Topic category:  Other/General

Warner Todd Huston's latest article, "Thomas Jefferson says forget about Barack's birth certificate," strikes me as well-intentioned, but wrong.

Mr. Huston:

"I have discovered that Thomas Jefferson has already told us upon which side we as conservatives should descend over the question concerning Barack Obama's birth certificate and his eligibility for the office of president of the United States. Mister Jefferson would tell you all to shut up, accept cruel fate, and get ready to claim Barack Obama as the 44th president of the United States of America.

"That's right, forget about it. Move on. Nothing to see here."

BUT, Jefferson never indicated that constitutional qualifications should be ignored.

In fact, Jefferson warned us to nip corruption, tyranny and error in the bud.

"The time to guard against corruption and tyranny is before they shall have gotten hold of us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered." --Thomas Jefferson: Notes on Virginia Q.XIII, 1782. ME 2:165

"It is better to correct error while new and before it becomes inveterate by habit and custom." --Thomas Jefferson: Report to Congress, 1777. FE 2:136

"It is safer to suppress an error in its first conception than to trust to any after-correction." --Thomas Jefferson: Circular to Foreign Ministers, 1793. ME 9:19

I don't know whether the President-Elect is a "natural-born citizen" or not.

But I don't think that it's too much to expect the President-Elect (or any other President-Elect, regardless of party, sex, race, color, religion, height, weight, etc) to demonstrate that he (or she) is qualified before he (or she) takes the presidential oath.

Mr. Huston: "...I absolutely agree... that we are a nation of laws and not men. Jefferson did too, once saying that we must consider what the original intent of the Constitution was before we rush into a decision and the original intent in this case was clearly to make sure every president was a natural born citizen of this country before being eligible to run for that highest of offices. ('The Constitution on which our Union rests, shall be administered ... according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption — a meaning to be found in the explanations of those who advocated [for it]...' — Thomas Jefferson)

EXACTLY!

In 1823, Thomas Jefferson opined in a private letter how constitutional meaning should be ascertained: "On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it passed."

Jefferson was right about that.

Mr. Huston contends, it seems, that constitutional qualifications should not be knowingly disregarded, but they should be assumed to have been satisfied.

Mr. Huston:

"The simple reason that the founders wanted the president to be a natural born citizen was because they were keen students of history. The phrase 'let history be our guide' was not just a trope. The founders knew well the many instances when a foreign ruler had entered a country and, using that country's own laws and customs, immorally proclaimed himself the ruler of a subjugated nation. The founders wanted to prevent that possibility and also wanted to make sure that there were no divided loyalties in an American president, that the welfare of the USA would be first and foremost in the mind of anyone elected to that office. What better way than to preclude the foreign born?

"So, yes, the proscriptions against the foreign born candidate are important and should not be cast aside. We should never knowingly present a candidate not born as a citizen of the U.S. Further, we should take pains to verify the provenance of every candidate's claim to natural citizenship.

"But...and you knew the 'but' was coming. There is an original intent that rises above the Constitution itself. In fact, there are a few, but one in particular comes to bear here.

"Jefferson, Madison, Washington, Franklin, nearly every member of the founding generation placed a particular emphasis upon the locus of power in the governing philosophy of the American system and it was a locus that was unique for its day — as well as the reason many detractors felt we could not survive as a nation.

"That locus was in the will of the people."

But the United States is a constitutional republic, not a pure democracy, and the United States Constitution is supposed to be the supreme law of the land and its amendment procedure is supposed to be followed if it is to be amended.

Mr. Huston's main argument is that the President-Elect won the election.

Mr. Huston: "Unfortunately for our side, on November 4th, 2008, the people made their will known. Over 39 million voted to place Barack Obama in the White House. There is no doubt that the people have spoken."

True.

BUT, in running, the President-Elect represented that he is a "natural-born citizen" and if he misrepresented, or defrauded, the American people, should he be permitted to benefit from that?

It seems that Mr. Huston believes that conservatives need to docilely accept the election because the Left did NOT accept the election result in 2000.

Mr. Huston: "Now here is the problem a conservative constructionist faces. You may have heard the saying that the Constitution is not a suicide pact? Well, that sentiment applies here. We have suffered through eight years of the left illegitimately claiming that the Supreme Court 'chose' George W. Bush, that his election was not legitimate. In the minds of many we placed the will of the people in doubt that time and got away with it — whether true or not a very large number of people feel this way. But, trying it a second time, and so soon on top of that, will undermine the integrity of the election process especially in this case where it was a clear majority that voted for Barack Obama."

So we should pretend that the constitutional requirements have been met instead of seek the truth?

I don't think so.

Mr. Huston claims his approach is sound political strategy.

Mr. Huston: "The question remains, do we now strangle our conservative movement by making it to appear forever more that we don't care what 'we the people' have authoritatively decided in a fair election? Do we commit suicide with the letter of the law even when the people voted for their man in good faith? Worse, do we want a major upheaval of our current system should we deign to thwart this particular election?"

But we should do what is right, whether or not it is politic.

The problem with fraud is not that the defrauded failed to act in good faith, but that the defrauder did not act in good faith.

The good faith of the victims does not excuse the bad faith of their victimizer.

If the Presidency is being hijacked by a usurper, pretending that all is well is the first step on the road to hell.

Like me, Mr. Huston admittedly does not know the truth about the President-Elect's birth.

Mr. Huston: "Perhaps Barack Obama is knowingly lying about his status as a natural born citizen. But those that voted for him did not have the slightest inkling that he may not be eligible when they cast their ballot. And it will not be taken lightly should he be barred from the office millions elected him to take. In fact, it is likely that if we nullify Obama's election, conservatives would only stave off but briefly a resurgent Democratic Party that would end up having the fullest support of the people for decades to come, putting conservatives in a self-manufactured seemingly permanent minority."

That assumes that the voters simply did not care whether the President-Elect met the constitutional requirements to serve as President and I have no reason to assume that.Mr. Huston thinks that accepting the President-Elect, assuming he is not a "natural-born citizen," supports the electoral process.

Mr. Huston: "Of course, Obama's foreign birth, if it comes to be true, will undermine his presidency. But better to have a single president's legitimacy undermined due to his actions than to undermine the entire electoral process. It should be noted that Nixon understood this point well. In 1960 it was pretty clear that the Kennedy's stole the election in Chicago and that LBJ stole it in Texas in order to put Kennedy into the White House. Nixon could easily and legitimately have contested that election. But Nixon did not dispute the 1960 election so as not to undermine the entire system. He felt the will of the people had been heard and for the good of the nation it should stand."

THAT may have been Nixon's biggest mistake!

Mr. Huston concluded:

"So, while the Constitution is mighty important, the will of the people is supreme. And the will of the people has been clearly heard in this case. The vote was not close. Barack Obama won, fair and square in the minds of the electorate.

"There have been rules of ascension before. Constitutions existed before 1780, too. But a true first American principle is that the people hold the highest power. And we as conservatives, we who claim the mantle of the founders as our own, should not be so quick to obviate that truest of our first principles.

"Believe me, I don't want this clearly socialist man as our president. I think he will do us some damage. I want his policies stifled as much as you do. So, let us oppose this man certainly. But let us do it manfully and in the spirit of our most cherished ideal.

"And let us plan for 2010 and 2012."

The "truest of our first principles" are that the law should be respected and the truth should prevail in our constitutional republic.

The political philosophy of a person is supposed to be irrelevant, so long as that person meets the stated constitutional qualifications and takes the oath of office.

And what is "manful" about failing to require anyone about to take the presidential oath from demonstrating that he or she is qualified under the Constitution?

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.