A Look at Standing, the Constitution and our Framers’ Intent

Whenever I find myself confused about the idiosyncrasies of American law or politics, I always seem to go back to the authors of our founding documents and their intent for our nation.

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.



  1. Jet says:

    It seems to me that the burden of proof that a candidate for POTUS meets the citizenship requirements of Article II should lie with the candidate himself or herself rather than the citizens who are considering employing him for that position. What’s missing here is a mechanism by which candidates have no choice but to do so in front of a non-partisan body that reviews their qualifications and does background checks to make sure they meet the Constitution’s requirements. As it stands, there appears to be no real obstacle to naturalized citizen Arnold Schwarzenegger running for POTUS as long as the political parties don’t object and the different secretaries of state continue to defer to the political parties to properly vet the candidates and if citizens have no standing to challenge his eligibility.

  2. Howie Isaacks says:

    To me, it’s clear that these judges simply don’t want to engage matters of constitutional law and involve themselves in what could become a huge controversy. They’re simply playing it safe and hiding behind “standing”. If Obama is not qualified and gets elected, all 300,000,000 people in this country have standing because we will have all been harmed by a man who disrespects the Constitution so much that he would allow his ambition to take precedence over the law.

  3. Me says:

    “I want to campaign the same way I govern, which is to respond directly and forcefully with the truth,”
    ~ Barack Obama, 11/08/07

    He is sure doing that, now, huh? I just want the truth, but I really don’t think he is giving us that. I’m getting discouraged. If Obama can’t be forced to prove he is eligibile to run for the office of President of the United States as outlined in the Constitution, then has it been reduced to just a piece of paper? I’m just sick and sad and hope Philip Berg still has something held back to make his case.

  4. Me says:

    This whole thing makes me sick, sad and angry. I am outraged to consider the possibility that Senator Obama could become President of the United States without proving that he is truly eligible to do so as outlined in the Constitution. If that is the case, then the Constitution is simply reduced to a piece of paper with some writing on it. I hold it much more dear than that and I would hope most Americans do too, no matter their chosen political party. I am outraged to think that Americans citizens do not have the standing to ask Senator Obama to prove that he is eligible to run for the office of President of the United States because he chooses instead to hide behind legal maneuvering. If We The People do not have standing, then who does?

    I would think that even those who support Obama would want to seek the truth and be sure they are not part of deception and stomping on the Constitution. We are all Americans. We need to know the truth.

  5. John Galt says:


    You are living in a fantasy world rather than the practical real world. Times were different back in the 18th century. As I recall initially only land owners or at the most white males had the right to vote.

    The practical reality is that after this election there will be riots in the streets.

    Riots if Obama wins and certainly riots if he loses.

    I would hate to think of the rioting and mass destruction and danger to life that take place if the courts were to remove Obama from the ballot, to say nothing of how this would knock America down even a few more notches in the eyes of the world. I would expect a terrorist attack or two.

    The fact is that white Christian and Jewish Americans love their money and material goods too much.

  6. Anonymous says:

    There is a simple way to defeat the argument that “plaintiff has no standing to challenge the qualifications of a candidate for President of the United States.” In fact, if this were true, than NO PERSON had such standing to demand that a presidential candidate should prove that he is a natural born citizen; yet, it is clearly in the interest of the PUBLIC that the constitution be enforced and only legally qualified people be allowed to run. Therefore, the court should rule that EVERY MEMBER OF THE PUBLIC has standing in such a case.

  7. suek says:

    Yes. Just exactly what I’ve been saying, but you say it so much better!

  8. Anonymous says:

    I get the standing issue. I do. I sat through first year civ pro like everybody else (and by staying away from courtrooms since, have been able to avoid dealing with the issues again since then).

    But given the standard for standing and the particular facts around election law, if a voter does not have standing to sue, who would?

    The easy answer is that government itself could enforce the law without having to meet the same standing requirements as private citizens. However, this would require action from the FEC (?) or an attorney general on either a state or federal level. That might happen if they were certain of the facts, but I highly doubt you would see the “let’s file the suit and see what Obama can come up with” approach that Berg is employing.

