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A Constitution of Convenience

The U.S. Supreme Court Has Twice Avoided Settling Obama’s Natural Born Citizen Issue.  Is There Really A Legal Basis For The High Court’s Denials And Why Won’t The President-Elect Just Release The Original Birth Certificate?

By Perry Hicks and Keith Burton- Special to GulfCoastNews.com    12/11/08  GCN

"No 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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States." - Article 2, Clause 5, United States Constitution.

The Founding Fathers had to be keenly aware that the European powers were watching our bold experiment in representative democracy with great angst.  Should Americans prove capable of governing themselves, the future for the European monarchies would not be bright.  Hence, the Constitution framers feared that a foreign born president holding foreign allegiances could, as commander-n-chief of the armed forces, march America’s armies to an intentional defeat.

The same could be true for negotiating treaties or executing policy; the United States could be intentionally maneuvered into being the disadvantaged party.

The framer’s remedy was to insure that the president- the singular person in which all of the executive branch is vested- and the vice president, the immediate successor to the presidency- be not merely citizens, and certainly not naturalized citizens (that is persons who were formerly citizens of another country,) but natural born citizens- a constitutionally undefined special status presumed to be born within the United States, and resident herein sufficiently long as to have attained filial loyalty.

These Founding Fathers, all having been British subjects prior to fighting the Revolution, exclusively gave themselves the sole exception to the natural born requirement to hold presidential office.

When inaugurated on Tuesday, January 20th, 2009, Barack Hussein Obama will write into the history books three distinctions of significant import:

  • He will be the first president of African descent.
  • He will be the first president ever born and raised outside the Continental United States.
  • He will be the first president who does not have a European name.

These are distinctions that have with certainty injected race and ethnicity into the election campaign, often by Obama himself, and are points for accusation by his detractors as the sole reasons why his supporters voted for him- a notion anecdotally supported by exit pollsters who could not find Obama voters able to articulate very much about him.

They are also reasons why some have threatened social upheaval should Obama not be elected, and give serious pause to any belief that legal action could prevent him from taking office, such as being found constitutionally ineligible or even criminally involved with others in Chicago corruption or even the state capitol in Springfield, Illinois.

Some would assign these racial elements and the threatened backlash as reasons enough for the U.S. Supreme Court to dismiss the recent natural born citizenship challenges to Obama’s eligibility.  However, others see it differently and take offense at lower court rulings, such as in Berg v Obama, which say citizens, neither single nor collectively, have any standing to challenge a candidate’s eligibility for office.

While both the reasoning in such cases as Berg’s, and even more so in Donofrio v Wells, a case also arguing Obama’s eligibility, may appear sound to the layman, legally, the devil is in the details and neither case held up under GCN scrutiny.  Still, conventional thinking would render it unfathomable as to why Obama would not release a copy of the original birth certificate.

GCN has communicated with Obama’s transition staff and following the contact’s verbal instructions, emailed them twice requesting an answer to this question: Why won't Obama just direct Hawaii to release a certified copy of the vault COLB (Certificate Of Live Birth) to the press rather than put up with the growing number of court challenges to his citizenship?

Unfortunately, as of this posting, Obama’s organization has chosen not to answer GCN’s inquiry.  This should not be surprising in that Obama has expended untold sums of money (in addition to that of the Democrat National Committee) on Federal court motions to avoid releasing the vault COLB or answer any other citizenship question.

This recalcitrance has further raised suspicions, fairly or not, that Obama is hiding something, or is indeed not a citizen.  Claims to the contrary, there have been no statements from Hawaiian officials certifying that Obama was born in Honolulu.  In fact, the reported official statements appear to have been carefully parsed.

Front of Supreme Court BuildingStill, the Supreme Court could have settled these and other issues brought by Donofrio and Berg but have conveniently refused to do so.  These are lost opportunities that America may well come to regret.

