Old-stock Americans need to understand the metapolitical significance of the Presidential election in 2012. On a strict reading of the Constitution (i.e., in accordance with the “original intent” of the framers and as described more fully below), there can be little doubt that Barack Hussein Obama has never been eligible to the Office of President.
During the 2008 election campaign neither the GOP candidate Senator John McCain—whose own eligibility had been questioned as a consequence of his birth in Panama—nor the globalist mainstream media had the incentive or inclination to compel candidate Obama—so obviously a progressive and cosmopolitan citizen of the world—to establish that he is a natural born American citizen as required by Article II, section I of the Constitution.
But such negligent disregard for foundational constitutional norms is no longer surprising among political, corporate, and legal elites in the United States. Already in the early Eighties, when I was a graduate student at Harvard Law School, such formalistic constraints were being reduced to fossilized irrelevance. Decades of legal realism combined with the nascent critical legal studies movement to foster the legal amnesia implicit in the progressive ideal of the “living constitution.”
Three decades on, bien pensant contempt for “originalism” is even more deeply entrenched upon the commanding heights of the Constitutional Republic. We can be sure, therefore, that the apparently “unconstitutional” re-election of putative President Obama will not be a story of politics as usual. It will mark instead yet another momentous turning point in American constitutional history; namely, the inauguration of the Fourth (Transnational) Republic.
The American Republic is the world’s oldest and most successful revolutionary regime. The American Revolution began with the War of Independence waged against Great Britain by rebellious colonies loosely united under the Articles of Confederation. It has continued for more than two centuries.
The radicalism of the American Revolution engendered several major mutations in the body politic of the Republic. Inspired by the secular humanist ideology of the European Enlightenment, America’s constitutional faith strove to incarnate the principles of liberty, equality, and fraternity, one after another, in a series of revolutionary republican moments. A distinctively American political theology emerged to justify no less than three metapolitical transformations in the religion of the Republic.
The first generation of American revolutionaries transformed their petty colonial rebellions into a singular and unprecedented symbol of liberation for all mankind. The “first new nation” emerged as a centralized and expansionist Constitutional Republic; its legitimacy derived not from history and tradition but from the sovereign will of the people of its several states.
The idea of a sovereign people was, of course, a novel one; neither in England nor in the thirteen colonies did the sovereign people exist as a constitutional actor in their own right. Sovereign authority was vested in the King and Parliament. The break with Britain meant that the sovereign “people-at-large” had to be invented in every state of the newly independent Republic. Do not imagine, however, that the creation of the American Republic brought the Revolution to an end.
Several constitutional coups d’état have punctuated the long history of the American Revolution, down to the present day. The first of these was the ratification of the federal Constitution of 1787.
Under the Articles of Confederation, constitutional amendments required unanimous approval by state legislatures. Inconveniently, the consolidated commercial republic favoured by Federalists—progressive lawyers, merchants, and bankers—faced strong resistance from back-country populists entrenched in the lower house of several state legislatures.
Accordingly, the Federalist founding fathers set out boldly to circumvent the legislative power base of the anti-Federalist movement. They called upon specially elected constitutional conventions acting in the name of the sovereign people-at-large in each state to ratify the new Constitution.
Liberty, Equality, and Fraternity
The constitutive principle of the First (Federal) Republic was liberty. But the festering contradiction between the progressive ideal of liberty and the reactionary realities of Negro slavery unleashed another wave of revolutionary dynamism, found in its most extreme form in the rise of the abolitionist movement.
Eventually, the First (Federal) Republic was overthrown. When the War for Southern Independence was lost, the federal principle which licensed the secession of the slave states was subordinated to the colour-blind ideal of personal liberty. It was clear that sovereign authority had passed from the citizens of the several states into a consolidated Union-dominated government under the direction of Northern commercial and industrial interests.
But formal legal recognition of the Second (Bourgeois) Republic required another constitutional coup d’état. The revolutionary Fourteenth Amendment was adopted by Radical Republicans to subordinate the states to the federal government and to create a uniform national citizenship.
According to Article V of the federal Constitution, however, amendments require the formal consent of three quarters of the states. The South was still under military occupation by Union troops. Fraud and coercion were employed freely to compel Southern legislatures to ratify the Fourteenth Amendment in 1868. In effect, white Southerners were made an offer they could not refuse: ratify the Fourteenth Amendment or be denied re-admission to the Union.
The Second Republic was founded on the principle of equality. But it eventually foundered upon the multiplying contradictions between the formal legal ideal of equality and the substantive social realities of race, class, and gender.
Seventy years after the Civil War, the New Deal ushered in the Third (Managerial/Therapeutic) Republic which radically expanded the powers of the federal government. No effort was made to obtain the formal consent of the states to this constitutional revolution.
