JayUtah
Penultimate Amazing
(Quotes ordered differently for convenience)
Indeed. If I may have leave to discuss the Constitutional matter, I believe I can shed some light.
I believe the Birthers read the Constitution selectively. That is, the Birther premise that the President of the United States must be a "Natural born Citizen" of it is entirely valid, the only wiggle room being the statutory definition of "Natural born Citizen" for the purposes of eligibility.
When we then go on to argue that the Birthers ignore "Full Faith and Credit" as it applies to the certification of birthplace for the purpose of determining eligibility, we might unkindly phrase it as "contempt" for the Constitution, but it is really only an accusation of selective reading and should be less passionately phrased as such. Poor scholarship and argumentation, yes. Contempt, not necessarily so. One need not ascribe nefarious motives to the Birthers to note that there is a legitimate disagreement with the way they are reading the Constitution.
Conversely, when critics cite Full Faith and Credit, it is not to pooh-pooh the Constitutional eligibility requirement, nor to suggest that less than appropriate rigor should be applied in determining the eligibility of a candidate to the highest elected office.
It is therefore illustrative to investigate how the two elements of the Constitution work together in this problem.
As stated, the Constitution establishes a requirement that the President must be a natural-born citizen, but declines to define what that is. Various Birther lawsuits have attempted to supplant the prevailing standard with one that examines the birthplaces of parents etc., but since the late 1800s the standard, established by statue and confirmed by applicable court ruling, includes a primary provision that if one's birth occurs physically within the borders of the United States, one is "natural-born" for purposes of the Constitution's eligibility requirement regardless of a parent's status.
The legal substantiation of one's place of birth has not always been, historically speaking, the subject of documentary record. Sworn testimony of parents, birth attendants, and ecclesiastical registrars, for example, has sufficed in the past. Nowadays it is standard for the state to officially note vital events such as births, marriages, and deaths because it serves their own purposes for inheritance, probate, and consanguinity. Because that is the true original motivation for keeping such records, the state has little inherent obligation to offer its records for citizens' extraneous use. However, it is expeditious to beseech the state to certify, by means of its records, the circumstances of a vital event in lieu of tedious testimony and affidavit where a compelling need arises.
Article IV of the U.S. Constitution gives full faith and credit among the states for "public acts, records, and judicial proceedings," which is a rather sweeping scope. It specifically allows for the admission of one state's records as evidence where required in another state. It also allows for the executive declaration of judgment or affidavit, where given under appropriate seal, to have force in another state. This is the basis of accepting the state-collected vital records from one state as evidence in another. Stated more succinctly, Full Faith and Credit says that a document accepted as evidence in one state must be accepted equally as evidence in another state, and that a judgment of authenticity offered by one state must be accepted as if it had been adjudged authentic by the receiving state. It is that strong a provision.
Let us remove the birth certificate from the equation. Let us say instead that the circumstances of Barack Obama's birth had been attested to by affidavit, by sworn and cross-examined testimony of, say, a nurse and doctor in attendance, and by eyewitness testimony of the parents. Let us say further that a judge or jury, upon hearing and trying this evidence, decides that Obama was indeed born in the State of Hawaii, then the judgment of that court would be equally binding in Indiana or Mississippi or Arizona. Representatives of the candidate could take that stamped and signed decision, ruling, or order into the Secretary of State's office in any of the fifty states and have it respected as due certification of the candidate's birthplace.
Under Full Faith and Credit the legal value of an act is not vested in some specific sheet of paper or digital document. It is vested in the act itself, the paper descriptions of which are merely instruments attesting to the accomplishment of the act. The act in question, in this case, is the state registrar's official notice and confirmation that some particular sheet of paper reflects the state's best knowledge of the circumstances of the event in question. A signed and stamped judicial order may serve as the outward instrument attesting to a judge's decision that the evidence indicates a certain thing. But it is the judge's act of deciding that has probative value, no matter how many different times or ways he fixes the particulars of that act on paper or in bytes. Questions regarding the validity of some particular instrument (of which there may be many examples) are easily answered. The act itself is not undone by the suspected molestation of its instrument.
