- Law Cases
by Sharon Rondeau
(Mar. 2, 2010) — It is no wonder that Sarah P. Herlihy is an associate attorney specializing in litigation at the Chicago law firm Kirkland & Ellis LLP. On its website, the firm displays that it was “named to the ‘Global Elite.’”
Herlihy graduated from the prestigious Chicago-Kent College of Law in 2005 and is the author of an essay published in the Chicago-Kent Law Review on Feb. 22, 2006 entitled “Amending the Natural Born Citizen Requirement: Globalization as the Impetus and the Obstacle.”
Kirkland law partner Bruce I. Ettelson lists to his credit having been a “Former Member of finance committees of U.S. Senators Barack Obama and Richard Durbin.” The law firm employs literally hundreds of attorneys who specialize in the areas of intellectual property, anti-trust and competition, corporate and tax, and “community service.”
Herlihy’s essay was widely disseminated on the internet during the 2008 presidential campaign as rumors surfaced that Obama and possibly McCain did not meet the “natural born Citizen” requirement laid out in Article II, Section 1, paragraph 5 of the U.S. Constitution. Various bloggers noted that the author of the piece was employed at a law firm which had forged connections with Barack Obama, then-senator from Illinois. The original document can be found on Bing and Ixquick search engines, but not on Google.
On the first page of the essay, the following appears prior to the footnotes: “*J.D., Chicago-Kent College of Law, 2005. The author would like to thank Professor Graeme Dinwoodie, and the 2004-2005 Globalization and Its Effect on Domestic Law Seminar Class for their valuable comments and insights on this Note” (1).
The article’s opening assertion is that several “constitutional scholars” considered Article II, Section 1, paragraph 5 “blatantly discriminatory” and “the stupidest provision” of the U.S. Constitution. Herlihy argues that the “natural born Citizen” clause should be “amended,” although she also uses the word “repealed” (2). A constitutional provision is not “repealed;” it is changed by a constitutional amendment requiring approval by two-thirds of the Congress and three-quarters of the state legislatures.
In the same paragraph, Herlihy writes, “Although some of the reasons for maintaining the natural born citizen requirement are rational, many of the reasons are based primarily on emotion” (3). However, she fails to describe what those latter “reasons” are, their origin, nor her claim of their basis in “emotion.” Rather, she maintains that “globalization” and the fact that several prominent politicians such as Arnold Schwarzenegger and Madeleine Albright cannot serve as president due to their foreign births were reasons to amend the Constitution (4). On the following page, the author contends that “abolishing the natural born citizen requirement” is “more necessary than ever,” using the word “abolishing” twice in the same sentence (5).
So in barely two pages, Ms. Herlihy calls the natural born requirement “outdated and undemocratic” and claims that it “incorrectly assumes that birthplace is a proxy for loyalty” while citing no cogent examples to support her statements. No other instances of countries with foreign-born rulers or presidents are provided. She also uses the terms “democratic,” “undemocratic,” and “democracy” throughout the 26-page essay (6) to describe our form of government, never once acknowledging that the Framers established “a Republic,” not a democracy. The inaccuracies, repetitions and circular arguments presented in the paper reveal either a high degree of ignorance of how our government is supposed to work or an outright plan to subvert the same.
Several pages into her essay, Herlihy quotes the letter from John Jay to George Washington in which Jay said, “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen” (7). In the paragraph preceding the quote from Jay, Herlihy uses the term “provide a strong check…,” which is hardly an original phrase given what is presented directly afterward. In this writer’s opinion, no college professor should let that stand, much less publish it in a well-known law journal.
No opposing argument can be found throughout the 26-page essay. Every footnote lists sources which support her desire to abolish the “natural born Citizen” clause, including a work from another law review by Charles Gordon entitled “Who Can be President of the United States? The Unresolved Enigma” (8). Herlihy refers to Gordon and her other sources as “commentators” (9) rather than “historians” or “legal scholars,” so their reliability and objectivity appear questionable. An opinion is not the same as an historical fact.
In some instances the term “Founding Fathers” is capitalized; in others it isn’t. On page 280, Herlihy simply repeats her initial statement that current, well-known politicians born outside of the United States cannot be president, including “700 Medal of Honor winners” (10). While she claims that the natural born Citizen requirement prevents “over 12.8 million Americans from being eligible for the presidency” (11), she neglects to point out that many more millions of “natural born Citizens” with no foreign influences are eligible.
For someone who attended what is purported to be one of the best law schools in the country, Ms. Herlihy breaks the most fundamental rules of writing: don’t repeat yourself, don’t plagiarize, and don’t make statements which you can’t support.
