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Fighting the Birthers: A Primer

Filed under: The Squib Report   Tagged: , , , ,

Martin Schneider writes:

A few days ago I got involved in an online argument with two impassioned "birthers"—people who believe that, for a variety of reasons, Barack Obama is not eligible for the presidency. Against all expectations, I was able to put forward some arguments that, I think, confounded my opponents, and I learned something along the way too. It was an unexpectedly constructive exercise, I thought.

The venue was Ezra Klein's blog at the Washington Post. Klein, who is extremely prolific, always throws up a "lunch break" blog around midday with some frivolous content. Last week, on President Obama's birthday, he made a joke in his "lunch break" post about Rush Limbaugh having made fun of the indeterminacy of Obama's birthdate and put up a YouTube video of Louis Armstrong (whose birthdate is genuinely contested).

Two commenters, "prsmithsr" and "dancingrabbit," began pushing some birther arguments; after a great many posts of significant length, they quickly managed to drown out all other comment and briefly threatened to be "the last word" on the subject. On 8/5/10 at 2:32PM, prsmithsr follows four consecutive posts by dancingrabbit with this: "Total silence. You do have a way of killing a debate lol!" In other words, the two of them had won the debate, and it was time for prsmithsr to dance in the end zone a little.

For reasons I can't remember, I came to the thread many hours later, at 8/6/10, 6:31AM, and after that there are a few exchanges between myself ("wovenstrap") and dancingrabbit. Today's the 8th -- the debate appears to be over, and while it's possible that dancingrabbit just turned his focus to some other venue because the thread had run its course, I do think that my counters to him were difficult ones to answer. I'm not dancing in the end zone, exactly, but they definitely didn't win the argument, which is something.

As far as I can see, the birther argument has two main tributaries: Obama is not a "natural-born" citizen and Obama was not born in Hawaii. You may think that these two claims are almost the same—not being born in Hawaii would probably mean that Obama is not a natural-born citizen, after all—but the situation is more complex than that. It's important to understand that these two claims are distinct. The first claim, about Obama's lack of "natural-born" status, is a claim about his parentage. The second claim is a claim about his birthplace. They're different things, and you have to attack the two claims separately.

Somewhat surprisingly, the claim about Obama not being a "natural-born citizen" is not totally without merit, and recognizing this is key in addressing the argument properly. The Constitution states:

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.

Translation: Unless you were alive at the time of the founding of the country, you must (a) be a natural-born citizen, (b) be 35 or older, and (c) be a resident of the United States for 14 years or more.

Some of these claims aren't entirely clear. Does "fourteen years" mean the last fourteen years or any fourteen years? That distinction mattered a lot to Herbert Hoover, who had lived in Europe not long before becoming president. Also, what is a "natural-born" citizen, anyway? How is it different from a naturalized citizen? What's that term mean?

The answer is that the term has no fixed meaning. Anyone who tells you they know what the term means is lying. It's a term that is not defined in the Constitution and has not properly been defined since, to the satisfaction of all parties.

The poster dancingrabbit in Ezra's thread was arguing that the Framers themselves believed that a "natural-born citizen" is the child of two American citizens. Since Obama's father was not then and never became an American citizen, we can see that this way of defining "natural-born citizen" is utterly crucial for their argument.

In support of this argument are some seminal writings by a writer named Vattel that the Framers relied on. Vattel uses plural terms to discuss the parents of "natural-born citizens," so, our birthers figure, not too unreasonably, so too did the Framers. You can read dancingrabbit on this—there's a whole lot of weight placed on a pivotally placed s here and another one there.

The presumption that we can rely on outside materials to determine what the Constitution means is a highly ideological one. It brings us back to the debate in legal circles between "originalists" and their opponents. In my opinion originalism is a bankrupt philosophy because it assumes as a matter of course that people living more than 200 years ago had better judgment about our affairs than we do.

But let's simplify this. The things wrong with reliance on Vattel are:

1. Vattel's writings are not part of our founding documents, and
2. There is plenty of case law suggesting that birth within the United States is sufficient to establish "natural-born citizenship."

