Post-Denial Status of "Natural Born" Cases -- more appeals, then Congress...

Today, as expected, the US Supreme Court denied the Donofrio petition for an emergency stay to stop the certification of New Jersey's electors to the electoral college on the grounds like Obama is not a "natural born" citizen. Though RWers agree that Obama is an American citizen, they just think he's not the right "type" of citizen, based on their understanding of Constitutional language written before slavery was abolished and before women had the vote, and UNADJUSTED IN LIGHT OF THE 14th AMENDMENT and all of American history since 1789.

Although the Donofrio denial is among the first of as many as fifteen appeals on their way to SCOTUS, its dismissal is a reasonably good sign that the court system will not hear these challenges. However, because the dismissals have all been procedural ones (lack of standing, etc.) and not on the merits, the courts -- while not accepting the cases -- nevertheless are technically not saying the cases lack merit either.

However, it's important to understand that this, as usual, will not end the story for misguided right-wing forces determined to get a hearing on the "merits" of their claims that Obama's evidence of birth is forged, etc. As I've posted previously, they consider these cases "no lose" propositions because it rallies their base, and the issue can stay on more or less permanently.

Their next moves are:

1. Additional appeals to the US Supreme Court with little chance of success, but each one helps them raise money.

2. Moving the dispute to the Congress at the level of the Electoral College, arguing that Congress is the only party(ies) with standing are in the Congress, and further (falsely) arguing that under the 20th Amendment the congress has the power to second-guess the election by assessing the "qualifications" of the candidates for whom electors have cast their ballots. The primary argument by that point will be that the issue is a "political question" not appropriate for courts, but instead appropriate for Congress.

3. Although Obama would in all likelihood survive such a Congressional vote, should such a vote of any kind take place without objection it would presume the power of Congress to second-guess an election by the People on an issue that was both discussed, debated and litigated in both primary and general election campaigns. Thus, while this time we may "win" any such precedent that Congress can legitimately second guess or re-decide an election based on anything other than full-fledged impeachment processes would be a very bad omen for the future -- where in the future a hostile Congress might reject the candidate elected by the people via the electoral college.

4. Even failing the Congressional vote, it becomes the foundation for both political and perhaps congressional impeachment proceedings (presuming they can muster votes, manage procedural hurdles, etc). This all fits in with the ridiculous frames they were forced to resort to, painting Obama as a "foreigner", liar, etc. As with the Clinton years, we can reasonably expect right-wing meritless claims to attempt to dog Obama for all 8 years of his administration.

Although I am pointing that these cases won't die, and although I do believe the issue merits more than superficial attention by DUers, ultimately if one doesn't understand one's enemies thoughts, strategies and tactics, one is poorly placed to defend against them. IF you'd like to read a detailed analysis of the situation that gives appropriate credence to the RW's ability to maintain meritless arguments for years, taking them seriously to the extent necessary to develop the most effective counterarguments to what they're doing, see my thread from last week here: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x7951296

In a nutshell, the issue of "first impression" for the courts, namely the issue of what "natural born" means, is capable of easy resolution, as follows:

The Constitutional clause in question sets out 2, and only 2, classes of citizens, as does citizenship law generally: naturalized citizens and natural born citizens. A naturalized citizen is one who voluntarily accepts the US after being BORN a different citizenship(s), none of them being American citizen.(think: ADOPTED or ADOPTIVE citizen) The clause in question grandfathers in the Framers of the Constitution alive at the time of the Constitution, because they were all "naturalized" to American citizenship because America didn't exist until recently.

We're all either BORN to parents or ADOPTED to them. This tracks 'natural born' and 'naturalized' concepts perfectly. Natural born means "citizen since birth" and nothing more.

However, here's the key: Because there are only 2 classes under the Constitution, if Obama or anybody else is not a naturalized citizen, then THEY MUST BE a natural born citizen -- a citizen from birth onward. Importantly, that's what Obama was even IF he were born in Kenya! So this whole issue is more frivolous than even the most cynical DUers have imagined, even though I differ from them on the side issue of needing to take their claims seriously, but just for the purpose of knowing what we're defending against.

So, just ask a RW if they maintain that Obama's a naturalized citizen. If so, ask for the evidence of the oath, the citizenship class, etc. (none). If not, then the case is over: The Constitution sets out two classes only of citizens, and they may not make up third classes of citizens not contemplated by the Constitution itself. Congressional statutes can not change the Constitution, so all the statutory citations in the world are unavailing to them.

Finally, when talking to right-wingers don't miss the super-obvious:

These lawsuits, and any Congressional hearing or vote, if any, is a direct attack on democracy, because it does not seek or care to know the will of the people but instead seeks to overrule that will of the people.

