To Impeach or Not To Impeach: A Constitutional Question.

It has been a long time since I’ve entered something on this blog, almost a year to be exact.  But the recent flap over the abortive impeachment efforts have been so ridden with pure partisan rhetoric and galactic class political spin, that, in my opinion, the major memes and posts on that bastion of political brilliance, FaceBook (FB), have only one thing in common from both sides… a nearly perfect ignorance of the very specific language of the relevant document: The U.S. Constitution.  As some of you know, I’ve not been shy about saying that in response to posts, so of course, several times I’ve been taken to task for being a Trump supporter (something several notches worse than being a serial killer in the views of the denizens of halls of academia), or accused of doing it simply to be a contrarian.  It seemed time to do something not reasonable in a FB post since it is necessarily long and detailed, and that is to go into detail to explain why I feel as I do.

I’m not a complete Pollyanna so I don’t actually expect the serious partisans to actually read this since they seem to be devoted to ignoring any opinions contrary to their own.  In doing so, they, of course, betray the reality that the truth does not matter to them since real seekers of some philosophical truth know the only way it is ever found is if the seeker is willing to admit the possibility they might be wrong and therefore remain open to hearing and considering the opposing ideas objectively.  Sadly, I’ve not yet encountered that attitude on Facebook, instead, only a theological-level, divine certainty in the righteousness of their own viewpoint while seeing all others as stupid or perhaps evil.

But for the surprising individual, if there actually is one left out there, who is even remotely interested, here is my own thinking on the issues.  But to make any sense of it I need to give a little foundation since my conclusions are the result a several factors building to it.  There was serious thinking and debate involved in the writing of our Constitution and I think it deserves to be seen as forming the reasons for its very deliberate word usage.  So here is my line of reasoning to arrive at my own position.

First we have to understand that the Constitution was created by a collection of very knowledgeable individuals who had carefully looked over a lot of political history and been influenced by political philosophies from Plato down to Locke and Montesquieu.  They fully understood that they were creating something new and untried, indeed, were forming a government that was, in its approach and style, contrary to the foundational philosophies of any other country in the history of governments.  Knowing that, knowing full well that they would be stepping on a lot of geopolitical toes, they were concerned about being misunderstood both then and down the road in (their) future.  So they wrote prolifically to each other and friends and in publications that are still with us and easy to find for anyone interested in the truth,

When I was in Law School (1971,’72, ‘73) I grew to be totally fascinated by Constitutional Law and jumped wholeheartedly into it.  The more I studied it and its creators the more impressed I was with the wisdom and foresight exhibited in this seminal document.  And I became nearly obsessed with the idea that what set us apart from other nations was the iron clad obedience to the rule of law.  It was, paradoxically, the reliance on the LAW of the day and until it was officially changed, that set us free as a people and apart from citizens of other countries.  In the course of that study, it soon became inescapable that our founders actually ended up re-defining what a Republic was up to that point.

Previously Republics were largely democratic meaning they relied on pure majority rule (well to be fair, the majority of those who were allowed to vote on the matter).  But our founders were dedicated to assuring the Declaration’s famous “rights” for all.  One exchange with Madison illustrated the problem.  He posited a group of three individuals in which two wanted actions that the third opposed.  It was clear the third individual’s rights were not recognized in that scenario where the two could outvote the one.  According to Madison, it made no difference ethically or morally If the group was composed of 3,000; 1,000 of them would have their rights overridden and that was not acceptable to the goals of the founders.  THe numbers changhed but the ethics did not.  So they morphed the traditional republican concept into a representational democracy – something totally new on the world stage.  To avoid one demographic sitting in continual power over others, the electoral college was formulated so the little guys, the rural areas would be operating on a leveled playing field, sometimes to the chagrin and irritation of the self-anointed brilliant citizens from the urban areas.  Without it today, we would be governed by the appropriately titled “Coastal Elites” while those rubes in the fly-over states should just accept that the citified people were ever so much brighter, so much more “woke” to use the modern parlance, and ought to be able to make the decisions for all the rest on matters political as well as moral.  The founders rejected that and went to some convoluted lengths to try to forestall it.

Further, although in other systems, notably Great Britain, the three primary governmental functions of executive, legislative, and judicial all existed, they were not truly separated and independent.  Our creation of them as separate and coequal branches was like none other.  In our system, uniquely, the real “bosses” were seen by the founders as being the people, and the government existed only to assure and protect the rights recognized and described in the Declaration of Independence.  We voluntarily gave the government the power to govern us AS WE, THE PEOPLE, WISHED IT TO, and the Constitution was the embodiment of the law that governed those we allowed to govern us.  It was not created to govern us, the people.  Indeed it derived it power from us.  Rather, it was written to govern the government.   We the people could take back that power via the vote.

What was also unique was that this government of, by, and for the people, could not require anything of the governed (us) that was not approved by ALL THREE of the branches.  The legislature had to first create the laws and pass them, but the executor needed to then approve them, and then, if further challenged, the judicial branch had to approved them as being in concert with the constraints of the Constitution.  It was an amazing set of checks to assure the survival of the rights of the citizenry.  Nothing like it had ever existed in the history of human governments.

The founders believed in the basic goodness of human kind under divine guidance, i.e. that we strove for the good as a general rule.  But they were not blind to the reality that some people “went off the rails” and could seriously damage the institutions they were creating.  Included, therefore, among the Constitution’s provisions were the rules for removing an elected public servant on any level from representative all the way to the president: a process called “impeachment.”

It was thought of by the founders, according to their correspondences, as an incredibly serious step since in doing so it was clear that the government took upon itself the power to override the wishes of its own bosses, the people who had elected that individual in the first place.  Consequently, since those day in Law School, I’ve been “hooked” into carefully watching impeachment proceedings — first about Nixon (I think they had a strong case for removal due to criminal acts but he resigned before they could hold the trial), then Clinton (I think he was a sleaze but did not commit an impeachable offense) and now Trump.  This is potentially the most serious thing the legislative branch can do… undertake the overturning of an election and remove an elected official from office.  If anything tests the strength of the constitution this is it. So I want to present my own thinking on the issue of impeachments and what is required and then apply that to this case.

Hamilton and Madison wrote voluminously about it and among other things, made it clear that this was not to be a matter of common politics.  Malfeasance in office was specifically declared by Hamilton to not be an acceptable reason for removal since it was so subjective.  Additionally, they purposefully did not want to emulate the British Parliamentarian system of “votes of confidence” as they saw it as inherently unstable and far too subject to political and partisan whims.

Matters reduceable to basic, even if serious, policy differences were ruled out as well and for similar reasons; such procedures were seen to be in opposition to the will of the electors who had voted for the individual likely because of the policies promised and in practice.

It is important too, o note another by product of the system they created.  It is important when looking at charges of obstruction of one branch or another, to understand that as a co-equal branch, the presidency could not logically “obstruct” the other branches since it was equal to and therefore not subservient to them (or vice versa).  You and I can obstruct a branch of government, but the presidency cannot, by definition, do it.  But that does not mean it can do just anything it desires.  If it appears to be violating some legislative powers or ethical standards and mores of the contemporary culture, it is the province of the judiciary, in the form of the Supreme Court, to determine one or the other of the branches must give way in that specific incidence.  Without a judicial finding and direction, and a subsequent violation of that finding and directive, one “equal” branch cannot be seen as obstructing the other.  Disputes over authority, and there were plenty of cases of it in the early days, were to be settled via the Supreme Court who, in such circumstances, had “the last word.”  If the court’s directives were violated, then and then only could there be movement to compel a specific action of obstruction or even contempt of court.

They also clearly noted that in order to assure that the action of impeachment was not strictly political (and therefore not allowed) it must be bipartisan in nature.  That is why a supermajority (2/3) of senate votes that would be expected to cross party lines was required for removal.  Due to real numbers it was virtually impossible to achieve a super-majority from just one party.

So what COULD be seen as an impeachable offense?  They settled on very well defined language describing with great specificity what the infractions were that could form the basis for an impeachment.  The wording is now famous and after the last weeks most know them by heart where they may not be able to quote any other sentence in the entire document.  To be qualified for impeachment, according to Article 2, Section 4 which reads:

“The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

It is one of the clearest directives in the entire document consisting of terms with very specific and commonly understood meanings.  Or at least it was until political narratives sought to redefine them to suit specific agendas.  So lets examine them a little more closely.

First up was treason.  That is interesting because treason is the only crime specifically defined in the Constitution and the founders’ writings make it clear that was chosen to avoid the use of the charge as a political weapon to repress opposition to the government’s or President’s policies.  There have been only a handful of treason cases since our founding and in each one the court seemed to work to limit the definition even further.  Well, lest there be any confusion,  here is what Article 3, Section 3-1 says:

“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

What has become clear it that (a) levying war requires an actual capability of doing that (a standing army, for example) or providing aid and comfort to an enemy named in a declaration of war or hostilities, and, most importantly, (b) it requires an overt act, i.e. some conduct.  Mere intention or expression is not enough.  That was spelled out clearly in the decision of Cramer v. U.S., in 1945.

I could be wrong, but as far as I know we have not declared war on any of the parties involved directly or indirectly in all this.  So by definition, without a war, or at least some official declaration of a state of hostilities, treason cannot apply.

Moving on we have we have the next enumerated impeachable action…bribery.  Bribery, for a public official, meant the taking of something of value to influence their public service.  For example, taking money and in return, instituting policies favorable to the source of the money and usually (but not necessarily) to the detriment of other constituents.  Clear, huh?  Well, not so fast.  How about a bribe going the other way, i.e. offering some enticement to an individual or country based on the power of the Presidency to alter the behavior of that individual or foreign government?  That is closer to the action alleged in this impeachment process.

The problem with claiming that as an impeachable offense, is that it is, in fact, the very core tactic of nearly all geopolitical diplomacy.  Virtually every diplomatic “deal” is achieved by a series of “quid pro quo” agreements where, in order to get the foreign government or individual to do something we want, we offer inducements or, if appropriate, some negative potential “threat.”   For example, we threatened then applied sanctions on Iran and North Korea to influence their obsessions and work toward achieving nuclear capabilities.  An action hardly could be more of a direct interference in another country’s behaviors, aspirations, or plans than an onerous sanction that creates great economic distress.  We have brought countries into our “club” by offering them something they need such as money or defense.   The historical truth us that every diplomatic deal in history was achieved because the parties “gave something to get something” which is the very essence of a “Quid Pro Quo” agreement.  Does that mean that every President who strong arms another country is impeachable?  Be very careful with that one…  Answering “yes” means there is probably not a president in our history or in our future that would not be impeachable.

In this case, however, it was shown that the government in question, Ukraine, did not see the requests for a favor as pressure of any kind (according to interviews with both its President and Defense Minister).  Additionally, they did not do or act as requested, did not do any investigation or make any announcement of planning to do so, and yet, the funds allocated by Congress, though delayed, were nevertheless delivered within the timelines of the original grant and, on top of that monetary aid, war materials were delivered in the same time frame that the previous administration had refused to give at all.  There was no showing of fact indicating the delay brought any harm to Ukraine especially since they were not even aware of the delay.

One can spin that six ways from Sunday but since Ukraine suffered no detriment and we got nothing either, it is hard to see that exchange as a viable intended, much less consummated bribe since, when the smoke cleared, there was not any quid nor was there any quo.

The request may well have been stupid, even sleazy.  Moreover, because of its appearance as something personally beneficial to the President and not the country, it may well be an appropriate target for some form of approbation or public censure.  But it does not appear to have been a successful bribe and if it was an attempted bribe it didn’t get very far since even the intended victim did not see it as such.

So, moving on, what else ya got?

There was the argument proposed by the accusers, that no actual crime needed to be committed in order to have an impeachable offense, so lets look again at what, other than Bribery or Treason, is enumerated as impeachable offenses.  The words are pretty clear on their face.  “… or other high crimes or misdemeanors.”  Pay careful attention to the use of the adjective, “OTHER,” it’s a critical word in this sentence.  Remember the founders had long debates and sometimes literally fought over virtually every word in the constitution to make sure it expressed exactly what they wanted.

When the Constitution was written, “High Crimes” meant what today we call “Felonies” and misdemeanors meant what today we call, uh, “misdemeanors.”  (Ref. Black’s Law Dictionary of the time).  Both are types of crimes defined under both statutory and common law.  Some legal authors have seen the dichotomy as representing actions that are “Malum In Se” (actions criminal or abhorrent in and of themselves without the need for legal definitions such a murder or rape, etc.) compared to actions that are “Malum Prohibitum” (actions made illegal by statute such as speeding or jaywalking).  But even so, actions following those definitions were still understandable as crimes.  If they were not, then the phrase “OTHER high crimes and misdemeanors” makes absolutely no sense.  In a section as serious as this one, writing a nebulous set of definitions for conduct allowing for removal of office for the country’s executive branch seems so far beyond unlikely as to be unthinkable.

