By
Dr. Edwin Vieira, Jr., Ph.D., J.D.
October 29, 2008
NewsWithViews.com
America is
facing potentially the gravest constitutional crisis in her history. Barack
Obama must either stand up in a public forum and prove, with conclusive
documentary evidence, that he is “a natural born Citizen” of the United
States who has not renounced his American citizenship—or he must step down
as the Democratic Party’s candidate for President of the United States—preferably
before the election is held, and in any event before the Electoral College
meets. Because, pursuant to the Constitution, only “a natural born
Citizen, or a Citizen of the United States at the time of the Adoption of th[e]
Constitution, shall be eligible to the Office of President” (Article II,
Section 1, Clause 4). And Obama clearly was not “a Citizen of the United
States at the time of the Adoption of th[e] Constitution.”
Whether
the evidence will show that Obama is, or is not, “a natural born Citizen”
who has never renounced his American citizenship is an open question. The
arguments on both sides are as yet speculative. But Obama’s stubborn refusal
to provide what he claims is “his own” country with conclusive proof on
that score compels the presumption that he knows, or at least strongly
suspects, that no sufficient evidence in his favor exists. After all, he is
not being pressed to solve a problem in quantum physics that is “above his
pay grade,” but only asked to provide the public with the original copy of
some official record that establishes his citizenship. The vast majority of
Americans could easily do so. Why will Obama not dispel the doubts about his
eligibility—unless he can not?
Now that
Obama’s citizenship has been seriously questioned, the burden of proof rests
squarely on his shoulders. The “burden of establishing a delegation of power
to the United States * * * is upon those making the claim.” Bute v.
Illinois, 333 U.S. 640, 653 (1948). And if each of the General
Government’s powers must be proven (not simply presumed) to exist, then
every requirement that the Constitution sets for any individual’s exercise
of those powers must also be proven (not simply presumed) to be fully
satisfied before that individual may exercise any of those powers.
The Constitution’s command that “[n]o Person except a natural born Citizen
* * * shall be eligible to the Office of President” is an absolute
prohibition against the exercise of each and every Presidential power by
certain unqualified individuals. Actually (not simply presumptively
or speculatively) being “a natural born Citizen” is the condition
precedent sine qua non for avoiding this prohibition. Therefore,
anyone who claims eligibility for “the Office of President” must, when
credibly challenged, establish his qualifications in this regard with
sufficient evidence.
In
disposing of the lawsuit Berg v. Obama, which squarely presents the
question of Obama’s true citizenship, the presiding judge complained that
Berg “would have us derail the democratic process by invalidating a
candidate for whom millions of people voted and who underwent excessive
vetting during what was one of the most hotly contested presidential primary
in living memory.” This is exceptionally thin hogwash. A proper judicial
inquiry into Obama’s eligibility for “the Office of President” will not
deny his supporters a “right” to vote for him—rather, it will determine
whether they have any such “right” at all. For, just as Obama’s
“right” to stand for election to “the Office of President” is
contingent upon his being “a natural born Citizen,” so too are the
“rights” of his partisans to vote for him contingent upon whether he is
even eligible for that “Office.” If Obama is ineligible, then
no one can claim any “right” to vote for him. Indeed, in that case every
American who does vote has a constitutional duty to vote against him.
The judge
in Berg v. Obama dismissed the case, not because Obama has actually proven
that he is eligible for “the Office of President,” but instead because,
simply as a voter, Berg supposedly lacks “standing” to challenge Obama’s
eligibility:
regardless of questions
of causation, the grievance remains too generalized to establish the
existence of an injury in fact. * ** [A] candidate’s ineligibility under
the Natural Born Citizen Clause does not result in an injury in fact to
voters. By extension, the theoretical constitutional harm experienced by
voters does not change as the candidacy of an allegedly ineligible candidate
progresses from the primaries to the general election.
This
pronouncement does not rise to the level of hogwash.
