In an e-mail sent to supporters earlier today, Doug Hoffman pledged to strategize for his 2010 campaign over the holidays. But the prospect already looks bleak. At the end of the e-mail, Hoffman gives his supporters an “update” on important “news” articles — prominent among them, a link to prominent “Birther” site, “Citizen Wells.”
What’s significant is that Wells’ post substantially duplicates an article by that blog-masquerading-as-a-newspaper, “The Gouverneur Times.” That Hoffman would rather cite a notorious birther breeding ground than a slightly-more-reputable conservative blog is telling.
The Times’ allegations aren’t worth seriously addressing, except to note that the error stems from the legal requirement that voting machines print totals by group of voters, and the Times is comparing total votes in one group to total eligible voters in another group. That’s problematic, and speaks more to the Times’ ability to do math than Congressman Owens’ legitimacy.
Hoffman’s entire e-mail follows. Continue reading
It’s almost a truism that the resources of the federal judiciary are precious, and not to be squandered needlessy. In habeas review of state convictions, for example, we bend over backwards to keep potentially duplicative litigation out of the federal courts, in deference to cost, and notions of federalism. But what of those latest paradigms of judicial uselessness, the “birthers”? Despite nearly a dozen suits filed, no such suit questioning President Obama’s eligibility to serve has gone anywhere, but the birthers keep coming back, and the federal bench is rightly losing patience. Can we do anything to kick them out of court, all of them, once and for all?
Yes — we can. Although traditional notions of issue & claim preclusion (barring relitigation between equivalent parties) won’t stop new birther “attorneys” from taking up arms after their comrades fall, we could solve the issue by getting Congress to withdraw from the jurisdiction of the lower federal courts all claims arising out of the “natural born citizen” clause. U.S. Const., Art. II, § 1, cl. 5.
Recall that although the Constitution requires the creation of a Supreme Court, it does not require the creation of federal courts, at all. U.S. Const., Art. III, § 1:
The judicial power of the United States shall be vested in one Suprme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
This was the Madisonian Compromise — a way to assuage antifederalists by postponing until a later date the question of the nature of the federal judiciary. As such, there’s an argument that the greater power (Congress need not have created, and may therefore eliminate, the lower courts) includes the lesser power (the power to limit the lower courts’ jurisdiction). See Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). Therefore, subject to external limits, Congress could bar the lower federal courts from hearing claims questioning the president’s citizenship, a conclusion confirmed with additional supporting reasoning in Sheldon v. Sill, 49 U.S. 441 (1850).
We generally see arguments in favor of “jurisdiction stripping,” as the practice is known, from the right, when hard-line conservatives argue for Congress to bar the federal courts from hearing any lawsuit that would establish a right to an abortion, to gay marriage, or to be free from religious indoctrination in the public square. This type of legislation ought to be troubling. If judicial review is to have any meaning, courts must be able to determine the meaning or extent of fundamental freedoms. However, no such values are implicated when Congress simply puts an end to a particular breed of vexatious, duplicative, and expensive litigation. That’s just Congress looking out for a coordinate branch.
Stripping the lower federal courts of jurisdiction wouldn’t be a complete solution. State courts would remain open to birther insanity — in most cases, state courts either can or must hear federal claims, Taffin v. Levitt, 493 U.S. 455 (1990); Testa v. Katt, 33o U.S. 386 (1947) — and the Supreme Court could still take appellate review of any suits that eventually wound their way through the state system. While Congress can also, in theory, eliminate Supreme Court appellate jurisdiction — see U.S. Const., Art. III., § 2, cl. 2 — the doctrine here is more muddled, and rightly so. But cutting out the lower courts is a step in the right direction, and a powerful signal that, especially when government resources are sparse, the law is not a game.
Besides, based on Judge Land’s experience with Orly Taitz, the federal bench would probably welcome the loss of authority, such as it is.
Since the PUMAs have long since lost whatever relevance they once had, I haven’t paid attention to them in a while — and I doubt you have, either. Good! But you might be interested to know that “TexasDarlin,” erstwhile Hillary fan, originator of the legal “theories” now used by birthers like Orly Taitz and, now, Tom DeLay, has shut the blog down! It’s “protected” — in WordPress lexicon, viewable by only those given accounts. Apparently, she’s taken this step before, so we can’t be sure it means she’s gone for good. I haven’t been to the site in a while, so I don’t know what started it, either — anyone have more information?
Update: thanks to Chris for pointing out that TexasDarlin has stated that she’ll be on hiatus. Here’s hoping it’s permanent.
