Obama Birthers

Many of us by now are familiar with the "birthers" movement with respect to President Obama. These "birthers" allege---in an accusation that is easily disproved---that, because of Obama's mixed heritage and his ecclectic upbringing, he was not born in the United States and therefore inelligible to serve as president.

According to Politico.com, "a whopping 58 percent of Republicans either think Barack Obama wasn't born in the US (28 percent) or aren't sure (30 percent). A mere 42 percent think he was." I will concede---RELUCTANTLY--that this poll stakes out a lot of conceptual territory for those who "aren't sure." It's possible that you can read a birth certificate or any other official government document and still "not be sure" because that person can't read or and analyze what he or she has just read and reach a conclusion.

But this is one of those poll that absolutely embarasses me so much. At time's I can't even believe I'm on the same team as them! I used to give Democrats lots of grief for the poll result showing that over 50% of Democrats believed Bush and Cheney allowed the World Trade Center to collapse, either by having prior knowledge and doing nothing, or by bringing down the towers themselves.

"Is this really mainstream left wing thought? I mean, I know you can't stand the President, but do really think he is capable of this? And smart enought to pull it off?"

I know that most thoughtful, well-meaning Democrats were rather embarrassed by this as well as the reckless conspiracy-theorizing by Michael Moore and others, so I won't revisit that debate. But the strength of this "birther movement" disgusts me. I am relieved to see it is confined to the upper-age brackets, i.e. those least likely to be aggresive consumers of new information and those least likely to use the internet, and not the younger generation of classical liberals and modern-day conservatives. I can hope......

Today I came across this interesting post by David Kopel at one of my favorite blogs, the Volokh Conspiracy. Apparently, this excessive questioning of our candidates's birthplaces is not new, and it is a very legitimate constitutional issue.

Presidential aspirants not born in the United States:

The Constitution provides: "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."

During the last presidential election, some people suggested that John McCain was not eligible for the presidency, because he was born in the Canal Zone. Radio Free Europe (Russian language station) interviewed me about the controversy last year. NY Times story here. The issue got serious enough so that Congress passed a resolution saying

I remember that during the 1968 presidential election, there was controversy about the eligibility of Michigan Governor George Romney, who was the GOP frontrunner for a while. Romney (father of the current GOP frontrunner) had been born in Mexico to U.S. citizens who were living in a LDS colony there.

A 1988 Note in the Yale Law Journal about the NBC clause states: "This constitutional uncertainty persists despite the fact that the issue has arisen frequently over the past twenty years in discussions over the potential candidacies of foreign-born politicians such as Barry Goldwater, Lowell Weicker, George Romney, Christian D. Herter, and Franklin D. Roosevelt, Jr. Goldwater was born in the territory of Arizona before it became a state; Weicker, in Paris of an American father and British mother; Romney, of American parents in Mexico; Herter, of Americans in France; Roosevelt, in Canada." Note, Jill A. Pryor, "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty," 97 Yale Law Journal 881 (1988).

Can commenters provide other examples of previous presidents or presidential aspirants regarding whom the "natural born Citizen" clause was raised? My guess is that the current crowd of Obama birthers may be part of a broader tradition in American history than is currently recognized. If you are really diligent, see footnote 2 of the Yale note for some citations to older law review articles (not available on Westlaw) which may have some more examples.

If we look back further into our Anglo-American history, in the Glorious Revolution of 1688, when William & Mary drove out the wicked James Stuart, we find that when William of Orange set sail for England, "William made no claim on his own behalf, but called only for a free Parliament and a study of whether James II's new son really was a son or had been smuggled into the birthing room in a warming pan." Kopel, "It Isn't About Duck Hunting: The British Origins of the Right to Keep and Bear Arms." Review of Joyce Malcolm's book To Keep and Bear Arms: The Origins of an Anglo-American Right. 96 Michigan Law Review 1333 (1995).

The historical cases are interesting to consider because they provide some perspective on the current claims that the birthers are active only because Obama is biracial. Historically, one can find some analogues; I saw enough anti-LDS prejudice during Mitt Romney's 2007-08 presidential campaign to indicate that religious bigotry might have played a role in George Romney birtherism. Unquestionably the concern of the James II birthers was not worry that the James Stuart (who was Catholic) had a low sperm count, but fear of his efforts to replace Protestant England's mixed form of government with absolutism modeled on Catholic, hyper-centralized France. However, for many of the other instances of birtherism (McCain, Weicker, Goldwater, Roosevelt, etc.), it is hard to see any angle involving racial or religious prejudice.

Please note that this post is not designed to exonerate the stupidity of the "birthers." Like everything else on this blog, it is solely for the purposes of edification.

Comments please!