Recently, I wrote an article wherein I condemned Professor Lawrence Solum, an esteemed Constitutional scholar, for tampering with an article he published in the Michigan Law Review (September 2008) which focused upon the issue of whether John McCain was eligible to be President despite his birth in Panama. That article did not mention Barack Obama.
The opening paragraph of the article stated:
“What was the original public meaning of the phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of its meaning. Anyone born on American soil whose parents are citizens of the United States is a ‘natural born citizen.’” (Emphasis added.)
Shortly after that report was published, Obama’s dual nationality issue started to get legs when I petitioned the US Supreme Court to review his eligibility (as well as the eligibility of John McCain and Roger Calero, the Nicaraguan born Socialist Workers Party Candidate) just before the 2008 election. Up until that petition, Obama’s dual nationality issue wasn’t on the national radar.
Solum was caught in a rather delicate situation as the issue developed national awareness since he clearly indicated Obama was not a member of the class of persons whose eligibility fit within the “core meaning” and “general agreement” of the natural born citizen clause. As a result of the attention, Solum scrubbed the two citizen parent reference. You can read the whole sordid story in my previous report.
Solum’s original report had it right:
– all persons born on US soil to US citizen parents are – beyond question – eligible to be President
– all persons who were not US citizens at the time of their birth are – beyond question – ineligible to be President
The eligibility of everyone else is questionable.
That was the truth when Solum first wrote the article. And it’s the truth now. And I always want to know the truth and to speak the truth. So, having come down so hard on Solum, I recently challenged myself to go back and review the relevant judicial history to see if I had overlooked anything important that would help establish the case for Obama’s eligibility. I also set my gaze upon searching for anything I might have previously overlooked which strengthens arguments against his eligibility.
As a result of this effort, I’ve developed new insights and analysis which strengthen my opinion that the original meaning and intention of the natural born Citizen clause would exclude Obama from eligibility.
But I’ve also had an important insight which helps the case for Obama.
I have not seen this particular analysis discussed before. I Googled the appropriate terminology, and there is nothing I can find that previously discerns this particular insight. It appears both factions of the argument have been short-sighted as to this point. It is new. Therefore, I have an ethical duty to bring it to your attention.
There is a great body of historical, judicial, academic and journalistic evidence which indicates that only a person born in the US to parents who are US citizens is a “natural born Citizen” eligible to be President. But the media, academia, Congress and a supporting circus of blogosphere attack dogs have tried – in vain – to marginalize anyone who speaks truthfully about the issue. Hell, Solum marginalized his own reputation over it.
I never want to be rightfully accused of doing that – of twisting the legal evidence to fit a stubborn conclusion. The very notion is sickening to my core.
These new insights are very technical and difficult to explain. This is particularly true of the new analysis which helps the case for Obama’s eligibility. The technicality involved certainly posed an ethical challenge. If I just kept my mouth shut, it would probably remain obscured. Who knows, it might remain obscured even after I discuss it. But I will do my best to make it clear for posterity.
I am a lawyer who understands true ethics. And such a lawyer is obligated to reveal cases and facts to the opposition which are damaging. This is the way the Bar and the Bench should behave. The truth must come before the desired outcome. Unfortunately, that’s not the way it is in our judicial system. But it will be the way of this blog.
Leo Donofrio Esq.