An interesting, if desperate, argument was made during the impeachment process that since we did not have a country yet we had no laws and no crimes to define.  Therefore the founders did not need a crime to be committed in order for action to be impeachable.   Really?  Ignoring for a moment their use of the legal term defining types of crimes, do you think if you committed a robbery in ANY jurisdiction of the time you could get away with it on the claim that there was no country and therefore no laws to break?  We had no end of local laws and statutes, and jurisdictions were still aware of and following British common law under which those terms were readily understood.  There was no country when Benedict Arnold was accused of treason so does that mean if captured he could not have been tried and punished?  That conclusion is utter nonsense and a desperate grasping at straws.

Read the definition of impeachable offenses again… slowly if necessary.  The wording of the Constitution does NOT say, “… or other things we don’t like.”  Nor does it say, “…or other actions congress decides are impeachable.”  It specifically lists two types of crimes with commonly accepted meanings.  I do not understand why that is so hard to comprehend other than a blatant partisan refusal to give up on the idea that there is, of course, an impeachable offense in here to let us hang the S.O.B even if we have to redefine words otherwise clear on their face.

Since the trial of impeachment deals with the existence of crimes by its own definition, then it is de facto a criminal trial where the standard of proof is, as it is in all criminal cases, and was under common law, guilt beyond all reasonable doubt.  One reason for trying to make the case that some criminality is not necessary, was to make the trial into more of a civil action where the standard of proof is “preponderance of the evidence.”  But I believe the precise wording in the Constitution defining the cause of action makes in inescapably a criminal trial.

That all leaves me with the inescapable conclusion that politically stupid as the President’s actions were, as inappropriate as they certainly were, under the very clear meaning and words in the Constitution, they did not rise to the level of an impeachable act.  And that failure would lead naturally to a filing for a directed verdict as soon as the prosecution’s case was made since no real case had been laid out.  Much was made over the issue of witnesses but I see that as simply a red herring and diversion from the failure of the primary action.

First of all, there were already de facto  prosecution witnesses inserted into the presentation via unchallenged cleverly edited video excerpts with no option to cross examine the witnesses by the defense team.  But setting that aside, in a trial, witnesses are called for one reason, to establish the facts of the case, especially when they are challenged or disputed.  The judge is there to establish and rule on matters of law to be applied to those facts – that is NOT the job of the witnesses.  The jury is there to overlay those facts (they are called the “triers of fact” for a reason) on the law as presented by the judge and render a verdict.

There is no available verdict of innocent, only “guilty” (meaning the defendant did the deed as alleged) or “not guilty” meaning only that the case against him or her was not proven beyond a reasonable doubt.  And impeachment is the only sort of criminal trial where, under the Consitution, the concept of “double jeopardy” does not apply so it is important to see a verdict of “not guilty” with no more meaning than it actually has.

But in this case, the “facts” were accepted by both sides.  The phone call and its general wording was not in question.  The question was only about the propriety and legality of the specifics of the call.   Impeachment is specifically NOT to be about policy disagreements which were at the heart of the committee’s witnesses, and that leaves only the issue of legality of the alleged conduct.  Various new “witnesses” whose policy agendas were in concert or opposition to the call or the President would not change the facts in question, and the final application of law was to be the sole purview of the judge and, in the end, a matter for the “jury” (the senate) to decide by a 2/3 vote.

The resulting vote was clearly partisan so the founders would not have accepted it anyway and would have likely declared the equivalent of a mistrial and sent everyone packing.  Both the impeachment hearings and the trial were completely along almost perfect party lines.

And now some of the more rabid in the opposition are still wanting to do it again. I think that is tactically, irrationally, illogically, and profoundly stupid and counter productive.  An election is coming up in a few months.  The proper solution, if the goal is removal, is to vote the one you see as evil spawn of the devil out of office properly and remove the issues stemming from a wildly partisan and very flawed process.  To continue down this already failed path merely serves to harden the hearts of his base, allows independents to see it as an apparently totally political and highly partisan move, and to see him as the victim, if not martyr, in this political theater.  I think if one wants to see someone else as president next term, continuing down this path, rehashing failed concepts over and over, ad nauseum, will only serve to aid his re-election bid.  So for those of you who so despise him and the very ground he walks on, if you continue down this path and if he wins re-election you will have no further to look for blame than the nearest mirror.

So there you have it. This is simply my opinion about the merits of the case as presented, it has nothing to do with my personal feelings about Trump as a president.  That does not and should not be a factor no matter what you think of him personally.  Because if personal animosity is allowed to be the foundation for impeachment and removal proceedings, then no future President is safe from this form of harassment and given the time spent on this to the detriment of needed governmental business, our whole system will simply grind to a horrible and pointless halt.

I, for one, think that will be the nail in our country’s coffin that ends it all and I do not wish to encourage any action or process that can lead to that result.

 

The Future of Conservatives is not in Changing Principles but in Changing their Application.

San Diego — Following the results of the 2012 elections, there seems to be panic in the ranks of Republicans.  How, they ask and rightly so, can a failed president whose every promise was not kept including unemployment numbers, GDP numbers, debt reduction numbers, ALL OF THEM worse than when he took office, have so soundly beaten the GOP candidate who was a successful businessman?

Hand wringing, blame laying, all are happening to the amusement of the liberals who are opining that there is an impending “civil war” among Republicans and that the party is as out of touch with reality as the Whig party was when it collapsed of its own obsolescence.  But is all of it, including the obituaries for conservatives, deserved or justified? In the aftermath of the election, spurred on by questions from several friends, I’ve given it a lot of thought.

In the process I have re-read (for the umpteenth time) the Declaration of Independence and the Constitution (which I believe need to be treated as a necessarily conjoined set of documents).   I’ve re-read some of the important documents from our history and our founders including those of Locke, Burke, Jefferson, Washington, Madison, Adams (both of them), Hamilton, Franklin, Lee, Henry, and down to Lincoln.  Those are the patriarchs Conservatives claim as foundational authorities so have to be consulted to review the situation properly.

I’ve spent the last few days digging into my library of books by and about those (to me) visionaries.  It has been enlightening.  The result is I think in far too many cases, so-called Conservatives have failed to live under and up to the teachings of those founders they claim to revere.

First it has to be understood that there is a HUGE difference between the main-stream Republican Party and the core “Conservative” principles.  I tend now to agree that the Republican Party, as it has come to be, is a dinosaur whose extinction days are passed and it just hasn’t caught on.

While the Democrats pine for a world of the future that, despite a number of serious attempts, has never successfully existed, the Republicans (note I did NOT say “Conservatives”) pine for a world of the past that too, never existed and if it did, it was long ago and for a very short time.  Both parties fondly embrace a world view that succeeds only for the delusional or the blind partisan, a view that refuses to see, much less accept the world as it now is and as it has historically (in fact not fantasy) existed and evolved into the present.

I do not think that facing reality as it is, not as we want it to be, is inconsistent with being Conservative.  It is the core ethics and principles of the founders that we hold close, not the way some have applied (or misapplied) those principles in political environments that differ substantially and critically from the political environment today, nor, for that matter, how even the founders themselves had to apply them in THEIR reality and with their knowledge level of the world and even of their own country.

To avoid the fact that our world, in nearly all respects, is a very different place by nearly every possible measurement than it was 50 years ago, much less in the 1700s; or to assert that even a genius such as Jefferson, could, from the knowledge base and reality of the late 1700s, accurately have predicted the world of the 21^st century is also simply delusional.  Technology and geopolitical events are pushing us so rapidly that this is not even the world of Kennedy or Reagan. (I link those two names because Reagan was a Kennedy Democrat who actually never changed his philosophy and whose speeches were vintage JFK.  It was the party that changed.)

But if, due to a world in evolution or even revolution, the application’s needs have changed, must we also change the principles?  This is a crux and unavoidable question.  If it turns out that we cannot learn and adjust those core principles to demonstrate their application to OUR world, then there are only two explanations possible: They do not apply anymore or we are simply not yet able to see the answers.  Or, a third possibility, we see them and will not accept them.

Speaking for myself, I believe they DO apply and that the explanation for our poor application and articulation is in our own shortsightedness, not in shortfalls of the principles themselves.

We don’t even have to like all of the changes this new world has laid in our laps – change is always painful and avoided as long as possible — but we do have to acknowledge those changes and face them as a new and powerful reality that must be accommodated by and within our principles or they will crush us under the weight of the changing world.  As Will Rogers said, “Even if you are on the right track, if you just sit there you will get run over!”

So what changes are influencing this discussion?  One of the big ones, in some ways perhaps the most important one because unlike anal discussions of policies (which OUGHT to be the focus) it is highly visible and highly emotional in its impact, is a change in the national and regional demographics on several counts.

For one thing, it is noteworthy that the numbers of people of Hispanic origin are making up an increasing portion of our population and cannot be ignored in a political sense.  The same is true of an increasing Asian population.  But despite the differences upon which we too often focus, the real question is, are they, by nature, opposed to the core values of conservatives?  I don’t think so.

Hispanic culture is all about families and faith at its core.  No one can watch field workers and claim they do not have a work ethic!  Good grief, it is a powerful work ethic that will take them to strange lands, abusive environments, and truly back-breaking labor just to feed a family and try to elevate their status in one of the few countries where that is still possible.  What they want is opportunity and a fair shake.  If conservatives fail to grasp that, they are being idiotic and self-destructive.  And much can be noted similarly about refugees or immigrants from Asian countries.

It is true that the political cultures from which they are fleeing often were ones deeply rooted in patronage and corruption.  But those are not core values and most Hispanic and Asian people come here to get away from it.   We ought to understand and embrace their plight and then seek ways to make it work so that they will become, like my father-in-law was, a rabidly patriotic naturalized citizen.

But it is not as easy as simply opening the border to all that would like to come here.  Our economy is in a very rocky state and I think, following the election, it is bound to get far, far worse before it gets better.  To deny that immigration is linked to an effect on the economy in both good and bad potential ways is to exhibit both historical and economical naïveté.   If we cannot protect our borders and set immigration rules as the Constitution mandates then we really do not have a country at all.  I know some would prefer that, including our leader, but I personally do not.

A nation, a people, a country is defined by borders, language and culture.  That is certainly how the rest of the world’s countries define themselves so why should we exclude ourselves?  Still, no one can deny that our immigration policies are a shambles and that they neither protect us from the bad guys nor aid the good guys in coming on in.  Consequently I think it is a very Conservative view to push for immigration reform and acknowledgement of the good guys who have come here to better themselves and contribute to our prosperity while working to get the system under control.

But, and in this regard this is a critical question, have we as a people, much less we who claim to hold to Conservative Principles, become so dumbed down that we are incapable of recognizing both sides of the issue as having legitimate points; incapable of finding the common ground that will allow a solution even if it is, as are all solutions settled by humans, imperfect?

And immigration was not the only problem for our side.   Why on earth did we allow ourselves to be viewed as on one side or the other of issues of sexual orientation?  Jefferson said if it was not “breaking his leg or picking his pocket” he could deal with it.  Regardless of any personal views on homosexuality, it is a fact of life and, of more importance to this discussion, an increasingly active political bloc.   In and of itself it does not threaten violence or theft of my person or any of my rights (or any of yours) so what has some of us so intransigent and terrified of it?

Our choices are simple:  to slam the door on them because we may think they are lost to eternity and God hates them, and in so doing make of them a dangerous enemy force, or to re-examine the principles we say we hold dear and find a way to accommodate their numbers in our tent.  I think the latter is a better approach.

Being in my business I’ve known and worked with LOTS of openly homosexual folks: some were true salt of the earth types I trusted totally and liked very much and others were jerks I thoroughly disliked.  But I never noticed that dichotomy to be lacking in the straight world too… and I did NOT notice it being something predicated by a person’s orientation or life style.

And even if some of our ranks believe God hates them individually because of their orientation, that is an issue between God and them; it is NOT between us and them.  “Judge not lest ye be judged!” goes the Biblical directive.  If there is indeed a theological component to our side then why are some of us not adhering to their own text’s directive?  We need to get that entire discussion OUT of politics and leave it where it belongs: between an individual and their own conscience and belief system.   We need not prohibit it, but we also need not facilitate it.  Government should be silent on it.