So far, so good. What you can say to a birther on the subject of "natural-born citizenship" is, "You know, nobody knows what this term means, for sure. It hasn't really been defined. But you're saying that the writings of some 18th-century Frenchman tell us what it means, and I'm saying that the rulings of contemporary American judges tell us what it means."

In my opinion, this is a difficult argument for a birther to win. It highlights the bad faith involved in searching for something, anything that might suggest that Obama's non-American father might exclude Obama from eligibility—even if it involves going back a couple centuries and jumping over an ocean. It's more reasonable to say, "If this were to come before a judge today, it's quite likely that that judge would rule that Obama's birth in Hawaii was sufficient to establish natural-born status. I don't know that's what the judge would rule, but I think so. You think Vattel trumps our judiciary; I don't see any reason for holding that view."

What about Obama's birth in Hawaii? Isn't there compelling evidence that Obama was not born in Hawaii?

The simple answer is no, there isn't.

I am indebted to James Fallows for the insight, but the simple question to ask anyone claiming that Obama was not born in Hawaii is, "Is there any evidence—a visa, perhaps?—that Obama's mother, Stanley Ann Dunham, was traveling abroad in 1961?" Clearly, if Obama's mother was not in Kenya in 1961, then Obama was not born there either. That's as close to "game, set, and match" as these things come. Even birthers.org does not dedicate a single word to the location of Ms. Dunham when Obama was born, that I could find. Absent a document proving that Dunham had traveled to Kenya (or anywhere else) around 1961, all of the "evidence" about the birth certificate and the insufficient birth announcement is just poppycock. Worse, it's proof of bad faith, a lack of objectivity.

The bad faith and, potentially, racism involved in the birhters' arguments should be clear enough, but I don't want to dwell on that.

One last point about the logical connections between Obama's parentage and birthplace that birthers make. Basically, birthers tend to treat the two claims as having equal status. That is to say, it's an AND proposition. Obama must have two American parents and he must be born in the United States to be a "natural-born citizen" and thus eligible for the presidency. To put it another way, if EITHER one of Obama's parents was not an American citizen OR Obama was not born in Kansas, then he is ineligible.

But that's not actually the way the logic works. If Obama was born in Hawaii, then that pretty much seals the argument (at least in my "what would a judge rule?" hypothetical). To put it another way, if Obama was born in Hawaii, then it does not matter who his father was.

In my last, unanswered comment to dancingrabbit, I wrote this:

Consider the following analogy. We are trying to determine whether something is a pizza or not. We say that a pizza is defined as a circle of dough covered in cheese and tomato sauce. That is what a pizza is. However let us say that we add that a pizza can also be made of cardboard if it is a prop in a student play. The second definition only comes to play if the first definition is not met -- if the first definition is met, then you don't need to look at the second definition. You are basically saying, "that circle of dough with cheese and tomato sauce cannot be a pizza because it is not made of cardboard."

You see? Obama is a pizza.... it makes no sense to argue that he is not made of cardboard as if that alone can settle the issue. He doesn't need that argument. If he was born in Hawaii, which frankly is pretty certain, then he's a natural-born citizen, almost certainly. The citizenship status of his father is not germane, because Obama's natural-born status is a settled matter. You start looking at his father's citizenship status only if Obama's birth in Hawaii is truly placed into doubt.

And as far as that goes, the House of Representatives, in a unanimous vote, upheld the proposition in 2009 that Obama was born in Hawaii. That's not "proof," properly speaking, either, but it's a good way of signaling that birther belief is more fringe-y than perhaps the speaker realizes.


In my opinion originalism is a bankrupt philosophy because it assumes as a matter of course that people living more than 200 years ago had better judgment about our affairs than we do.
That is why we have a process of enacting legislation and adopting constitutional amendments.

When we had a broad public consensus that states and the United States should no longer have the power to deprive suffrage on the basis of gender, we enacted a constitutional amendment.

And if we have a broad consensus that the United States and the states should no longer have the power to discriminate on the basis of gender in criminal statutes, the proper method is the amend the Constitution.

