The fact that no detailed process has been specified is irrelevant to the question of burden. There is a long history of “burden of proof” in litigation, and in general that burden lies with the proponent of a fact essential to the cause of action, here, the purported fact that Obama is eligible under the Constitution to be President. Once the initial burden has been met, the denier of that fact must then produce evidence the fact is false.
The problem is, while the constitutional rule still implies a burden of proof on the candidate and his party, the current system relies too heavily on internal party vetting of candidate qualification. There’s a pathological conflict of interest in that. The adverse political party is a far better source of contrary evidence, but it often comes too late in the process, or not at all if bringing it up could backfire on other under-qualified candidates (as with the McCain eligibility flap). Once, Lord willing, we are done with Obama, this deficiency in the system needs to be revisited.
However, this is not strictly a litigation question, and runs more to the political sense of “burden of proof,” and all the legal fineries of burden of proof logic go pretty much out the window in favor of the common sense rule, which is still this, that if you say something is so, it’s up to you to prove it, and if you don’t prove it, the electorate has a right to doubt you, and to act politically on that doubt.
So really, the burden of proof is still on him no matter how you slice it. And he has failed to meet that burden, and we need to continuously remind the public that their intuition of doubt, brought on by his evasiveness and unwillingness to acknowledge his burden of proof, is fully justified, and not only so, but potentially explanatory of his aversion to policy that advances genuinely American interests. And if this self-inflicted doubt accelerates the dampening of his political power and his potential for reelection, then we can only count it a good thing to sustain that doubt by continually highlighting his obligation, his burden, to remove it, if he can.
See post 89 and link.
It seems to me the more effective argument at this point is that any burden Obama had expired once he was crowned (at least in his view) during the January, 2009 Joint Session. Clearly, up to that point, as a function of the entire election process, he had the burden of providing evidence of his qualification that was of such quality as to satisfy any request of state election officials and, until the conclusion of the Session, members of Congress.
Once crowned, in IMO, the burden of proof and certainly the burden of going forward shifted to the Congress. I say the Congress because IMO that is the only body with authority to now challenge and act on his qualifications. Free of the burden, Obama can now flip off with impunity, and delay his response to, any Congressional request for documentation and attempt to serve out his term.
At least until Congress goes forward. It, of course, has the inherent power and ability to obtain convincing evidence of a non-U.S. birthplace – if such evidence exists. The effect of any USSC opinion of the two-parent NBC requirement that is unfavorable to Obama seems problematic inasmuch as Congress took no action on the public issue in the first instance. Nonetheless, with either in hand, Congress could impeach and convict with little or no response from Obama.
Further, and the most disgusting aspect, it does not appear he has failed to meet any burden he may have once had, simply because there was no request that he do so.
Your thoughts?