The Birther Conspiracies: Where Reason Meets Its Match

A few weeks ago I wrote a post affirming that President Obama is in fact a natural born U.S. citizen, and is thusly qualified to serve as president under the citizenship provisions of Article II, Section 1 of the Constitution. Predictably, the post drew responses from advocates of the idea that the President is not a natural born citizen. In the weeks since I wrote the post, the word birther has been coined as a label for such people.

The rapid and broad adoption of this term—even by many of the President’s opponents—is a rare PR coup. It is a natural snarl word that evokes images of nutcake conspiracy theorists. Some highly irreverent ‘definitions’ of the term can be found in this Urban Dictionary listing. Even many conservatives are actively working to marginalize the birther movement, since it reflects badly on everyone that opposes any of the President’s policies through guilt by association.

WSJ Editor James Taranto applied his capable hand to debunking the birther conspiracy in two posts last week (7/30/09 – first item, 7/31/09 – fourth item titled Brouhaha, Balderdash, Ballyhoo--Birtherianism!). An abridgement of Taranto’s arguments simply won’t do. So I will reprise both of them in their fullness.

It’s Certifiable (7/30/09)
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 group’s 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 Obama’s 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 child’s 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 don’t 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 Obama’s (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 court’s 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 Obama’s 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 Obama’s 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 Hawaii’s 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 candidate’s 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, certifier’s name and title; attendant’s 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. Klein’s information appears to have been in error. The Honolulu Advertiser reported yesterday that Okubo and her boss, Chiyome Fukino, both confirm that Obama’s 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 doesn’t 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 today’s birth certificate is a fake; there is nothing to stop them from claiming without basis that yesterday’s 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 doesn’t mean it isn’t 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. It’s 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.

Brouhaha, Balderdash, Ballyhoo--Birtherianism! (7/31/09)
We thought our column yesterday, in which we definitively debunked the notion that President Obama has failed to prove he was born in America, would put an end to birtherianism. As it turns out, some people simply will not listen to reason. It also turns out, however, that the birther industry has produced a whole host of other false theories about the president, many of which are not even consistent with one another. Since it appears that some people who are willing to listen to reason remain confused, we thought we’d debunk more of the birther myths:

• A child is not a natural-born citizen unless both parents are U.S. citizens. That this is false should be obvious. It is uncontested that Obama’s father was an alien. Thus if both parents had to be citizens in order for a child to be a natural-born citizen, the question of Obama’s eligibility never would have come up. He would have been ineligible right off the bat and would not have run for president. The birth certificate and place of birth would be irrelevant.

Nonetheless, the birthers have blown a lot of smoke around the meaning of the phrase “natural-born citizen,” and we are here to clear it up.

Article II, Section 1 of the Constitution stipulates that the president must be a “natural born citizen” (or, in an obsolete provision, a citizen in 1788), but it does not define the term. The original interpretation relied on British common law, under which, as Justice Horace Gray noted in U.S. v. Wong Kim Ark (1898), “every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.”

The 14th Amendment, ratified in 1868, established this principle as a constitutional right: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Aside from the children of foreign diplomats and (theoretically) military occupiers, the only U.S. natives not to be natural-born citizens were Indians born on reservations--and this exception was abolished by the Indian Citizenship Act of 1924.

Other statutes have extended natural-born citizenship to some children born overseas to U.S. citizens. There is a theory that these statutes are unconstitutional--that the Constitution, in granting natural-born citizenship to those born on U.S. soil, thereby denies it to everyone else. Although this view is eccentric, it is an open legal question. According to the State Department’s Consular Affairs Manual (at page 9 of PDF), “the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.” Since Obama was born in the U.S., he is in any case a natural-born citizen by constitutional right. By contrast, John McCain, born in Panama, is a statutory natural-born citizen.

Some birthers imagine that there is a difference between being a “citizen by birth” or a “native citizen” on the one hand and a “natural born” citizen on the other. “Eccentric” is too kind a word for this notion, which is either daft or dishonest. All three terms are identical in meaning. As Chief Justice Morrison Waite noted in Minor v. Happersett (1874):

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.

No doubt some birther somewhere is fervidly developing “proof” that Obama hatched from an egg and thus is not a citizen. Where is the shell?

• Obama might be a citizen of Indonesia, not the U.S. After the president’s parents divorced, his mother married an Indonesian man and moved the family to Jakarta, where Barack lived from ages 6 through 10 (1967-71), at which point he returned to the U.S. The hypothesis--based on thin evidence and fat speculation--is that Obama was adopted by his stepfather and therefore became an Indonesian citizen.