These attacks are specifically on a basis other than a legitimate recount or election contest that seeks a better determination of that true will of the people. As such, it's an unprecedented and undemocratic direct attack on democracy, even though they've been litigating and debating this for a year or more now.

They've shown their xenophobic, anti-democratic, and even anti-republican (with a small r) true principles here. I think it will pay to never let them forget that.

Plus, when one of the key players, We the People Foundation, has federal court orders shutting down their tax fraud-promotion website that purports to teach people that nobody needs to pay income taxes, there's enough here to keep things fun. How fraudulent that "We the People" funds and favors litigation to attack the will of We the People based on issues raised and rejected in the campaign. It's enormously ironic at best that We the People attacks the People themselves, and on the way turns Patrick Henry on his head (see first quote below), completely misunderstanding the basic nature of our system, in that the Constitution (properly understood) applies to limit and shape the powers of the government, to ensure it is always our servant and that we don't become its slaves.

The Constitution properly applies to the LAW-MAKING function of government, because law is force. (That's why it applies to Prop 8 but not the election of a PERSON).

Although we vote in elections whose outline is sketched by the Constitution, our decisions on who we elect are not subject to control by the Constitution, because we the People are the ultimate power or sovereign power in our society. In fact, six US Senators and Representatives have served their terms even though too young under the Constitution's clear requirements. This is a reflection of the sovereign power of We the People to elect whoever we please -- at least knowingly. The Constitution can be used as a criticism of someone running who's too young, but is not an ultimate BAR if the people decide to choose that person anyway. The protection, if any, the Constitution provides against "foreigners" from becoming president is fully activated in campaigns where one side gets to bash another cloaked in the robe of the Constitution, but if the people to decide to elect someone despite this, it's THEIR CHOICE.

Why? Because that's what it means to be a FREE PEOPLE. You get to elect whoever you please. As Patrick Henry implicitly notes below, free people can do whatever they want within the basic structure, because the Constitution applies to limit lawmaking and government powers. It can't be turned around, weaponized, and used to second-guess the judgment of the people as to who should be their President, after the whole years long and billion dollar process is over.

The Constitution is the baby of We the People. It applies to government. Unfortunately it doesn't apply to even protect us from corporations in the private sector.

The Constitution shapes the PROCESS of our elections, but it does not and can not control our CHOICE after the election is over, otherwise we are simply not free.

Unfortunately, one thing both political parties have often been able to agree on is expanding the institutional power of Congress beyond its limits. (A seeming win/win for all incumbents). Thus there may be an incentive for the right to have a hearing on this "issue" and for the Democrats to go along, knowing they'll win, and wanting the Constitution to be "respected" and a "hearing to be had" that has never been had (they will say). BIG MISTAKE FOR DEMOCRACY though.

In the two months to come, please oppose any congressional power grab to have a "hearing" on or vote on the "qualifications" of Obama, and do so ON PRINCIPLE that We the People wish to remain in charge of OUR COUNTRY, and not because of who will be the temporary winner or loser of such a vote, in a Congress that is temporarily friendly. Thank you.

One thing the docket wouldn't note is the claim that, on one day alone, they sent 31,545 Fedexes to the Supreme Court in an effort to urge them to take this or related cases. (via broadcast spam I received, and posted on sites around internet)
--------------------------
From SUPREMECOURTUS.GOV

No. 08A407
Title: Leo C. Donofrio, Applicant
v.
Nina Mitchell Wells, New Jersey Secretary of State

Docketed:
Lower Ct: Supreme Court of New Jersey
Case Nos.: (AM-0153-08T2 at the New Jersey Appellate Division without a docket number)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Nov 3 2008 Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.
Nov 6 2008 Application (08A407) denied by Justice Souter.
Nov 14 2008 Application (08A407) refiled and submitted to Justice Thomas.
Nov 19 2008 DISTRIBUTED for Conference of December 5, 2008.
Nov 19 2008 Application (08A407) referred to the Court by Justice Thomas.
Nov 26 2008 Supplemental brief of applicant Leo C. Donofrio filed. (Distributed)
Dec 1 2008 Letter from applicant dated November 22, 2008, received.

http://origin.www.supremecourtus.gov/docket/08a407.htm

By way of example all of the following would preclude SCOTUS power to decide even a constitutional case:

1. The Political Question Doctrine
2. Abstention
3. Lack of Standing (seen in some of these cases)
4. there are others

Thus, it is regularly the case that congress, the federal government, and the people are all left with what amounts to final power to determine the meaning of the constitution. The difference is that these other entities don't usually have the power to compel others to accept that interpretation as "law."