I confess, I have a simple but strong semantic issue with what to me is a contradiction in terms: “Same Sex Marriage.”  But upopn serious reflection I realize that is because it affronts the language and definitions by which I was raised.  However I also study history and the truth is that the definition of marriage as I was taught to understand it, has but rarely been the definition used across the ages and across cultures.

And the big point is, to lose a powerful block that as seekers of individual rights ought to be flocking to a conservative tent, but are being driven away over a word, and a word of historically fairly recent re-definition at that, is truly cutting off our nose to spite our face!  And in the end does not solve ANY problem and simply leaves us disfigured.

The same can be said for any minority group even if that status exists only in their own mind.  Just as WE hate to be painted with the brush of association colored by the idiots in our own groups, we should not be painting their whole collection of possible voters with the same brush we use for the jerks and idiots that also share their skin color or gender or place of origin or whatever they use to set themselves apart from the main collection of Americans.  To do so, in my opinion, does violence to the principles we claim to hold dear.

Jefferson wrote that we were endowed with certain unalienable rights, rights not granted by government but by our creator, meaning, even to atheists, rights inherent in the human spirit regardless of where they came from.  But if we allow those rights to be limited by definitions that ONLY exist due to theological authority, then we are violating our own sacred Constitution.  I cannot help that the use of the term bothers me, but I CAN help what I do about it based on my reading of history and the words of the founders, comfortable or not.

We are supposed to see people as individuals not just through the filter of whatever group we can easily toss them into.  It is the other side that forces group separation and identification in order to create group dependence.  We are not supposed to be forcing group identification so that we can create group exclusions.  In fact, we are not supposed to be facilitiating much less forcing group identification at all!

Conservatives are supposed to treasure the individual and individual rights.  But that is not what unfortunately too many of our political side do.  And they do their hypocritical deeds and speeches vocally and stridently.  So how is it any wonder that members of those targeted groups, already looking for some, any excuse to cast stones in our direction, see us as haters and bigots and to be opposed at every turn when we play into the other side’s perfectly laid traps.

From our own ranks we too often spout psychology from before even the dawn of Freud and pseudoscience from the dawn of man and wonder why people will not flock to our standard.  No matter how impeccable the logic, if it flows from a faulty premise the result is not viable.

We should be the party of dynamic powerful women who make up half our population and probably more than half of our brainpower.  How can we exhort the undefined individual to be all they can be and yet still be OK with people wanting to pay women less for equal work?  Or still wanting to control stuff that is none of our, or the government’s business?

We have not had someone sufficiently articulate to simply explain that to us, equal pay for equal work is the same as equal work for equal pay — what is fair is fair.  Nor have we been able to articulate that it is not that we are saying they cannot have an abortion if that passes muster with them, their faith, and whatever other influences are in their life, we are simply saying we don’t want to pay for their choices… so long as it IS truly a choice.  I do not think (with EXTREMELY RARE and anamalous exceptions) that rape is ever a woman’s choice.  And the idiot that proposed a long outdated and invalidated theory that women cannot get pregnant if they don’t want to should have been tarred and feathered by every Conservative to hear of their idiocy if we want to show women we are on their side.

But again, government should be OUT of the abortion issue, out of the contraception issue, out of the bedroom entirely.  Just as it has no business prohibiting it, it has no business facilitating it either.

We focus on the parasites and self-proclaimed victims of our society, and God knows we obviously have more than enough of them; facilitated and perhaps perpetuated by the liberal world in an attempt to create a sufficiently powerful voting block of dependent personalities needing their “fix” of goodies at the government trough.  We look disparagingly at those who leapt at takers of house loans no one marginally sentient could have thought were likely to be repaid, and I think that scrutiny is proper and needs to root such activities out of existence because of its contribution to our current economic situation.

But in high-centering on that negative bunch of wanton losers, we overlook the poor wretches who have truly been blind sided by life through no real fault of their own.  Or worse, we lump them in with the losers.  We need to review our thinking to be able to recognize not only those against whom their physical or mental state of health has conspired, but those against whom this unneeded economical disaster has conspired as well.  We focus on the fraudulent and  ignore that in more than a few of the debacles involving home loans, the individual was unsure or uncomfortable with the deal but was pushed into it by overzealous and corrupt agents that claimed to be trustworthy to people unequipped by experience or education to grasp the truth of it.  No one wakes up some morning and wants to be physically or mentally sick or wants to lose their jobs, much less their homes, due to economic downturns or fraudulent sellers.

There are therefore, people in our society who are suffering through minimal or no fault of their own and as a generous people we have a duty to help them. Don’t read into this something that isn’t here: i did not say they had a RIGHT to our help, I said we have a duty to help them and that is a very different thing. The question is what institution should be in charge of that help. Should it come, for example, from the individual and/or private organizations dedicated to the task, or from the government dedicated to creating dependencies to assure re-election and the continuance of power?

If we, as Conservatives, truly believe it is the former, and we have any expectation of convincing those concerned about social justice that we are right, then we need to demonstrate that as best we can and also demonstrate and articulate how it is working to actually provide that help and, further, that it is working better than the government can do.  And even if we decided that the best collection point of monies for charitable use was via the government, who on earth can argue that government bureaucracy is likely to administer it best? You have to live in some parallel universe to believe that.  From the Post Office to FEMA to the state’s DMV, who can point to a single governmental “business” that is run more efficiently and productively than is done as a private business?

So yes, I think our side needs to make some major changes in the application of the principles they claim to hold dear, especially in how they interact with the rest of our citizenry.  They need to show that they actually believe in and mean to uphold the principles they espouse and the documents and texts they cite as authority whether it is the Constitution or some sacred text.

If Conservatives will do that, and both articulate and demonstrate them well, then we can show the other side for the disingenuous, dependency creating charlatans they are.   And THEN we can get to a discussion of the real issues and policies upon which an election ought to turn because we have taken the warm and fuzzy off of the table by the simple expedient of solving it.

But if we can’t – or won’t – adapt, then we will go the way of the Whigs and Tories and justifiably so.   And if that happens, it will be because all of those despicable labels hurled at us will have enough reality to them to stick and crush us.

And if we continue to let enough of the jerks in our ranks act like stupidly and callously… and get away with unacceptable comments or actions just because they are holding our banner… then by facilitating the hatred and bigotry, whether or not we individually share in it, we will surely deserve the results.  I believe those rotten apples are comparatively few in numbers but it doesn’t take very many of them under the heat of the media’s spotlight, to result in spoiling the barrel for us all.

The problem is I believe those devastating, perhaps catastrophic results for our country, results that I believe are facilitated by and sometimes pushed by Liberals as noted in previous posts, results that i believe will be so onerous in the end for all citizens as the U.S.A. slides toward the necropolis of history, will have to be laid at OUR feet because we were the ones that could have stopped it and chose, rather, fettered by a minority collection of individual weaknesses rather than freed by a majority collection of individual strengths, to stab our own principles in the heart.

And who could ever be proud of that?

 

Today’s (and Today’s Only) Stance on the Election

San Diego – As you may have noticed I’ve not added anything here lately.  To be honest I was burned out on what I feel is a nearly pointless activity, that is, trying to get anyone to actually think about it.  And that goal is made all the more difficult when the options to think about are both so far less than ideal as to easily render the whole process pointless.  Twiddle Dee and Twiddle Dum had it far more together than the options we have allowed ourselves to run for the most powerful job in the world.  Shame on us.

But I was roused a bit once again by a query from my great friend from High School, Gary, asking, following the second debate, what I thought.  And here, with some further editing and thought, is my answer.

I’m still absorbing and processing last night (the second debate between Romney and Obama) and waiting for the next one so my position truly is “in process” in terms of details and announced policies.  My bottom line “for today” is as it has been actually for the past number of elections: I would prefer another choice and will likely end up voting against a candidate rather than for one.

Both seem to have a pretty cavalier attachment to the truth or to the facts on the ground except as it serves their interest.  And that, a characteristic of every politician I can think of, and to our serious and profound discredit as a people as well as possibly our doom as a country, seems to be where we have brought ourselves these days.  But that is an indictment of US more than of them since there have always been sleazy politicians but in the past of some decades ago, the people, even with far less communication and information flow, seemed to be dedicated to seeing through it.

In terms of policies, at least as Romney has annunciated his and Obama has implemented his, I would prefer to individually select and discard policies from both sides far more than to have to live with either in their entirety.   I think we have let the debt/deficit crisis and economic issues go so far that on their own, neither the minimalist or maximalist views of government are, in the short term, practical or likely to succeed getting us over this mess.

There is no medicine for this fiscal illness that it not wretchedly distasteful and without unpleasant side effects of its own.  This cancer has spread so far that the chemo and radiation that will be required will take a serious toll on the host body even if, in the end, it manages to eradicate the disease.  And there is a frightening chance that any really viable medicine will kill the disease but at the same time, kill the patient.  That is the pitiful and pathetic and stupid place we, the people, have allowed ourselves to reach.

There was a time when, had we had people smart enough to continue to “stay the course” walking a tight rope through all of the competing interests influencing policy both domestically and foreign, when I would prefer new policies to be much nearer the minimalist ideal.  TR was perhaps my ideal in that approach; and the last of a breed.

But following first Wilson then FDR then Johnson our government had so changed into a lightly socialist balancing act, that approach grew less and less likely to work all by itself.  As I have written, liberals pine for a world that never existed and conservatives pine for a world long passed on and neither seems willing to truly face squarely the world as it is (or, to be honest, as it seems to me to be).

One item of critical need not even directly mentioned in the Constitution is education.  If Justice Brandeis could fabricate a “right of privacy” out of whole cloth from issues of general welfare, then I think it a much smaller leap to construe the government’s interest in education though it is not specifically mentioned in the Constitution either.  With the availability of low tech unskilled jobs evaporating as we watch, the future of this country’s prosperity lies directly in the lap of education.

And no, I do not believe in free education as a right; I see it as a responsibility of each citizen.  But I do believe that in a country where the federal government has essentially usurped form the states the right to oversee education, then it brings upon itself the responsibility to make sure that the education available for the citizens, at least from those institutions it supports and aids, is absolutely top drawer and aimed at preparing students for the world as we see it evolving.

California has demonstrated, however, that education is a priority somewhere near the bottom rung of its ladder of interests.  When money falls short education is the first thing to be cut.  The community colleges are, let’s face it, the bulwark against such rampant unemployment as it is the most used institution to prepare individuals to enter the workplace.  But even in the proposition (30) being pitched to bring money to schools, the actual wording states that of all the money to be generated (assuming some is) only 11 percent is targeted for education and of that 11 percent only 4 percent is targeted for Community Colleges.  And even that can be dipped into if the state feels a need.

If that is how a friend of education implements policies then we have no real need for enemies.

So in the Presidential race, today, and that is the only time frame I can speak to, I am straddling the fulcrum of the balancing board tilting ever so slightly toward the Romney side but only because I sadly believe that there is something malevolent underpinning Obama’s reign; malevolent, that is, toward the notion of America as I believe it was founded.  Were his policies genuinely implemented in the single interests of getting the country back on track then the truth is some very better economic minds than mine have disagreed over it and continue to do so: some would agree with him and some do not.  That means the jury is out and a final position is far from being determined even among those in the discipline that should be able to give us some definitive answers.

But I do not believe his motives are benign or are genuine.  I believe rather that his real interests, as his books state and as he clearly stated before being in the public spotlight, are not in rescuing the country and returning it to a former state of glory but in transforming it into a far different place than I want it to be.

He believes that transformed place to be a good one.  So did Marx.  I do not.

So I will vote against him but on any numerical scale of comparisons, the difference would probably be in very small numbers.

But that vote against Obama should not be construed as a vote FOR Romney or read as if I think Romney’s policies are, in total and exclusively, what it will take to get us back on track.  I simply see Romney as less damaging to our future than Obama.

Partly that is because though I am merely and only slightly tilted toward Romney’s policies economically, I think Obama’s foreign policies will, if continued as they have been, make the world and our corner of it a far more hazardous place.  As critical as our economy is (and it certainly is reaching critical mass for the far more unemployed than Obama will admit to) it is not the only issue of the America facing the 21st century.  I think Obama has ZERO grip on that portion of our interests.   More on that will be revealed, I hope, in the final debate.

The key to our future, in any case, rests less with the presidential outcome than with the outcome of the races for congress and in the composition of the court that will flow from the result of the presidential election.   Or at least it used to.  But Obama has taken the authority upon himself to send the military into acts of war, he has taken it upon himself to determine which lawfully passed laws he will direct his administration to enforce and which to ignore.