Indeed, in 1937, the Supreme Court, too, was compelled to abandon its early resistance to repeated and sweeping federal usurpations of state jurisdiction by making the famous “switch in time that saved nine.” Faced with Roosevelt’s threat to pack the court, the judiciary simply turned a blind eye to the Article V amendment procedure, choosing instead to place its imprimatur on the Third American Revolution.
The Third Republic based itself upon the revolutionary ideal of fraternity among American citizens of every class, race, and gender. While allowing Congress a free hand to regulate the economy, the Supreme Court brought every so-called “discrete and insular minority” under its own wing. In the Forties and Fifties, the Court waged its own revolutionary war against discrimination in landmark cases such as Shelley v Kraemer and, most famously, Brown v Board of Education.
By the Sixties, it was obvious that the principle of fraternity stood in stark contradiction not just to individuals’ freedom of association but also to the exclusionary character of allegedly “racist” immigration laws. Accordingly, the progressive leaders of the Republic launched a demographic revolution which extended the blessings of American citizenship to millions of non-Whites drawn from every corner of the Third World.
As a consequence, the principle of fraternity quickly morphed into the celebration of diversity as an end in itself. But demographic diversity stands in clear contradiction to the ancient republican ideal of a body politic in which citizens unite in pursuit of the public interest and the common good.
Homo americanus long ago renounced his historic allegiance to throne and altar. Soon afterward, the blood faith that his colonial ancestors had shared with their kith and kin across the Atlantic was replaced by the civil religion of the Republic. Americans had also become hopelessly addicted to endless economic growth and territorial expansion. Within that future-oriented, novus ordo seclorum, it was impossible to define the constitutional abstraction known as the sovereign people-at-large in backward-looking, traditional terms of shared blood, language, and religion.
Natural Born Citizenship
The most the American Adam could do was to limit citizenship to White people. Given the ever-expanding population of foreign-born citizens, the framers sought to guarantee the undivided loyalty of those who occupied the highest office in the land. Only a “natural born citizen” was eligible to occupy the Office of the President.
In 1875, Minor v Happersett, the only Supreme Court decision to pronounce upon the issue, defined a natural born citizen as a person born in the United States to parents (i.e., mother and father) who are both citizens of the American Republic.
Natural born citizens are bound, therefore, by both blood and soil to the American body politic. So long as the President is a natural born citizen, the American Republic is not wholly and completely a “proposition nation.” Under the rule in Minor v Happersett, it is clear that Barack Obama is not a natural born citizen of the United states.
Birthers have worked long and hard to bring the eligibility issue into the public area, if only by attracting the unmitigated scorn and ridicule of the media. As a result, no longer can either the states or the people claim ignorance of the doubts as to whether Obama is a natural born citizen of the American Republic.
Unlike the 2008 campaign, therefore, the Presidential election of 2012 will amount to nothing less than a de facto referendum on whether the formal constitutional provision requiring the President to be a natural born citizen is to be nullified by the sovereign people. Obama’s re-election will present both the States and the Supreme Court with a fait accompli, the fourth and final constitutional coup in the history of the American Republic.
Ironically, having spent the past four years denying that Barack Obama is a natural born citizen, the so-called “birther” movement may be hoist upon its own petard. Once he has been re-elected, challenges to President Obama’s eligibility following his re-election will encounter the objection that the sovereign people knew or ought to have known that, even on his own account:
- Obama may not have been born in the United states (see the biography circulated by his literary agent which claims that he was born in Kenya); and
- he does not have two citizen parents (see his autobiography which identifies his father as a British subject from Kenya); and
- he may have lost his American citizenship (whether natural born or otherwise) as a consequence of his adoption by an Indonesian citizen married to his American mother.
Such concerns have been broadcast far and wide, both by birthers and those who ridicule their claims. Birthers have also mounted numerous legal challenges in several states to Obama’s eligibility to appear on the ballot. Once he has been re-elected, it may be said that states that allowed Obama to contest the election effectively ceded their higher lawmaking authority to the sovereign people. (See, for example, the decision by Arizona Secretary of state Ken Bennett to place Obama on the ballot after accepting Hawaii’s non-verification verification of Obama’s birth certificate.)
If neither the People nor the states care whether a re-elected President Obama is an American citizen, natural born or otherwise, the Supreme Court is unlikely to countenance any constitutional challenge to his political legitimacy.
Andrew Fraser studied “advanced” constitutional law at Harvard Law School. He taught American constitutional history at Macquarie University in Sydney, Australia. His latest book is The WASP Question: An Essay on the Biocultural Evolution, Present Predicament, and Future Prospects of the Invisible Race (Arktos Media, 2011).