Friday, April 22, 2011

The Birther Conundrum

I remain confounded by the currency that the Birthers still carry among the hard-core, anti-Obama, rightwing GOP. It has reached a point where a number of state legislatures, including my own (Louisiana), are crafting legislation requiring the submission of some kind of natural-born citizenship proof in order for any candidate for President to appear on that state's presidential ballots. Let me tell you why I think this is crazy:

1. I presume that candidates must already establish their eligibility to run for public office. I don't know how most states certify eligibility to run for a particular national office, but I presume that states already either require the submission of particular documentation certifying constitutional eligibility (and other legal eligibility requirements, such as proof of residency, etc.) or have accepted the certification of eligibility by some other official source (i.e. the Federal Election Commission). I really don't know how it works, but I presume that there must be some accepted process.

2. Even if states pass what I'll call "birther" legislation, what's going to happen when candidates submit the evidence of their eligibility? In a sense, I look forward to this because it will no longer allow people to walk that line between saying, "Hey, I believe so-and-so's a citizen, but I just want to correct a gap in the law, blah-blah-blah..." In the case of Obama, which is clearly what is motivating this birther legislation push all of the sudden, when he submits his certified birth certificate from the State of Hawaii, which he has already released, people are going to have to come out and declare their true feelings by saying either: "Yep, that satisfies the law." Or "Nope. I think your certified birth certificate is a fraud." I mean, really, what are these states like Louisiana and Oklahoma going to require? Are they going to say that another state's legal process for certifying birth information is unacceptable? The State of Hawaii has already certified, multiple times, in accordance with that state's prescribed process, the legitimacy of Obama's birth in that state. Are the birthers going to demand some kind of federal legislation requiring all states to adopt the same criteria for certifying birth records in their state?

I can just see it. In the 2012 election, for the states who pass legislation requiring it, Obama will submit his birth certificate from the State of Hawaii to "prove" his constitutional eligibility to run for President. And if some states balk at this as insufficient, all Obama will have to say is: "Look, this is how Hawaii does it. I'm just following that state's proper protocol. I'm giving you the official proof of birth and citizenship certified by the state of my birth. The Full Faith and Credit Clause of the Constitution, as well as long established Federal statutory law, requires that Hawaii's process be accepted throughout the country. And how Hawaii does it is good enough for the State Department to issue me a passport, is good enough for making me eligible for Social Security benefits as a citizen, and is good enough for EVERY other federal program or benefit requiring proof of citizenship as an eligibility requirement. Any and every citizen born in Hawaii running for President would give you the exact same documentation. Deal with it. Exercise your own state's right to accept it or not; and live with the consequences."

What is clear, in the case of Obama, is that he has already revealed the necessary documentation to prove his constitutional eligibility to run for President. I can't wait for the day when this birther legislation in the various states forces the moment of truth when some state official, or some state agency, or some state legislature, will have to declare outright and officially that Obama's credentials are illegitimate or insufficient.

What I think will happen is that states who get bamboozled by the birther movement to pass such legislation, when confronted with the documentation that Obama will submit in order to be in compliance with that state's legislation, will simply say: "OK. Eligibility test passed. Let's move on." And I can guarantee that if this is, indeed, what transpires, the anti-Obama birthers in that state, the very forces behind the birther legislation movement, will feel betrayed and will express their outrage that the state actually had the audacity to behave in such a treasonous way so as to certify the eligibility of someone clearly, in their minds, ineligible to run for the Presidency.

But if I am wrong, and if states declare that the documents Obama submitted are inadequate or insufficient, then this will pit the right of one state, Hawaii, to certify births and citizenship status, versus another state's infringement on Hawaii's right. In essence, we'll be set up for a legal fight over competing notions of "States' Rights" regarding the Full Faith and Credit Claus of the Constitution, that has already been settled by the Supreme Court. But even if some twist in the case law makes another SCOTUS fight over this a possibility, this fight will still have no bearing on the legitimacy of Obama's eligibility to run for office as the Supreme Court has already accepted the legitimacy of Obama's constitutional eligibility to run for federal office. All this will do will be to expose the real (and ugly) sentiment behind the birther legislation in those states who seek to deny Obama a spot on that state's Presidential election ballots.


Eric said...

I admittedly don't pay a lot of attention to the birthers, but the thing I've never been able to quite undersand is what exactly is the difference between a Birth Certificate and a Certificate of Live Birth? There have been attempts by some states (including mine, and before Obama was President) to negate birthright citizenship for children of illegal immigrants by mandating that hospitals issue Certificates of Live Birth in place of a Birth Certificate if the parents cannot prove citizenship. The fact that those laws were only discussed, and never passed, makes the issue more confusing for a lot of red staters, who now eqaute "Certificate of Live Birth" with that issue. I agree with you that the FF&C clause makes this a non-issue, but I'd just like to know what the difference is, and if Obama does indeed have an actual Birth Certificate, I'm curious to know what, if anything, it says that would keep him from releasing it. I suspect he either doesn't have one (and doesn't need one in Hawaii) or else he simply doesn't release it because the ongoing controversy helps him politically.