I read one of the simpletons on Facebook declare that America would never allow a dictatorship to occur.  What is it of importance about a president openly ignoring and countermanding congress that is missing from the definition of dictator?

The world has seen, though probably not since ancient Greece, that it is possible for a benign dictator to be good for a country.  But the ease with which that slips into abject tyranny is so well documented in history that even if I were comfortable with the specific policies involved in Obama’s usurpation of congressional powers, I could not ever feel at ease with the precedent it sets.

And I simply cannot bring myself to vote for someone who has shown the willingness to act in such direct violation of constitutional authority.  THAT is something I will always vote against even if I happen to agree with the specifics of the policies being enacted, I cannot accept a president assuming such personal power.

So that is where I stand at the moment.  Once again being very angry over having to vote against someone and not for someone.

 

 

So, What AM I For and Against Politically? Part 2

Here is part two of the post on what i believe politically.  This section takes us farther down the list from part one to include the issues of our economic system, Capitalism, issues of immigration and illegal aliens, and into the issues of women’s rights.  Let’s jump right to it but please read part one, as a foundation, first.

CAPITALISM

As revealed by any review of history, anthropology, and sociology, as societies progress from band to tribal hunter-gatherers on up to Nation-States of industrial enterprise, each phase has an economic model that seems nearly ideally suited for that phase to help it be productive and relatively harmonious.  At the tribal level a communal system was nearly perfect and many philosophers have argued that through the auspices of government enforcement, humans could be forced to regain that level of cooperative co-existence and avoid their natural proclivities to descend into savagery and self-interest.  But by the time human society entered the industrial age which, in a mercantile society could produce massive rewards, descendents of Hobbes, Rousseau, and finally Marx argued that an autocratic leader was necessary to forcibly return society to that communal society where ego and self aggrandizement was no longer possible or desirable.

Goodness knows that view has seen plenty of attempts to form societies and nation-states.  Soviet Russia, China, North Korea, Germany, Italy, Cuba, et al but it has never, ever worked.  Meantime, Capitalism and its concepts of rewarding individual productivity saw developing countries rise will above the levels of other third world communal and tyrannical states.  But there is a caveat too often ignored

What makes Capitalism work and powerfully so, is not simple self interest, it is enlightened self interest.  That is a view that understands the tightly intertwined destinies of one’s own “business” vis-à-vis the fortunes of those around it, including competitor and customer and workers alike.  So long as the enlightened self interest is at play, all boats can rise together.  But when it is lost, when it descends into an “everyone for themselves” totally ego-centric world, then Capitalism fails and with it the economy it supported.

I would suggest that it was that failure of the “enlightened” outlook succumbing to the ego-centric outlook that was the philosophical underpinnings of our crisis and allowed for the bubbles involved to expand and then collapse.   As the “Me” generation of cliché evolved into the parasitical, self-proclaimed victimized, and completely entitled generation of today, enlightened self interest died and with it an understanding of a mercantile world that was positive and productive.

The movie’s Gordon Gecko declared that greed was good and an entire generation of ego-centric hedonistic, parasites agreed but missed out on the point about what it took to put that greed into productive action and instead became greedy solely for the fruits of the labors of others.  The result is what is commonly and fairly accurately called “Crony Capitalism” where regulations exist but are applied only to the non-cronies and in doing so destroy the level playing field enlightened capitalism requires to work.

I believe true enlightened capitalism is the only economic system that can elevate the world to a high and productive standard of living, but it may be true that we have lost it for the moment and need to regroup, rethink our places in society and our responsibilities to the greater society, before we can hope to return successfully to it.  It would be tragic but perhaps is true that as a culture tossing away the concept of consequences for choices we no longer have the moral compass, the internal code of standards that will allow true enlightened capitalism to exist much less work.  That will be, if true, another very bitter pill for us to swallow and I hope we do not have to do it… but it may be inescapable.

When and if we devolve (or are pushed) back into a more socialistic society we will backtrack on almost all fronts and because we no longer are in a tribal level of group interaction, it will, as it always has done in the industrial world, fail and to the detriment of the citizenry but only to the good of the leadership exempting itself from the rules for the masses.

I despise the thought that it not only might be necessary but potentially inescapable.  As I wrote about a number of posts ago, “Stage Theory” has certainly anticipated it.  Plus, I see the current president doing everything possible to bring our system down around our ears and push us toward that socialistic system.  He is doing it, according to his book, because he thinks it is better, something with which I vehemently disagree.

But I, sadly, think that temporarily it may turn out to be inevitable if we cannot get our grip on the ego-centric, unrestrained versions of dog-eat-dog Capitalism and the clutching gasping demands of a growing parasitic culture.  If we cannot regain our enlightened view of a broader picture of our country and the world and how if it is to work at all, it must work all in harmony, then that despicable result is most likely inescapable.

Illegal Aliens and Immigration

This is an incredibly complex problem on two fronts:  controlling immigration and dealing with those already here illegally.  Fairness would seem to dictate the two issues be dealt with the same way.  But practicality would seem to indicate that is not a viable perspective either ethically or logistically.  Too often we fall into the trap of thinking social justice means treating everyone alike, but this is a good example of one of the many areas where that perspective is simply in error, not to mention impractical.

The first part of the problem, controlling immigration, is the easiest to grasp.  Every country on the planet assumes the right to do it as have we.  Quotas, procedures, and processes have been on the books and accepted as fair for many years.  The problem now is enforcement, i.e. stopping immigrants from slipping into the country and bypassing the systems already set up.  The laws are there; they are just not enforced.

I think those systems need a modern review, and further that they may, in some cases, be restrictive and harsh all out of proportion to the realities of our nation’s needs.  I would support the efforts to re-open those rulebooks and start over.  But until we do, those are the laws and I think they need to be upheld and enforced.  When we start accepting the breaking of specific laws we don’t like, we cannot complain when others break laws that THEY do not like.

I see no problem in allowing state and county agencies to follow up on otherwise legitimate stops when a person does not have a drivers license or other identification.  I see a huge problem in allowing illegals to get drivers licenses.  Think about it,  if you KNOW you are granting a license to an illegal alien then you are an accomplice to a federal crime (the illegal entry)… how do you get around that?  And having that ID allows non-citizens to vote, something I vehemently oppose.

The second part of the problem, what to do with the immigrants that have already side-stepped those laws and in an illegal manner entered the country and started to become accepted as citizens even though they are not.  This brings into play the issue of “anchor babies” as well as the parents themselves.  This derives from the provision in the Constitution (Amendment XIV, Section 1 proposed and added in 1866) that all persons born in the United States are to be considered Citizens.  It was in response to the issue of the citizenship of slaves born in this country but newly recognized as free men and women.  It also solved a long standing problem of new immigrants in a new country hungry for voters and citizens.  In 1866 it made perfect sense.

But those factors of a century and a half ago have long ago faded into utter meaninglessness.  Now however there is a brisk business in getting pregnant mothers into the country so their children will be born here and entitled to all the benefits of citizenry, including being able to sponsor their families to immigrate.  I think it is time to repeal that Section so that citizenship is not automatically granted because you got a toe on American soil just in time to give birth.  I think perhaps they should be in some way “eligible” for citizenship, but not granted it automatically. (I also do not believe in dual citizenship and the unavoidable split loyalties that engenders,  but that is another matter for later discussion.)

Whatever is decided, we cannot forget to consider the issues of fairness involved for those who patiently and painfully wait, sometimes in danger, to immigrate to America legally and become naturalized citizens via the processes laid out for them.  To force them to go through that ordeal while simply turning a blind eye toward those that bucked the line is not fair by any perspective.  Plus there is no way that it can help but appear to reward those that broke the law and punish those that follow it.  I do not believe that is a good precedence or model to set for the public.

Having said that however, the logistics of finding and deporting all of the current mass of illegal aliens in an incredibly expensive at best.   And what about the kids whose only real crime was staying with their parents and probably, if they were really young, not understanding the subtleties of an illegal entry into this country.

Of course this dilemma would not exist without the lax enforcement that has allowed so many illegals into the country in the first place.  There, in the failure of enforcement, is where the serious blame and responsibility should lie, and less with the poor soul who just wants to find a better life for them and their families.  I get that, but I also know that most of our historical immigrants, including my father-in-law and my great, great grandfather, did it legally and became citizens.

We tried, not all that many years ago, to initiate an amnesty program for the illegal aliens then in the country with the understanding that we would, at the same time, get serious about border security.  We accomplished the first part, never tried the second part, and now for their own narrow ends, and in opposition to the good of the country, both parties either turn a blind eye to gain workers or openly encourage it to gain voters.  Either approach is, in my opinion, despicable.

Obviously the problem faced in the last amnesty program has been allowed to lead to a place where it is even more of a problem today.  There are no good or pain-free solutions.  But for any approach to work we, the nation, have to start with a consensus deciding whether or not we simply want open borders or we want to do as all other nations do and be able to define and control immigration into the country.  Until there is a national agreement on that, we will never solve this even though in addition to the relatively benign immigration of work seekers we leave the door open still to the likes of those who perpetrated the tragedy of 9-11 on us.

ABORTION/WOMENS’ RIGHTS

I believe that every citizen (and this would, of course, include all women) has a right to determine, for themselves, what they will do with their own bodies.  If a woman wants an abortion I think she has a right to seek one out; the issue should be between her and her faith and, if appropriate, the other person involved in the pregnancy.  But, in my opinion, government, on any level, has absolutely no business getting involved in any way until some legitimate law is broken.

To apply laws for or against it, based on religious conviction is counter to the Constitution and, in my opinion, should be disallowed.  But that means for me that while I do not think a government should be in the business of prohibiting abortions as a matter of law, I also do not think it should be in the business of facilitating them as a matter of economics.

I think a woman has an absolute right to choose the correct course of action for herself, but I and others have an absolute right to not have to pay for her choices unless it is an issue of medical emergency (her life is endangered by the pregnancy and she has no insurance coverage) or for rape or incest where she was NOT cooperating in or in any way consenting to the behavior that resulted in the pregnancy.  (And by the way, I do NOT think that feigned cooperation when in fear of one’s life EVER equates to consent.)

In those cases I believe that if they can be found, the other party should be held accountable economically for her choices; and only if that fails might the government ask me to take some of my tribute to them to pay for this.  Operative word here… “ask.”  In instances of child abuse resulting in a pregnancy (and, by the way I think child abuse of any sort should be a capital crime) no one could ever legitimately argue there was legal consent so we are de facto into other territory.

Bottom line, in my opinion a woman past the legal age of consent has an absolute right to chose her activities but then must accept personal responsibility for the consequences.   So if indeed the entire circumstances were about choices, starting with the affirmative choice to engage in activities likely to lead to a pregnancy, then I have an absolute right to choose not to support that or its resolution with my money.

And on a related topic, using ADC as a revenue source is, to me, a fraud upon the government and upon all taxpayers and should be a felony.  Ending the life of viable but yet unborn individuals is murder and should be treated as such.

If I DO wish to support it, then there are plenty of places I can contribute to that activity; I do not need the government to force me into it.  It is transparently disingenuous and hypocritical to say we should give more to subsidize entitlements to which we are opposed but then not have the proponents write out a check to that effect.  Clearly what is meant is they actually want US to pay more but they will only do it when forced to.  I see a huge problem in that.

But the real and vexing question plaguing this entire topic is the question of when life begins, i.e. when, exactly, is a yet undelivered child sufficiently alive and viable to have its life protected by the government?  To determine the start of life I think we can look at the other end, i.e. do we have a workable medical/legal theologically acceptable definition for when life ends, i.e. what separates a state of “life” from “death” at the end?

The answer is, “Yes, we do.”  I see no reason not to apply that definition in reverse to determine the government’s definition of the start of life.  That such a definition may not correspond to the definition of a specific theology is beside the point since we do not have a state-run religion.  If we wish to base such decisions on science then let science’s existing answer to the difference between “life” and “death” suffice and stand.  To refuse that reveals only that one has a great a secret (or not so secret) agenda as do those arguing from a religious point of view.

On another relevant women’s issue I believe a woman has a perfect right to equal pay for equal work, but the reverse must also be true:  she has to provide equal work for equal pay.  For special work, like first responders to emergencies such as police, firefighters, paramedics, etc,  I do not believe in lowering standards so that people who could otherwise not perform foreseeable actions, should never be done.  If I’m in a burning building and on the verge of unconsciousness, when a firefighter comes through the window or door I do not care if they are a man or woman, but I expect and demand they be able to physically carry me to safety.  If they cannot do that then they should not be there.  And that goes for men as well.

