The “Birther” Controversy of 1891





Mr. Brown is Assistant Professor of Sociology, Northeast Lakeview College.

The manufactured controversy over President Obama’s place of birth has occasioned an excess of media rumination. Commenters speculate that Obama’s “Birther” opponents must be racist in their public disbelief of his citizenship. But it’s just politics as usual, and it’s not even new. American political history is rife with “Birther”-like attacks—and yes, they do often revolve around race.

The Birther controversy with the biggest historical footprint was based on an accusation of Irish ancestry—a valid accusation, as it turns out. It started with a violent showdown at the Nebraska state capitol, and went all the way to the U.S. Supreme Court.

At the controversy’s center was James E. Boyd (1834-1906), a leading Nebraska businessman and politician. Boyd, a Democrat, narrowly won the election for Governor of Nebraska in 1890 by a plurality of little more than 1,000 votes.

But incumbent Republican Governor John M. Thayer refused to relinquish the office to Boyd, claiming that Boyd—by virtue of having been born in Ireland—was not a US citizen, and thus unqualified to be Governor. Thayer stated that he should retain the Governorship until his successor was qualified, and that Boyd’s election was void given his disability of birthplace.

Boyd was born in Ireland in 1834. His family emigrated to the United States when Boyd was a boy. Boyd’s father initiated the family’s naturalization process, but never completed the second set of paperwork until November 1890, after his son’s election. In the meantime, both father and son had participated in politics both as voters and office-holders.

The younger Boyd had moved to Nebraska Territory in 1856, at the age of twenty two. Not until 1890 did he learn that his father had never completed the naturalization process for himself and his family. Boyd’s accuser—Governor Thayer—pointed out that state law required that candidates have at least two years of citizenship to qualify. Boyd responded that his application for citizenship was initiated in 1849, and should thus be dated accordingly, in line with contract law. More importantly, Boyd argued, when the United States admitted Nebraska to the union as a state in 1867, all Nebraska inhabitants were instantly qualified as US citizens according to the act’s liberal wording.

Thayer announced on January 6 that he would “hold on to the chair, the seat, and the office of Governor until the cows come home.” Two days later there was war at the state capitol when Boyd arrived to take his oath of office. The county sheriff took a posse to the capitol to publish the election returns. Thayer staked out the building with state militia troops under orders to prevent Boyd from occupying the governor’s rooms, and effectively thwarting him from taking the oath of office. When the sheriff’s posse was refused admission, a brief riot ensued, with a dozen men engaging in hand-to-hand combat.

Once order prevailed, the Speaker declared that Boyd had been duly elected as Governor. The Republican-dominated legislature then voted along strict party lines that Boyd’s election was invalid, refused to seat the new officers, and rebuked the state Supreme Court for not mandating the election as invalid.

Boyd filed his bond and took his oath nonetheless. But Thayer refused Boyd admission to the Governor’s rooms within the capitol building, which were now guarded by state militia and police. Boyd took possession of another room in the capitol building instead, and had its door inscribed “Executive Office.” On January 10, Thayer lost the allegiance of the militia company guarding his rooms, and vacated his office to Boyd the next day.

Thayer continued his case in the courts. The state’s Attorney General refused to enter the fray, and so Thayer instituted the proceedings on his own behalf. The case went to Nebraska’s Republican-majority Supreme Court, which ruled that Boyd was indeed an alien, ousting him from office on May 5, 1891. Thayer then resumed his seat, replacing Boyd as Governor.

Boyd appealed to the U.S. Supreme Court, which—while dominated by Republican-appointed justices—still found for Democrat Boyd in February 1892, thus reinstating him as Nebraska’s Governor. The Court agreed with Boyd that even if his naturalization had indeed been invalid, he had still been made a citizen by the congressional act admitting Nebraska to the Union as a state.

In language that would outrage today’s Birthers, the Supreme Court also held: “That where no record of naturalization can be produced, evidence that a person having the requisite qualifications to become a citizen did in fact and for a long time vote and hold office and exercise rights belonging to citizens is sufficient to warrant a jury in inferring that he has been duly naturalized as a citizen.”

Given the combative ascendancy of President Bush after the contested Florida results in the 2000 election, it’s fortunate that the present Birther controversy didn’t erupt until Obama had taken office. Could Obama have set up a shadow Oval Office down the hall from Bush, or would the White House guards have agreed to prevent Obama’s entry? And if John McCain had won the 2008 election, would there now be Democratic Birthers complaining of McCain’s Panama birthplace?

Bibliography

Boydv.Nebraskaex Rel.Thayer, 143 US 135 (1892)

Boyd to be Reinstated; Nebraska to be Given the Governor She Elected. New York Times. January 2, 1892.

Gov. Boyd Ousted from Office; The Supreme Court of Nebraska Declares Him Ineligible. New York Times. May 6, 1891, Wednesday.

The Militia Desert Thayer; Boyd Recognized As Governor Of Nebraska By The Soldiers. New York Times. January 11, 1891, Wednesday.


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Jonathan Dresner - 8/22/2009

Moot point? This isn't actually going to be interesting until 2012: lawsuits in fifty states, DC and Puerto Rico, challenging Obama's name on the ballot. Is it going to work? No, but it's going to derail any adult discussion for days, or weeks if the media lets it (or one whacked-out judge makes a bad decision).


Jon Martens - 8/22/2009

It's really a moot point.

Even if Obama was unable to produce a legal document showing his birth in the US, the legal proceedings would take well more than the three years and threeish/fourish months he has left in office to come to any kind of conclusion.

And I don't think the Supreme Court can "vacate" a President's already served term like the NCAA can take away a basketball team's wins.


Jonathan Dresner - 8/21/2009

If that is untrue, why have there been no denials?

Because it's a hoax..


Lawrence Brooks Hughes - 8/21/2009

The potentially damaging "secret" in this area is the charge that he swore he was a citizen of Indonesia in order to collect Fulbright money to attend college in California... If that is untrue, why have there been no denials? It's been spammed all over the internet for years.


Vince E Treacy - 8/17/2009

Obama has produced a valid birth certificate. The Certification of Live Birth (COLB) is now the only certificate that Hawaii issues to all applicants, and is valid for all purposes, including drivers licenses, passports, and the Presidency.

Obama has already complied with the proposed bill to require birth certificates.

The term "birth certificate" is defined in federal law in section 7211 of the Intelligence Reform and Terrorism Prevention Act of 2004, and Obama's certificate complies with the definition. It is prima facie evidence of his birth.

Hawaiian officials have verified in public statements that they have examined their birth records, and that the records show that Obama was born in Hawaii.


Kevin Greoger - 8/17/2009

As a matter of fact there were Democratic Birthers trying to disqualify McCain in 2008. Check out the Washington Post, May 2, 2008.
(http://www.washingtonpost.com/wp-dyn/content/article/2008/05/01/AR2008050103224.html)

And there was great concern over Obama's credentials, too. However, the major news media and the Congress gave him a pass and no focus was put on the obvious absence of valid proof of birthplace.

Only Obama's obstinate refusal to settle the matter by simply producing a valid birth certificate for a year now, is keeping the controversy alive.

The document he has shown would not allow him entry into the Hawaiian Little League let alone the White House.

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