Another case brought by Cort Wrotnowski is scheduled for conference Friday, December 12th, 2008 and is also thought to have little chance of being heard later next year before the entire court.

Failed Legal Challenges- Berg

"We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.: - Preamble to the U.S. Constitution

None of the mainstream news stories have adequately explored the principle cases because the media in general has been loath to report any challenge to Obama’s candidacy.  However, lawyer and former Pennsylvania Assistant Commonwealth Attorney Philip J. Berg also presents a special case having been successfully sued in the past for malpractice.  Berg also subscribes to the 9-11 conspiracy theories whereby George W. Bush knew of the terror attacks in advance and has represented one of the 9-11 widows.

Berg’s case against Obama, however poorly constructed, did serve to expose citizens to some stark realities as it worked its way up to the Supreme Court when Berg sued Obama demanding that Obama not only release the vault copy, but also show documents pertaining to his alleged Indonesian citizenship and requisite U.S. repatriation.

Instead of answering Berg’s allegations, Obama and the Democrat National Committee filed a counter motion that Berg had no standing to make such challenges and the motion was subsequently upheld by Judge R. Barclay Surrick for the Eastern District of Pennsylvania.

Had Judge Surrick not dismissed the case, however, the silence on these issues would after thirty days have become a tacit admission that everything Berg asserted was true, according to Rule 36 of the Federal Rules for Civil Procedure.

Fortunately for Obama, Judge Surrick found Berg’s arguments in Civil Action No. 08-4083 to be largely frivolous and that “a candidate’s ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters.”  Not only that, but Judge Surrick went on to not only rule that Berg as an individual had no standing, all voters collectively had no standing, as well.

In order to have standing, a plaintiff must be able to demonstrate that he or she has suffered an injury that was a direct result from a specific cause and the court decision will be able to redress the injury.  All three points, injury, cause and redress must be present in order to satisfy the test of standing.

This of course begs the question, if any or all voters do not have standing to challenge the eligibility of candidates, who does?

Judge Surrick answered that question in his ruling by evoking an opinion from former Supreme Court Chief Justice Warren Berger who had stated:

It can be argued that if Respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of a particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process.

Arrogantly, Judge Surrick devolved on Congress the safeguarding of this constitutional provision claiming: “If, through the political process, Congress determines that citizens, voters, or party members should police the Constitution’s eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like Plaintiff. Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring in the Amended Complaint.

Because of the long standing principle that government’s power is derived from the people, the notion that citizens, much less any and all voters, cannot have standing to challenge the eligibility of a presidential candidate until it is conferred on them by Congress, is patently offensive.  It is also tyrannical.

To state Judge Surrick’s ruling another way, even if Barack Obama were to be proven to be a foreign national, no citizen would have standing to challenge his eligibility to run for or assume office unless Congress granted them “standing.”  And with a near super majority in congress, such action would not be likely to happen.

Unfortunately, owing to the subsequent appeal directly to the U.S. Supreme Court, Judge Surrick’s ruling is absolutely legal; any and all voters don’t have standing to challenge the eligibility of candidates for the offices to what is supposed to be their government.

Failed Legal Challenges- Donofrio

Unlike most other citizenship challenges, retired East Brunswick attorney, Leo Donofrio does not make an issue of Obama’s birth place or even basic citizenship. The barrier Donofrio sees is the “natural born” status based on Obama’s own admission that his father, Obama Sr., was a British subject at the time of his birth and therefore by British law, paternally conferred British citizenship on Barack junior.  Donofrio argues that owing to the exception the Founding Fathers made for themselves, no dual citizen can also be considered natural born.

Logically, this argument makes sense.  While Barack would not have a choice in the matter of dual citizenship and so would appear to be unfairly disqualified, the children of American citizens serving in the military born overseas are also automatically deemed not to be natural born.  (The dissenting opinion in the famous Dred Scott case stated that citizenship was acquired not by family lineage but by place of birth.)