    Surely, it can’t be Hillary or any Democratic officials. While the Constitution places restrictions on who can serve as President, party nominations are governed by pary rules, not federal law. I don’t see anything within the courts’ jurisdiction prohibiting a private organization like the Democrats from nominating a used toaster if they felt so inclined.

    Is the answer that an individual challenge of a candidate’s constitutional eligibility could only come from another candidate who stands to lose votes and/or the election to an ineligible opponent?

    It was noted before that a voter’s claim that they have suffered injury because they cannot vote for the candidate of their choice (such as Hillary) wasn’t valid because write-in provisions allowed them to vote for whomever they desired; regardless of whether ineligible candiates were on the ballot. Could the same reasoning be applied to portray any individual as a potential write-in candidate?

    Could Berg assert injury by claiming that as a potential write-in candidate, he will suffer harm by having votes diverted from him to an ineligible candidate?

  9. willem says:

    “I want to campaign the same way I govern, which is to respond directly and forcefully with the truth,”
    ~ Barack Obama, 11/08/07

    McCain should take this quote in the next debate and confront Obama directly, in front of everyone, live, on television. He should bring his own birth records, and pull them from his pocket and give them to the moderators and challenge Obama to do the same.

    An honest candidate for the presidency would WANT to show the records that proved their eligibility.

    An honest candidate would do it if only out of respect for those who have given him millions from their collective pockets.

    What kind of man refuses to do this? Whatever kind of man that is, that’s the real Obama.

    How deep does the psychotic disconnect go?

  10. Anonymous says:

    John Galt,

    You said, “I would hate to think of the rioting and mass destruction and danger to life that take place if the courts were to remove Obama from the ballot, to say nothing of how this would knock America down even a few more notches in the eyes of the world. I would expect a terrorist attack or two.”

    If, and I emphasize if, Obama were not an American Citizen, then he should be removed from the ballots regardless of whether or not it will lead people to violence. Truth should be stood for at all costs. When our founders wrote the Declaration of Independence, they were certain of the violence that it would lead to. However, with courage they stood firm, and we should as well.

  11. Anonymous says:

    Is this a case of Inquiry Standing versus Injury Standing?
    Inquiry Standing does not benefit one particular person or group but it is used to help perfect the Constitutional order as a whole. In other words to insure that only a natural American without dual loyalties is allowed to hold the office of President does not benefit you or me directly, nor does it benefit either party DNC or RNC if Obama if found to be unqualified. It does however benefit the adherence to the Constitutional principles as a whole. Thus Berg has Inquiry Standing before the court, and as a US district court it has Subject Matter Jurisdiction.

  12. Anonymous says:

    This is a sad situation our country has been placed in by Obama not coming clean. If fraud has taken place this will go down in the history books. I have short story to share.

    When I was 9 years old I signed up to play pee wee football, but on the first day of practice they would not let me participate because my mom did not have my birth certificate. So we drove downtown, waited in line, paid the fee, and went back to the ball field the next day. My birth certificate was inspected, handed to my mom, and I was off for my first football practice.

    The question is, if a 9 year old can’t play with his friends without a birth certificate, how can someone be elected to the United States Senate without one?

    This is just amazing. Come clean Obama.

  13. Anonymous says:

    We, as Americans, in order to fulfill the intent and directive of our Constitution are bound by patriotic duty to determine the legal status of any citizen running for the Presidency of the United States; such determination of status having to do with a requirement that said citizen must be a natural born citizen.

    Mr. Obama should be required to present pertinent evidence that would allow a judge or qualified public official to determine if he is, or is not, a natural born citizen. It is a legal requirement.

  14. Halva says:

    I wonder if Philip Berg has tried to secure the support of fellow 911Truth member Catherine Austin Fitts, who was a deputy minister under Bush senior and would certainly be opposed to the kind of speculator bailout that is now being facilitated by Republicans and Democrats together.

    Perhaps Ms Fitts would have been, or would be, less inhibited about damaging Obama than Democrat-voting 911 Truth movement members.

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