Moreover, even when SCOTUS does decide, there are (or should be) limits in each individual's conscience as to what they can accept as legitimate (otherwise there's no limit to what can readily be the authoritarian, unappealable power of a supreme court's interpretation). Such limits won't necessarily stop the enforcement of a decision, but over time and as a higher percentage of the public rejects a case, it loses power and acceptance in a way that's actually independent of the precedential power of courts. In this fashion, controversial cases like Dred Scott were undermined severely before they were ultimately overruled or amended out of existence.

Makes it seem like you know what your talkin' about. :sarcasm:

Thanks shark
kick and rec!

Always a pleasure to K&R your work. Thanks. :)

I've actually heard some of these nutjobs claiming Obama is an illegal immigrant -- that he either renounced his citizenship while he was in Indonesia (at the age of 10?) or never was a citizen to start with.

I appreciate the simplicity of the either/or naturalized/natural-born argument. But how do you reply to this other stuff?

you don't lose citizenship by operation of law based on acts one can't control. Example: voting in an Israeli election, insufficient to lose citizenship.

If citizenship were a political football, as RWers assume (or perhaps WANT) it to be, then we'd all be in real trouble, because our birthrights have then become political footballs.

Here's how I flipped a RW constitutionalist, who freely offered "you just changed my mind!" (a rare event?):

First, I take them back to what we all believe in: The American Revolution of 1776 meant self-government, accomplished by "we the people" stepping into the shoes of the sovereign King George, and becoming the only legitimate and ultimate source of power. As Eisenhower said, the divine right of kings was replaced by the divine rights of the common person.

Each citizen is a sovereign (like a king or queen) in a republic or representative democracy, except they've got millions of equals. (In my experience, RWers and constitutionalists will almost always "get this" pretty easily).

NOW ASK THE QUESTION: Do you think that if the Queen of England were visiting Kenya, perhaps looking to buy a fine royal cottage there, and happens to give birth while on the road, that there would be any question at all whether or not the Queen's son or daughter would be a British citizen?

Answer (if they can think AT ALL): Of course not.

Then, quit fucking around with Sovereign Citizen Obama (and his mama!)

--------------
Some more crazy stuff comes in when they imagine that foreign law, even a young brand new country like Kenya, has in its laws the magical power to travel half way around the world from Kenya, across two oceans and a continent, and invade the Island state of Hawaii in the United States, piercing through all US law and somehow altering Obama's very conscience, loyalty or allegiance to country. This is magical thinking of the most classic sort. This applies to "dual national" theories. Another country may recognize somebody by law, but they can't be controlled by it unless they assent to it or agree to it. One can't agree when they are ten years old. Don't you think that 'family values' would dictate not forcing people to grow up too soon? :)
----------------
Indonesian citizenship: If you have citizenship by birth, you can't lose it except through conscious and willing action to renounce it. This is not easily done (see Israeli case above). Also, being present in a country doesn't change citizenship or travel would be very hazardous. Nor does having a step-parent do anything. Heck, step-parents have a hard time getting any significant rights, much less do they possess magical abilities to endow citizenship or the lack thereof on their non-children.

--------------
RWers really believe, or think by default, that statutes ought to control all citizenship questions. If true, that would mean that one's most basic rights could be yanked in an instantaneous vote of congress, making one an "alien" -- a relatively rights-free person. I'd tell them (a) that ain't true (b) if it were true, it would be incumbent upon all of us to join together and defend our own birthrights in citizenship as our own choice to keep or lose, because without those birthrights of citizenship (born or naturalized) constitutional rights are of little use. Most of the case law they try to cite is from "alienage" cases where congress is held to have PLENARY or complete power to regulate as it sees fit. This is wholly separate from the birthrights of citizens which are secure (AND ONCE OBTAINED EVEN BY NATURALIZATION ARE QUITE SECURE). Once naturalized, a citizen is equal in every single respect, except maybe (just maybe) this one last clause of the Constitution, depending on how its meaning is modified by various historic and Constitution-changing amendments -- especially the 14th Amendment. Because presidents are so few in number, and issues rarely arise, this is one Clause of the Constitution that hasn't had a real opportunity to fall by the wayside of the amended post-slavery, post-women's right to vote Constitution.

-----------------

Bottom Line: American history in elections and discrimination is a story of progressively Eliminating "accidents of birth" as being of any significance or relevance to the government whatsoever. (what race, sex, national origin one is born to or in).