If an individual cannot carry 200 pounds down the ladder they should not be put in that position and do not deserve the same pay scale of someone who can.  But it should only be a skill or ability based pay and never a case of using gender as an automatic criterion.  On the other hand, if it can be shown that certain skills, usually gender based, are not required to properly carry out a job, then the fact that some applicants have those skills and others do not should not be used for different pay scales since they are irrelevant to the job.

For the city mayor’s private army, the police force, I believe we should be raising standards not lowering them and not just for women but for all applicants.  We, as the citizens, would be far, far better served with fewer very high quality, high intelligence, un-reproachable, and un-corruptible officers making a good salary than with mobs of gun toting officers with minimal intelligence and psychological stability because it is all we can get for tight budget restraints and after knuckling under to complaints by the under qualified.

OK, we’ll continue the list in the next post.

 

Citizenship Debate: CONCLUSION

This is the conclusion of a multi part series.  To properly understand it you need to scroll to or link to the post entitled “Straw Men, Red Herrings, and Big Lies” and read it along with the comments from a reader named “Ellen.”  THen starting with “Citizenship Debate: Introduction” this series attempts to answer her objections.)

CONCLUSION

So, after all of these parts, here is what I see as the bottom line for our little debate.  You have just waded through material showing the contrasting opinions on this topic.  All of this has simply been to show that, in accordance with the first assertion that started this, there is a divergence of thought on it even currently.  After reading the initial assertion along with Ellen’s comments, you, the reader, will have a simple question to answer:  “Did I mislead you when I asserted that this whole topic is a red herring to detract from more important issues, and, (and this is the part Ellen attacked) that it has not been truly settled by the courts?”

As the only judge in the courts of your own personal opinions, each of you gets to make that ruling as you see fit.  You could certainly pick up research where Ellen and I have left off to further enlighten and inform your own conclusions.  Which side you take is not the point of this; the point is that there is, in my opinion, more than one side that is still in play.

But if the only point of continuing or commenting is to post something where you will latch onto the parts you like and denigrate the parts you do not like, that is no longer reasoned discussion or debate.  Personally I’m inclined to quit wasting time on a project that can have no practical value even if my conclusions were accepted as true but will only result in you selecting more quotes to support your position.  All that is really being shown is that each of us can find resources to support our own positions.  I did not think that was ever in question.  Hammer away at it till readers are all brain dead if you wish but I am done with it, over it, and ready to move on.

If anyone, wishes to continue posting comments and arguing it out then I will allow those comments so long as they remain reasoned, civil, and do not resort to ad hominem or personal attacks; those I will excise from the comment list.  I, on the other hand wish to get back to the more important issues of the day and times and do not intend to respond again on this topic since, for me, I am satisfied in the validity of my position that it is unsettled.

But I do want to thank Ellen.  Although this specific issue remains an irrelevant one to me, and a real time waster in and of itself, the research it has inspired – as all good research will do – has brought other things to my attention.  Some of those are simply the kinds of fun stuff someone like me with an insatiable curiosity finds fascinating but some of which feeds into parts of the current political debate that ARE relevant for us.  I would not have done that without the kick her comments inspired so I am grateful to her.

But now, can we get on to questions that actually have an impact?  Even if i am right i am not convinced anyone would take any action in this case, and wsith the precedence set it will be hard to assert it in the future.  But maybe the result will be that an amendment will be created that DOES answer it once and for all in the proper method.

One can only hope…

 

Citizenship Debate: Part 5

(This is actually Part 5 of a multi-part series.  Please scroll down (or link from the left panel) to read these posts in the proper sequence.  It all flows from a post on “Straw Men, Red Herrings, and Big Lies” and the comments attached so to really understand it all, you need to read that one too.)

(CONTINUED FROM PART 4)

OK, lets bring this home and lay it to rest, shall we?  Surely the view of the father of the 14th amendment himself should count for something. In 1866, during a speech before the U.S. House of Represenatives, John Bingham(1815-1900), said that a natural born citizen is one who is born in the United States, of parents not owing allegiance to any foreign sovereignty:

“[I] find no fault with the introductory clause [of the 1866 Civil Rights Act], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. (Congressional Globe, 39th, 1st Sess.(1866), p.1291, center column)”

In 1884, an article by George Collins, appearing in the American Law Review (1884), criticized the Lynch v. Clark ruling:

“In Lynch v. Clark, the vice-chancellor held that the common-law doctrine — that the place of birth and not the nationality of the father determined the political status of the child — was applicable to the United States, constituted a part of the jurisprudence thereof, and that accordingly a person born within the United States, whose father at the time of such birth was an alien, was a citizen of the United States. This case, aside from its fallacious and unsound reasoning, can not be upheld upon principle. It is well settled that the common law is not part of the jurisprudence of the United States. … Birth [in the United States] … does not ispo facto confer citizenship, and it is essential in order that a person be a native or natural born citizen of the United States, that his father be at the time of the birth of such person a citizen thereof, on in case he be illegitimate, that his mother be a citizen thereof at the time of such birth.” (Collins)

In 1894, The Nation magazine reported an opinion by Thomas Bayard, who was U.S. Secretary of State under Grover Cleveland. In Bayard’s opinion, the U.S.-born child of alien parents was not subject to U.S. jurisdiction at the time of its birth, therefore was not a U.S. citizen at birth:

“In 1885, Secretary Bayard decided that the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because “he was on his birth ‘subject to a foreign power,’ and ‘not subject to the jurisdiction of the United States'” (The Nation, Vol.59, No.1521, August 23, 1894, p.134, near bottom of right-most column)

And to make the terminology even more specific, in 1896, an article by Percy A. Bridgham, appearing in the Boston Daily Globe, defined native born as “born within the United States,” and natural born as “born of parents who are U.S. citizens.”  In Bridgham’s opinion, one did not need to be native-born in order to be natural-born. His understanding, at the time, was that all post-1787-born Presidents were both native-born and natural-born; the United States has never had a President who was strictly natural-born (natural-born only, without also being native-born).

“The fact that the Constitution says “natural” instead of native shows to my mind that the distinction was thought of and probably discussed. A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen, as distinguished from one who was by nativity or locality of birth a citizen. …

It seems to me that if the founders of the government had meant to confine the presidency to such of its citizens as were born upon the soil of the country, they would have used the word “native,” which is a much more apt word than natural. …

“A comparison of the meanings of native and natural as given by Webster bears me out in my opinion of the intent of the constitution. The very first definition of natural is “fixed or determined by nature,” the nationality of a child born abroad of American parents is fixed by the nature of things and not by the locality of birth. I do not find that our courts have ever passed upon the meaning of the word natural in connection with citizenship, so we must take its ordinary meaning.” (Percy A. Bridgham, People’s Lawyer, Boston Daily Globe, November 9, 1896. See also The Boston Globe: “native born” does not equal “natural born” for Presidential eligibilty)

Also in 1896, the New York Tribune published an article, questioning the eligibility of Mr. Shurmann, the Labor Party presidential candidate. Mr. Schurmann was born in the United States, of non-U.S.-citizen parents:

“Is he [Mr. Shurmann], under these circumstances, “a natural-born citizen” in the sense implied by the fifth clause of Art. II. of the Constitution? Various Attorney-Generals of the United States have expressed the opinion that a child born in this country of alien parents, who have not been naturalized, is, by the fact of birth, a native-born citizen entitled to all rights and privileges as such, and the State Department has always acted on this presumption in deciding upon questions of this nature brought before it. There is, however, no United States statute containing any provision on the subject [of natural born citizenship], nor have any judicial decisions ever been made in regard to it. It is at best an open question, and one which should have made Mr. Schurmann’s nomination under any circumstances an impossibility.” (New York Tribune 1896: Those born of non-citizen parents may not be eligible for POTUS)

In 1904, Alexander Porter Morse argued that parental citizenship is essential to natural born citizenship; one cannot be a natural born citizen unless one’s parents were citizens at the time of one’s birth:

At the time of the adoption of the Constitution, immigration was anticipated and provisions for naturalization would immediately follow the establishment of the government. Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. (Morse)

In 1916, attorney Breckinridge Long argued that Republican presidential candidate Charles Evans Hughes was not eligible to serve as president. Hughes was born in the United States, but at the time of his birth, his father was not a U.S. citizen. In Long’s Legal Analysis, a U.S.-born child of a non-citizen father is not a natural born citizen of the United States:

It must be admitted that a man born on this soil, of alien parents, enjoys a dual nationality and owes a double allegiance. A child born under these conditions has a right to elect what nationality he will enjoy and to which of the two conflicting claims of governmental allegiance he will pay obedience. Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a “natural born” citizen of the United States. If his sole duty is not to the United States Government, to the exclusion of all other governments, then, he is not a “natural born” citizen of the United States. (Long)

So where did this diuspute come from? There is general agreement concerning state citizenship. When the original thirteen colonies became independent states, some of them (for example, Virginia) retained the jus soli principle of English common law. In these jus soli states, any white person born within the borders of the state (other than the child of a vagrant, slave or foreign diplomat) was a citizen of that state. Anyone who became a citizen of any state was automatically a citizen of the United States.

However, there is disagreement as to whether, in 1787, a person could acquire federal citizenship independently of state citizenship. If you did not receive state citizenship at birth from any state, under what circumstances would the federal government still recognize you as a citizen of the United States? Regarding this question, there has been (and still is) a dispute between:

• authorities who believe that all persons born on U.S. soil (except the children of foreign ambassadors) are natural born citizens of the United States, regardless of their parents’ citizenship; and
• authorities who believe that one cannot be a natural born citizen of the United States unless one’s parents were U.S. citizens at the time of one’s birth.

The dispute arises, in very large part, from differing understandings of our nation’s founding principles. Those who believe that the Founding Fathers were guided by a somewhat incomplete understanding of 18th century English common law tend to believe that the jus soli principle governs the meaning of “natural born citizen” in the Federal Constitution. Those who believe that the Founding Fathers were guided by European political theorists, such as Vattel, tend to believe that the meaning of “natural born citizen” is constrained by the jus sanguinis principle.  Those who accept the founders word that they did NOT intend the new country to be bound to English Common Law can come down on either side for a variety of legal or simply political reasons.

But lest you want to argue that those old cases are just that, old, and therefore of no modern consequence I would bring to your attention a current case.  Well cases, actually, that are winding their way through the courts of several states as I write this.  These are specifically attacking the 14th Amendment Theories.  The plaintiffs are alleging that the defendant, Barrack Obama, has no standing to run for president and therefore should not appear on the State’s ballots because he is not, Constitutionally, a “natural born citizen.”  In the Georgia case, amicus briefs go into a detailed accounting, far more than I have above, showing the realities of 18th century English Common Law, how that law was never adopted as federal law and served only and only on occasion as glossary for terms picked up and used in our own developing legal system, and how in any case, as noted here, there is no conflict between Constitutional sections on presidential eligibility and citizenship definitions because it is clear that “native” and “natural,” what we have called “Statutory” and “Constitutional” citizenship are not the same things even if it has all of the same legal standing except re presidential eligibility.

If the courts themselves believed this to be a long settled question, then they would not have taken on the cases.  The fact that there is a debate at all requires viewpoints from more than one side, ipso facto it is not a settled issue and certainly not one without dissent.

So now I ask you, my gentle and analytical readers a simple question that is the very core of the debate between my position and that of Ellen.  Does it appear to you that the issue of what constitutes a “Natural Born Citizen” as that term is used in the Constitution to define eligibility to be president, is monolithically accepted (on either side) and therefore unquestionable?

Ellen answers in the affirmative and I in the negative.  You get to decide for yourselves.

In the next and mercifully last post of this series, I’ll try to wrap it all up in a conclusion.

(CONTINUED IN THE CONCLUSION)

 

Citizenship Debate: Part 4

(This is actually Part 4 of a multi-part series.  Please scroll down (or link from the left panel) to read these posts in the proper sequence.  It all flows from a post on “Straw Men, Red Herrings, and Big Lies” and the comments attached so to really understand it all, you need to read that one too.)

(CONTINUED FROM PART 3)

And it was erroneous in its understanding of English Law.  In 18th-century England, there was indeed a distinction between “subjects” of the English king and “citizens” of an English town or city. The jus soli principle applied to English subjecthood but did not apply to English citizenship. Anyone born in England or its colonies was an English subject by birth. But, and here is the problem for Gray’s reasoning: a bad premises.  In 18th-century England and its colonies, contrary to his assertion, you could claim citizenship by birth only if your father was a citizen at the time of your birth. Although English “subjecthood by birth” carried a connotation of birth in a particular place, English “citizenship by birth” carried a connotation of inheritance from one’s father.