The title of this post should surprise few ordinary, non-conspiracy-theorist citizens, and may not even surprise that many in the birther rank & file. After all, the premise of the birther movement draws its strength from a belief that President Obama is an “other” — different, and therefore inferior. Of course, if President Obama were somehow found to have been born beyond our shores, he would be inferior, legally speaking, as he would be unable to legally serve as President. But the inflation of a legal technicality — implemented by the Founders as an afterthought, and only to prevent de-facto “recolonization” by a foreign commander-in-chief — into the last bulwark of republican government, ought to raise a few eyebrows.
As the birthers have gained prominence, the racist origin of this little conspiracy theory has receded, promptly covered up by the new spokespersons, who just “want their country back.” To uncover the birthers’ true motivations, then, we must go beyond the current movement, and return to where it started. Where, then, did the “birthers” get their beginning?
Our quest begins with a typology. As Caesar would say, “Birthers” sunt omnis divisa in partes duo: all of the birthers can be divided into two parts, those who focus on the place of the President’s birth, and those who focus on the nature of his birth. Because the former are simply too crazy for words, and their racism is fairly self-evident, our interest is the latter, to whom we may refer as “legal theory birthers.”
“Legal theory birthers” are — relatively — the more respectable of the set. The fact that the President was born in Hawaii is simply undeniable, and most legal theory birthers will concede as much, albeit grudgingly (see also, Orly Taitz on YouTube). But this doesn’t end the issue. For legal theory birthers, the President’s ineligibility stems not from the place of his birth, but the fact that his father, Barack Obama Sr., was never an American citizen: to legal theory birthers, like Orly Taitz, a natural born citizen is one who was not only born on American soil, but was also born to two American citizen.
This theory couldn’t be more wrong. In fact, the Supreme Court categorically rejected it over 100 years ago, in U.S. v. Wong Kim Ark, 169 U.S. 649 (1897). In spite of this seemingly fatal flaw, the “pureblood parentage”* theory of natural born citizenship forms the basis for the claims of birther “Queen Bee,” Orly Taitz, who has employed it in all of her spectacularly failed litigations.
However, the “pureblood parentage” theory is not original to Orly. In fact, it’s over a year old, predating both Orly’s rise to infamy and President Obama’s election. On July 25th-26th, 2008, the PUMA blog “TexasDarlin” ran two articles by “Judah Benjamin,” since deleted, boosting what he called the “divided loyalties” theory of citizenship. As near as I can tell, Benjamin’s hopelessly flawed theory of the meaning of “natural born citizenship” is the earliest piece of birther nonsense setting forth this restrictive reading of Article II of the Constitution. He found many imitators, and the idea eventually worked its way into Orly Taitz’s “briefs.”
Remarkably, Judah Benjamin lacked both the presentability and polish of Taitz. For one, he wasn’t a lawyer, and it showed. And he was, and presumably remains, a naked racist. Judah Benjamin is (obviously) a pen name, taken from Judah P. Benjamin, a prominent Civil War statesman — for the other side. Why TexasDarlin’s Judah Benjamin thought a Confederate statesman remarkable enough to use his identity as a nom de plume becomes instantly clear, if you read more of his work. Like the Judah Benjamin of the American Civil War, the Judah Benjamin of TexasDarlin fame looks askance at federal power, and considered Reconstruction, and the Reconstruction Amendments, a grievous insult to the South. Yes — Judah Benjamin, the founder of “legal theory birther-ism,” not only doubts the validity of President Obama’s election. He doubts the validity of the Thirteenth, Fourteenth, and Fifteenth Amendments of the Constitution, collectively the engines by which our nation repaired itself after the Civil War, and through which the equal rights of all Americans are secured. In other words, Judah Benjamin had an ulterior motive for fabricating his narrow definition of citizenship: he wasn’t trying to build a theory that secured the country from foreign influence. He was trying to roll back the clock on American history.
Movements need not suffer for their founders. But the birthers of 2009 share a complete identity with “Judah Benjamin’s” 2008 warped theory of citizenship, suggesting that the hyper-narrowness of the birther definition of “natural born citizenship” isn’t a side effect — it’s precisely the point. For Judah Benjamin, and those who follow in his footsteps, the birth certificate “controversy” isn’t about Barack Obama. It’s about keeping the children of immigrants out of the White House.
* = Harry Potter joke intended. Orly Taitz is basically a blond Bellatrix Lestrange.
Despite its 2008 successes, 2009 has already been a grim year for Democratic messaging. Yesterday’s “Mob Ad,” which made the rounds on conservative websites, drawing outrage, is no exception.