We are in the last throes of that historical struggle to eliminate accidents of birth as having any legal significance as far as our government's concerned whatsoever. (and being born in Kenya, if true, would be a clear accident of birth that should not control one's life)

But some still claim a xenophobic intent remains in the constitution's natural born clause. This misunderstands the Founding, where most people were immigrants, and government (a likely source of future presidents) was HEAVY with TORIES. These folks also misunderstand America, for the reasons shown below, styled as a game of with RWers for fun:

Playing "Let's Make A Deal" with Wingers:

America is not a territory (keeps changing) nor a religion (Freedom of worship) or a race (diverse) or a "soil." The "soil" one was born on is a foundational principle of FEUDALISM - the "lord" controls what's born on his property, who are then 'naturally' connected as all serfs are to their lords. Instead, America is the first country ever founded upon IDEAS, specifically ideas about freedom and equality that were noble enough that it took over two hundred years plus 650,000 dead in the Civil War in order to make real the promise of the Declaration of Independence. but, because America is a nation founded upon ideas, to believe in and accept those ideas is what it means to be an American. That's why we give a citizenship TEST for naturalization, and not a race test, a territory test, a soil test, or a religion test.

I'll make you a deal, sir. Seeing as how you fail to understand the most basic ideas about America, I can question your Americanism. I don't see how you could pass the naturalization test, myself. But, like I said, I'll make you a denial that protects us all: I won't attack your birthrights and citizenship if you won't attack the birthrights and citizenship of those, including but not limited to Barack Obama, who understand the Constitution one hell of a lot better than you do. Deal?

Which is neither here nor there, since she didn't give birth to any children during her stay, but your use of her as an example reminded me of it and it seemed like a strange coincidence.

http://archives.cnn.com/2002/WORLD/europe/02/06/queen.kenya/

The day Queen Elizabeth II inherited the British throne, the 26-year-old princess was on safari with her husband, Prince Phillip, looking at African wildlife in Kenya.

The night her father, King George VI, died of cancer, they spent the night at the original site of a treetops hotel -- at the time simply a hotel room built off the ground in a giant tree for viewing game.

"You know, the story of going up into a tree a princess and coming down a queen was perfectly true, it wasn't invented," says former professional game hunter Richard Prickett.

Prickett isn't the only person who remembers that fateful night. Fifty years on, the retired cook who made their dinner remembers what the royal couple ate. "They had cold soup," says Ladislau Nganga, now 92. "Then they had turkey, chicken, then strawberries with cream, coffee, tea, and everybody picked what they wanted."

Has claimed publically Obama is an "Illegal Alien"

:kick:

Good work regardless.

We can't expect to defeat an opponent without engaging them.

Here we have an opponent making "crazy arguments" that are easy to refute and beat and in the same process we can expose them for their anti-democratic biases while simultaneously affirming progressive democracy on the positive side.

One side (me) says: Time to move in and WIN this debate, big time!

Another side (understandable frustration) says: I'm tired of these crazy-batshit arguments, etc. etc.

Right, they're crazy. Shall we then wait in order to engage the opponent when they are less exposed, have better arguments, and we can't reaffirm democracy and our recent presidential election victory????

You wanna move in and attack against a strong argument, or against a weak one? C'mon folks!!

Goodness, again I understand the frustration at having to deal with such silliness, but more properly seen its a huge opportunity to win, define the opponents, and move forward. If not here, where we gonna beat 'em??

Congressional intervention, even presumably favourable in this instance. Those concluding quotes bear compelling testimony to the realities at the heart of this issue.

I would dearly love to see these Neocon trouble-makers sued for vast amounts for vexatious litigation. A great pity Bill Clinton didn't do it - before a jury. It is clearly an egregious form of traitorous, anti-government terrorism, underhand ploys designed to thwart the smooth, efficient functioning of successive Democratic Administrations, and needs to be sanctioned by the full weight of the law. If they can be prosecuted personally as well, all to the good.

I don't believe this offence is pursued a half as purposefully as it should, either by the Democrats in the US, or in Venezuela, by Chavez. Perhaps, the monstrous owners of their far-right media would end up having heir assets sequestrated by the State. It would not be before time.

The fuckwad crazies will never stop, and they will never be even close to successful. Not a chance. As many of us have been saying and saying and saying.

What kind of military tactician are you cali? Do you attack only when the enemy is strong with arguments and strong in the courts? Or do you attack when they are weak and wrong?

Do you realize (perhaps you don't since this is my area so to speak) that it's quite hard to get "democracy" in the news? They say it should be on the editorial page only? This brings democracy in the news, so that's good for exposure since principles of democracy have to be taught constantly or else democracies wither and die over the generations.

I think cali recognizes as the OP says that they don't need any merit to keep something going for 8 years, as we learned during the Clinton era. BUT, it's entirely possible that these things hang around like a bad infection because nobody does the "dirty" work of "cleaning up" dumb arguments enough, they "rise above it" and don't want to "Dignify" it...

And they certainly will keep going, unrebutted, if we don't at all respond with correct information that ignores their false frames and rises above it, defeating their arguments at the same time.

All I know is I'm having success winning over RWers on this issue. I don't see that sustained persistent engagement by DU or the left has ever been something that's been tried very seriously. I'm saying now's a time to head out and win as against an easy argument. Get some easy "kills" like a fighter pilot gets wings. Why not?