The Supreme Court’s ruling, in U.S. v. Wong Kim Ark, is U.S. law. However, the Court’s reasoning in that case, given its inherent flaws, is not a particularly solid basis on which to argue in favor of anyone’s eligibility to be president.

Ellen makes much of the concept of Jus Soli, the rule or law of the soil to assert that anyone born on U.S. soil is then de facto a Natural Born Citizen.  That is certainly what Justice Gray implied so it is reasonable for someone using that case to pick up on one of the critical points.  But is it correct?

In U.S. v. Wong Kim Ark, the Court’s reasoning was based largely on the English common law “rule” that, generally speaking, children born on English soil were, at birth, English natural-born subjects, regardless of whether their parents were subjects or aliens. According to the majority’s opinion, this “rule” of English common law was “in force” when the U.S. Constitution was being written and thereafter “continued to prevail” in the United States:

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established. (Page 169 U. S. 658, U.S. v. Wong Kim Ark, 1898)

I already noted that in fact, “subject” and “citizen” were not the same thing under that English Law but read here the dissenting note of the same issue.  In his dissenting opinion, Justice Fuller argued that the majority was factually incorrect on this point. Regarding the “rule” of English common law, the minority and majority disagreed, not over a matter of law, but over a matter of American history:

And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted. I submit that no such rule obtained during the period referred to, and that those words bore no such construction… (Justice Fuller, Dissenting Opinion, Wong Kim Ark, 1898)

P.A. Madison (a writer for the Federalist Blog) agrees with Justice Fuller’s understanding of American history. When the original thirteen colonies gained their independence and became States, they retained aspects of English common law for their own convenience. But English common law did not “continue to prevail” at the Federal or national level (Madison(2006)).

George Mason (1725-1792), called the “Father of the Bill of Rights” and considered one of the “Founding Fathers” of the United States, is widely quoted as saying:

The common law of England is not the common law of these states. (Debate in Virginia Ratifying Convention, 19 June 1788)

How much clearer does it need to be?

In 1884, the following commentary appeared in the prestigious American Law Review:

In Wheaton v. Peters, the Supreme Court say: “It is clear there can be no common law of the United States. The Federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs and common law. There is no principle which pervades the Union and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our Federal system only by legislative adoption.” (Collins)

 OK, let’s make it even clearer… In a recent speech to the Federalist Society, Supreme Court Justice Antonin Scalia confirmed that English common law did not “control” at the national or Federal level after the United States gained its independence from Great Britain:

The common law is gone. The federal courts never applied the common law and even in the state courts it’s codified now. (Audio/Video: Justice Scalia speech, Nov 22, 2008)

Now the debate was never over or settled however, as many still adhered to the literal jus soli viewpoint. Before Ellen adds another post with such views let me do some work for her.  Here are some opinions in opposition to mine and the ones above.  Later in American history, the Opinion of Lincoln’s Attorney General Edward Bates (1862), the Opinion of U.S. Secretary of State William Marcy (1854), and the dissenting opinion in Dred Scott v. Sandford (1856), echoed the same viewpoint — that you are a U.S. citizen (and presumably a U.S. natural born citizen as well) if you were born in the United States, regardless of your parents’ citizenship at the time of your birth.

In 1864, Edward McPherson wrote that birth alone in the United States is sufficient to confer natural-born citizenship:

And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country constitute the nations, and, as individuals, are natural members of the body politic. If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a [natural born] citizen … (McPherson, p.380)

In 1866, George Bancroft expressed the same viewpoint — that all persons born on U.S. soil are natural born citizens:

“…everyone who saw the first light on the American soil was a natural-born American citizen” (Bancroft, p.201)

Early we noted when, in 1983, Judge Richard Cudahy (U.S. Court of Appeals for the Seventh Circuit) expressed his opinion that US-born children of illegal immigrant parents are “natural born citizens”

So it is clear that various “authorities” (including, but not limited to, those cited above) have expressed the opinion that birth within the United States is, by itself, sufficient to confer “natural born citizen” status. But, throughout U.S. history, other authorities have expressed an opposing opinion — that one is not a natural born citizen unless one’s parents were U.S. citizens at the time of one’s birth.

In 1789, two years after the Constitution was adopted, David Ramsay argued that a child naturally receives, at birth, the citizenship of its parents:

“[Birthright citizenship] … is confined exclusively to the children of those who were themselves citizens. … The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776. … From the premises already established, it may be farther inferred, that citizenship, by inheritance, belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring.” (Ramsay)

Ramsay’s comments were made in connection with a dispute over William Smith’s eligibility to serve as a U.S. representative from South Carolina. Despite their disagreement on the eligibility issue, Smith agreed with Ramsay that a child naturally receives, at birth, the citizenship of its parents, particularly its father:

Vattel, the author we have shown was heavily relied upon by the founders, wrote,

“The country of the father is that of the children, and these become citizens merely by their tacit consent.” (William Loughton Smith, as quoted in The Documentary history of the first Federal elections, 1788-1790, Volume 1, pp.178)

In 1811, the U.S. State Department refused to recognize James McClure as a U.S. citizen (Publius Enigma). McClure was born in the United States, but his parents were not U.S. citizens at the time of his birth. He would have acquired U.S. citizenship at birth if he had been born in a state (such as Virginia) which confers state citizenship to anyone born within its borders. At the time, anyone who acquired state citizenship under state law was automatically a citizen of the United States. But McClure was born in a state (South Carolina) which had not enacted any citizenship laws. In the absence of state citizenship laws, United States citizenship is conferred only to persons born in the United States, of parents who are U.S. citizens:

Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States — he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does — for, “all free persons born within the territory of this commonwealth,” is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen — but the U. States’ act does not go so far. A man must be naturalized to make his children such. (“Case of James McClure”, The Alexandria Herald, Vol. I, No. 37, October 7, 1811, page 2, left-most column)

In 1820, Virginia Representative A. Smyth indicated that one’s citizenship at birth is determined by the citizenship of one’s father at the time of one’s birth:

“When we apply the term “citizens” to the inhabitants of States, it means those who are members of the political community. The civil law determined the condition of the son by that of the father. A man whose father was not a citizen was allowed to be a perpetual inhabitant, but not a citizen, unless citizenship was conferred on him.” (Rep. A. Smyth (VA), House of Representatives, December 1820, in Abridgment of the Debates of Congress, from 1789 to 1856, Vol VII, 1858, p.30)

In 1845, an article entitled “Massachusetts and South Carolina”, appearing in The New Englander, explained that, in the U.S. Constitution, the term “natural born citizen” means a U.S. citizen not owing allegiance, at birth, to any foreign state. According to the article, all adult U.S. citizens are presumed to owe allegiance to the United States exclusively, but a natural born citizen owes exclusive allegiance from the time of her or his birth:

The expression ‘citizen of the United States’ occurs in the clauses prescribing qualifications for Representatives, for Senators, and for President. In the latter the term ‘natural born citizen’ is used, and excludes all persons owing allegiance by birth to foreign states; in the other cases the word ‘citizen’ is used without the adjective, and excludes persons owing allegiance to foreign states, unless naturalized under our laws. (“Massachusetts and South Carolina”, The New Englander, Volume 3, 1845, p.414)

In 1859, Attorney General Jeremiah Sullivan Black clarified the distinction between a native and a naturalized citizen. All adult U.S. citizens are presumed to owe allegiance to the United States exclusively. The native is a citizen who never owed allegiance to any sovereignty other than the United States.

There can be no doubt that naturalization does, pro facto, place the native and adopted citizen in precisely the same relations with the Government under which they live, except so far as the express and positive law of the country has made a distinction in favor of one or the other. … Here none but a native can be President. … A Native and a Naturalized American can go forth with equal security over every sea and through every land under heaven, including the country in which the latter was born. … They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe fealty elsewhere, and the other, at the time of his naturalization, solemnly and rightfully, in pursuance of public law and municipal regulations, threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been. (New York Times: Attorney General Black’s Opinion upon Expatriation and Naturalization, July 20, 1859)

(CONTINUED IN PART 5)

 

Citizenship Debate: Part 3

(This is actually Part 2 of a multi-part series.  Please scroll down (or link from the left panel) to read these posts in the proper sequence.  It all flows from a post on “Straw Men, Red Herrings, and Big Lies” and the comments attached so to really understand it all, you need to read that one too.)

(CONTINUED FROM PART 2)

The reasoning that Ellen and others follow arises, in part, from the Supreme Court opinion in U.S. v. Wong Kim Ark (1898).  As noted before, Wong Kim Ark was born in the United States in 1873. His parents were Chinese immigrants and permanent legal residents of the United States, but were not U.S. citizens. In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled, in a 6 to 2 decision, that Wong acquired U.S. citizenship at birth.  The opinion in that case read in part:

“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent[s] of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. (Horace Gray, Majority Opinion, U.S. v. Wong Kim Ark, 1898).”

Please note the carefully crafted wording in the decision and note it as much for what it does NOT say as for what it does.

• The Supreme Court did not rule that Wong was a natural born citizen.  It merely ruled that he was a citizen.
• The Court ruled that Wong was a citizen because, at the time of his birth, his parents had “permanent domicile and residence” in the United States and was “carrying on business” in the United States. President Obama’s father did not meet these conditions. He was not a permanent resident. He was visiting the U.S. temporarily, to obtain an American education.
• The Court mentioned that Wong’s parents were subject to the Burlingame-Seward Treaty of 1868 between China and the United States. That treaty contains an unusual provision, not found in other U.S. treaties, which grants Chinese immigrants the right to change their “home and allegiance”. Although permanently-resident Chinese immigrants were not permitted to become naturalized U.S. citizens, they had (at least in theory) the right to become “nationals” of the United States; and children born in the United States, of U.S. “nationals”, are citizens within the originally-intended meaning of the 14th Amendment (Objectively Gray). Obama’s father was not subject to any treaty which recognized a change of “home and allegiance” other than by naturalization.

In the majority opinion, Justice Horace Gray cited sources which seem to suggest natural born citizenship requires something more than birth on U.S. soil. For example, he quoted the following from Minor v. Happersett (1874):

“At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts.”  (Minor v. Happersett (1874), as quoted in U.S. v. Wong Kim Ark (1898))

 Justice Gray also quoted from an article, by Horace Binney, which used the term “natural born” in connection with a child of a U.S. citizen, but not in connection with a U.S.-born child of an alien. In Binney’s opinion, both children were U.S. citizens, but only the U.S.-born child of a citizen was labeled “natural born”:

The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. (Binney (2nd ed.), as quoted in U.S. v. Wong Kim Ark (1898))

The 14th Amendment theorists are quick to point out their interpretation of The Court’s Reasoning. i.e. that even though the Court did not hold (or rule) that natural born citizenship is determined by birthplace alone, Justice Gray’s reasoning seems to support that conclusion.

• Under English common law, all children born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects. According to Justice Gray, this English common law rule “continued to prevail” under the Constitution, suggesting that the jus soliprinciple of English common law controlled the Constitutional meaning of natural born citizen.
  • Justice Gray cited Lynch v. Clarke (1844), in which Vice Chancellor Sandford had ruled that Julia Lynch was a U.S. citizen at birth. Miss Lynch was born in New York, but at the time of her birth, her parents were not U.S. citizens. In his dicta, the Vice Chancellor expressed his opinion that Julia Lynch was a natural born citizen. (See Question 16: Julia Lynch)
  • Justice Gray also cited Circuit Court Justice Swayne’s opinion in United States v. Rhodes (1866). According to Justice Swayne, the term “natural-born citizen” should be interpreted and understood according to English common law: All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. … We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution. (Justice Swayne, as quoted by U.S. v. Wong Kim Ark, 1898)

As those familiar with the law know, often the dissenting opinion is as important as the ruling and frequently forms the basis for challenges and overturning of precedence.  In the dissenting opinion in U.S. v. Wong Kim Ark, Justice Fuller mentioned natural born citizenship:

Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not. (C.J. Fuller, Dissenting Opinion, U.S. v. Wong Kim Ark, 1898)

And from a legal and logical standpoint there are problems with Justice Gray’s reasoning in my opinion.  Among the facts directly opposing the Supreme Court’s reasoning in U.S. v. Wong Kim Ark:

• Justice Gray ignored (deemed “not admissible”) the transcripts of the 1866 congressional debates, which provided direct evidence as to the meaning of “jurisdiction” in the 14th Amendment;
• Justice Gray relied on an erroneous footnote in an article by Horace Binney;
• Justice Gray misrepresented four prior Supreme Court rulings, none of which supported his contention;
• Justice Gray ignored the fact that, in 18th-century English law, the terms “subject” and “citizen” were not synonymous — the manner in which one became an English subject by birth was not the same as the manner in which one became an English citizen by birth.