Having done some research of my own on the meaning of Natural Born. I can tell you that the writers of the original Constitution ALWAYS used the term to mean “born in the country” and never used it in the sense that Vattel is said to have used it. (I have dozens of quotations.)

Moreover, there is no evidence that even Vattel meant a Natural Born Citizen required two citizen parents. He said that an “indigines” had two citizen parents, and he never defined what an “indigines” is. It was a translator, ten or so years AFTER the writing of the Constitution, who said that “indigines” meant a Natural Born Citizen. But Vattel himself, who wrote in French, gave no indication that this was indeed the meaning of indigines.

John Adams, Hamilton, Jefferson, John Jay, and other writers at the time of the writing of the Constitution always used Natural Born to mean “born in the country.” In fact, it was the popular expression at the time for Native Born.

Native Born was not a popular phrase in the 18th and early 19th Centuries, but Natural Born was used all the time, and it was always used in America to mean birth in the country. As late as World War I, men who registered for the draft were asked whether they were US citizens and then whether they were naturalized or Natural Born Citizens. In short, they used the term Natural Born to mean a citizen at birth, not one who had two US citizen parents.

A very simple way of looking at this is to say that since Natural Born meant “born in the country,” it was the equivalent of Ohio-born. One who is born in Ohio is not affected by the fact that his parents were not Ohio citizens. And that is why the US Congress confirmed Obama’s election unanimously, without one single member believing that Obama’s father affects his Natural Born Citizen status.

Michael: Originalism is primarily about what constitutes proper grounding for Supreme Court rulings — or any ruling, I believe. Originalists would have you believe that any facts about, say, machine guns or cheap handguns in inner cities cannot trump the insights of the Founders, who were writing when the most dangerous thing available was an inaccurate musket in rather small numbers, at a time when the colonizing whites were living on a tiny sliver of the continent, surrounded by wilderness etc. That point of view is, I believe, intellectually bankrupt.

TellerLP: Thanks very much—I didn’t realize that the Vattel stuff was that thin. It’s difficult to research this stuff on the fly, because so much of the stuff on the Internet is pretty dubious.

Poor little Birthers (still in denial about their losses), but our Judges will continue to smack down the crazies .

To all the birthers in La, La Land, it is on you to prove to all of us that your assertion is true (TOUGH WHEN YOU KEEP LOSING CASES), if there are people who were there and support your position then show us the video (everyone has a price), either put up or frankly shut-up. I heard Orly Taitz, is selling a tape (I think it’s called “Money, Lies and Video tape”). She is from Orange County, CA, now I know what the mean when they say “behind the Orange Curtain”, when they talk about Orange County, the captial of Conspiracy Theories.

You know Obama has a passport, he travel abroad before he was a Senator, but I guess they were in on it.
In my opinion the Republican Party has been taken over the most extreme of clans; the Baggers, Birthers and Blowhards (people who love to push their beliefs on others while trying to take away the rights of those they just hate) and that’s who they need to extract from their party if they real want to win in November. Good Luck, because as they said in WACO, “We Ain’t Coming Out”.

I wonder if Orly Taitz, is a mail order bride, just like her law degree? She is perfect reporter material for “Fake News”, where unfounded rumors and innuendo reign supreme, unlike a our US courts of law. The way our courts work is that you get a competent lawyer, verifiable facts and present them to a judge, if the facts are real and not half baked lies, then, and only then, you proceed to trial. The Birthers seem to be having a problem with their so called facts that they present. Let’s face it no one will go along with you until you guys win a case, but until then, you will continue to appear dumb, crazy or racist, or maybe all three. A lawyer, dentist, realtor and black belt, WOW I must say a JACK of all trades master of none.

I heard that Orly Taitz, now wants to investigate the “Republican 2009 Summer of Love” list: Assemblyman, Michael D. Duvall (CA), Senator John Ensign (NV), Senator Paul Stanley (TN), Governor Mark Stanford (SC), Board of Ed Chair, and Kristin Maguire AKA Bridget Keeney (SC), she wants to re-establish a family values party, good luck with that.

We won the election and now these sore losers will continue to spew their hate with lies.

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