First, the
Constitution mandates that “[t]he judicial Power shall extend to all Cases,
in Law and Equity, arising under this Constitution” (Article III, Section 2,
Clause 1). Berg’s suit plainly “aris[es] under th[e] Constitution,” in
the sense of raising a critical constitutional issue. So the only question is
whether his suit is a constitutional “Case[ ].” The present judicial test
for whether a litigant’s claim constitutes a constitutional “Case[ ]”
comes under the rubric of “standing”—a litigant with “standing” may
proceed; one without “standing” may not. “Standing,” however, is not a
term found anywhere in the Constitution. Neither are the specifics of the
doctrine of “standing,” as they have been elaborated in judicial decision
after judicial decision, to be found there. Rather, the test for
“standing” is almost entirely a judicial invention.
True
enough, the test for “standing” is not as ridiculous as the judiciary’s
so-called “compelling governmental interest test,” which licenses public
officials to abridge individuals’ constitutional rights and thereby exercise
powers the Constitution withholds from those officials, which has no basis
whatsoever in the Constitution, and which is actually anti-constitutional.
Neither is the doctrine of “standing” as abusive as the “immunities”
judges have cut from whole cloth for public officials who violate their
constitutional “Oath[s] or Affirmation[s], to support this Constitution”
(Article VI, Clause 3)—in the face of the Constitution’s explicit
limitation on official immunities (Article I, Section 6, Clause 1). For the
Constitution does require that a litigant must present a true “Case[ ].”
Yet, because the test for “standing” is largely a contrivance of
all-too-fallible men and women, its specifics can be changed as easily as they
were adopted, when they are found to be faulty. And they must be changed
if the consequences of judicial ignorance, inertia, and inaction are not to
endanger America’s constitutional form of government. Which is
precisely the situation here, inasmuch as the purported “election” of
Obama as President, notwithstanding his ineligibility for that office, not
only will render illegitimate the Executive Branch of the General Government,
but also will render impotent its Legislative Branch (as explained below).
Second, the notion upon which the judge in Berg v. Obama
fastened—namely, that Berg’s “grievance remains too generalized to
establish the existence of an injury in fact,” i.e., if everyone
is injured or potentially injured then no one has “standing”—is absurd
on its face.
To be
sure, no one has yet voted for Obama in the general election. But does that
mean that no one in any group smaller than the general pool of America’s
voters in its entirety has suffered specific harm from Obama’s participation
in the electoral process to date? Or will suffer such harm from his continuing
participation? What about the Democrats who voted for Hillary Clinton as their
party’s nominee, but were saddled with Obama because other Democrats voted
for him even though they could not legally have done so if his lack of
eligibility for “the Office of President” had been judicially determined
before the Democratic primaries or convention? What about the States that have
registered Obama as a legitimate candidate for President, but will have been
deceived, perhaps even defrauded, if he is proven not to be “a natural born
Citizen”? And as far as the general election is concerned, what about the
voters among erstwhile Republicans and Independents who do not want John
McCain as President, and therefore will vote for Obama (or any
Democrat, for that matter) as “the lesser of two evils,” but who later on
may have their votes effectively thrown out, and may have to suffer McCain’s
being declared the winner of the election, if Obama’s ineligibility is
established? Or what about those voters who made monetary contributions to
Obama’s campaign, but may at length discover that their funds went, not only
to an ineligible candidate, but to one who knew he was ineligible?
These
obvious harms pale into insignificance, however, compared to the national
disaster of having an outright usurper purportedly
“elected” as “President.” In this situation, it is downright idiocy to
claim, as did the judge in Berg v. Obama, that a “generalized”
injury somehow constitutes no judicially cognizable injury at all.