OK, so that is a pretty bold statement; for a layman observer to challenge a justice’s reasoning.  But we must never forget, at least until the present administration, it was the government who worked for us not the other way around.  The justices, just like representatives and the president, at least back int he day of this decision, worked for the people so the people have a right to question them.

(1) Justice gray ignored (deemed “not admissible”) the 1866 congressional debates:

In his written opinion, Justice Gray admitted that his understanding of the word “jurisdiction” in the 14th Amendment was based on presumption, not direct evidence. The transcripts of the 1866 congressional debates, in which the Framers clearly explained the meaning of “jurisdiction” in the 14th Amendment, were ruled “not admissible”.  What?  That was central to the case and it was inadmissible?

The words ‘in the United States, and subject to the jurisdiction thereof,’ in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment … as the equivalent of the words ‘within the limits and under the jurisdiction of the United States’… Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. (Wong Kim Ark, 1898).

The Supreme Court did not consider evidence showing that the intended meaning of “jurisdiction” was sole and complete jurisdiction, i.e., not subject to any foreign power. (For a discussion of the originally intended meaning of “jurisdiction” in the 14th Amendment, see Question 14: Jurisdiction).  This questioning of the ruling did not start with me by any means. According to the Federalist Blog, the Court’s refusal to consider such evidence was “inexcusable”:

“A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.” (Justice John Paul Stevens, as quoted by Madison(2006))

(2) Justice Gray’s reasoning relied on an erroneous footnote in an article by Horace Binney.  Ellen said I could not rely on as research by one writer (which I have not) but then used a quote of his against me.  Well she was right about having to check for consistency for reliance on writers and here is such an instance. There were three published editions of Horace Binney’s article, The Alienigenae of the United States and there were some substantive differences.  The first two editions were published in December 1853. The Third (Final) Edition was published in the American Law Register in February 1854.

All three editions cited the Naturalization Act of 1790, which states:

And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: (Naturalization Act of 1790; emphasis added).

Here is one big problem… In the first two editions of Binney’s article, the Naturalization Act of 1790 was quoted incorrectly:

[T]hat the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States shall be considered as natural born citizens — with a proviso, that the right of citizenship shall not descend to persons who had never been resident in the United States. (Misquote of Naturalization Act of 1790, in Binney (2nd ed.), p.21, emphasis added).

In the misquoted text, foreign-born children do not receive U.S. citizenship solely by descent from their parents. Rather, these children’s U.S. citizenship depends on their subsequent residence in the United States.  Based on the misquoted text, Binney added a footnote asserting that descent, by itself, is never sufficient to confer U.S. citizenship at birth:

The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle. (Binney (2nd ed.), footnote, p.22).

Justice Gray cited Binney’s footnote, both in the Opinion of the Court and in the Court’s ruling. But here is the problem, Binney’s footnote was factually incorrect, in large part because it was based on an incorrect quote of the 1790 Naturalization Act. In the final edition of Binney’s article, the 1790 Naturalization Act was quoted correctly and the footnote was deleted).

(3) Justice Gray misrepresented earlier Supreme Court rulings:

Justice Gray’s reasoning relied on four prior Supreme Court rulings:

• Inglis v. Trustees Of Sailor’s of Snug Harbor, 28 U.S. 99 (1830);
• Shanks v. Dupont, 28 U.S. 242 (1830);
• Levy v. McCartee, 31 U.S. 102, 109 (1832); and
• McCreery v. Somerville, 22 U.S. 354 (1824).

Justice Gray misrepresented all four of these rulings. None of them supports his contention (See Appendix 5: Wong Kim Ark reasoning).

(4) Justice gray ignored the fact that, in 18th-century England, the manner in which one became a “subject” by birth was not the same as the manner in which one became a “citizen” by birth.

Justice Gray quoted a North Carolina state supreme court opinion:

Before our Revolution, all free persons born within the dominions of the king of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. … Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European king to a free and sovereign state. … British subjects in North Carolina became North Carolina freemen; … and all free persons born within the state are born citizens of the state. … The term ‘citizen,’ as understood in our law, is precisely analogous to the term ‘subject’ in the common law, and the change of phrase has entirely resulted from the change of government.  The sovereignty has been transferred from the man to the collective body of the people; and he who before was a ‘subject of the king’ is now ‘a citizen of the state.’ (Justice Gaston, State v. Manuel (1838) 4 Dev. & b.20,24-26, as quoted in U.S. v. Wong Kim Ark).

When the thirteen colonies became independent states, some of them (including North Carolina) chose to base their citizenship laws on the jus soli principle of English common law. This choice was a matter of convenience. It was not dictated by English common law or convention.

(CONTINUED IN PART 4)

 

Citizenship Debate: Part 2

(This is actually Part 2 of a multi-part series.  Please scroll down (or link from the left panel) to read these posts in the proper sequence.  It all flows from a post on “Straw Men, Red Herrings, and Big Lies” and the comments attached so to really understand it all, you need to read that one too.)

(CONTINUED FROM THE Part 1)

Edwin Vieira, one of this nation’s leading Constitutional scholars, warns that issues of Presidential eligibility, if left unresolved, could become precedent and justification for unraveling Constitutional authority in the future:

There is a counter theory often called into play.  The so-called  “14th Amendment natural born citizen” theory asserts that the 14th Amendment conferred “natural born citizen” status to anyone born on American soil at the time of his birth. This theory appeared in Obama’s “Fight the Smears” website as follows:

“Lie: Obama Is Not a Natural Born Citizen. Truth: Senator Obama was born in Hawaii in 1961, after it became a state on August 21st, 1951. Obama became a [natural born] citizen at birth under the first section of the 14th Amendment. (Fight the Smears — June 2008)

“According to the “14th Amendment natural born citizen” theory, the 14th Amendment, ratified in 1868, implicitly redefined, or at least clarified, the meaning of “natural born citizen”; and under the new or clarified meaning, Barack Obama is a “natural born citizen” eligible to serve as president.”

The 14th Amendment Citizenship Clause states, as we noted above but which bears repeating here:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” (Constitution – Amendment 14)

As with all Constitutional rights and restrictions, a clue to understanding the true meaning can be found in the context of why the section or amendment was written.  The reason for this specific amendment was that before the 14th Amendment was enacted, each State had the right to determine the citizenship of children born within its borders. Confusion abounded because citizenship laws varied from State to State, but as a general rule, free white children born within a State (except the children of vagrants and foreign ambassadors) were, by State law, citizens of that State. Anyone who was born a citizen of any State was automatically a citizen of the United States.

The 14th Amendment Citizenship Clause defines a particular group of people, which we call the “14th Amendment Citizen,” or 14AC, class. This class consists of every person who was both:

• born or naturalized in the United States; and
• subject to U.S. jurisdiction at the time of his or her birth or naturalization.

The Citizenship Clause, in the 14th Amendment, says that all 14AC-class members are citizens. It does not say whether citizenship extends to anyone else [35]. The Citizenship Clause requires each State to recognize 14AC-class members as citizens. Each State retains the right to grant or deny citizenship to non-14AC-class members.

Further, the 14th Amendment mentions citizens. It does not mention natural born citizens. Nevertheless, 14th Amendment natural born citizen theory argues that the Citizenship Clause implies that a “natural born citizen” is anyone who is born in the United States and is subject to U.S. jurisdiction at the time of his or her birth.  But that meaning can be derived only out of context. Its point was specifically to justify the situation in the case of the current President.

Let us assume, to avoid other arguments, that Barack Obama was born in Hawaii, which was, in 1961, a part of the United States. His mother was a U.S. citizen; and his father, though not a U.S. citizen, was residing in the United States legally. Therefore, Barack Obama, at the time of his birth, was under the territorial and legal jurisdiction of the United States, and thus (according to the theory) met the requirements of natural born citizenship according to the 14th Amendment.

Three objections have been raised against this “14th Amendment natural born citizen” theory:

• It is not consistent with the meaning of “jurisdiction” as defined by the framers of the 14th Amendment.
• It is not consistent with the Supreme Court opinion in Marbury v. Madison (1803) regarding Constitutional interpretation.
• It is not consistent with Supreme Court statements implicitly rejecting the notion that the meaning of “natural born citizen” can be ascertained or derived from the 14th Amendment.

Since it is this 14th Amendment Theory that seems to be at the heart of the argument against my assertions about a distinction in citizenship, lets look at those objections a little closer to see if they have any validity.  The theorists would assert they do not, i would assert otherwise.

To understand it, all terms are important but several terms are critically important, among them the use of the tyerm “jurisdiction.”  it means more than just being in the territory governed by the U.S.  According to transcripts of the 1866 Congressional debates regarding the 14th Amendment, the word “jurisdiction”, as used in the 14th Amendment, means sole and complete U.S. jurisdiction, i.e., not subject to any foreign power.

President Obama publicly admits that his citizenship status at birth was “governed” by the laws of a foreign country (FactCheck.org, as quoted by Obama’s ‘Fight the Smears’ website).  Since his birth, in his own words, was not subject to sole and complete U.S. jurisdiction, President Obama does not qualify for citizenship under the 14th Amendment as explained and clarified in 1866 by the Framers of the 14th Amendment.

President Obama may have acquired U.S. citizenship, at birth, by modern-day statute, but he did not acquire U.S. citizenship from the 14th Amendment, according to its originally intended meaning.

This conclusion derives from a relevant argument in the landmark Marbury v. Madison (1803) case. The “14th Amendment natural born citizen” argument is not consistent with the Supreme Court’s opinion in Marbury v. Madison (1803). In that opinion, Chief Justice Marshall stated:

“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” (Marbury v. Madison, 1803)

All persons are subject to U.S. legal and territorial jurisdiction while they are in the United States. If the word “jurisdiction”, in the 14th Amendment, is interpreted to mean territorial and legal jurisdiction only, then all persons born or naturalized in the United States are automatically under U.S. jurisdiction at the time of their birth or naturalization. But logically and practically this would mean that the phrase, “subject to the jurisdiction thereof,” is superfluous and without effect.

In the Fourteenth Amendment, there are two requirements: birth or naturalization in the United States and within the jurisdiction of the United States. If all persons who are born in the United States were ipso facto born within its jurisdiction, then the jurisdiction clause would be rendered superfluous. But a singular requirement of a written constitution is that no interpretation can render any part of the constitution to be without force or meaning. (Erler, pp.191-192)

According to Chief Justice Marshall, we cannot interpret the Constitution in a manner that renders another portion of the Constitution to be without effect.

To address any idea that the Supreme Court has ruled despotiviely on this matter we only have to take them at their word.  In in doing so we see an Implicit Supreme Court rejection.  In Minor v Happersett (1874), the Supreme Court indicated that the meaning of “natural born citizen” is not found in the U.S. Constitution:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. (Minor v Happersett, 1874)

In 1898, the Supreme Court repeated the same point — that the meaning of “natural born citizen” cannot be determined from the U.S. Constitution alone:

The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” … The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. (U.S. v. Wong Kim Ark, 1898)

In Minor v. Happersett (1874) and in U.S. v. Wong Kim Ark (1898), the Supreme Court rejected the notion that the meaning of “natural born citizen” can be ascertained from the Constitution, without reference to sources outside the Constitution. The framers were consistent in their assertion that the reference for such things was Vattel.

Both cases, it must be noted, were decided after the 14th Amendment was ratified in 1868.  If the meaning of “natural born citizen” cannot be determined from the Constitution, it cannot then be determined from the 14th Amendment which is part of the Constitution.

In summary, the 14th Amendment does not explicitly say anything about the meaning of “natural born citizen”. The term “natural born citizen” does not appear anywhere in the 14th Amendment. The notion that the 14th Amendment implies that Barack Obama is a natural born citizen is not consistent with the originally-intended meaning of “jurisdiction” as used in the 14th Amendment, is not consistent with the Supreme Court opinion in Marbury v. Madison (1803), and is not consistent with Supreme Court opinions asserting that the meaning of “natural born citizen” is not found in the Constitution, hence is not found in the 14th Amendment.

And to add fuel to my premises that this is a debatable issues, in 1885, nearly two decades after the 14th Amendment was ratified, Thomas F. Bayard, while serving as the United States Secretary of State under President Grover Cleveland, ruled that the son of German immigrants, though born in the United States, was not a U.S. citizen as per the 14th Amendment. Since his parents were foreign citizens at the time of his birth, the boy was, at birth, “subject to a foreign power” and therefore “not subject to the jurisdiction of the United States” (The Nation, Vol.59, No.1521, August 23, 1894, p.134).

