By Rick Saunders
A little less than a month ago, America’s Right posited that a number of potential outcomes were possible regarding Philip Berg’s pending certiorari petition and his “standing” to challenge BH Obama’s eligibility to serve as president of the United States under the Constitution. One such outcome was the possibility that, even if Berg’s certiorari petition were denied, one or more of the Justices might consider filing a dissent, urging the granting of the petition.
While unlikely, as mentioned in the December 18, 2008 article, such a result would not be unprecedented. There are, after all, significant and legitimate and unanswered questions surrounding Barack Obama’s eligibility to serve as president under the Constitution, notwithstanding the mainstream media reports, leftist blog posts, doctored Internet postings of purportedly “genuine” and original birth certificates and, of course, Michelle Obama’s ever-articulate, objective and unbiased assurances to the contrary.
Today, the Court announced the denial of Berg’s petition, and did so without a single dissenter. Not even Justice Antonin Scalia, the champion of originalist thought who just last week referred Berg’s request for an injunction to the full Court for conference next week. Furthermore, the Court’s decision to grant a previously-filed motion by one “Bill Anderson” to file an amicus curiae (or “friend on the Court”) brief–for all the good that will now do–simply underscores the Court’s apparent disdain for Berg’s challenge. And the fact that the denial was deemed to be one “before judgment,” likely referring to Berg’s still-pending appeal before the U.S. Court of Appeals for the Third Circuit, is a distinction without a difference: Berg’s case–this one, at least–is toast before the High Nine.
In denying his petition, the Court has in effect told Berg: “You ninny . . . you can’t even ask that question of a court because you have no standing to do so. And it is irrelevant that we have, on many prior occasions, recognized standing in cases involving far less weighty constitutional issues — oh, like ‘aesthetic injury and angst’ over environmental issues. But of course you, Mr. Berg, are still out of here.”
Mind you, Virginia, the Court adjudicated this matter based upon the standing doctrine and did not resolve the constitutional eligibility question, which will likely persist until it is ultimately answered sometime, somewhere . . . perhaps over the rainbow. Instead, all the Court said in essence was: “Mr. Berg, forget all that other stuff. Let’s not even look at it. You are ineligible anyway under the Constitution to question Obama’s eligibility under the Constitution.”
How’s that for a judicial conundrum? Sounds kind of like the various “penumbras” and “emanations” the Court has, on other occasions, discovered in the Constitution in order to get from Point A to Point B. Today, the Court has told Berg that he can’t even get to Point A.
Berg’s petition, to recap, sought to overturn the dismissal of his case challenging Obama’s eligibility–not qualifications, a different concept–under Article II, Section 1, Clause 5 of the United States Constitution. That provision mandates, among other things, that a president must be a “natural born Citizen.” Berg’s complaint was dismissed in the lower court because, purportedly, he lacked “standing” (loosely, a “stake in the outcome” of the claim) to maintain the action. In turn, after that dismissal, all that Berg sought from the Supreme Court was a ruling that he did, in fact, have the “standing” required to ask questions about Obama’s eligibility or make the legal argument that Obama was not, in fact, eligible under the Constitution to serve. Berg posed the elegantly simple question: if neither he nor any other voter has standing to ask the question, then who does?
Rather than answering that question, the Court has told Berg–along with anyone else with the abject temerity to even suggest that proof positive be required from the nation’s president that he or she is, in fact, eligible to serve–to go pound sand. In essence, the Court’s denial of Berg’s petition instructs that we must trust Obama because he is, after all, the new messiah. And a Hah-vahd lawyer to boot. There’s too much at stake to address the constitutional eligibility question, we’re told. Besides, the will of the people would be thwarted.
Worse yet, there would be rioting in the streets! Rioting! Imagine that — rioting over the mere posing to the Supreme Court of the question: “Is this guy really a natural born Citizen?” Never mind that the answer might be “yes,” the confirmation of which Obama could easily facilitate with a directive that all of his birth and citizenship documents be released, but which directive to this point he has as yet adamantly refused to issue. Even the slightest potential that the answer could be “no” sends the mainstream press, the left, the Democratic National Committee and Obama fanatics nationwide into a bad case of the vapors.
Circle the wagons! The truth might seep out! But if Berg is not even allowed to pose the question, then the Supreme Court won’t have to provide an answer, and voilá!, the dreaded rioting in the streets will be averted. And this morning, that is what happened.
So, at the end of the day, what we now have in this nation–or what remains of it–as constituting the “rule of law” and the “supreme law of the land” is not the Constitution, but the law of the mob. It is a sad day, indeed. Sadder yet will be January 20, 2009, when Chief Justice John Roberts administers the Oath of Office to Barack Hussein Obama, an oath which requires Obama to swear or affirm that he will support and defend the very document under which he may be ineligible to lay claim in the first place to the office of the president of the United States.
But remember, Virginia, although the Constitution may be in tatters on that day, at least there won’t be rioting in the streets. There, now, don’t you feel better?
Rick Saunders is a freelance writer who splits his time between endeavors in southern California and the American southwest. He began writing for America’s Right in December 2008.