This is fun for me. I like having easy arguments i can regularly win on.

Do you think you can defeat an opponent without engaging them? Do you think that the opponent shouldn't be defeated because they're "sitting ducks" that have "crazy arguments"?

Dude, this is a chance for an easy win, and you're trying to scare us away because the "enemy" is ill-prepared and unable to fight back. That's not good military tactics my friend.

I think you're doing a service here with your post. Happy to rec.

Have you thought about joining the legions of DU'ers that have covert logins on right-wing web sites and spreading your message there too? It will be difficult, being logical surrounded by madness, but judging your responses in your OP and in this thread, I think you'd be great. :)

Yeah, I can will and have followed my own advice and talked to right-wingers myself, these political "products" above are market tested, and Mama-approved. (Obama's mama) ;) The right winger i referenced in this thread is a real story, he really changed his mind totally in response to what i said.

But if you're volunteering to be a soldier, PM me and we can go out on patrol some time. :)

But if you're volunteering to be a soldier, PM me and we can go out on patrol some time.

I'm no soldier but I do like to speak my mind. And because I'm an independent, that means that sometimes I piss of the conservatives and sometimes I piss off the Dems. I've found the Dems to be much more informed but oftentimes, no less adhered to their ideology.

But this Birth Certificate foolishness has taken the damn cake with me. I cannot believe the stupidity and lack of basic logic that has gone into this entire business. It's absolutely embarrassing to me as an American that this has gone on for as long and as far as it has. Thank GOD that this has been (mostly) kept out of the national and especially the international media.

once and for all, there are benefits to having the winger nutcases continue their quixotic campaign. For one thing, it keeps them busy. Nobody's really paying any attention to them, but they're all wrapped up with their futile hopes of keeping President-elect Obama out of the White House.

Let 'em rant, I say. Right now, the first browse page on Free Republic has eight topics on this issue...all pretty much duplicates. Many others have been deleted. They're just trying to keep up some sort of pretense that they haven't really lost this battle, and wasting their time.

I doubt if any of the cases will ever go to court, either in the states or at the SCOTUS. Yet...all that energy and money is going out of the wingers' pockets into a futile cause. That's a good thing. Let them waste as much time and money as they like on worthless causes.

In the meantime, President-elect Obama will take office and, I hope, begin to unravel the ugly web of crap woven by the Bush administration.

It's incorrect to paint this as strictly fringe, because i've seen "regular" folks persuaded by the importance of "upholding the constitution" and without a response, there's no opposition to them defining citizenship in a crazy way, defining the constitution in a crazy way, and driving their way home to hearts and minds without opposition.

Especially when you consider that this is nothing short of a political assassination attempt, if you don't treat those attempted assassins who are "crazy" seriously then you'll give John Hinckley a free pass to the President.

One has to treat all assassination attempts seriously, whether they are "crazy" or not is quite beside the point. If you think all of the bullets they fire just fall like harmless sparks, you haven't been looking that much. In effect, they are harnessing the power for the restoration of the rule of law and justice and the Constitution and pointing it at the President-Elect, the people's choice. That's why I call it weaponizing the Constitution, it's not meant for use against the People's choices in candidates.

If one doesn't like squashing despicable arguments, then go out and find some good arguments and squash them. But would you really be into THAT?

business. All of the arguments I've seen are suppositions. The COLB could be forged. Obama could have been born in Kenya. And so on...

There is absolutely zero evidence that Barack Hussein Obama was not born in Hawaii. None. That's what makes this whole business such a joke. It's all hearsay and supposition, and countered by the nice COLB that is shown in photographs, complete with date stamp and seal.

So, sure...let them keep filing this crap and let the courts throw out the cases as the silliness that they are. As I said, it keeps the wingers busy.

As far as I am able to tell, not a single one of these cases presents any evidence that Obama is not a natural born citizen. None of them.

Indeed, in the one thrown out in Hawaii, the SoS of that state said that the COLB accurately reflected the original document as to place of birth. That settles it, as far as I can tell. I'm sure she'd say the same thing in any other case where she was required to testify.

The fact that an opponent presents a huge weakness (especially when attacking our democracy and president-elect) is not some kind of a bar to action, it's an invitation to success.

From SCOTUS:

http://origin.www.supremecourtus.gov/docket/08a469.htm

No. 08A469
Title:
Cort Wrotnowski, Applicant
v.
Susan Bysiewicz, Connecticut Secretary of State
Docketed:
Lower Ct: Supreme Court of Connecticut
Case Nos.: (SC 18264)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Nov 25 2008 Application (08A469) for stay and/or injunction, submitted to Justice Ginsburg.
Nov 26 2008 Application (08A469) denied by Justice Ginsburg.
Nov 29 2008 Application (08A469) refiled and submitted to Justice Scalia.
Dec 8 2008 DISTRIBUTED for Conference of December 12, 2008.
Dec 8 2008 Application (08A469) referred to the Court by Justice Scalia.