Donofrio’s argument is that the Founding Father’s intent was to prevent the installment of a president with divided loyalties.  Editorially speaking, dual citizenship could most definitely divide a candidate’s loyalties, particularly if that candidate’s childhood experience was outside the Continental United States, or worse still, outside the United States altogether.

The U.S. Supreme Court did not allow the Donofrio case out of conference, dismissing it without comment Friday, December 8th, 2008.

Legal Challenge- Wrotnowski

Due to be in conference Friday, December 12th, 2008, Cort Wrotnowski’s argument is similar to Berg’s and will likely fail for the same reason, standing.  Wrotnowski asserts that Connecticut has no political process in place to vet candidates and that even blatantly ineligible ones like the alleged Nicaraguan citizen, Roger Calero, who was running on the Socialist Workers Party ticket, were allowed to remain on the ballot.

Legal Challenge- Keyes

Dr. Alan Keyes, American Independent Party presidential candidate, has also filed suit against Barack Obama in California hoping to deny him that state’s crucial 55 electoral votes.  Keyes is represented by California attorney Gary Kreep, who is also president of the United States Justice Foundation.  Keyes not only sued Obama vice president-elect Joe Biden, he also sued California Secretary of State Debra Bowen and 54 electors.  According to Kreep, who spoke with GCN by phone, the case cannot go forward until the majority of subpoenas have been served; a task that he is experiencing some difficulty in executing.

Keyes' position is that as a candidate he and his running mate have standing as does the one elector that has joined in the suit with them.

While this case appears to be better prepared, it is still too dependent on internet borne rumor and innuendo to get traction.  A wide gulf exists between trails that warrant investigative suspicion and the kind of well developed proofs demanded by a potential Supreme Court argument.

GCN remains skeptical that Keyes will be successful at the state level much less in the Federal Courts.

Issues Surrounding Obama’s Citizenship

"Smears claiming Barack Obama doesn’t have a birth certificate aren’t actually about that piece of paper — they’re about manipulating people into thinking Barack is not an American citizen," - Fight the Smears.com

Obama’s unique distinctions of race, childhood upbringing outside the continental United States, and foreign name, may have been the initial motivations to force Obama to reveal the vault copy of his official birth certificate, but they are not the only ones.  Kenya itself has long suspected that Obama was born there and statements alleged to have been made by Obama’s paternal grandmother and Indonesian half sister has further raised those suspicions.

However, that doesn’t mean he wasn’t born in Hawaii.  There could be other, quite plausible explanations why Obama would not want to reveal the vault copy of his birth certificate, properly called a Certificate of Live Birth or COLB:

  • The recorded name is not Barack Hussein Obama.
  • The vault COLB shows a father other than Barack Senior.
  • The vault COLB reflects a legal adoption by his mother’s second husband, Lolo Soetoro and perhaps lists him as a foreign national.
  • The vault COLB is a birth registration that wouldn’t clarify exactly where Obama was born.
  • The vault COLB holds some other embarrassing information.

Obama’s campaign had also posted an image of a short form Certification of Live Birth attempting to pass it off as his actual Birth Certificate.  The document number had been redacted and a controversy erupted as to whether or not it had been counterfeited using image altering software.  By enlarging the image a form number revision date of 11/01 could easily be resolved proving this was certainly no original.

GCN telephone contact with officials in Hawaii revealed that the Certification of Live Birth was indeed different from a certified Certificate of Live Birth that possessed much more information and so is officially no substitute.  Until 1972 there was also a Hawaiian Birth Certificate to further complicate matters.

While the above would seem to be the stuff of internet rumor mills, they are not quite that speculative.  For example, after interviewing 400 students who had attended Columbia University concurrently with Obama, FOX News could not find a single student that knew of him, or a yearbook with his picture; and if you are a liberal whose sensibilities are offended by any reference to FOX, then take solace that neither could the New York Times.

