Charles E. Rice, professor emeritus of the University of Notre Dame Law School has an article widely repeated on birther web sites about Barack Obama’s eligibility.
I am suggesting that Professor Rice has not taken on his topic, Barack Obama: Is he or Isn’t he an American citizen?, out of academic curiosity, but as an anti-Obama partisan. Rice’s official biography includes: “He served for eight years as State Vice-Chairman of the New York State Conservative Party.” Rice is no friend of Barack Obama either, as evidenced by this article on Rice’s book, titled What Happened to Notre Dame? that includes this opening paragraph.
When the University of Notre Dame announced that President Barack Obama would speak at its 2009 Commencement and would receive an honorary doctor of laws degree, the reaction was more than anyone expected. Students, faculty, alumni, and friends of Notre Dame denounced the honoring of Obama, who is the most relentlessly pro-abortion public official in the world. Beyond abortion, Obama has taken steps to withdraw from health-care professionals the right of conscientious objection.
Whatever, the reason, the partisanship of Professor Rice is evident from his opening paragraph, which I am sure didn’t come from his law school credentials:
The speculation about President Obama”s eligibility goes on and on, with no reliable access to the truth and with no end in sight. It is time for a new approach.
Here he’s saying that the State of Hawaii is unreliable and President Obama is unreliable.
OK, what about substance? The fellow is, after all, a law professor.
A lot of what Rice says is simply to catalog the current state of affairs in terms of claims made by doubters of Obama’s eligibility. Rice himself is noncommittal:
I suggest no conclusion as to whether Obama is eligible or not.
But on the other hand, he says:
But the citizens whom the media and political pundits dismiss as “birthers” have raised legitimate questions.
Rice fails to say which of those issues are the legitimate questions, except to say [erroneously] that Obama releasing records would be a “first step” in resolving the questions. If Rice were posting such material on this web site, we would probably label him a “concern troll.”
Rice quotes Minor v Happersett (a birther favorite), but he does not assert a definition of “natural born citizen” based on it, and even though he suggests that Congress might look into whether the Constitution should be amended to clarify that definition, it appears that the doubts and questions he repeats are more about where Obama was born based on Rice’s conclusion:
The American people do not know whether the current president achieved election by misrepresenting, innocently or by fraud, his eligibility for that office.
Fraud could only follow from a misrepresentation of a place of birth.
Rice uses the larger part of his article to argue that a Congressional investigation is an appropriate venue for resolving the issue. He uses a rather ironic precedent with a citation from Woodrow Wilson. After accepting the rationale for the courts rejecting the “birther” lawsuits, Rice wrote:
The courts are not the only entities empowered to deal with such a question. A committee of the House of Representatives could be authorized to conduct an investigation into the eligibility issue. The classic formulation of the Congressional role is Woodrow Wilson”s, in his 1884 book Congressional Government:
Here’s the irony. Woodrow Wilson appointed Edward S. Corwin to the faculty of Princeton where he became the McCormick Professor of Jurisprudence and the author of many books including The President: Office and Powers 1787-1957 in which Corwin wrote:
Should, then, the American people ever choose for President a person born abroad of American parents, it is highly improbably that any other constitutional agency would venture to challenge their decision–a belief supported by the fact that Mr. Hoover’s title to the presidency was not challenged although he had not been fourteen years a resident of the United States immediately preceding his assumption of office.
The Rice article is essentially a political smear from a leader of a conservative political party, who just happens to have academic credentials. He goes “full birther” when he kisses the fake travel ban to Pakistan and repeats the foreign student at Occidental College rumors:
To ascertain the facts, compelling by subpoena the production of all the available records relevant to Obama”s eligibility, including the complete Hawaiian records of his birth; his passport records to ascertain whether he traveled to Pakistan in 1981 on an American or other passport; the records from Occidental College, Columbia University and Harvard Law School to determine whether Obama described himself as a foreign student; and such other records as may be relevant. The disclosure of such information to the public would be an appropriate exercise of Congress” “informing function.”
In addition to the smear, a somewhat academic argument is made for a Congressional investigation. Congress has a history of investigating political smears. I have no argument against such an investigation; let the Republicans in Congress hang themselves with the stupidity of it.
I do not, however, see why the birthers are salivating over this article. Here is a legitimate professor of constitutional law who is full ready to throw President Obama under the bus, but who refuses to assert the two citizen parent theory for a natural born citizen. That’s gotta hurt.