~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Cort Wrotnowski 1057 North Street (202) 862-8554
Greenwich, CT 06831
Party name: Cort Wrotnowski
Attorneys for Respondent:
Richard Blumenthal Attorney General (860) 808-5316
Office of the Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
Party name: Susan Bysiewicz, Connecticut Secretary of State

Under your interpretation, what appears to be mandatory language in Article II of the Constitution, concerning qualifications for the Presidency, would really be nothing more than good-natured advice. With 270 electoral votes, Arnold Schwarzenegger (naturalized citizen) could become President. Hell, so could a noncitizen like Vladimir Putin (if Sarah Palin ever lets down her guard) or the underage Paris Hilton.

I don't believe a Constitutional requirement can be so lightly disregarded. If one could, why not others? Suppose a RW President and Congress passed a bill to set up a nationwide referendum on banning the practice of the Muslim religion. Suppose that We the (sovereign) People approved the proposed ban, with 53% voting in favor. Would it then be enforceable law? I'd say no. The Constitution is the fundamental law of the land, and it can't be set aside even by a majority vote. In fact, the anti-Islam rule could get 80% of the vote and it still wouldn't be valid. It would violate the First Amendment.

Is that undemocratic? Well, yes. The Constitution puts some limits on what a current majority can do. If a majority doesn't like a provision of the Constitution, the remedy is to change it, through the specified amendment process, not to ignore or violate it. There's a good argument for changing or abolishing the current eligibility requirements for President -- I'd be inclined to support outright abolition -- but unless and until it's amended, it remains in effect.

That leaves open the question of how the Constitution is to be enforced. In the case of the prohibition of Islam, it's easy. The first who's prosecuted for leading the would defend by arguing that the law was unconstitutional. The criminal court would dismiss the charge on that basis.

That's not an appropriate process for a Presidential election, though. The Constitution expressly commits to Congress the responsibility of receiving the votes of the electors and determining the winner. For that reason, it makes more sense for enforcement of the eligibility requirement to be the ultimate responsibility of Congress, not the courts.

Thus, I also disagree with your dismissal of any role for Congress. If, in 2012, Schwarzenegger runs for President, then the House of Representatives should decline to recognize any electoral votes cast on his behalf. By contrast, you appear to say that if the issue of Schwarzenegger's eligibility is raised in the campaign, and he gets 270 electoral votes anyway, then he should be declared to be President, despite his manifest ineligibility. Have I misread your post?

Without "state action" there's no constitutional claim whatsoever. There's no state action here when We the People act, we're different from the government.

That distinction is erased when We the People directly legislate, as with an initiative.

I do not make the Constitution inoperative, as I say it is a powerful political weapon to yield. If in conflict (above I say they're not in conflict) the higher principle has to supercede the principle that's lower. If the Constitution truly prevails as against We the People, then we are not sovereign. In that case, we are neither a republic nor a democracy.

Under political theory, there HAS to be a sovereign or ultimate power. Under the Declaration of Independence and many a document and speech, we the people admit of no masters except God. That's an announcement that we are sovereign. Whatever can bind or control the sovereign IS the sovereign, that's why there must always be a sovereign. Subject to the limitations of inalienable rights (no slavery, life, liberty, pursuit of happiness, right to alter or abolish the government, right of self-defense, etc) the sovereign can do what it wants.

If you deny that power to elections of the people, then Who is the Sovereign?

The parade of horribles is non-existent because one has to imply extreme stupidity on the part of the society as a whole in order to think they'd elect a foreign king or something.

If we find the People unworthy of being trusted, then the project of self-government has failed: all authoritarian systems are based on some version of the notion that the people are dumb and therefore need a philosopher king or a dictator to assist them. We don't need the government's "help" in deciding who to elect.

Democracy's based on the idea that (more than anyone else or any elite group) the people can be trusted.

Consider that Congress in this instance KNEW of the issue for about a year, the Senate passed a resolution concerning "natural born" issues for Mccain that mentioned obama also in passing, the issue was litigated in courts all over the country in primary and general elections/

now, in the above context:

For congress to sit back and let us waste 2 years of a campaign and about a billion dollars in order to (after the election) have its own hearing and vote WITHOUT THE STRONGEST OF WARNINGS OR ACTION TO INTERVENE, would be the most odious, vile, reprehensible and undemocratic act of making We the People go through a fake election with fake choices, then making the real choice itself.

Do you really think congress has that power? WANTS IT?

