[nathanbedford]

Article 2 of the United States Constitution has been amended by the 12th amendment which lays down a procedure for the election of the president and the certification of his election. The election is to occur among electors of the electoral college and it is to be confirmed in the Congress.

A court is concerned with more than just "standing" in a case such as this, it is concerned about whether the matter represents a "justiciable" controversy or one which is the stuff of litigation. In other words, the court will, and should, ask itself whether it is a court, an article 3 institution, which is authorized by our Constitution to determine this matter or whether there are other constitutional players who have the honor.

If you look at the 12th amendment you will see that electors are responsible, the president of Senate is responsible, the House of Representatives is responsible. The Constitution provides that there are many entities along the way to determine eligibility of a man to serve as president and they include people like the secretaries of the various states and the members of Congress. It is not at all clear from the Constitution that judiciary has the right or the power to set the determination of these people aside. This is not a matter of turning one's face away from wrong, it is a matter of lacking authority or jurisdiction to mix in, even to do right.

If we complain about how a federal judge can set aside the will of the people of California on the matter of homosexual marriage, we ought to consider whether the same arguments apply to federal judges who would set aside the electoral will of the people as confirmed by their electors and their Congress.

In other words if the institutions set up by the Constitution to pass on the eligibility of Barak Obama have done so, it is quite possible that the Supreme Court would rule that it is not within the power of an article 3 federal court to substitute its own review for that of the institutions designated by the Constitution to make that review.

Judges may not and should not act without jurisdiction, that is, without the legal authority to act and decide. If they do so they are merely tyrants. There is not a judicial solution for every problem. If you begin to think that way-the way liberals think-you can tear up the rest of the Constitution.

[Vincent Jappi]

There is an obvious fallacy in describing the failure to demand proof of eligibility from Mr Soetoro Soebarkah as “the will of the people”: that would mean that every so-called “representative” body has the right to ignore any Constitutional provision, because that, allegedly, is “the will of the people”.
And of course, in a literal sense, it isn’t and cannot be. “The people” never choose to have an unconstitutional “President”.

That fallacy, and the interpretation of the law which it implies, has apparently been refuted by Marbury vs. Madison.
It does lead to the possibility of usurpation of legislative power by the judiciary, but in this case, demanding documentary proof of birth circumsnances, or even reaffirming a long-established tradition in the definition of a “natural-born citizen”, is no such usurpation.