Self-evidently, to claim that a “generalized” grievance negates “the
existence of an injury in fact” is patently illogical—for if everyone in
any group can complain of the same harm of which any one of them can complain,
then the existence of some harm cannot be denied; and the more people who can
complain of that harm, the greater the aggregate or cumulative seriousness of
the injury. The whole may not be greater than the sum of its parts; but it is
at least equal to that sum! Moreover, for a judge to rule that no injury
redressable in a court of law exists, precisely because everyone
in America will be subjected to an individual posing as “the President”
but who constitutionally cannot be (and therefore is not) the President,
sets America on the course of judicially assisted political suicide. If Obama
turns out to be nothing more than an usurper who has fraudulently seized
control of the Presidency, not only will the Constitution have been
egregiously flouted, but also this whole country could be, likely will be,
destroyed as a consequence. And if this country is even credibly threatened
with destruction, every American will be harmed—irretrievably, should the
threat become actuality—including those who voted or intend to vote for
Obama, who are also part of We the People. Therefore, in this situation, any
and every American must have “standing” to demand—and must demand, both
in judicial fora and in the fora of public opinion—that Obama immediately
and conclusively prove himself eligible for “the Office of
President.”
Utterly
imbecilic as an alternative is the judge’s prescription in Berg v. Obama
that,
[i]f, through the
political process, Congress determines that citizens, voters, or party
members should police the Constitution’s eligibility requirements for the
Presidency, then it is free to pass laws conferring standing on individuals
like [Berg]. Until that time, voters do not have standing to bring the sort
of challenge that [Berg] attempts to bring * * * .
Recall
that this selfsame judge held that Berg has no constitutional “Case[ ]”
because he has no “standing,” and that he has no “standing” because he
has no “injury in fact,” only a “generalized” “grievance.” This
purports to be a finding of constitutional law: namely, that constitutionally
no “Case[ ]” exists. How, then, can Congress constitutionally
grant “standing” to individuals such as Berg, when the courts (assuming
the Berg decision is upheld on appeal) have ruled that those individuals have
no “standing”? If “standing” is a constitutional conception, and the
courts deny that “standing” exists in a situation such as this, and the
courts have the final say as to what the Constitution means—then Congress
lacks any power to contradict them. Congress cannot instruct the courts to
exercise jurisdiction beyond what the Constitution includes within “the
judicial Power.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-180 (1803).
In fact,
though, a Congressional instruction is entirely unnecessary. Every American
has what lawyers call “an implied cause of action”—directly under
Article II, Section 1, Clause 4 of the Constitution—to require that anyone
standing for “the Office of President” must verify his eligibility for
that position, at least when serious allegations have been put forward that he
is not eligible, and he has otherwise refused to refute those allegations with
evidence that should be readily available if he is eligible. That “Case[
]” is one the Constitution itself defines. And the Constitution must be
enforceable in such a “Case[ ]” in a timely manner, by anyone who cares to
seek enforcement, because of the horrendous consequences that will ensue if it
is flouted.
What are
some of those consequences?
First, if
Obama is not “a natural born Citizen” or has renounced such citizenship,
he is simply not eligible for “the Office of President” (Article
II, Section 1, Clause 4). That being so, he cannot be “elected”
by the voters, by the Electoral College, or by the House of Representatives
(see Amendment XII). For neither the voters, nor the Electors, nor Members of
the House can change the constitutional requirement, even by unanimous vote inter
sese (see Article V). If, nonetheless, the voters, the Electors, or the
Members of the House purport to “elect” Obama, he will be nothing but an usurper,
because the Constitution defines him as such. And he can never become anything
else, because an usurper cannot gain legitimacy if even all of the country
aid, abets, accedes to, or acquiesces in his usurpation.
Second, if
Obama dares to take the Presidential “Oath or Affirmation” of office,
knowing that he is not “a natural born Citizen,” he will commit the crime
of perjury or false swearing (see Article II, Section 1, Clause 7). For, being
ineligible for “the Office of President, he cannot “faithfully execute the
Office of President of the United States,” or even execute it at all, to any
degree. Thus, his very act of taking the “Oath or Affirmation” will be a
violation thereof! So, even if the Chief Justice of the Supreme Court himself
looks the other way and administers the “Oath or Affirmation,” Obama will
derive no authority whatsoever from it.
