Feb
13

Romney, Right Reason, and Birther Bashing

I suppose Barack Obama and Mitt Romney ought to just pack up their bags and head, respectively, to Kenya and Mexico. You see, that is where their fathers are from. In birther-world that deprives them of the status of "natural born citizens," and thus makes them ineligible to become president of the United States.

The fact that Obama’s father was a Kenyan and Romeny’s father was born in Mexico doesn’t matter to most of us. I doubt anyone seriously suspects that Obama is a sleeper cell for a secret Kenyan plot to take over the United States; as to Romney, well, I don’t think anyone suspects he has serious loyalty to anything other than a buck and the abiding conviction that Jesus Christ visited North America way back when.

But to give the birthers their due, Article 2, Section One of the United States Constitution does draw a distinction between citizens and natural born citizens. A lawyerly conceit in the reading of the Constitution requires that each clause be taken seriously. What is a "a natural born citizen"?

I learned a lot about it last night appearing on a radio debate with a fellow named Jerome Corsi. He couldn’t talk enough about his Harvard Ph.D. in political science and the fact that he audited classes at the Harvard law school. He’s no lawyer, he pointed out, but he is a constitutional scholar.

At least he thinks he is.

The trouble is that Corsi’s brand of scholarship reeks of the wick. It is the sort of self-contained, hermetically sealed set of assumptions and assertions that makes perfect sense if one suspends critical judgment. Corsi is to constitutional scholarship what Area 54 is to cosmology.

A natural born citizen, according to Corsi, is a person not just born in the United States, but also spawned by two parents who are also citizens. This latter qualification is important because it assures that any president will not have lingering loyalties to a foreign state. "Would you want as president a child born to birth tourists who never lived in the United States?," Corsi asks. Probably not, is the answer. Hence, I would not vote for him or her.

Support for this interpretation of the phrase is gleaned from the writings of an eighteenth century Swiss writer, Emerich Vattel. Vattel wrote: "The natives or natural born citizens are those born in the country of parents who are citizens." There it is, plain as day. An eighteenth century writer asserted that natural law made this so. What’s more, some of the founders read Vattel; why George Washington himself apparently checked Vattel’s book out of the library and never returned it, Corsi notes with the pride of a moot court contestant. Look! Natural law requires it!

This is the sort of logic that gets pro se litigants in trouble all the time. A little bit of knowledge is, the aphorists teach, a dangerous thing. Natural law has a disturbing tendency to reflect the preferences and biases of those who seek to discern it. Aristotle taught then some were slaves by nature; most of us think otherwise today, and thankfully so. I am with Jeremy Bentham on the topic of natural law: it is little more than nonsense on stilts.

Natural law jurisprudence plays almost no role in the decision of cases or controversies actually pending before a court. It is a philosopher’s conceit, the sort of thing a Ph.D. from Harvard likes to toss around on talk shows to impress the little people. But try, just go ahead and try, to stake a claim in a courtroom on right reason and natural justice. Then go call your malpractice carrier. Natural law, like Biblical fundamentalism, is self-authenticating chatter persuasive only to those already disposed to agree.

But where Corsi loses all credibility in my eyes is when he claims that English common law is not binding on United States courts. That is right, in an obvious sort of way that misses all the nuances. English common law does inform American law and is routinely relied upon by our courts to interpret ambiguous clauses in the Constitution. To concede, as Corsi does, that the common law suggests that natural born merely means native born is to concede that your argument has about as much a chance of becoming binding law as Lady Gaga does of becoming president.

Corsi ignores the fact that those federal courts who have considered the issue have rejected the birthers’ claims. On the air, he tried to claim that the courts who have decided the issues were mere state courts. It was a surprising lapse from a man who has spent a considerable amount of time preparing a book on the topic: Where’s the Birth Certificate?: The Case That Barack Obama is not Eligible to be President. Law students receive failing grades for such gaffes.

I wanted to like Corsi. His book is a fun read. He could have been a good lawyer. He is dogged in support of his case. But he’s used to preaching to the converted. He kept threatening to leave the show last night when I poked at him. His idea of a debate is merely to have both sides talk past one another; he is slick in accusing the other of engaging in ad hominem attacks while doing the very thing himself, in an unctuous, indirect sort of way. Forgive me if I can’t make nice with purveyors of nonsense.

I do agree with Corsi on one thing: I’d like the Supreme Court to grant certiorari in a case in order to decide the matter of what natural born citizenship means. Let’s put a stake in the heart of this vampire once and for all. Of course, when that happens, the likes of Corsi will be convinced that is a sign of some deeper conspiracy. They’ll issue a new call to arms.

Such is the crisis of legitimacy at work in the nation as a whole. Yes, we have a republic. It’s an open question how long we will be able to keep it.

Comments (1)
Posted on February 13, 2012 at 9:09 am by John Kindley
natural law

Natural law is nonsense? What should guide legislators, then? So soon you've given up on Spooner? Of course I agree that natural law arguments, i.e. arguments about what is right and just, won't get you far in trying to persuade judges. But I don't see the connection of Vattel's claim to natural law.

 

JK:  I don't see Vattel that way either, but Corsi does. As for natural law, I just don't believe in right reason. I suppose I am a methodological anarchist and believe simply in juries serving as a counterweight. As for justice: What's that?

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Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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