Several readers have written over the past few days taking us to task for dismissing so-called birthers as lunatics without bothering to refute their claims. We reluctantly concede their point. The birthers have managed to sow confusion in the minds of some who are not lunatics, and for the latter groups benefit it is worth clarifying matters.
Compounding the confusion, some rebuttals of the birthers claims have been based in part on misinformation. National Review, for example, asserts that it would not matter if the president had been born in a foreign country: His mother was a native of Kansas, whose residents have been citizens of the United States for a very long time, and whose children are citizens of the United States as well.
In fact, although some people born outside the U.S. are natural-born citizens (including John McCain, born in Panama, where his father was stationed as a naval officer), the timing and circumstances of Obamas birth make the place a necessary condition for natural-born citizenship. The State Department Web site explains the law that would have applied if Obama were born overseas:
Birth Abroad to One Citizen and One Alien Parent in Wedlock: A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) INA provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the childs birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child.
Obama was born before 1986 to married parents, and his father was an alien. Thus if it were an overseas birth, his mother would have to have lived in the U.S. for 5 years after age 14 in order for her child to be a natural-born American. Mrs. Obama was only 18 when Barack was born, so she had not even lived 5 years after age 14.
This is something of a technicality: Someone born overseas and after 1986, but otherwise in identical circumstances to Obama, would be a natural-born citizen thanks to a law signed by President Reagan. We dont recall any outcry back then about the threat that some such person could grow up to be president, nor, as far as we are aware, are any birthers calling for a change in this law to return to the status quo ante 1986. Even if the birthers conspiracy theory were true, it would be hard to square the intensity of their emotion over the subject with the practical effect of Obamas (hypothetical) overseas birth, which would be roughly nil.
Ah, but the law is the law, the birthers will reply--and who can disagree? The birthers can. Whether out of ignorance or dishonesty, they misrepresent the law at every turn. Back in November, as we noted, the birthers were claiming that the Supreme Court had ordered Obama to prove his eligibility for the presidency. In fact, all that had happened was that a lawyer had asked the high court to hear an appeal of a lower courts decision throwing out his frivolous lawsuit for lack of standing. The justices, of course, denied the petition, and all such lawsuits have been summarily dismissed for lack of standing. The law is the law.
The birthers have also misrepresented the law in the claims they have made about Obamas birth certificate. In truth, Obama has proved that he is a native of Hawaii, and this proof would hold up in any legal or administrative proceeding.
In order to explain the birthers deception on this point, it is necessary to delve into the arcana of Hawaiian vital records. The document that Obama has released, which carries the title certification of live birth, confirms that the president was born in Honolulu. It is a legal birth certificate, and, as the Honolulu Star-Bulletin notes, it is the only kind of birth certificate the state of Hawaii issues.
FactCheck.org has a close-up photo of the certificate, which states clearly at the bottom: This copy serves as prima facie evidence of the fact of birth in any court proceeding. If a court were somehow to take up the question of Obamas eligibility, then, the birth certificate would almost certainly be sufficient to resolve the question in his favor. The opposing side would have to provide serious evidence calling into question the veracity of Hawaiis official state records. Innuendo and hearsay would not be admissible.
Further, if Congress were to pass the so-called birther bill, Obama would be able to comply easily. The bill would require presidential campaigns to submit a copy of the candidates birth certificate to the Federal Election Commission. The certificate Obama has released publicly would meet this requirement.
Ah, but what about the original birth certificate? This is the nub of the birther case, and this is where things get really obscure.
As the Star-Bulletin notes, Hawaiian birth certificates have changed in form since Obama was born. Back then, the official record was a paper document with the title certificate of live birth (rather than certification), and it included more information, such as the name of hospital, certifiers name and title; attendants name and title, etc. Hawaii no longer issues those old-style birth certificates:
[Spokeswoman Janice] Okubo explained that the Health Department went paperless in 2001.
At that time, all information for births from 1908 (on) was put into electronic files for consistent reporting, she said.
Information about births is transferred electronically from hospitals to the department.
The electronic record of the birth is what (the Health Department) now keeps on file in order to provide same-day certified copies at our help window for most requests, Okubo said.
CNN has reported--or rather, CNN executive Jon Klein reported to staffers in an email that others reported--that the obsolete paper certificates were destroyed when the department switched to electronic record-keeping. Kleins information appears to have been in error. The Honolulu Advertiser reported yesterday that Okubo and her boss, Chiyome Fukino, both confirm that Obamas original birth certificate still exists. Fukino says she has seen it and that the information matches the now-official electronic records reflected on the certificate Obama has released.
So why doesnt Obama release the original certificate? The Advertiser says it is unclear whether the president would even be allowed to see it if he asked. It is clear, though, that the Hawaii statute governing disclosure of public records does not prohibit state officials from providing him with a copy, since he is the registrant and therefore has a direct and tangible interest in the record. One would think that Obama could persuade state officials to give him a copy, even if that is not their usual policy.
But the real question is: Why should he? The demand has no basis in principle and would have no practical benefit.
Obama has already provided a legal birth certificate demonstrating that he was born in Hawaii. No one has produced any serious evidence to the contrary. Absent such evidence, it is unreasonable to deny that Obama has met the burden of proof. We know that he was born in Honolulu as surely as we know that Bill Clinton was born in Hope, Ark., or George W. Bush in New Haven, Conn.
The release of the obsolete birth certificate would not resolve the issue to those for whom it is not already resolved. They claim without basis that todays birth certificate is a fake; there is nothing to stop them from claiming without basis that yesterdays is as well.
The president would gain nothing politically for his trouble. By acknowledging the birthers demands, he would lend them a modicum of credibility. By ignoring them, he actually reaps political benefits from their efforts. His critics, even those who are not birthers, end up looking like cranks by association. His supporters use the birthers to paint Obama foes as racist--which is probably unfair even to the birthers, as we argued Tuesday, but that doesnt mean it isnt effective.
In a Commentary article last year, William F. Buckley recounted the way he, Sen. Barry Goldwater and a handful of other top conservatives worked to stigmatize the John Birch Society, whose founder, Robert Welch, maintained, among other things, that President Eisenhower was a dedicated, conscious agent of the Communist conspiracy, and that the U.S. government was under operational control of the Communist Party. The Birchers, like the birthers, made respectable conservatives look like kooks, and in preparation for a prospective Goldwater presidential campaign, Buckley and his associates thought it best to do a little conspiratorial organizing of their own against it.
They succeeded in excommunicating the Birchers. Its probably impossible to do the same to the birthers, because today the right wing is too vast to mount much of a conspiracy. The birthers are likely to be with us for as long as Obama is president--and because of them, it is more likely that this will be for the next 7½ rather than just 3½ years.