We have often considered the analogy of a driver's license. If I am stopped while driving my automobile and asked to show that I am permitted to drive, I can produce my state-issued driver's license. If instead I produce a counterfeit, I may be liable for forging a certificate, but if I am nevertheless licensed to drive by the state DMV authority, then I cannot be cited for operating a motor vehicle without a license. That license (i.e., the legal permission to do something otherwise illegal) exists as the abstract blessing of the DMV, not vested in some piece of plastic or paper. Indeed many of us are issued temporary paper certificates while our official ones are prepared. I can hold in my left hand the temporary paper certificate and in my right hand the newly minted plastic card, and consider each one equally valid an instrument attesting to my right to operate the motor vehicle.
It is this nuance that Birthers seem not to understand. It is not that they necessarily despise the Constitution; it is merely that they do not appear to understand it and how the instruments of official notice are legally dissimilar from the notice itself.
Yes, naturally I agree that an ineligible candidate should not serve in the office. I agree that if an officer is found ineligible, he should be removed forthwith. I further agree that the supreme law of the land governs both who should serve and how, in particular, eligibility should be tested.
Within the meaning of the Constitution as it applies to the eligibility of candidates for office, yes. If an ordinary citizen presents a falsified instrument for some other purpose, then common criminal law has original jurisdiction.
An interesting question arises should a sitting President be found ineligible. Once inaugurated, a President can be removed from office only when impeached by the House and tried upon that impeachment by the Senate. The question would arise whether the inauguration were valid in itself, and would most interestingly touch upon the precise legal nature of the act of inauguration itself.
The power to inaugurate the President is vested in the Judiciary, but is limited only to the duly elected candidate. If the Judiciary in the person of the chief Justice of the Supreme Court acts in good faith and inaugurates the candidate he believes to have prevailed, then does that inauguration retain force even if the candidate is ineligible? By strict etymology "ineligible" means "unable to be elected," so I believe there would arise an intriguing question.
Conversely, as has happened in lesser elections, a defeated candidate (e.g., Mitt Romney) would have standing to bring suit, a claim in tort that candidate Obama's actions deprived him of the office of President, to which he would otherwise likely have been elected. (The question whether Romney would have prevailed against some other Democratic or third-party candidate may enter into the validity of a tort claim.)
Birthers have at this point claimed not only that the birth certificate is false, but also that the Hawaii executive branch has been complicit in an act of forgery, variously accused as having produced and certified a copy of a birth certificate for which no valid original exists, or as having falsely certified copies prepared by a third party as representing the state's official record. This, however, cannot be litigated in any state other than Hawaii. So long as the duly designated authority of Hawaii certifies that Obama was born there, the other states have no choice but to accept it as equally valid in their own states.
Quite true, and the declaration of the state of Hawaii that he was born there is a considerably high hurdle to clear. Again, this is why both the courts and the Birthers' critics have returned again and again to Full Faith and Credit and the rather rancorous question of respect for the U.S. Constitution. Birthers allow that Hawaii has unequivocally declared its official belief that Barack Obama was born there. But they wish some legal allowance for evidence they believe trumps that belief.
However, for all intents and purposes within the state of Hawaii, Obama's birthplace is res judicata. Hence by Full Faith and Credit it must also be res judicata in all U.S. jurisdictions. This is not to say that the question cannot be examined in court, but it is instead to say that extraordinary legal theorization must accompany such a pleading if it is to pass the gate. Birthers naively wish to try the question by ordinary litigation and do not comprehend the summary rulings against them. If Birthers complain that their causes are not being tried "upon their merits" (flimsy though those merits may turn out to be), it is only because they don't understand the law. Obama's Hawaii birthplace is res judicata by means of a due process of executive, statutory, and judicial notice that is independent of any particular scrap of paper, and which may not be wrested away by mere whim.
Indeed, and that's why I have maintained my two-pronged approach, as have others. On the one hand we argue the Constitutional issues, and hope to be able to do so further within moderation. And on the other hand we address the so-called evidence -- "the existence of the horse." That is, we argue first whether this card needs a horse in the first place, and second whether a horse is to be found. The Birthers wish to skip over all that important investigation and land squarely on the list of virtues their phantom horse would embody.
I have no problem, as you have seen, arguing the merits of the case. I am not in a court of law. I have the means, skill, and inclination to investigate whether the PDF copy, paper copies, or any other instrument of Hawaii's official act of notice appears valid. If the Birthers manage to formulate a legal theory that end-runs around Full Faith and Credit, such that these merits would legitimately come before a court, then I will happily comment further upon it. However, there simply is no credible evidence -- legalisms aside -- that the certificates presented by Barack Obama, in whatever form or guise, are fabricated. I point, as usual, to my lengthy and well-considered analysis of the evidence presented to date.
