Posted on 12/07/2008 10:08:01 AM PST by vietvet67
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 Paul 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.
Paul 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?
Politics: General, Constitutional Issues, Civil Liberty & Rights, Elections & Political Parties
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Steven D. Laib is a semi-retired attorney living in Cypress, Texas, just northwest of Houston. He is a member of the California State Bar, and United States Supreme Court Bar. slaib@intellectualconservative.com http://intellectualconservative.com
Suggested fill-ins for “bleeping”:
“Missing”.
“Hidden”.
“nonexistent”.
“Fabricated”
My question... If the constitution lays out the citizenship requirements, then why is there no path of verification? Is it an “honor system”. IF it is, that is the dumbest thing I have ever heard... since when has politician and honor been allowed in the same sentence?
Only when they say it themselves as in " I am honored to be politician" :-)
By not releasing the long form birth certificate, if it is even on file at the Dept of Health in Hawaii, is only delaying the inevitable. The Presidential library for “King Obama” will be pretty empty without the release of the documents which at the present time are under “seal”. Who would want to tour such a library which would be empty save for what the public up to this point know? Who would want to tour a library that only holds a picture of the Jackie Kennedy wannabe? sarcasm intended
.............another Great American Conspiracy Theory
LOL and that file continues to thicken.
No! I detest brainless rules-based approaches like this. It's almost like we don't want to single out Obama. Yes we do. Most Presidential candidates have established family histories in this country and producing documentation is unnecessary. Obama does NOT have established family history in this country which in of itself is a problem for someone wanting to become President of this great country. I can't believe they essentially elected a foreigner for this office.
If the courts will not uphold the Constitution, the people have a responsibility to do it them selves...
That discounts his mother's family.
America will be guilty of car theft in essece if they buy into Obamas act based solely on a registration form and NO title. A fool and his money will go separate ways, America is being conned into buying a hyped up SUV or whatever and after they fork out the dough the seller is refusing to show the title.
As a federal employee I had to produce my certified birth certificate, fingerprints, subject myself to an FBI background investigation (and every five years thereafter), submit to a polygraph test at my employer’s request, submit to drug testing at my employer’s request, report any planned trips outside of the country to security personnel, and give an outbrief to security. I am also forbidden to hold a passport other than that of the United States, or to hold dual citizenship.
Some people are just more equal than others I suppose.
We have for a couple of generations now thought only of the court as the place to have these rights vindicated. The Court has often dodged these cases when it finds them inconvenient by finding that the supplicant does not have "standing." I think there is a very high probability the court will dismiss all of these cases on the issue of standing. I say this even though I am aware that there are at least two cases which come at the matter from a different angle which might somehow provide standing. Standing here being defined as an interest in the petitioner which is concrete and explicit enough that the court should hear his claim.
There is however another means for the court to dodge this case which has troubled me from the very beginning. The court might well hold that there are other venues for these matters to be determined. First there is the matter of the secretaries of state of the individual states acting to remove from the ballot someone who is disqualified. Second, there is the possibility that the court might dump this off on some agency like the Federal Election Commission. Third, the court might hold that the matter should be decided by the electoral College saying that this is essentially a political question for them. Fourth, the court might hold this is a matter to be determined by the Senate and the House of Representatives, again, declaring this to be a political question.
These are ready exits to the court if they decide to call this a political question and not a legal controversy.
The “We the People” made the Constitution to limit the Federal Government as to how it is to govern and coin money. It also devised the Judiciary to oversee the Executive and the Legislative.
We also have the right to change the government to any form we want.
We are the employer and have the right to demand proof that the person applying to be the President is qualified to our satisfation.
The Federal Government has forgotten a long time ago who is the boss in this great country of ours.
What else on the cert could require such secrecy? The doctor's name? Absurd. The names of one's parents? I suppose that could be something a few people wish to keep quiet. But one does not ordinarily think of this as the kind of information that must be sealed from public view.
Obama has created the appearance he is hiding something. By invoking this phony argument of confidentiality, the state of Hawaii creates the appearance that it, too, is trying to help him hide something on the birth certificate.
Is there a way you could tell us what level or department of government you work in, that does not allow another passport or citizenship? And why do we ask this of your sector and not the presidency? (I know the CIA has loyalty clauses that perhaps the presidency does not...)
I'd also like to see the wording in your rules list -- this may be your department's attempt to heed the Constitution's "natural born" requirement. Could someone born outside the USA work in your position?
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.
This is absolutely possible if Obama is never vetted and serves 4 or 8 years as President.
Hear! hear!!!!
Bambi is already in above his pay grade!
In all my life and of the infrequent times I have been pulled over by an officer of the law {LEO} there has NEVER been a request to see my vehicle Title, and essentially this is the case of Barack Hussein Obama, all his life he only had to show his Registration, this is the crux of the matter and why he was allowed to proceed to where he is now.
Its because of the unique requirement stated in the US Constitution that he must display proof of his origin not his registration form, America has just bought a President but legally they cannot use it because until the title, proof of absence of liens etc. this candidate is questionable by the laws stated in our Constitution.
If Obama manages to skirt this it will go down into history as the greatest embarrassment of America, a hotwired Presidency.
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