Posted by
Andrews on Tuesday, September 08, 2009 9:48:18 PM
I was thinking recently about the many arguments advanced to prove Obama is ineligible to hold the office of president. Specifically, I was reading the many arguments presented in the comments
on another site, when I was struck by how simple it would be to win arguments using the logic offered in support of some of these claims.
For instance, while it is not completely on point, most commentators, both birther and non-birther, agree that the ruling in
Wong Kim Ark would support a ruling that "natural born citizen" means effectively nothing more than "native born". By the logic of
Wong, anyone born within the borders of the United States would would qualify not only as a native born citizen, but a natural born citizen. And, more importantly, as the issue has not been addressed since in a way overturning that ruling, all parties assume that the present Supreme Court, not being inclined to overturn precedent to expel Obama form office, will follow the
Wong ruling in determining eligibility for the presidency.
So, given that they admit to this seemingly impossible barrier to their argument, how do the birthers manage to continue arguing that Obama is ineligible? Why they simply declare that the court is wrong! They offer up some dicta from other rulings, treatises by de Vattel they claim influenced the founders, comments by Bingham and Rufus King, and all those other sorts of "evidence" offered up by first year law students , when they find the law goes against their assigned moot court position. (Or used by judges when the precedents go against the ruling they want to make.*)
If you think about it, this approach could be used to prove almost anything you want. All you need to do is pick a position and then argue that the present courts are wrong to rule otherwise. You will need to find a few obscure writers who support your understanding, maybe a few dicta from court rulings, a dissent or some legislative history that supports you, but there is hardly a position which cannot be so supported.
For example, using such arguments, slavery is clearly still legal, as the courts have been wrong to enforce the 13th amendment as they have. There are a whole host of past rulings favoring slavery, and commentators who argued that slavery was consistent with natural law.
And, on the other hand, it would be just as easy to argue that slavery was
ALWAYS illegal using the same reasoning. While the south may have allowed slavery, their courts were wrong as well, and slavery should never have been allowed.
From this it should be obvious how little weight one should give to these arguments from the birthers. If present courts accept Obama as president, if the precedents all point to his eligibility, what does it mean to say he "isn't
REALLY eligible"? what good does it do to quote Bingham if the court does not listen to his rationale?
The answer is "none at all". The problem is that too few of our fellows seem to recognize this. Yes, there is some argument to be made that some individuals in the past would not have seen Obama as eligible, but now, at this time, given current precedents and thinking on the question, Obama is eligible. Unless someone can prove he was not born inside the US, the man meets the eligibility requirements for the office of president. And the wishful thinking and clever arguments to the contrary might as well be based upon the existence of fairies or dragons, for all the weight they carry.
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* I recall being called upon in first year torts. My professor, with whom I had a very good relationship, asked how the judges reached the ruling they did. I responded "Well, they rambled on for 10 pages, talking in circles, and then wrote down the ruling they wanted to give." The class laughed uncomfortably, as if I had made a huge mistake. (First year law students being unable to imagine judges might simply pluck rulings out of thin air from time to time.) But my professor nodded and replied "I never understood the logic in this one either." (For those not regular readers, I am not an attorney, having dropped out near the end of my first year for a variety of reasons.)