I have conservatives friends who think the birther movement is a good thing even though they don't buy into it. Their message is that any amount of mudslinging, no matter how ridiculous, is justifiable if it can help dethrone Obama in 2012. I don't understand how they think this helps. I'd bet good money it has turned away two or three independent voters for every one it has attracted (although for the majority of independent voters, I think it is just a sideshow issue that doesn't sway them one way or another). My biggest concern is it risks being an issue that will taint the Republican candidate even if he/she is not a birther and has never voiced support for their cause.

Huck said...

Eric - Not sure what happened to your comment here on the blog, but I did get an email notification of it and so I wanted to respond.

First, it is my understanding that there is no difference between a birth certificate and a certificate of live birth. It's a product of our federalist system where different states use different language to mean exactly the same thing. The only reason it's confusing is because of that principle of states' rights, revered among conservatives.

The fact is that Obama has produced what the state of Hawaii, in 1961, recorded. I believe that what Obama has released publicly is what there is. And it's been certified and re-certified, time and again, by the duly constituted Hawaiian authorities. For states rights advocates who are strict constitutional constructionists (and who thus embrace the FF&C Clause), what more can they ask.

And your fear about what this will do to the reputation of conservatives who have never bought into the birther nonsense is, indeed, a real concern; but the fact is that conservatives themselves could have been much more vocal about unequivocally silencing and directly refuting those among their fellow conservatives who DO promote this birther nonsense. Yet, because they haven't, because they've been nonchalant, muted, and indifferent about it, they are themselves complicity in conditioning the environment that will tarnish their reputations, too. It's a genie that "responsible" conservatives not only allowed to be uncorked from the bottle, but also winked at the growth of the genie's power when they could have prevented such growth; and so I have no sympathy for them now that they can't put the genie back in the bottle.

The whole thing just shows me how much of a circus the rightwing has become, and how captive intelligent folks on the right like you have allowed yourselves to become to these circus acts. I'm sorry, Eric, but it seems to me you've irrevocably ceded the mantle of conservatism to the clownish Palin/Trump/Bachmann birther branch of the right wing and given it center stage. Conservatism is now defined by such driveling populist nonsense.

eric said...

Jimmy, I'm not sure what happened to my comment either, Blogger was giving me issues at a few different places on Friday.

Anyway, a few replies to your comments:

"The only reason [the difference between Birth Certificate and Certificate of Live Birth is] confusing is because of that principle of states' rights, revered among conservatives."

But that's not the only reason. As I stated, I think one very obvious (but often overlooked) reason is because of the terminology surrounding the immigration issues I discussed in my original post. Over the last 4 or 5 years, many red states have discussed making attempts at enacting a sort of legal 'end around' birthright citizenship for illegal immigrants. When these laws are proposed, what you often hear are calls for states to mandate hospitals can only issue a
"Certificate Of Live Birth" instead of a "Birth Certificate" unless the parents of a newborn can prove citizenship. The implication is that a "Certificate Of Live Birth" would not be held as binding proof that a child was born in the USA.

Now, I realize that is a highly controversial and Constitutionally negligible law, which is probably why it has never (to my knowledge) been passed in any state... but for conservatives who pay close attention to immigration issues, that terminology has been around for awhile, and predates Obama's presidency. So to many conservative minds, the term "Certificate Of Live Birth" is associated with a document that specifically does not prove citizenship.

I do agree with you that the full faith and credit clause makes Hawaii's system legitimate in all other states, and for all intents and purposes, a "C.O.L.B." is the same thing as a birth certificate... but I find it interesting that few liberals, especially including President Obama, ever take the time to acknowledge where the confusion in terminology arises from.

" I believe that what Obama has released publicly is what there is."

As do I, but he could certainly end a bunch of the controversy by saying as much. Palin and Bachmann have both acknowledged that the COLB is adequate proof of citizenship if it was certified by the State of Hawaii, but they remain skeptical about the existence of another document that includes more information about his birth, that he refuses to release. If he isn't refusing to release it because it doesn't exist, he should set them straight. If it does exist and he is refusing to release it, then they have every right to ask why... even though myself and most other Americans could care less.

"... it seems to me you've irrevocably ceded the mantle of conservatism to the clownish Palin/Trump/Bachmann birther branch of the right wing and given it center stage. Conservatism is now defined by such driveling populist nonsense."

Well, to me conservatism is defined by more than that. But yes, as I admitted, some 2012 voters are going to be turned away by the birther issue, just as some 2004 voters were pushed away by the overzealous and unreasonable liberal attacks on President Bush.

As of right now, if I was betting on the 2012 election season, I'd bet that Obama retains the White House and the Republicans manage to snag the Senate. We'll see how it goes, but as long as the birthers continue to make budget cuts and spending reform high priorities, conservatives like myself will be judicious with our criticism, although we will critisize. There are many conservatives loudly objecting to Donald Trump, Jan Brewer VETOED the Arizona birther law, and even John Hawkins had a rant up against the birthers last week. So you will continue to hear opposition against the birthers, but you aren't likely to see many conservatives willing to make it a dealbreaker issue... and they shouldn't. It's far from the most important thing on the agenda.