Congress's duty is ministerial, to "tally" the votes so to speak. Even when a right of voting devolves on congress, they vote one state one vote -- literally the constitution never contemplates the individuals voting. They would purport to do so in this case, apparently. Article II specifically says reps and senators shall NOT be electors...

In your first response above, you write:



What if what the sovereign wants to do is to bind itself so as to prevent certain actions from being taken? That's what's happened here. The sovereign people adopted a Constitution (if we're willing to overlook some troublesome aspects of the process, such as the disenfranchisement of most people in the 1780s). The Constitution has the eligibility rules and the amendment rules. The sovereign decided that no one who isn't a natural-born citizen could become President unless that change were implemented in a way to show widespread consensus.

Your approach would deny the sovereign people that power.

The practicality of what to do is a harder question, because it's not spelled out or even hinted at in the Constitution. No, Congress should not order a new election. There's no textual basis for that. But I also don't like your solution:



That's how Congress approached a disputed Presidential election in 2000. Many of us thought it was the wrong answer. Congress should have held that the recount of the Florida votes, ordered by Florida's highest court in accordance with Florida law, had not been completed. (The reason it wasn't completed was the political interference by the Supreme Court, but that's immaterial.) Therefore, the process of choosing the Florida electors had not yet been completed, and could not be completed in time. The envelope received from a couple dozen folks claiming to be the electors had no validity. Florida didn't cast its electoral votes. Of those votes that were cast, Gore had a majority and should have been declared the winner. Instead of ruling that way, however, Congress adopted your approach, and thus abdicated its Constitutional rule in supervising the process.

As a practical matter, the best thing for us would be for at least one Republican from each house to raise the objection that electoral votes for Obama shouldn't be counted because he isn't eligible. Then there would be an on-the-record vote. A few Republicans would side with the wingnuts and brand themselves as wingnuts, too, thus marginalizing themselves. Most Republicans would say impatiently, "We lost, get over it" and vote to seat Obama, thereby alienating a chunk of the Republican base and perhaps generating primary challenges against themselves.

It would also be the best thing for the country. The issue will arise again, in a case in which standing is clear. For example, a federal agency will exercise a rulemaking power conferred on it by Congress and issue a regulation. A corporation accused of violating the reg will argue that it wasn't validly promulgated because it must be signed by the Secretary and there is no duly appointed Secretary, Obama being a usurper whose so-called appointments carry no weight. The best disposition will be if the court can say: "That issue is committed to the review of Congress when it counts the electoral votes. Congress considered and rejected this argument back in January 2009."

The Obama citizenship "truthers" will have less traction if they've had some sort of forum in which the merits of their arguments could be taken up.

In addition, as Thomas Jefferson often remarked, it was very problematic to say the least for one generation to purport to "bind" future generations (as opposed to gifting them freedom or rights).

But then there must be at least a few who don't think binding future generations with trillion dollar bailouts in the plural is too problematic to contemplate. But similarly with debt, the Founders thought it was a serious evil to saddle future generations with financial obligations, much less a diminution of rights.

It boils down to whether you trust the people or not. If you don't, then representative democracy is a dead letter and we might as well give it up. If you do trust them, then you realize that the hazing intensity that is political campaigns is more than sufficient to air out any real issues related to "foreigners" among us.

Considering the extremely important things that politicians lie to us about (and we have no recourse) to think that the circumstances of birth, if proved constitutionally relevant (which I believe they are not, even if the RW allegations are true) are truly immaterial in the relative scheme of things.

Why have it be "ok" for a president to be a convicted felon (it is ok), an alcoholic, drug addict, warmonger, serial liar, pathologically mentally ill -- and the public has to take the risks and benefits of "hiring" any such persons. But supposedly through an archaic and strained interpretation of the constitution pthat provides that we have a class-full instead of a classless society, an accident of birth is elevated to an absolute bar strong enough to veto the vote of the people, turning Patrick Henry on his head (quote in OP) for saying the constitution binds the government, and is not to be used by government to bind the people.

It just doesn't make any sense. PARTICULARLY doesn't make any sense AFTER the election, because any re-do or re-decide in direct effects means we just had a fake election.

The whole thing is absurd. But when we blindly follow archaic interpretations of laws long since amended out of existence, I suppose we can't be too surprised that absurdity results.

Thanks for all your hard work on this, Land Shark!

The GOP isn't going to touch this with a 40 ft poll because it will just make them look like idiots.

The only ones who care are too bat shit crazy even for the Republican party.

from continuing to challenge Obama's legitimacy ... on whatever grounds.

