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April 23rd, 2010

Court-Martialing a Birther

r291095_1245306Written by Nathan Tucker

Last week an Army doctor failed to report for duty to Afghanistan, refusing to obey an order that he believes is unconstitutional.  Rather than reporting to Fort Campbell, Kentucky, for deployment to Afghanistan, Lt. Col. Terrence Lakin showed up at his old position as a flight surgeon at the Pentagon.

Lakin, an eighteen-year Army veteran and a Bronze Star recipient, stated in a video posted on YouTube that he wants to see President Obama’s actual birth certificate before he considers his deployment orders lawful.  Recognizing that he was “inviting my own court-martial,” Lakin stated that he is “choosing to disobey” what he believes are illegal orders for a second tour of duty in Afghanistan.

Lakin’s actions are just the latest by what has been called the birther movement—conspiracy theorists who believe that Barack Obama is ineligible to serve as President because he is not a natural born citizen as required by Section 1, Clause 4 of Article II of the Constitution.  During the 2009 presidential election, Hawaii Director Dr. Chiyome Fukino issued a statement that she had seen Obama’s birth certificate.

Though Lakin didn’t specify exactly why he believed Obama was not a natural born citizen, the internet is full of rumors that Obama was not born in Hawaii but born out of the country, that he at best has dual citizenship and thus is ineligible, that he attended college in the US as a foreign student, and/or that his birth certificate is a forgery.

In total, there have been at least 17 separate lawsuits filed to declare Obama ineligible to serve as president, and every one of them has been rejected.  Undeterred, the movement continues to file lawsuits seeking to compel disclosure of Obama’s birth certificate, or lack thereof.  Lakin’s attorney has indicated that he hopes to use the discovery process as a fishing expedition for the birth certificate or other relevant documents.

The birther movement does have a valid point—that the Constitution failed to provide for an enforcement mechanism for its “Birther” Clause.  The Constitution put Congress in charge of ensuring that its members met their constitutionally mandated eligibility requirements, but no institution was entrusted with ensuring that the president satisfied his eligibility requirements.

To that end, legislation has been introduced in Oklahoma, Missouri, and, most recently, Arizona that would require presidential candidates to produce documents establishing that they met the “Birther” Clause before their names could be placed on the ballot.  Oklahoma and Missouri’s efforts have failed, while Arizona’s has just past its house.

But while birthers may have an argument for the need of an enforcement mechanism of the Constitution’s eligibility requirements, they do not have one for civil disobedience.  Civil disobedience is often reserved as a means of last resort after one has exhausted all other options.

Instead, rather than resigning his commission, filing a lawsuit, or urging investigations and legislation by states or Congress, Lakin deliberately chose to disobey a direct order in order to bring continued attention to the birther movement.

And he did so based on mere suspicion that Obama was hiding the truth about his place of birth.  What would have prevented him, for instance, from refusing to deploy under President George W. Bush on the suspicion that the Florida recount would have shown that Al Gore had in fact won the election?  Or an officer from recognizing Rutherford B. Hayes as president on the suspicion that he had actually “stolen” the contested 1876 election?

Following Lakin’s example, each of us could also seek to enforce the eligibility requirements on the president by refusing to pay taxes, follow Obamacare, obey rulings made by Obama-appointed judges, etc. because, according to Lakin, they are illegal until Obama can prove otherwise.

This isn’t civil disobedience; this is an individual veto based on an individual suspicion that seeks to hold the entire federal government hostage for the gain of a political agenda.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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