Add to the above, the questions many ask is how young Obama could travel to Pakistan in 1980 when reportedly at that time Pakistan would not admit American citizens.

Questions about Obama’s past and the proof of his citizenship are neither unreasonable nor racist.  After all, McCain’s natural born status was also questioned both in 2000 and 2008.  It would also be naïve to believe McCain and Palin would not have been the subject of similar litigation had they won the popular vote.

Regardless of what the fears and intentions where of the Founding Fathers, all that will legally matter to Obama’s natural born citizenship is the location of birth.  If he was indeed born on U.S. soil, the citizenship status of his father, the age of his mother, British law, or the supposed “expiration of Kenyan citizenship” at Obama’s 21st birthday won’t matter.  By the Supreme Court’s historic interpretation of the 14th Amendment to the U.S. Constitution, baby Obama would have automatically been a U.S. citizen.

The question the Supreme Court needed to answer, and most lawyers would tell you has been already settled, is whether a dual citizen would also qualify as a “natural born” citizen.

Dangers to Ignoring Constitution

As stated previously, it is unfathomable for Obama not to instruct Hawaii to release an official copy of his vault COLB to the press.  To do so would simply silence all but the lunatic fringe that would never accept any evidence, including an original hospital issued certificate.

Such recalcitrance, besides being financially costly, is also potentially dangerous.  U.S. Justice Foundation president, Gary Kreep, has promised to challenge every law, every treaty, and every executive order signed by Barack Obama until he is satisfied that Obama is legitimate.  Others on the short end of punitive laws and regulations will with certainty also challenge Obama’s authority.  However, this is not where the real danger resides.

The real danger is that should the economy continue to falter and the middle class falls into genuine suffering, they will not tolerate the typical Democrat coercions to force compliance with political correct policy.  To fight back, the middle class will revive this natural born citizen issue and it will move the issue from the fringe to the political center.

Should evidence at that point come to light that Obama was not born in Hawaii after all, or that he was in fact an Indonesian citizen, or at least had claimed to be one in order to attend college on foreign aid, then the aggrieved middle class will erupt in overt rebellion.

Without the cover of popular political support, the Supreme Court could not get away with issuing no standing opinions without lighting off a general conflagration.  A Supreme Court termination of an illegal presidency- admittedly a very remote scenario- could involve little more than sending the U.S. Marshals over to the White House to arrest him by high court order.  It is not likely that the Secret Service would allow the Marshals anywhere close to a faux president.  It is just as ridiculous to think that during a dispute over custody the two services would engage each other in an open gun battle on the streets of Washington D.C.

What would result is a constitutional crisis with massive challenges to every act and every piece of legislation he had signed since assuming office.  While some would still view Obama as a president requiring impeachment and removal by the Senate, others would see him as an imposter whose removal would require nothing more than arrest.  In the end it would be a political decision made based on how much heat congress was taking from the suffering masses.

Chances Obama is not a Citizen

As convincing as Berg’s arguments are for Obama’s Kenyan birth, they quickly fall apart under critical scrutiny. He is not able to provide any tangible proof, such as a Mombassa birth certificate or an airline record showing Obama’s mother, Ann Dunham, flew back to Hawaii with a baby from Africa.  Still, there is the widespread hearsay that Obama was born in Kenya- possibly motivated by hopes of personal profit- and the alleged confusion his younger half sister, Maya, initially expressed in naming both major hospitals, Queens and Kapiolani Medical Centers, as Obama’s birthplace, keeping some doubt afloat.

The real problem skeptics have with the citizenship issue is Obama’s conduct through his campaign staff and legal counsel.  It isn’t enough that Obama doesn’t have to show proof, as GCN legal consultants have advised over this issue, it is the manner in which he won’t.  To criminal investigators, his recalcitrance sharply raises their suspicions that something is amiss.