Even if this manufactured controversy could be resolved to their satisfaction ... and it never will be, so long as Obama becomes President in any scenario ... they would simply manufacture yet another ... and another ad infinitum and ad nauseam. If it keeps them occupied enough to keep Obama safe (so long as WE "have Obama's back") and doesn't actively interfere with the many, many things that need doing, it can provide some entertainment value, although it is a nuisance. I, for one, would like to see some action by the ABA on such deliberate misuse of the legal system, which is truly ironic when such people don't actually respect the rule of law at all but merely want to accomplish their own agenda.

Thanks for your detailed review. I have some difficulty with a premise that the requirements for elective office can be waived if the voting electorate happens to elect a person who does not meet the Constitutional requirements for office even if, as you say, it has actually happened already with certain Senate seats (which ones, by the way?). But it would seem to me that the challenges to such qualifications could and should be raised effectively at the moment a person declares him/herself as a candidate. It is the nominating party's responsibility, IMO, to vet the candidate's basic Constitutional requirements for office. When an election has actually occurred, it seems to me that action to negate that election's results based on failure to meet the minimal Constitutional requirements for the office would be estopped.

In this case, Obama's "natural born" status is clear, despite whatever crazy stories happen to be circulating. As you state correctly, one is either "born" a US citizen or one acquires the nationality through a legal process, no matter how one tries to blurr this. If one acquires US nationality through a legal process, one is not naturally "born" a US citizen. Your birth vs adoption scenario is right on point. "Dual nationality," whatever Donofrio asserts in whatever case, is not even a part of this scenario. There is nothing on record that shows that Obama ever took steps to acquire or secure a second nationality, even if it may have been his birthright. Even if he had, he could also relinquish that dual nationality so that he would be only a US national and would therefore easily satisfy any Constitutional requirement. Such happens and has happened where dual nationals seek USG security clearances. I am not sure of the latest regs, but US-Israeli dual citizenship may be an exceptional case given our generally preferential treatment of Israel. It shouldn't be, IMO ... think Jonathan Pollard who clearly served the second master.

I don't pretend logic works always with everybody, but I do contend that it is underutilized, and that just because we have logic HERE means that the RW has been exposed to it fairly and failed to accept it! In other words, while not denying the possibility or existence of hopeless cases, we often despair of logic before it is truly even tried out in a fair way.

SCOTUS gas the only meaningful say on the issue. Separation of powers, folks. The Constitution of the United States, folks. Love 'em or leave us.

So the note I'm missing from your response is what the limits are to what you would accept from SCOTUS as legitimate. Do you find Bush v. Gore for example to be "meaningful?" Even legal commentators that thought Bush ought to win thought the reasoning and doctrine was atrocious. Following that case unquestioning as the guide to meaning of the Constitution is a recipe for insanity or severe cognitive dissonance.

"Love 'em or leave us" is not a freedom-friendly concept, because freedom is only truly needed for dissent.

It is fruitless. My RW co-workers and family members that believe this nonsense about Obama not being a citizen are intellectually lazy. They don't care to know anything that goes against their pet beliefs. They will no doubt stew about this for the eight years that come, regardless of the outcome. A few believe this is the end of the world (they are the really stupid ones). Trying to help them understand the threat their support of this case actually poses to their own freedoms? - forget about it.

I will keep an eye on it, though, and contact my congressman. Thanks for the info. It is good to know.

My test marketing so to speak is promising. (I've changed RW minds on this issue)

Generally, where one argument fails, a better one commonly succeeds. That being said, if the atmosphere is already toxic with RW co-workers or an atmosphere of "fight on for the home team no matter what" then reason may not be operative much at all. But that's not a failure of reason, that's a failure due to individuals poisoning the well somewhere along the way.

So, while I can't deny in your particular case that it's relatively hopeless, I would say that IF that's true, it's only true because of well poisoning (probably theirs) and even then it wouldn't be true that a completely different person, making a fresh approach, might succeed where the poisoned well would prevent you from ever succeeding.

Though this doesn't apply most strongly to you, it may well apply and it's a theme through this thread: when a debate opponent is weakest and most wrong, that is the VERY BEST time to attack, not the time to despair about their "craziness." Should one instead wait until the opponent has better and stronger arguments to try to score points?

Nobody changes their mind instantly, so don't expect that. Instead expect that if you succeed fully, you've planted a seed that's not visible for weeks but does sprout in time -- when they're no longer under the spotlight of embarrassment. At that point, their response may simply be not to argue the issue any more, knowing it's a loser. They may well never inform you of your victory. But you may have prevented them from donating to that cause or pushing it further. So, don't put too much stock into what they tell you to your face about your debate successes or failures, because much of that evidence, if the atmosphere is partisan, will be unknown and undisclosed to you.

Keep it up. Most of our american ancestors worked on issues that took the better part of a century or more to resolve (slavery, suffrage, civil rights).

Keep plugging away! Most especially if you think they are weak or wrong on the issues!