Indeed. If I may have leave to discuss the Constitutional matter, I believe I can shed some light.
I believe the Birthers read the Constitution selectively. That is, the Birther premise that the President of the United States must be a "Natural born Citizen" of it is entirely valid, the only wiggle room being the statutory definition of "Natural born Citizen" for the purposes of eligibility.
When we then go on to argue that the Birthers ignore "Full Faith and Credit" as it applies to the certification of birthplace for the purpose of determining eligibility, we might unkindly phrase it as "contempt" for the Constitution, but it is really only an accusation of selective reading and should be less passionately phrased as such. Poor scholarship and argumentation, yes. Contempt, not necessarily so. One need not ascribe nefarious motives to the Birthers to note that there is a legitimate disagreement with the way they are reading the Constitution.
Conversely, when critics cite Full Faith and Credit, it is not to pooh-pooh the Constitutional eligibility requirement, nor to suggest that less than appropriate rigor should be applied in determining the eligibility of a candidate to the highest elected office.
It is therefore illustrative to investigate how the two elements of the Constitution work together in this problem.
As stated, the Constitution establishes a requirement that the President must be a natural-born citizen, but declines to define what that is. Various Birther lawsuits have attempted to supplant the prevailing standard with one that examines the birthplaces of parents etc., but since the late 1800s the standard, established by statue and confirmed by applicable court ruling, includes a primary provision that if one's birth occurs physically within the borders of the United States, one is "natural-born" for purposes of the Constitution's eligibility requirement regardless of a parent's status.
The legal substantiation of one's place of birth has not always been, historically speaking, the subject of documentary record. Sworn testimony of parents, birth attendants, and ecclesiastical registrars, for example, has sufficed in the past. Nowadays it is standard for the state to officially note vital events such as births, marriages, and deaths because it serves their own purposes for inheritance, probate, and consanguinity. Because that is the true original motivation for keeping such records, the state has little inherent obligation to offer its records for citizens' extraneous use. However, it is expeditious to beseech the state to certify, by means of its records, the circumstances of a vital event in lieu of tedious testimony and affidavit where a compelling need arises.
Article IV of the U.S. Constitution gives full faith and credit among the states for "public acts, records, and judicial proceedings," which is a rather sweeping scope. It specifically allows for the admission of one state's records as evidence where required in another state. It also allows for the executive declaration of judgment or affidavit, where given under appropriate seal, to have force in another state. This is the basis of accepting the state-collected vital records from one state as evidence in another. Stated more succinctly, Full Faith and Credit says that a document accepted as evidence in one state must be accepted equally as evidence in another state, and that a judgment of authenticity offered by one state must be accepted as if it had been adjudged authentic by the receiving state. It is that strong a provision.
Let us remove the birth certificate from the equation. Let us say instead that the circumstances of Barack Obama's birth had been attested to by affidavit, by sworn and cross-examined testimony of, say, a nurse and doctor in attendance, and by eyewitness testimony of the parents. Let us say further that a judge or jury, upon hearing and trying this evidence, decides that Obama was indeed born in the State of Hawaii, then the judgment of that court would be equally binding in Indiana or Mississippi or Arizona. Representatives of the candidate could take that stamped and signed decision, ruling, or order into the Secretary of State's office in any of the fifty states and have it respected as due certification of the candidate's birthplace.
Under Full Faith and Credit the legal value of an act is not vested in some specific sheet of paper or digital document. It is vested in the act itself, the paper descriptions of which are merely instruments attesting to the accomplishment of the act. The act in question, in this case, is the state registrar's official notice and confirmation that some particular sheet of paper reflects the state's best knowledge of the circumstances of the event in question. A signed and stamped judicial order may serve as the outward instrument attesting to a judge's decision that the evidence indicates a certain thing. But it is the judge's act of deciding that has probative value, no matter how many different times or ways he fixes the particulars of that act on paper or in bytes. Questions regarding the validity of some particular instrument (of which there may be many examples) are easily answered. The act itself is not undone by the suspected molestation of its instrument.
We have often considered the analogy of a driver's license. If I am stopped while driving my automobile and asked to show that I am permitted to drive, I can produce my state-issued driver's license. If instead I produce a counterfeit, I may be liable for forging a certificate, but if I am nevertheless licensed to drive by the state DMV authority, then I cannot be cited for operating a motor vehicle without a license. That license (i.e., the legal permission to do something otherwise illegal) exists as the abstract blessing of the DMV, not vested in some piece of plastic or paper. Indeed many of us are issued temporary paper certificates while our official ones are prepared. I can hold in my left hand the temporary paper certificate and in my right hand the newly minted plastic card, and consider each one equally valid an instrument attesting to my right to operate the motor vehicle.
