February 9, 2012
The Obama Ballot Challenges: A Crisis of ConfidenceBy Monte Kuligowski
Just a few months ago, FOX News reported on polling data which suggested that "[i]f Americans could cast a 'confidence' vote in the style of European parliaments, President Barack Obama would not fare well. A 56-percent majority would give his administration a vote of 'no confidence.'"
Ample evidence abounds for Americans to have no confidence that the economic justice activist-turned-politician is working out for the good of the country. Even at the most fundamental level, doubt remains as to whether the man occupying the White House is constitutionally eligible for the job.
There are two factors causing lingering doubts. The first is based upon Obama's secrecy in refusing to release relevant records for inspection and authentication. The second is that the Supreme Court needs to rule on the application of the Constitution's requirement, "natural born citizen," with respect to Barack Hussein Obama II.
Obama's bizarre secrecy
Numerous polls have confirmed that a significant number of Americans have doubts concerning the apparent birthplace of Obama. CBS News reported on April 21, 2011 that only one in four Americans believe that Obama was born in the United States.
After abruptly "releasing" an elusive birth certificate on April 27, 2011 (previously pronounced to be non-existent) -- after more than three years of stonewalling -- doubts still remain. Gallup reported that even after the infamous internet posting ceremony and sermon, those willing to say Obama was "definitely born in U.S." rose only nine percent, from 38 percent to 47 percent.
Recently, Public Policy Polling revealed that 51% of Republican primary voters have doubts over the venue of Obama's birth.
That's a sizable and entirely unnecessary problem.
Any doubt over presidential eligibility is unacceptable. The American people shouldn't have to "believe" that Obama is constitutionally eligible. Trust is for gods; skepticism and verification is for politicians.
The recent development of the state ballot challenges represents the right of the people to remove the doubt. Petitioners are demanding that evidence that meets the standard of courtroom admissibility, if it does exist, be produced to confirm Obama's eligibility.
If Obama is not willing to be completely transparent, then he should step down. To the bewilderment of his sycophants, the cloud of skepticism hanging over Obama's head is commensurate to his unique background, not his skin color. No one doubted the eligibility of Jesse Jackson, Alan Keyes, Al Sharpton, or Herman Cain.
Doubt remains because, legally speaking, Obama hasn't "released" anything. To meet a basic legal standard of evidentiary competence and admissibility, certified paper copies must be produced, and the original document in Hawaii must be made available for the states.
Rather than produce irrefutable evidence, Obama posted a "highly suspicious" image of a birth certificate on the internet.
Curiously (or maybe not so curiously), Obama refuses to produce certified copies and release the original for inspection and authentication. As with the case of the Certification of Live Birth document that the Daily Kos somehow obtained and posted online in 2008, Obama originals are reportedly inspected by "credible people" behind closed doors at the discretion of Obama.
The first factor causing doubt could be resolved immediately by Obama, if he were to have a conversion to transparency -- or if he could be forced to produce.
The doubts caused by foreign parentage
The second factor will not be resolved until the High Court takes the question of whether Obama's legal status at birth made him a "natural born citizen." Instead of hiring lawyers to summarily dismiss the early lawsuits (on technicalities) that claimed that Obama's non-U.S. citizen father makes him ineligible for the presidency, Obama should have welcomed a ruling by the Supreme Court.
A man with Obama's background who truly respected our Constitution would not have taken the oath of office without first having such doubts resolved one way or the other by the country's highest Court.
The Supreme Court case Minor v. Happersett (1875) was cited in the recent Georgia ballot challenge hearing. Many jurists agree that it provides the exclusive definition for the Constitution's "natural born citizen" clause, which is a requirement for the presidency.
Unfortunately, Georgia's administrative law judge, Michael Malihi, missed the significance of Minor and removed not a shred of doubt concerning Obama. The judge made reference to an inconsequential Indiana case, Ankeny v. Governor, in which the petitioners attempted to persuade the governor to determine Obama's eligibility. In his decision, Malihi points to some misguided dicta from Ankeny and concludes that "a person qualifies as a natural born citizen if he was born in the United States because he became a United States citizen at birth."
Judge Malihi avoided the substantive distinctions among a naturalized citizen, a native-born 14th-Amendment citizen, and the constitutional safeguard for the presidency: the requirement of natural born citizen status.
The Supreme Court in Minor was asked to decide whether the "privileges or immunities" of citizenship guarded by the 14th Amendment gave Virginia Minor the right to vote in spite of Missouri's male suffrage laws.
The Court ruled that Ms. Minor did not need the 14th Amendment for her citizenship (and that the right of citizenship never came with an automatic privilege of suffrage). Minor's type of citizenship preceded the amendment passed (by Republicans over Democrat protest) to protect the former slaves.
The Court held that Virginia Minor was a natural born citizen. Though Missouri law denied her the vote, she could have become president. She was born with a natural, undivided allegiance to the United States.
For legal thinkers of that day, citizenship was primarily about allegiance and protection.
The quote directly above is from Minor. And Chief Justice Waite goes on to say:
According to the U.S. Supreme Court, there is only one scenario which yields complete confidence. No Supreme Court case declares anyone to be a natural born citizen whose allegiances were conflicting at birth.
"Some authorities go further," the Court notes, "and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts." Virginia Minor was born to U.S. citizen parents and had an unbroken chain of natural allegiance to the United States. There were no doubts to solve.
To the class of Barack Obama, however, it is necessary "to solve these doubts" inasmuch as Obama holds the presidency and seeks another term.
In former times, there would have been doubts as to whether Obama would even be a citizen without a formal renouncing of foreign allegiance. But based on wayward interpretations of the 14th Amendment, if we believe Obama was Hawaii-born, we must conclude that he is at least a U.S. citizen -- regardless of his British/Kenyan allegiance at birth and his adoption in Islamic Indonesia.
But a 14th-Amendment citizen is not necessarily a natural born citizen. Contrary to 14th-Amendment jurisprudence, the requirement of sole allegiance to the United States from birth onward has never been stricken from the Constitution's eligibility clause.
The Constitution's presidential eligibility clause remains intact and unmolested by any controlling precedent.
An undisputed fact is that Obama was not born into the status of having a natural, undivided allegiance to the United States.
Unfortunately, concerning Obama and presidential eligibility, reasonable doubt does remain. Doubts remain because of the unwarranted secrecy of Obama in guarding the ordinary records of his background. And doubts will remain until the Supreme Court squares the Constitution's requirements with the facts of Obama's parentage and conflicting allegiances at birth.
Monte Kuligowski is a Virginia attorney.
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