Perhaps I find comfort in thinking about these imperfect men and what it must have been like for them to cast a wager on the success of the United States of America knowing nothing more than what they did not want the country to become, or perhaps I am just an idealist when it comes to America and Americans, our natural rights, our unnatural tendencies, and the balancing act attempted by our founding fathers in laying the groundwork for the experiment which is our nation.
Either way, the reasoning behind the Motion to Dismiss filed yesterday, as well as what I assume the foundation for the inevitable dismissal of this suit will be, rubbed me the wrong way as an American.
Truth or fantasy of Berg’s allegations aside, as I’ve stated before, I believe that eligibility goes beyond citizenship, that our nation’s founders wanted to ensure that the man–or woman, as it were–leading our country was boundlessly loyal to Her, and that they enshrined that hope in the fifth clause of Article II, Section 1 of our Constitution. I touched upon that intent almost a month ago after Berg’s suit was filed:
It was important to those courageous men that the future leaders of their fledgling nation understand what it means to be an American. Every clause in that document is there for a reason, each a lesson learned from fresh wounds of tyranny gone but not forgotten, and the framers made a point to require that, at the very least, a potential president must have been a citizen of the United States “at the time of the Adoption of this Constitution.” Unfettered, undivided devotion and loyalty to America was of the utmost concern; simply put, only those who fought and bled for Her independence, or at the very least understood the meaning behind, need for and potential of this great experiment could be trusted with its charge.
For that reason, completely apart from my obvious ideological leanings and political bias, it seemed counterintuitive to me that regardless of the slippery slope argument, a voter in our representative republic could not stand up and question the qualifications of those who wish to lead our nation as president and Commander-in-Chief. For me, it doesn’t matter who the candidate is or to which party he or she belongs — what kind of protection are we providing for the intent of our founders if we refuse to even consider such an action on its merits, or lack thereof, instead overlooking an inquiry into a matter of such great importance based upon procedural limitations which, by their very nature, ebb and flow over time?
Markham Robinson and Fred Hollander should have been permitted to challenge John McCain’s eligibility for the highest office in all the land. Philip Berg should be permitted to do the very same with regard to his suit currently plodding its way through the Eastern District of Pennsylvania. When it comes to our leadership, when it comes to questions of the intent of those who established this nation, we should be more transparent, not less.
A 1998 decision rendered by the U.S. Supreme Court, FEC v. Akins, did allow for voter standing because the injury of which James Akins and the other respondents complained–the inability to obtain information, in this case as to the status of a political action committee–was concrete enough that widely-shared harm did not preclude standing. As a campaign finance-related action, FEC v. Akins may be a far cry from the nature of the claims set forth by Berg and the others, but it shows that the Court is willing to broaden the standard for injury in fact when the injury sustained by a mere voter either (1) falls within the “zone of interests” to be protected or regulated by a particular statute, or (2) is indicative of a large number of individuals who suffer the same injury. This, for me, seems to better align with the hopes of those who, wary of the King, wanted to secure power as close to the people as possible, and certainly seems to comport with the nature of the injury in the matters at hand.
While I still cannot say whether I believe or disbelieve the allegations put forth by Philip Berg in the case at hand, or for that matter the allegations made by Hollander and Robinson in their own actions, it seems to me that the constitutional underpinnings at the heart of these controversies–and potential consequence of any result–run far too close to the total disregard of the fairly obvious intent of our founding fathers to simply cast them aside as a matter of procedure.
We have little or nothing to lose by weighing these cases on their merits, or lack thereof, and possibly everything to lose if we do not. While I have tried, and will continue to try, to report on these cases and these filings as objectively as I can as each comes across my desk, I do feel as though the country as a whole is better served by these matters–against Obama AND against McCain–being put to rest based not upon the intricacies of civil procedure but rather by a judicial assessment of the underlying allegations and facts.