Even if that were true, however, it would not deprive him of his status as a natural-born citizen of America. As the State Department Web site notes:

Parents cannot renounce U.S. citizenship on behalf of their minor children. Before an oath of renunciation will be administered . . ., a person under the age of eighteen must convince a U.S. diplomatic or consular officer that he/she fully understands the nature and consequences of the oath of renunciation, is not subject to duress or undue influence, and is voluntarily seeking to renounce his/her U.S. citizenship.

It is outlandish to suggest that a boy under 10 could persuade a diplomat of all that. It is only a tiny bit less outlandish to think that Obama came back to the U.S., spent eight or more years here, and then decided to renounce his citizenship.

Besides, the oath of renunciation is administered in writing. What are we to conclude about someone who refuses to accept an official state birth certificate as proof of birth but expects us to accept utterly preposterous theories with no documentary evidence whatever?

• Obama might have been an illegitimate child. The claim here is that Obama’s father had been married to another woman before Obama’s mother, the previous marriage was not legally dissolved, and therefore the marriage was invalid. We haven’t investigated the facts, because they are irrelevant to the question of citizenship. Obama was born in the U.S., and that is sufficient to make him a natural-born citizen.

Ironically, if Obama had been born overseas, he would have been a natural-born citizen only if illegitimate. Here, from the State Department Web site, is the legal provision that would have applied:

Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother: A child born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(c) INA if the mother was a U.S. citizen at the time of the child’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

If his mother was in the U.S. from birth to age 1, that would have been enough to meet this residency requirement. It may seem counterintuitive that the standard is easier to meet for a child born out of wedlock, but it actually makes perfect sense. An illegitimate father has no inherent legal tie to his child, and thus the father’s country has no claim to the child’s allegiance.

• “Why has Obama spent X dollars defending himself against lawsuits when he could just produce the original birth certificate and make the whole thing go away?” X varies, just in our emails of the past 24 hours, from “thousands” to “almost a million”; one reader set the amount at “$950,000.” As far as we know, all these estimates have a common source: thin air.

In any case, while this question sounds eminently reasonable, in fact it betrays a complete lack of understanding of the legal process. The “defense” against these frivolous lawsuits has consisted of filing a motion for summary judgment, which in every case has been granted.

In a motion for summary judgment, a defendant in a lawsuit asks the judge to dismiss the case as meritless before trial. In considering whether to grant such a motion, the judge is obliged to treat all facts in dispute as if they were resolved in the plaintiff’s favor. He may dismiss the case only if he finds it is without merit as a matter of law. The defendant’s introduction of additional factual evidence into the record would make the process more costly and time-consuming, not less.

The production of a 1961 birth certificate would make these lawsuits “go away” only if one assumes that it would persuade the plaintiffs to withdraw their claims, or not to file them in the first place. This assumption is completely fanciful. As we noted yesterday, birthers “claim without basis that today’s birth certificate is a fake; there is nothing to stop them from claiming without basis that yesterday’s is as well.” Sure enough, an outfit styling itself the Western Center for Journalism has produced what purports to be a report from “an investigator” commissioned by “a retired CIA officer”--neither of them has a name--arguing that the original birth certificate might be fraudulent.

• The serial number of Obama’s birth certificate is fishy. We’re including this one just because it is so much fun. Earlier this week the Honolulu Advertiser reported that 82-year-old Eleanor Nordyke had provided the newspaper with copies of the old-style birth certificates for her twin daughters, born in the same hospital as Obama on Aug. 5, 1961, the day after the president’s birth. Jerome Corsi of WorldNetDaily looked at the certificates and offered this analysis of the serial numbers:

Susan Nordyke was born at 2:12 p.m. Hawaii time and was given No. 151-61-10637, which was filed with the Hawaii registrar Aug. 11, 1961.

Gretchen Nordyke followed at 2:17 p.m. and was given No. 151-61-10638, which was also filed with the Hawaii registrar Aug. 11, 1961.

According to a version of Obama’s purported short-form certificate available from FactCheck.org, Obama was given a higher registration number than the Nordyke twins. The online image indicates the number is No. 151-1961-10641, even though he was born Aug. 4, 1961, the day before the twins, and his birth was registered with the Hawaii registrar three days earlier, Aug. 8, 1961.

The middle figure in Obama’s purported registration also is different than the Nordykes’. Obama’s is 1961, indicating the year, while the Nordykes’ is merely 61.