The address given in the newspaper clipping announcing Obama’s birth, 6085 Kalaniana'ole Hwy, and the last stated hospital given as the birthplace, Kapiolani Medical Center for Women & Children, are geographically positioned to validate each other.  Additionally, there is on record testimony from a long time Honolulu newspaper reporter who remembers that the entries for those birth announcements came directly from the Hawaiian health department.  For these reasons, and lack of any documentation to prove otherwise, there is good probability that Obama was born on Oahu, Hawaii.

That does not mean, short of a definitive Supreme Court Opinion, Obama meets a “natural born” standard, or remained a U.S. citizen if ever he was one.

Hawaii does have a procedure to alter birth records for adoptions and it is quite possible Obama’s was altered because of an adoption by his step father, Lolo Soetoro.  Such an adoption and subsequent naturalization as an Indonesian citizen would explain his ability to enter Pakistan in 1980.  It might also explain the fervor by which his college and medical records have been guardedly kept from public view.

Should Obama have used a foreign passport to enter Pakistan and attended college under the financial and admission advantages afforded foreign students, he will not be able to claim a childhood exemption.  The overt actions of using his Indonesian citizenship would have been self-proclaiming ones.

Therefore, if Berg and Keyes are correct and Obama has never taken steps to repatriate himself, then he is not a citizen at all, not even a naturalized one, and his holding the office of U.S. senator would also be illegal.

Government Increasingly Ignores Constitution

For Obama’s opponents to believe the Supreme Court will do what the electorate would not, remove him, is sheer fantasy.  Regardless of how poorly constructed Berg’s case, Judge Surrick, gave them the opportunity to at last define the meaning of Natural Born Citizen.  They could also have corrected the law by correcting Surrick on his quite legally conventional judgment on standing.

According to Judge Surrick, any and all voters could not demonstrate any tangible harm should Obama not be a citizen even though an extension of that logic would mean that in practical terms that would be in contravention with the U.S. Constitution, Obama or any other candidate would not have to be a citizen.

After all, who would have standing to police it?  Who could compel Obama or any foreign national for that matter to prove otherwise?  And even if proof were to independently exist, who then would have the power to enforce Article 2 of the Constitution?

Fundamentally, if our country is not following the Constitution we have instead a Constitution of Convenience. To some, is appears that the nation by varying degrees when the Articles of the Constitution get in the way, the government simply chooses to ignore them.

  • Take for example Article 5 of the Constitutional that mandates a constitutional convention be held when an application from 2/3rds of the several states calls for amendments.  According to one organization, the Congressional Record shows that this has happened at least 643 times yet there has been no convention.
  • Then there is the creation of departments that are in contravention with the Constitution.
  • The committing of the nation to war without an act of congress.
  • Or the establishment of the Federal Reserve.
  • Or appointing Senators to public office in contravention with Article 1, Section 6, who during their time a civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased… (see sidebar)

If the issue of natural born citizenship is not of paramount importance to our leadership and the Court, then our  Constitutional foundation no longer exists and we are truly not a nation of laws, but one governed only by political expediency. This is certainly not what the founding fathers had in mind, and certainly no legacy for a future generation of Americans. That is "change" the people should not tolerate.

Additional Information:

Supreme Court Again Refuses to Hear Challenge to Obama's Citizenship - usatoday.com  12/15/08

Supreme Court to Again Hear Obama Citizenship Issue January 3 - freerepublic.com

Mississippi Among States with Lawsuit Filed Over Obama's Citizenship Issue - GCN

About the Authors.....

Perry Hicks is a former Mississippi Coast resident and was a correspondent for the old Gulfport Star Journal. He has appeared on Fox News Channel. Perry has also hosted his own radio talk show on the auto industry with a mix of politics. Perry is a former college professor and is GCN's Washington correspondent on stories of national importance with local interests. His articles can be found in the GCN Archive.

Contact the Author: arielsquarefour@hotmail.com

Keith Burton is the owner and editor or GulfCoastNews.com.

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