Third, his
purported “Oath or Affirmation” being perjured from the beginning,
Obama’s every subsequent act in the usurped “Office of President” will
be a criminal offense under Title 18, United States Code, Section 242, which
provides that:
[w]hoever, under color
of any law, statute, ordinance, regulation, or custom, willfully subjects
any person in any State, Territory, Commonwealth, Possession, or District to
the deprivation of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States * * * shall be
fined * * * or imprisoned not more than one year, or both; and if bodily
injury results from the acts committed in violation of this section or if
such acts include the use, attempted use, or threatened use of a dangerous
weapon, explosives, or fire, shall be fined * * * or imprisoned not more
than ten years, or both; and if death results from the acts committed in
violation of this section or if such acts include kidnapping or an attempt
to kidnap, * * *, or an attempt to kill, shall be fined * * * or imprisoned
for any term of years or for life, or both, or may be sentenced to death.
Plainly
enough, every supposedly “official” act performed by an usurper in the
President’s chair will be an act “under color of law” that necessarily
and unavoidably “subjects [some] person * * * to the deprivation of [some]
rights, privileges, or immunities secured or protected by the Constitution * *
* of the United States”—in the most general case, of the constitutional
“right[ ]” to an eligible and duly elected individual serving as
President, and the corresponding constitutional “immunit[y]” from
subjection to an usurper pretending to be “the President.”
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Fourth, if
he turns out to be nothing but an usurper acting in the guise of “the
President,” Obama will not constitutionally be the “Commander in Chief of
the Army and Navy of the United States, and of the Militia of the several
States, when called into the actual Service of the United States” (see
Article II, Section 2, Clause 1). Therefore, he will be entitled to no
obedience whatsoever from anyone in those forces. Indeed, for officers or men
to follow any of his purported “orders” will constitute a serious breach
of military discipline—and in extreme circumstances perhaps even “war
crimes.” In addition, no one in any civilian agency in the Executive Branch
of the General Government will be required to put into effect any of Obama’s
purported “proclamations,” “executive orders,” or “directives.”
Fifth, as
nothing but an usurper (if he becomes one), Obama will have no conceivable
authority “to make Treaties”, or to “nominate, and * * * appoint
Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court,
and all other Officers of the United States, whose Appointments are not * * *
otherwise provided for [in the Constitution]” (Article II, Section 2, Clause
2). And therefore any “Treaties” or “nominat[ions], and * * *
appoint[ments]” he purports to “make” will be void ab initio,
no matter what the Senate does, because the Senate can neither authorize an
usurper to take such actions in the first place, nor thereafter ratify them.
One need not be a lawyer to foresee what further, perhaps irremediable, chaos
must ensue if an usurper, even with “the Advice and Consent of the
Senate”, unconstitutionally “appoint[s] * * * Judges of the Supreme
Court” whose votes thereafter make up the majorities that wrongly decide
critical “Cases” of constitutional law.
Sixth, and
perhaps most importantly, Congress can pass no law while an usurper pretends
to occupy “the Office of President.” The Constitution provides that
“[e]very Bill which shall have passed the House of Representatives and the
Senate, shall, before it become a Law, be presented to the President of the
United States” (Article I, Section 7, Clause 2). Not to an usurper posturing
as “the President of the United States,” but to the true and rightful
President. If no such true and rightful President occupies the White House, no
“Bill” will or can, “before it become a Law, be presented to [him].”
If no “Bill” is so presented, no “Bill” will or can become a
“Law.” And any purported “Law” that the usurper “approve[s]” and
“sign[s],” or that Congress passes over the usurper’s “Objections,”
will be a nullity. Thus, if Obama deceitfully “enters office” as an
usurper, Congress will be rendered effectively impotent for as long as it
acquiesces in his pretenses as “President.”