Then comes the already referenced case Ellen relies on so heavily.  In 1898, the Supreme Court, in U.S. v. Wong Kim Ark, ruled that Mr. Wong had acquired 14th Amendment citizenship at birth, even though his parents, at the time of his birth, were Chinese immigrants not citizens of the United States. Wong was born in the United States in 1873. The Birlingame-Seward Treaty of 1868, between China and the United States, was in effect at the time. Although it did not permit each country to naturalize the other country’s citizens, the treaty contained an unusual provision — not found in other U.S. treaties — recognizing “the inherent and inalienable right of man to change his home and allegiance”. By treaty, Wong’s parents, though not U.S. “citizens”, nevertheless qualified as U.S. “nationals”, owing allegiance to the U.S. exclusively and not owing allegiance to any foreign power according to the ruling.

But according to the framers of the 14th Amendment, sole and complete U.S. jurisdiction was a core requirement for 14th Amendment citizenship.  We have a clear historical precedence for this notion—our own American Indians.  The 14th Amendment granted citizenship to emancipated slaves and their descendants, because they were subject to sole and complete U.S. jurisdiction. Native American Indians, however, were subject to tribal jurisdiction, thus were not subject to sole and complete U.S. jurisdiction.  Consequently, the 14th Amendment did not grant citizenship to Native American Indians, even though they were, in nearly all cases, born in the United States.

On his web site, President Obama himself claims that his father was a British subject and that, in 1961, the citizenship status of children of British subjects was “governed” by the British Nationality Act of 1948. If Obama’s citizenship status at birth was “governed” by the laws of a foreign country, how could he, at birth, be subject to sole and complete U.S. jurisdiction as that term is properly defined?

In my opinion, the Wong Kim Ark decision does not make someone born in the same circumstances as our president a “natural Born Citizen” as required in the constitution to be eligible for the presidency.

The modern-day consensus opinion’s logic that Ellen relies on is this:

• When the U.S. Constitution was being written, anyone born in England or its colonies was a natural-born subject.
• The word “subject” in English law is precisely analogous to the word “citizen” in American law.

It therefore follows that anyone born in the United States is a natural born citizen.  But is that a supportable position?  Do, or rather did those words really mean that?  You’ll have to read the next part to find out.

(CONTINUED IN PART 3)

 

Citizenship Debate: Part 1

(This is actually Part 2 of a multi-part series.  Please scroll down (or link from the left panel) to read these posts in the proper sequence.  It all flows from a post on “Straw Men, Red Herrings, and Big Lies” and the comments attached so to really understand it all, you need to read that one too.)

(CONTINUED FROM THE INTRODUCTION)

OK, after the preamble in the first section (The Introduction), here is the situation in a nutshell.  Despite out of context quotes culled from decisions, dissentions, and general thoughts on the matter, when the Supreme Court (in 1898) liberalized U.S. citizenship at birth, it did not alter the meaning of natural born citizenship.

Here is the facts: to this day, the Supreme Court has never ruled directly and unequivocally that someone born in the U.S., of a non-citizen parent, is a natural born citizen. In fact, despite how those cherry picked quotes in the rebuttal to me might sound, throughout the history of this country, supreme court references to “natural born citizens” have consistently used the term only when actually referring to persons born on U.S. soil, to U.S.-citizen parents. For example:

• In Scott v. Sandford (1856), the Supreme Court called unexceptionable, the position that: “natural-born citizens are those born in the country of parents who are citizens” (Scott v. Sandford, 1856) (My italics for emphasis).
• In Minor v. Happersett (1874), the Supreme Court defined two classes of persons. The first class consisted of U.S.-born children of U.S.-citizen parents. The second class consisted of all other U.S.-born children. The Court used the term “natural born citizen” only in reference to members of the first class.
• In Kwock Jan Fat v. White (1920), the Supreme Court referred to Mr. Kwock as a natural born citizen. He was born in the United States. At the time of his birth, his father was a native-born American citizen, and his mother was a statutory citizen by marriage.
• In Perkins v. Elg(1939), the Supreme Court referred to Marie Elizabeth Elg as a natural born citizen. She was born in the United States. When she was born, her father was a U.S. citizen by naturalization, and her mother was a U.S. citizen by marriage.

But it does appear that there are references to a potential difference of opinion as to what might constitute a “Constitutional” natural born citizen and a “statutory” one.

Three years after the U.S. Constitution was adopted, Congress enacted the Naturalization Act of 1790. The Act granted U.S. citizenship, at birth, to foreign-born children of American parents and to the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States.  It said that they shall be considered as (my italics) natural born citizens.

Legal language is very specific and uses terms with great care and specificity.  And when the founding documents were being drafted, the framers made it clear in letters and other writing that they were keenly aware of the magnitude of what they were creating and had long, passionate debates over nearly every word in those documents to make sure they said exactly and precisely what they meant.  It was not an accident or ommision that resulting in saying the President had to be a natural born citizen but others needed only to be citizens.  Following Vattel’s writing closely, the terms, to them, were precise.

It is, therefore, very important to note that the 1790 Act did not say that foreign-born children of American parents are natural-born citizens. It merely said that such children shall be considered as natural born citizens.  For all practical purposes the law would draw no distinction except the Constitutional one regarding the President.

Why is that important to note?  In contrast, the 14th Amendment citizenship clause states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens…”.  Note that the wording does not say that such persons are considered as citizens or are declared to be citizens. Instead, the Amendment says that such persons are citizens.  And that has led to a question debated since then with various and sometimes contradictory conclusion.  The question is: is there a distinction between those individuals who actually “are” natural born citizens in fact as opposed to those individuals who are merely “considered as” or “deemed to be” natural born citizens by statute or law?

Before we dismiss such notions as simply semantic hairsplitting, we need to understand that such a distinction already existed in eighteenth-century English law. When aliens were naturalized by Parliament, they did not become natural-born subjects in any factual or literal sense. Instead, they were “taken and reputed” to be natural-born subjects.  Likewise, the Act of Anne did not say that foreign-born children of English fathers are natural-born subjects. The Act merely said that such children shall be “deemed and adjudged” to be natural-born.  In such documents precise language and words is critical; these were educated people and wrote – or left off – precisely what they intended.

The Act did not say or imply in any way that the foreign-born child of natural born parents … was himself a natural born subject. It said that he was to be “deemed and adjudged” to be such, albeit “to all intents, constructions and purposes whatsoever.”  In the statutory sense, therefore, all English subjects (except persons made denizens by the king) were called natural-born subjects. Naturalized subjects and foreign-born children of English fathers were deemed to be natural-born subjects by law. Likewise, in American law, all American citizens, regardless of whether they are naturalized or natural born, have the same rights.

But here is where the issue gets muddy.  There might be a Constitutional difference between naturalized citizens and natural born citizens, but there is no statutory difference between the two. In the statutory sense, all American citizens are considered the same as natural born citizens.  So does this settle the issue in Ellen’s favor?  Well. stick around to find out.

In any case, the Supreme Court long has rejected the notion that naturalized citizens may or should possess rights different from those of other citizens under the law: …

“[The naturalized citizen] is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.” (Craig v US — Ruling US Court of Appeals 10th Circuit, 2009). 

Now here you really need to carefully re-read that italicized clause again, “…except so far as the constitution makes the distinction.”  Because that is the crux of the whole debate here.  It is not whether ANY citizen, that is, an individual whose citizenship is derived in any fashion, is to be treated at law vis-a-vis their citizenship.  It is rather, does the Constitution allow one of those categories to become President to the exclusion of the others?  I think it does.  Since this is critical lets delve a little deeper.

For purposes of this discussion, the difference between Constitutional and statutory natural born citizens is defined as follows:

• “Constitutional natural born citizen” refers to the term “natural born citizen” in the context of presidential eligibility. It refers to the meaning of “natural born citizen” in the Constitution, whatever the Supreme Court ultimately decides such meaning to be but initially and until changed refers to an individual born to parents who are already citizens. (But the parents could have attained their citizenship via any lawful means.)
• “Statutory natural born citizen” refers to a person who is deemed to be a “natural born citizen” by someone’s understanding or interpretation of Federal or State law. Under English law, all English subjects (except denizens by royal charter) were natural-born subjects in the statutory sense. Likewise, since all American citizens have the same rights, all American citizens, including naturalized citizens, could be construed as statutory natural born citizens.

So what about today?  Currently, there is no Federal law that explicitly defines “natural born citizen” or explicitly confers “natural born citizenship” to anyone. However, the mainstream news media, based on the perspective evident in their articles and opinions, apparently understands and interprets Federal law as implicitly granting “natural born citizen” status to certain individuals at birth.  For our purposes of discussion however, and to make the distinction clear, if a person is deemed a “natural born citizen” pursuant to a statute, we refer to such person as a “statutory natural born citizen”.

A statutory natural born citizen, therefore, is not necessarily the same thing as a Constitutional natural born citizen.  Am I alone in creating this distinction?  No, I’m not.  The U.S. State Department itself warns against confusing the two concepts:

“…the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.” (U.S. Department of State Foreign Affairs Manual — 7 FAM 1130, page 9)

If we were to define “natural born citizen” to mean anyone who is a “citizen at birth”, our definition of “natural born citizen” would be statutory because it would depend on the statute or law which defines “citizen at birth”.  Under existing law, all children born in the United States (except the children of foreign diplomats) are “citizens at birth”. Therefore, under existing law, almost all children born in the U.S. — including children of illegal immigrants — could be regarded as statutory natural born citizens.

At least one lower-court judge has expressed his opinion that the US-born children of illegal-immigrant parents are “natural born citizens”.  But based on the State Department’s view we just noted above, his use of the term “natural born citizen” is statutory, not Constitutional.  For example below is an excerpt from that decision:

Petitioner, Sebastian Diaz-Salazar, entered the United States illegally in 1974 and has been living and working in Chicago since that time. … The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. (Diaz-Salazar v. I.N.S., 1983)

So if we take that wording as a quote out of the larger context, it appears to hold a position that is not accurate or not accepted by our own State Department.  That would have  raised a huge ruckus in 1983 so that simple interpretation has got to yield to a more complex one..

Because of the potential mess the granting of Constitutional Natural Born Citizenship could result in, such as electing a president whose true allegiances were to a foreign country, H.R.1940, also known as the Birthright Citizenship Act of 2007, would change the existing law so that it would no longer grant “citizenship at birth” to children of illegal immigrants.  If Congress were to pass H.R.1940, it would alter the meaning of “citizen at birth”, and therefore would alter our statutory definition of natural born citizen. If H.R.1940 were enacted, the U.S.-born children of illegal immigrants could no longer be regarded as statutory natural born citizens.  But this would take us into a completely different topic and issue.

Understandably, some Americans question the wisdom of “enforcing the law” and “upholding the Constitution” when the specific provision being upheld or enforced seems to be an antiquated technicality or goes against some policy they favor. In our present situation, the question is asked, as long as Barack Obama is doing his job as president, why should his parents’ citizenship matter?  Obama was elected president, not his parents. His parents passed away many years ago, so how is their citizenship relevant?  Is enforcing a parental citizenship requirement really worth the horrific political chaos and unimaginable governmental disruption that might result if Obama were found to be ineligible?

I would generally agree with that from a practical standpoint.  But to do so without an amendment to the constitution making it clearly OK, leaves us with one more incident where what is supposed to be our guiding document is simply ignored when it does not suit our desires. If the Constitution contains something that is no longer appropriate for modern-day society, the proper remedy is a Constitutional Amendment. If we want to be a nation that is ruled by law and the Constitution, we cannot simply dismiss Constitutional requirements, merely because they are inconvenient or we think they don’t matter anymore. If any one part of the Constitution doesn’t matter, why would any other part of the Constitution matter?

The Constitution affirms, defends and protects many of our rights — free speech, freedom of religion, privacy, trial by jury, and so on. If we say it’s okay to ignore the Constitution regarding one issue such as presidential eligibility, we open the door for someone else to say it’s okay to ignore the Constitution regarding our rights as citizens.

The original purpose of the “natural born citizen” provision was to protect the presidency from foreign influence. A President might pose a national security risk if she or he was born with foreign ties or allegiance.  When we decide, as a nation not as an individual, that such a risk is no longer valid then we ought to change the rules via an amendment.  It is an amendment which, depending on the actual wording, I might well vote for.  But until it is put before us and ratified, that is a moot point.

So lets get a little deeper into the history of these concepts.

(TO BE CONTINUED IN PART 2)