Regardless of the ad’s factual merits, discussed below, the ad violates a prime rule of messaging, with no discernable excuse: it seems almost calculated to infuriate more people than it’ll convince. There are ways to capitalize on the GOP’s apparent inability to control its lunatic fringe, rapidly becoming its base (birthers, etc.): this ad was certainly not it. Indeed, it’s almost the most offensive way to make a mediocre point. Now is not the time to rest on our laurels. The public relations successes that powered Obama’s election need to be the rule, not the exception. Anything less gives the GOP a chance to capitalize on its own incompetence.
That said, I neither understand nor much respect the GOP outrage over the ad, which appears to stem from the misconception that it targets all Republicans who disagree with President Obama’s policies, rather than just the lunatic fringe. From the ad’s own context it clearly targets only the birthers and other GOP flash mobs, “grassroots,” “astroturf,” or otherwise, bent only on disrupting real policymaking without adding any real substance to the debate. No doubt there are Americans, of any party, concerned or otherwise disturbed by Obama’s policies, and more power to them for raising their voices. Disagreeing with the government is every American’s birthright and patriotic duty, and I would no sooner criticize someone for voicing their opinions, earnestly held, than I would retroactively mock myself for starting this blog. Still, the “Mob Ad” isn’t about them: Twitter notwithstanding, they are not the mob. As you can see by watching the ad, it’s about only the birthers, and people who use Nazi symbols or lynched dolls to make their points, and we should all be able to agree that everyone is better off without them.
Call it DHS-Gate redux, but this is another case of Republicans mistaking a criticism of the fringe for a criticism of the whole. No-one would deny Republican congressmen or constituents the right to raise valid concerns and contribute to the debate on health care, etc. But there are GOP mobs actively frustrating the debate. Not all of the “town hall” mobs are as benign as RedState suggests – again, there are the birthers, the “Obama’s a Nazi” crowd, and more. It’s okay for we Democrats to call them out for the distractions they are, but it’d be more than welcome for the GOP to save us the trouble, by throwing them under the bus themselves, rather than actively helping them. Until they do, it shouldn’t be anathema or a cause for outrage for us to call the GOP out on elements of their side that are hurting the country, and actively making their own party look bad, too. Criticizing the fringe needn’t always implicate the center, and in fact, it rarely does, when done tactfully.
And so we return to the beginning. This ad was not a model for tact, especially knowing, as its drafters should’ve, that the GOP has thin skin. As any first-year law student knows, the defendant takes the plaintiff as she finds him. In building its ad campaigns, the DNC should’ve predicted and avoided this little war, and should in the future scrupulously avoid even the appearance of condescending against dissent.
Listen very carefully, because I’m only going to say this once. I think MSNBC was a little too rough on Orly Taitz in this interview:
MSNBC’s tactic in this interview appears to have been to interrupt Taitz, and throw enough embarrassing facts at her, to force her to totally and completely lose it. Call it the “A Few Good Men” stratagem. In this case it seems to have worked, but is either wholly unnecessary or counterproductive to MSNBC’s goals. It’s a given that, in any interview, Taitz will make herself look like a fool. Unfortunately, her audience doesn’t care about it. Looking at this video, the rabid hordes of birthers will see Taitz courageously standing up to a media bent on “censorship,” not a correspondence school “lawyer” who can’t seem to use definite articles in her sentences. The best way to make her look as foolish as she is, without giving her supporters something to rally behind, is to confront her on the substance. The Kenyan “certificate” is a fake. The proof of Obama’s Hawaiian birth is irrefutable. And no lawyer worth a dime buys into her “no dual citizenship” theory. MSNBC should’ve given her a chance to speak, before destroying the merits of her arguments. After all, it’s not hard to do.
As loyal readers … or anyone who happened to see Monday afternoon’s post knows, our fearless leader is feverishly preparing himself for a two-day stint in Chelsea next week, where he will dazzle and amaze the New York State Board of Law Examiners with a singularly brilliant performance on his bar examination.
I am sure you all will eagerly join me in wishing him both a good breakfast and timely subway ride on each testing day as I am equally certain you will enjoy this clip from Wednesday’s Daily Show, wherein none other than Orly Taitz (arguably ACG’s favorite modern marvel) receives no short shrift from John Stewart. The whole clip is a hoot and a fitting tribute to ACG, but at the very least, you must experience Ms. Taitz … and her eyelashes (beginning 2:34). Do it for comedy. Do it for ACG. Do it for Y-O-U.
