He is killing himself politically but we are killing ourselves with “birther” crap.This stuff is pushing us to the margins and it is totally hokum. If I were a moderator I would get this out of here and focus on real issues. It is killing us folks. I think it is planted by DU people.

Did you just sign up to make these claims? Bam-the-flim-flam-man could in one instant really open up for all to see whatever it is he is hiding.... Obviously it matters a great deal to him to hide whatever it is he is hiding...

Well, one never knows. Even young, I hear the Kenyans are pretty sneaky.

But I hope people see my point on how these people like the author twist logic and law to get some twisted output.

If he had said simply, “Well, someone COULD have got one by fraud, so none of these COLBs can be taken at face value” most people would have seen right thru it. But NOOOOOO...He’s got to go sugar coat this big pile of manure so nobody will notice it. I kinda feel sorry for the birthers sometimes, being fed this plateful of doo-doo.

parsy, who thinks they swallow it all too fast

I don't know if that really means much in regards to the anomalies he found. Others found his work was sound.

Forensic Examiner Says It's Bogus

A second expert forensic document examiner Sandra Ramsey Lines has filed an affidavit [.pdf] associated with one of the lawsuits stating the following:

1. I am Sandra Ramsey Lines, With an address at... I am a former federal examiner and law enforcement officer. I began training as a forensic document examiner in 1991. I am a Certified Diplomat of Forensic Sciences, a member of the American Society of Questioned Document Examiners, a member of the Southwestern Association of Forensic Document Examiners, and a member of the Questioned Document Subcommittee of the American Society of Testing and Materials. My background and credentials are set forth in Exhibit I attached hereto.

2. I have reviewed the attached affidavit [.pdf] posted on the internet from "Ron Polarik," who has declined to provide his name because of a number of death threats he has received. After my review and based on my years of experience, I can state with certainty that the COLB presented on the internet by the various groups, which include the "Daily Kos," the Obama Campaign, "Factcheck.org" and others cannot be relied upon as genuine. Mr. Polarik raises issues concerning the COLB that I can affirm. Software such as Adobe Photoshop can produce complete images or alter images that appear to be genuine; therefore, any image offered on the internet cannot be relied upon as being a copy of the authentic document.

3. Upon a cursory inspection of the internet COLB, one aspect of the image that is clearly questionable is the obliteration of the Certificate No. That number is a tracking number that would allow anyone to ask the question, "Does this number refer to the Certification of Live Birth for the child Barack Hussein Obama II?" It would not reveal any further personal information; therefore, there would be no justifiable reason for obliterating it.

4. In my experience as a forensic document examiner, if an original of any document exists, that is the document that must be examined to obtain a definitive finding of genuineness or non-genuineness. In this case, examination of the vault birth certificate for President-Elect Obama would lay this issue to rest once and for all.

I don't know if that really means much in regards to the anomalies he found. Others found his work was sound.

If you read carefully, Sandra Ramsey Lines doesn't validate his work at all. She says "Mr. Polarik raises issues concerning the COLB that I can affirm." What exactly are those issues? She says, "Software such as Adobe Photoshop can produce complete images or alter images that appear to be genuine; therefore, any image offered on the internet cannot be relied upon as being a copy of the authentic document." Plainly put, she "affirms" that the authenticity of a document published on the internet can't be established. period.

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