On page 281, Herlihy goes so far as to compare the natural born Citizen clause to a social issue such as abortion when she states: “In a country divided by race, religion, abortion, and countless other issues, an unjustifiable distinction based on a person’s place of birth merely contributes to the internal divisions that already pervade America” (12). One of the sources used to bolster her arguments on this page is an editorial entitled “A More Perfect Democracy: Why Not a Naturalized Citizen for President?” from the Dallas Morning News (13). Another citation is from Wikipedia (14).
The author also makes a statement which has resurfaced repeatedly since the 2008 presidential election: “It is an unfortunate truth that many Americans are racist” (15). Now why did she mention that? Could it have been that her candidate of choice for the next presidential election was a different race from past presidents? She then paints the picture of exactly how Obama and his operatives ran his campaign: “…black candidates rarely generate enough votes to be elected, and researchers believe that this is primarily because white voters are reluctant to vote for a black candidate. This reluctance…may cause voters to oppose amending the natural born citizen clause because they fear that this is a first step toward having someone who is not white occupying the White House” (16). Astoundingly, Ms. Herlihy goes on to say, “Although it is doubtful today that Americans would have much to say if a Catholic was running for President, religion would likely be a central issue if a Muslim were to run for the highest office in America” (17).
The race card was played continuously throughout Obama’s campaign, as anyone who opposed him was automatically labeled a racist. Even worse, Obama’s ties to Islam were obscured and dismissed by a complicit media, and Obama himself lied about his relationship with the Reverend Jeremiah Wright, the Trinity United Church of Christ, and that organization’s own belief in Black Liberation Theology, which is based on Marxism and has strong ties to Islam.
Written in 2006, how could Herlihy’s statements possibly be a coincidence? How could she have known that someone “not white,” with a foreign background and ties to countries and a religion which had perpetrated the worst attack on U.S. soil since Pearl Harbor, might run for president? Why did she mention “Muslim” in her paper? Why not Hindu, or atheist, or Seventh-Day Adventist?
Herlihy cites a USA Today/CNN/Gallup poll taken in November 2004 in which “only 31% of the respondents favored a constitutional amendment to abolish the natural born citizen requirement while 67% opposed such an amendment” (17). While the poll is presumed accurate, Ms. Herlihy did apparently not investigate the respondents’ reasons for their opinions, so it is impossible to judge whether or not those reasons were “based on emotion.”
Another unsupported claim is “For a provision that excludes millions of Americans from having the opportunity to become the next American president, the natural born citizen requirement was added to the Constitution with surprisingly little fanfare” (18). Herlihy does not rationally mention, however, that at the time of the adoption of the Constitution, the entire country did not contain “millions of Americans.” She completely omits the fact that at that time, the colonies consisted of a few hundred thousand people, and the Founding Fathers could never have known the extent and breadth to which the United States of America would grow.
Herlihy practically predicts the situation in which we now find ourselves: “…considering that the Founding Fathers presumably included the natural born citizen clause in the Constitution partly out of fear of foreign subversion, the current stability of the American government and the intense media scrutiny of presidential candidates virtually eliminates the possibility of a “foreigner” coming to America, becoming a naturalized citizen, generating enough public support to become president, and somehow using the presidency to directly benefit his homeland” (19). Her argument makes no sense because earlier in the essay, she advocates exactly that scenario in the name of non-discrimination. She states at the outset that naturalized citizens should be able to become president, so why is she now saying that the above scenario is almost impossible?
Is it really a coincidence that the author of this article now works for a firm with ties to Barack H. Obama?
Herlihy’s examples of what makes a “good American” show an astounding lack of maturity in her writing. On page 283, her example of what a “loyal” American might be is exemplified by Tom Hanks, and she suggests that many people might find Martin Sheen “un-American or disloyal because of his political views” (20). Then she states that both are “natural born Americans” to make her argument that even though both were born on American soil, one might be considered a bad candidate for president. However, she fails to mention any of the qualities that would actually be possessed by a “good” president: honesty, integrity, and sole allegiance to the United States of America.
On page 284, the author refers to the United States as “a representative democracy, where American voters vote for the candidate that they choose. Currently, Americans cannot do that” (21). In other words, no eligibility criteria should exist in this author’s mind. Susan Bysiewicz, attempting to usurp the office of the Connecticut Attorney General, feels the same way.
It seems evident from this lengthy, poorly-written, reiterative piece that the author was making an effort to convince her audience that Article II, Section 1, paragraph 5 should be changed. The reasons she cites as compelling are constitutionally unsound and clearly seek to undermine United States sovereignty.
