We often focus on the 140 lawsuits that the birthers have lost as evidence that birthers are complete and utter failures; however, I would like to look at it another way and highlight the progress the birthers have made.
Initially birthers had doubts about where Barack Obama was born, the lack of precedent precisely defining “natural born citizen,” and questions about whose responsibility it is to verify a President’s eligibility. In these core areas, I think the birthers have made a lot of progress.
First, because of birthers, we now have Barack Obama’s birth certificates in the public record, and iron-clad verification of their validity from the State of Hawaii residing today on the Arizona Secretary of State’s web site. The first area of doubt has been resolved fully. That’s a win for the birthers.
The second point still lacks a simple declaratory statement from the US Supreme Court, but precedent is building up at the state level, and the federal district court level, at least so far as the citizenship of persons like Barack Obama is concerned. We have several cases that say that those born in the country, whether of citizen or alien parents, are natural born citizens, and eligible to run for President, and the courts have straightened out the birther misreading of Minor v. Happersett.
Finally I see precedent building in the courts that the eligibility of presidential candidates is not the responsibility of the states, nor the courts during the election process. It seems to me a tremendous stroke of bad luck that birthers have not been able to adjudicate eligibility in state court. If the Florida statute had been written differently, someone might have been able to raise a challenge to the preference primary, or if New Jersey had required presidential candidates to file an affirmative statement of eligibility, someone might have had a shot at adjudicating the birther question there. But as it is, the combination of law and standing have not come together and because of that we haven’t gotten much precedent as to whether state cases like this are allowed by the Constitution. Still, we begin to see the courts defining the legitimate process for vetting eligibility. I wrote about this topic in more detail in:
- May states exclude Presidential candidates for ineligibility?
- How we insure our presidents are eligible
but the short version is that it appears that states may not regulate who political parties run for President. It is the Electoral College and the Congress who provide the final check that the President is eligible. It remains an open question whether an objection to the action of Congress is judiciable, and it will likely remain an open question for this election cycle since only a major party’s losing candidate (or perhaps the Attorney General) would have standing to sue and I can’t imagine any doing that.
So really the birthers have won. They now know Barack Obama was born in Hawaii; they know that the children of aliens born in the United States are eligible to the Presidency, and they know that the Congress is there to make sure nothing goes wrong. It was a long an torturous road, but they have arrived and to borrow a phrase from Professor Dumbledore in Harry Potter and the Sorcerer’s Stone:
Well done, birthers. Well done.
There are some birthers, I should add, that don’t seem to be ready to celebrate their success, perhaps because they find happiness in the race itself. The anti-birthers have won as well but have less to celebrate, having know the outcome all along.