One explanation for the out-of-order serial numbers might be that several serialized stacks of birth certificates were made available at different hospitals.

Another possibility is that Obama’s number is not a genuine registration number created in 1961 but was issued when the short-form document was generated during the 2008 presidential campaign.

Corsi gives equal weight to these “possibilities” even though the first one is innocuous and makes complete sense, whereas the second presupposes that the officials who administer Hawaii’s vital records are parties to some sort of conspiracy. Someone must have taken Occam’s razor away from him for fear that he would cut himself.

As to why the old-style certificate says only “61” where the modern one says “1961,” Corsi might want to consult his own Web site for the explanation.

Several readers have called our attention to an article by Andy McCarthy of National Review in which he partially dissents from his own magazine’s editorial renouncing birtherianism. Even McCarthy, however, scoffs at the birthers:

The overwhelming evidence is that Obama was born an American citizen on Aug. 4, 1961, which almost certainly makes him constitutionally eligible to hold his office. . . . The mission of National Review has always included keeping the Right honest, which includes debunking crackpot conspiracy theories. The theory that Obama was born in Kenya, that he was smuggled into the U.S., and that his parents somehow hoodwinked Hawaiian authorities into falsely certifying his birth in Oahu, is crazy stuff.

Apart from the “almost” before “certainly,” we agree entirely. McCarthy goes on to raise a series of other questions about Obama’s background--questions that do not, however, raise serious doubts about the legitimacy of his presidency and that, however interesting they may be to observers or historians, are of scant political salience now that Obama has been elected.

In 2012, Obama will have a record on which voters can judge him; his pre-2008 personal history will surely be of no more interest than Bill Clinton’s Arkansas scandals were in 1996 or George W. Bush’s military service in 2004. This is the sort of thing that animates partisans--and only partisans.

Taegan Goddard of CQ Politics reports that a new Research 2000 poll for the Angry Left site DailyKos.com “found 77% of Americans believe President Obama was born in the United States, 11% do not, and 12% are not sure. Among Republicans only, 42% think he’s an American citizen, 28% do not, and 30% are not sure.”

That is, a majority of Republicans--58%--are willing at least to entertain a fringe conspiracy theory about the president of the United States. Independents (83% yes, 8% no, 9% not sure) are much closer to Democrats (93% yes, 4% no, 3% not sure) than to Republicans. This is not a sign of strength for the GOP.

I think that Taranto does a fine job of debunking the birther myth that President Obama is not a natural born citizen of the United States. But I am quite certain that even these well reasoned arguments will not dissuade many birthers from their cherished but misguided belief that they are seeking to protect the Constitution.

As noted in my previous post, any court in the land will dismiss any case brought before it based on the birther conspiracies. The court will either find the case meritless or will find that the plaintiff has no standing to bring the case. To the birthers this is simply evidence of how deep the conspiracy lies. As with all conspiracy theories, inconvenient contrary evidence is either ignored or explained away by more ignoring of evidence, introduction of falsehoods, and/or giving improper weight to various bits of information.

Even if birthers are determined to remain convinced that the President is not a natural born citizen of the United States (despite all evidence otherwise), they have only two courses of action available to them:

• Impeachment.
• Sow as much doubt about the President’s legitimacy as possible through the use of half truths and blatant falsehoods.

Let’s be realistic. There is no chance whatsoever that the House of Representatives will impeach the President on this point. Even if by some bizarre twist of fate the GOP were to win a convincing margin in both chambers of Congress in the 2010 elections, the chances of the House even taking up the matter of impeachment on the basis of birther theories is nearly zero.

This leaves birthers only with the path of dishonesty. This is their only real option. This is so, even if they sincerely believe in their disingenuous arguments.

There are ample legitimate grounds for opposing President Obama’s policies. Birtherism distracts from these genuine reasons and diminishes their potency in the court of public opinion due to guilt by association. The President and his supporters have much to gain by keeping birthers in the news because doing so increasingly makes all of the President’s opponents look like they’re crazy.

I agree with Taranto, that birthers may help propel President Obama into a second term. If that is the case, they will succeed in achieving the exact opposite of their stated goals. It will mean that the American people have considered and then reconsidered the birthers’ theories and judged them to be without merit, and it will extend a presidency they boldly oppose.

I suppose it is possible that many birthers will actually be pleased if this does happen. These may very well be like Don Quixote, seeking fulfillment by playing the hero to imaginary injustices, even if this path leads to the ruin of the very ideals they claim to support.