It is this nuance that Birthers seem not to understand. It is not that they necessarily despise the Constitution; it is merely that they do not appear to understand it and how the instruments of official notice are legally dissimilar from the notice itself.
Yes, naturally I agree that an ineligible candidate should not serve in the office. I agree that if an officer is found ineligible, he should be removed forthwith. I further agree that the supreme law of the land governs both who should serve and how, in particular, eligibility should be tested.
Within the meaning of the Constitution as it applies to the eligibility of candidates for office, yes. If an ordinary citizen presents a falsified instrument for some other purpose, then common criminal law has original jurisdiction.
An interesting question arises should a sitting President be found ineligible. Once inaugurated, a President can be removed from office only when impeached by the House and tried upon that impeachment by the Senate. The question would arise whether the inauguration were valid in itself, and would most interestingly touch upon the precise legal nature of the act of inauguration itself.
The power to inaugurate the President is vested in the Judiciary, but is limited only to the duly elected candidate. If the Judiciary in the person of the chief Justice of the Supreme Court acts in good faith and inaugurates the candidate he believes to have prevailed, then does that inauguration retain force even if the candidate is ineligible? By strict etymology "ineligible" means "unable to be elected," so I believe there would arise an intriguing question.
Conversely, as has happened in lesser elections, a defeated candidate (e.g., Mitt Romney) would have standing to bring suit, a claim in tort that candidate Obama's actions deprived him of the office of President, to which he would otherwise likely have been elected. (The question whether Romney would have prevailed against some other Democratic or third-party candidate may enter into the validity of a tort claim.)
Birthers have at this point claimed not only that the birth certificate is false, but also that the Hawaii executive branch has been complicit in an act of forgery, variously accused as having produced and certified a copy of a birth certificate for which no valid original exists, or as having falsely certified copies prepared by a third party as representing the state's official record. This, however, cannot be litigated in any state other than Hawaii. So long as the duly designated authority of Hawaii certifies that Obama was born there, the other states have no choice but to accept it as equally valid in their own states.
Quite true, and the declaration of the state of Hawaii that he was born there is a considerably high hurdle to clear. Again, this is why both the courts and the Birthers' critics have returned again and again to Full Faith and Credit and the rather rancorous question of respect for the U.S. Constitution. Birthers allow that Hawaii has unequivocally declared its official belief that Barack Obama was born there. But they wish some legal allowance for evidence they believe trumps that belief.
However, for all intents and purposes within the state of Hawaii, Obama's birthplace is res judicata. Hence by Full Faith and Credit it must also be res judicata in all U.S. jurisdictions. This is not to say that the question cannot be examined in court, but it is instead to say that extraordinary legal theorization must accompany such a pleading if it is to pass the gate. Birthers naively wish to try the question by ordinary litigation and do not comprehend the summary rulings against them. If Birthers complain that their causes are not being tried "upon their merits" (flimsy though those merits may turn out to be), it is only because they don't understand the law. Obama's Hawaii birthplace is res judicata by means of a due process of executive, statutory, and judicial notice that is independent of any particular scrap of paper, and which may not be wrested away by mere whim.
Indeed, and that's why I have maintained my two-pronged approach, as have others. On the one hand we argue the Constitutional issues, and hope to be able to do so further within moderation. And on the other hand we address the so-called evidence -- "the existence of the horse." That is, we argue first whether this card needs a horse in the first place, and second whether a horse is to be found. The Birthers wish to skip over all that important investigation and land squarely on the list of virtues their phantom horse would embody.
I have no problem, as you have seen, arguing the merits of the case. I am not in a court of law. I have the means, skill, and inclination to investigate whether the PDF copy, paper copies, or any other instrument of Hawaii's official act of notice appears valid. If the Birthers manage to formulate a legal theory that end-runs around Full Faith and Credit, such that these merits would legitimately come before a court, then I will happily comment further upon it. However, there simply is no credible evidence -- legalisms aside -- that the certificates presented by Barack Obama, in whatever form or guise, are fabricated. I point, as usual, to my lengthy and well-considered analysis of the evidence presented to date.