More seriously, Herlihy’s paper might be evidence of the conspiracy that placed Obama in the White House without the “intense public scrutiny” to which she frequently refers. On page 289, under the subheading “Fear of Foreigners,” she states, and this is chilling:
Although people arguing against a Constitutional amendment do not typically admit that they oppose abolishing the natural born citizen requirement because they are afraid that a naturalized citizen might actually be working for a foreign government, the fear of foreigners amongst Americans has increased in the wake of the September 11th attacks. Similar to the fears that the Founding Fathers felt and the fear that John Jay mentioned in his letter to George Washington, the possibility that a foreigner will come in and somehow “take over” America continues to exist in America, albeit in a slightly different form. Although it seems unlikely and has even been called ludicrous that a foreign power would conspire to place someone with foreign allegiances in the White House, some Americans more legitimately fear that a naturalized citizen will somehow try to change America by promoting his own culture to the exclusion of others” (22).
Without having surveyed Americans herself, how could Herlihy have presupposed these things? How could she have known that Americans were “afraid” of a foreigner usurping the presidency at that time? Had it really been on anyone’s mind before the 2008 election? Her circular argument about why foreigners should not be trusted with the presidency comes full circle when she illogically states, “the truth is that many people simply distrust foreigners.”
Since the essay contains very little factual information, it can only be concluded that its purpose was to float the idea of a foreign-born president to gauge the public’s reaction. The scenario of a “foreign power” commandeering a presidential election was not on most people’s minds in 2006. How, then, did Herlihy ever come up with this idea?
If one uses the simple inferential rule of forensic investigations, namely, that hoodlums never fear but what they believe to be the truth, Herlihy’s “fears” in 2006 and her connections to Obama through her law firm would tend to give credence to the inference that Obama’s colleagues in law believed in 2006 that he was a foreigner and thus ineligible to be president, or at least that he’d be seen as such if he ran. Given that Obama is a British citizen, that is understandable; seeing that it appears he and his co-grandmother claimed he was born in Mombassa, Kenya, that might have more to do with it. Obama has still refused to answer Congressman Nathan Deal’s request for his birth certificate and other documentation requested in early December 2009, and there remains much evidence that Obama is a foreign national.
The Post & Email covered the foreign influences of George Soros on the Obama campaign in detail here. Also having covered the resurgence of the Students for a Democratic Society in a recent article, it is interesting to note that none other than Barack Obama was a speaker at the second annual conference of “Campus Progress,” the “modern-day equivalent” of the SDS, whose foreign communist influences were well-documented.
(1) “Amending the Natural Born Citizen Requirement: Globalization as the Impetus and the Obstacle” by Sarah P. Herlihy, The Chicago-Kent Law Review, Vol. 81:275, Feb. 22, 2006, p. 275.
(2) Ibid, p. 276, para. 2.
(4) Ibid, page 276, para. 1.
(5) Ibid, p. 277, para. 1.
(6) Ibid, pp. 279, 284, 285, 286, 296.
(7) Ibid, p. 277, para. 3.
(8) Ibid, p. 277
(9) Ibid, p. 277, para. 4.
(10) Ibid, p. 276, para. 1.
(11) Ibid, p. 275, para. 3.
(12) Ibid, p. 281, para. 1.
(13) Ibid, p. 281.
(14) Ibid, p. 283.
(15) Ibid, p. 294, para. 2.
(17) Ibid, p. 295, para. 1.
(18) Ibid, p. 277, para. 2.
(19) Ibid, p. 282, para. 3
(20) Ibid, p. 283, para. 2.
(21) Ibid, p. 284, para. 2.
(22) Ibid, p. 289.
Update, February 19, 2011: When this article was written, Herlihy’s essay published in the Chicago Law Review was not available on the internet. It is now posted on Scribd here.
© 2010 – 2011, The Post & Email. All rights reserved.
Tags: Arnold Schwarzenegger, Barack Obama, Black Liberation Theology, Bruce I. Ettelson, Campus Progress, Chicago-Kent College of Law, Connecticut Attorney General, Founding Fathers, George Soros, George Washington, Globalization, Islam, John Jay, Kirkland & Ellis LLP, Madeleine Albright, Marxism, Mombassa, natural born citizen, Obama's eligibility, Reverend Jeremiah Wright, Richard Durbin, Sarah P. Herlihy, Students for a Democratic Society, Susan Bysiewicz, The Chicago-Kent Law Review, Trinity United Church of Christ, U.S. Constitution