The Heart of the Clause 5 Issue
Republicans, in discussing who is a proper person to be president, look at Obama and the requirements of Article II, Section I, Clause 5, which provides that "[n]o person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution shall be eligible to the Office of President[.]"
What do these words mean? Do they mean that Marco Rubio and Bobby Jindal are not eligible because they are the children of immigrants who were not citizens at the time of their birth? The sparse language does not answer that sort of question. Only by resting on the self-appointed and extra-constitutional privileges of federal judges to "interpret" the Constitution can "natural born Citizen" be defined, but even this reliance on unelected federal judges really solves nothing.
The Supreme Court this year could read the Constitution as meaning that a "national born Citizen" is anyone born in America as the child of legal immigrants, and it could next year reverse that decision and state that only children of parents who were already American citizens meets the test. Nothing but gossamer binds the transitory whims of federal judges. Do we really want to leave the qualification for president in the hands of federal judges?
There do exist constitutional bodies with specific authority to elect a president (the Electoral College) and to review the returns of the Electoral College (the House of Representatives). This finality parallels the constitutional requirements for members of the Senate and members of the House of Representatives. Those two bodies judge the qualification of their members, and when that judgment is made, the decision is final.
There is also the lingering problem of facts in the qualification issue. Is someone born on February 29 really 35 on his birthday, or is he only 9? In the early days of the Republic, people born in the Republic of Texas or people born at the meander of border rivers might or might not have been considered born in our nation. In those cases, the issue is of fact, not law. The same is true of people born in frontier regions, where the actual location of birth was genuinely impossible to know. Implicitly, the presidential electors consider those matters of fact.
But more than just geography may be an issue of fact. The paternity of a child is always, potentially, an issue of dispute. Depending upon state law, there may be a point in time when this issue cannot be considered for purposes of inheritance and related issues -- but could state laws bind the federal Constitution? What if Obama, to take his case as an example, was really the son of a man who was a natural-born American citizen? The more we poke into this area, the murkier it can get.
So why does the Obama birth certificate issue still matter to so many people? It has much less to do with how we read the Constitution than it does with Obama hiding key documents and probably lying to the American people. What if Obama had said from the beginning something like this?
"I think I was born in Hawaii, but honestly, I can't be sure; I was a newborn at the time, and my mother moved around a lot. I cannot even say for sure who my father was -- just as most of us cannot know who our father with absolute certainty. But I believe that I am perfectly eligible to be president, and I will gladly open any records in my power to open. I ask over the next 60 days that every constitutional professor and lawyer discuss and debate this issue. I hope, after we have gone through this process, that the issue can finally be put to rest."
Would we still be discussing his qualifications to be president? Certainly not. The problem with Obama -- and this is a crucial distinction from the eligibility of Rubio or Jindal -- is skullduggery and mischief, not constitutional eligibility per se. We need to keep that sneakiness the vital point in our Article I, Section II attack. Rubio and Jindal are not hiding anything from us. No one is accusing them of lying to the American people.
Honest differences about what the Constitution means are qualitatively different from maliciously concealing facts which relate to constitutional issues. Honest differences of fact on issues like paternity are also qualitatively different from concealing relevant information. Obama, so typical of all leftists, is hiding evidence and very likely lying. That is our issue. That is also a winning issue with the American people.