Before he was sent to federal prison for tax fraud, the infamous creationist “Dr. Dino” (Kent Hovind) had a standing offer – $250,000 to anyone who could prove the validity of the theory of evolution. Of course, the terms of the “proof” were rigged to foreclose any possibility of collecting the award, unless you had a time machine. Now Joseph Farah, a birther with a foot in both ponds, has decided to built on Hovind’s “success” — $10,000 to anyone who can prove they were present at Obama’s birth!!
A pretty handy way of exploiting the fact that both of Obama’s parents are dead (rub it in, Farah), and any doctor or nurse would be well on their way, too (aged 77 or 69 at a minimum, respectively), to say nothing of the absurd additional conditions (polygraph?!).
Of course, there is one person who can “prove he or she was present at the birth of Barack Obama”: Barack Obama. Because the contest cites no qualifiers on how this person’s knowledge was obtained, we urge President Obama to write to WND, agree to satisfy the remaining conditions in, say, 2035 (agreement is, after all, all the contest asks for), collect his $10,000, and teach WND a lesson in the careful drafting of offers.
For some time now we’ve been criticizing the abject stupidity of the “birthers,” those attorneys and hangers-on determined to prove that President Obama is, somehow, a “half-breed Muslin,” ineligible for the office he legally holds. Some of you – I’m looking at you, deranged single-issue commenters – didn’t believe me. Well, the verdict’s in.
Last month, birther “attorney” Orly Taitz was sued by both a former comrade, and her ideological fellow-traveler, 9/11 “truther” Phil Berg. The merits of the complaint aren’t important. What is important, though, is that Taitz missed the deadline to file a reply — because she sent her response to the wrong address. No, she didn’t mistype the envelope. It’s far, far better than that. She sent her response to Berg, completely neglecting to file it in court. Apparently, Taitz’s correspondence law school didn’t cover lesson #1: “court documents should be filed with a court.” What’s this mean? Easy: she’s defaulted on her case, and will likely lose.
The more astute among you will recall that Taitz’s law degree doesn’t entitle her to practice in Pennsylvania federal court (where this case is filed), or indeed anywhere outside of California, and so will wonder whether her failure to file may not be a fortuitous mistake. After all, had she signed her pleadings herself, and represented herself as an attorney, she would have engaged in the unauthorized practice of law, and could be disbarred. Since the response was never submitted to court, though, she would have failed to accomplish the intended fraud.
Good catch! But Taitz signed her pleadings as a pro se litigant, which allows a party to represent themselves, regardless of bar admission. Even if it had been properly filed, she would’ve been okay.
Too bad. While it’s great to see Taitz reap the rewards of her own ignorance, I’d much prefer to see her kicked out of the legal profession, once and for all. Maybe next time.
For quite some time now, we here have reported on the right wing-invented “controversy” over whether Barack Obama is, in fact, the President. Short recap: spurred on by WorldNetDaily, a sad, angry little cadre of far-right bloggers and correspondence school lawyers filed a number of lawsuits demanding to know whether Obama is a “natural born citizen” and therefore eligible for the office.
Due to various procedural bars, and the substantive ridiculousness of the complaints, these suits have uniformly failed. In fact, the impact of these 20+ lawsuits appears to be limited to (1) sanctions pending against one birther attorney, (2) a professional complaint filed against another (Orly Taitz — we called it!), and (3) a grievous waste of the precious resources of the federal judiciary. Tough luck.
Legislative attempts to kick Obama out of office have similarly failed. A birther-backed bill – which would’ve required President Obama to produce his birth certificate (again) upon running for re-election – has thus far received not even one co-sponsor (HR 1503, @THOMAS). Tough luck for sole sponsor Bill Posey (R-FL): you know you’re out there when not even Michele Bachmann (R-MN) will back you up.
Of course little things like “facts,” “law,” and “failure” rarely stand in the way of conspiracy theories. That’s why birther attorneys & boosters have seemed undaunted by their myriad & frequent setbacks. Until now. Yesterday, WorldNetDaily, the one “news” organization that’s consistently covered the birther scam favorably (and run a hilarious petition on their behalf), pulled its hitherto daily birther update from the front page (“Page 1″) in favor of a daily gay marriage update (insultingly titled “Queerly Beloved”). Chalk up Obama conspiracy theories as the first victims of “the gathering storm.”
Even as the slow slide towards birther irrelevance enters its final phase – in which Wonkette becomes the only large blog left covering the “controversy” – I have to admit, I will miss them. Not often is one blessed with such ridiculous enemies.