Seventh,
if Obama does become an usurper posturing as “the President,” Congress
cannot even impeach him because, not being the actual President, he cannot be
“removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors” (see Article II, Section 4).
In that case, some other public officials would have to arrest him—with
physical force, if he would not go along quietly—in order to prevent him
from continuing his imposture. Obviously, this could possibly lead to armed
conflicts within the General Government itself, or among the States and the
people.
Eighth,
even did something approaching civil war not eventuate from Obama’s
hypothetical usurpation, if the Establishment allowed Obama to pretend to be
“the President,” and the people acquiesced in that charade, just about
everything that was done during his faux “tenure in office” by
anyone connected with the Executive Branch of the General Government, and
quite a bit done by the Legislative Branch and perhaps the Judicial Branch as
well, would be arguably illegitimate and subject to being overturned when a
constitutional President was finally installed in office. The potential for
chaos, both domestically and internationally, arising out of this systemic
uncertainty is breathtaking.
The
underlying problem will not be obviated if Obama, his partisans in the
Democratic Party, and his cheerleaders and cover-up artists in the big media
simply stonewall the issue of his (non)citizenship and contrive for him to win
the Presidential election. The cat is already out of the bag and running all
over the Internet. If he continues to dodge the issue, Obama will be dogged
with this question every day of his purported “Presidency.” And
inevitably the truth will out. For the issue is too simple, the evidence
(or lack of it) too accessible. Either Obama can prove that he is “a natural
born Citizen” who has not renounced his citizenship; or he cannot. And he
will not be allowed to slip through with some doctored “birth certificate”
generated long after the alleged fact. On a matter this important,
Americans will demand that, before its authenticity is accepted, any supposed
documentary evidence of that sort be subjected to reproducible forensic
analyses conducted by reputable, independent investigators and laboratories
above any suspicion of being influenced by or colluding with any public
official, bureaucracy, political party, or other special-interest organization
whatsoever.
Berg
v. Obama may very well end up in the Supreme Court. Yet that ought to be
unnecessary. For Obama’s moral duty is to produce the evidence of his
citizenship sua sponte et instanter. Otherwise, he will be personally
responsible for all the consequences of his refusal to do so.
Of course,
if Obama knows that he is not “a natural born Citizen” who never renounced
his American citizenship, then he also knows that he and his henchmen have
perpetrated numerous election-related frauds throughout the country—the
latest, still-ongoing one a colossal swindle targeting the American people as
a whole. If that is the case, his refusal “to be a witness against
himself” is perfectly explicable and even defensible on the grounds of the
Fifth Amendment. Howsoever justified as a matter of criminal law, though,
Obama’s silence and inaction will not obviate the necessity for him to prove
his eligibility for “the Office of President.” The Constitution may permit
him to “take the Fifth;” but it will not suffer him to employ that evasion
as a means to usurp the Presidency of the United States.
Edwin Vieira, Jr., holds four degrees from Harvard:
A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and
Sciences), and J.D. (Harvard Law School).
For more than thirty years he has
practiced law, with emphasis on constitutional issues. In the Supreme Court of
the United States he successfully argued or briefed the cases leading to the
landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union
v. Hudson, and Communications Workers of America v. Beck, which established
constitutional and statutory limitations on the uses to which labor unions, in
both the private and the public sectors, may apply fees extracted from nonunion
workers as a condition of their employment.
He has written numerous monographs and
articles in scholarly journals, and lectured throughout the county. His most
recent work on money and banking is the two-volume Pieces
of Eight: The Monetary Powers and Disabilities of the United States
Constitution (2002), the most comprehensive study in existence of American
monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de
plume) of the political novel CRA$HMAKER:
A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the
Federal Reserve System, and the political upheaval it causes. www.crashmaker.com