Replies

The situation as I see it in a nutshell is that there is no affirmative proof of birth anywhere except Hawaii. That is, there is affirmative proof of birth in Hawaii. Please note, I did not say there is conclusive proof of birth in Hawaii merely that there is evidence thereof. So whoever gets to decide this issue would have to say that the mere anomalous nature of Obama's refusal to authorize disclosure of the birth certificate is somehow evidence that he was born elsewhere than in Hawaii merely because his refusal to release his birth certificate is strange and runs counter to human experience and suggests that the man has something to hide. I know of no forum that admits to substituting motive for evidence. I know of no forum which says that in the absence of any evidence we will overrule contrary evidence because of motive, in this case the presumed motive to hide ineligibility if he is in fact ineligible.

I use the expression "forum" because it is not at all clear to me that it is the federal courts alone who have jurisdiction to decide this issue. It might be that the matter is conclusively decided by the secretaries of every state certifying elections, or by the legislatures, or by the House of Representatives, where the president of the Senate, all of whom play some role in the election of United States presidents. It is the House and the Senate which have jurisdiction over impeachments (although the Chief Justice presides) and not the Supreme Court. This is no doubt partly because it was contemplated by the founders that the removal of the president for high crimes and misdemeanors was partially a political proceeding and not a justiciable one.

So we see that the nature of impeachment is somehow different from a proceeding based on in eligibility of a sitting president-or maybe not.

The Constitution does not provide explicitly for a body to adjudicate eligibility after the president was sworn in. Please see the 20th amendment quoted in part:

3. 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.

Once the failure of the President-elect to qualify is determined, the Constitution creates a responsibility and power in the Congress to sort it out. One can draw intriguing inferences from this about the intent of the framers of this amendment in 1933, but nothing is clear or sure and it does not necessarily mean that one can extrapolate from this to an argument over eligibility after the president is sworn in and say that the Congress shall act as it sees fit. Furthermore, the amendment merely assumes the existence of a failure to qualify and not the test or the forum.

So when we ask the question, "what if," about what we might find in the Hawaii vault and the implications of the existence or nonexistence of certain documents like a longform birth certificate, we have to think, are we asking a political question, a legal question, constitutional question? And if were asking any of these questions we must next ask, who is decide it, a judge, the electors, the House of Representatives, the Supreme Court, or the court of public opinion?

Once we determine all of these things, somebody can weigh the evidence or the absence of evidence and apply presumptions of law and decide whether motive should overcome proof.

The situation as I see it in a nutshell is that there is no affirmative proof of birth anywhere except Hawaii. That is, there is affirmative proof of birth in Hawaii. - Agreed.

So when we ask the question, "what if," about what we might find in the Hawaii vault and the implications of the existence or nonexistence of certain documents like a longform birth certificate, we have to think, are we asking a political question, a legal question, constitutional question? And if were asking any of these questions we must next ask, who is decide it, a judge, the electors, the House of Representatives, the Supreme Court, or the court of public opinion?

It is confusing. I'd be satisfied to begin with the court of public opinion. :-)

It seems that the SOS's initially failed to do their jobs. I don't believe any SOS requested any type of BC proof from any presidential candidate. I guess they took each candidate's word that they were eligible. The original poster's recommendation that state legislatures enact reforms requiring candidates produce their long-form BC to be placed on a ballot, is a very good start. Even with that requirement, would obama's long-form BC disqualify him if it happened to be in the form of an affadavit from a family member? I doubt it. That's where the court of public opinion (the voter) comes in. Enough doubt about the truthfulness of obama's birth circumstances may be enough to politically kill his chances at reelection.

The bigger problem I have with obama's birth is that his father was not a US citizen at the time of his birth, or ever. That does not seem to pass the natural born citizen requirmement for eligibility. Again, who's responsibility is it to determine the original meaning in the Constitution regarding eligibility? The Supreme Court? ....and what would it take for them to do this?

Thanks for your thoughtful and interesting post.

I may well be mistakenly crossing my I’s and dotting my T’s here, but my understanding is that the nominal Hawaiian birth certificate submitted to validate 0bama’s birth differs from a formal certificate of live birth in that the formal certificate of live birth affirms the exact physical location of the party’s birth, while the birth document presented by the Democratic vetting committee to validate 0bama’s qualification as a legal and viable presidential candidate was a birth certificate of convenience, issued by the State of Hawaii to children of Hawaiian residents without particular regard to actual geographical location of birth. If so, then this secondary birth certificate by its nature cannot act as definitive proof of native born status as required by the Constitution.

If I’m wrong on any of this, please do correct me.