The Constitution’s Week in Review – 7 May 2016

The Constitution’s Week in Review – 7 May 2016

Article 2:  Qualifications of the President.

On Friday, April 29, The Arizona Republic newspaper posted in their online edition two opposing viewpoints on the question of Ted Cruz’ eligibility as president.  The opinion opposing Cruz’ eligibility,[1] by Scottsdale resident Alan Korwin, stakes its claim on Vattel’s Law of Nations, which, as I’ve discussed in previous posts is flimsy support, at best.  Yes the Framers esteemed Vattel’s book, but why would they turn to international law to define an entirely domestic issue, particularly when they had readily at hand a long-standing definition under British law?  Even though Korwin quotes from John Jay’s letter to Washington on avoiding “foreign influence” in the office, he fails to see the implications of Jay’s opinion.  If Jay’s opinion/letter provides the justification for using Vattel’s definition, it automatically excludes Jay’s three foreign-born children from eligibility, something it seems unlikely Jay would have intended.  “The idea that a court must speak because the Founders didn’t define the term is nonsense.”  No, Mr. Korwin, because the Founders (actually the Framers would be more precise) didn’t define the term, we, in this case the Courts, must.

The alternate view[2], by Anthony Gaughan, an associate professor of law at Drake University, takes the position that although Cruz was clearly a Canadian citizen at birth under Canadian law, he was equally an American citizen at birth under American law.  Gaughan fails to point out that Canada did not recognize dual citizenship at the time of Cruz’ birth, but this is immaterial, the U.S. did.  Gaughan notes that the First Congress defined the term (in the 1790 Naturalization Act, which he doesn’t name), but fails to point out that five years later the Fourth Congress amended the law and removed the reference to “natural-born citizen.”  If the First Congress defined “Natural Born Citizen” then the Fourth Congress undefined it.  Which must we believe?

So, understanding the need for short succinct “online-friendly” articles, in my opinion neither writer did a very good job of providing us a complete, compelling argument.   If Cruz is successful as the Republican nominee there will be a strong Democrat challenge that is certain to reach the Supreme Court, and then we’ll know what the phrase means – at least what it means today.

Article 2:  Abuse of Executive Power.

Hope you caught our discussion of the grounds for impeaching Barack Obama on Friday morning’s “We the People” show.  In case you didn’t, the podcast of the show should be posted sometime Monday.  This president is not going to be impeached, and he knows it.  The House is not going to impeach when they know in advance that the Senate is not going to convict, and they are not.  That shouldn’t dissuade us, however, from becoming as literate as possible on the subject.  Could you persuade an unbiased observer that the President has committed impeachable offenses?

While we’re on the subject of executive power abuse, Randy Barnett, author of “Our Republican Constitution,” published this short essay[3] on the separation of powers problem.

Article 5: Amending the Constitution.

Want to know how many times the states have applied to Congress for a convention under Article 5 to draft amendments to the Constitution?  A lot more than the 34 needed to require a convention.  Why hasn’t Congress called one?  Lists are kept here[4] and here[5] for your reading pleasure.

Of course we could just keep on keeping on, hoping that the next set of Congresspeople arrive in Washington D.C. with their clue bucket more full than the last bunch as to what the Supreme Court has done to the Constitution’s original limited powers.  Just saying.

Fourth or Fifth Amendment, You Decide:

Can a federal judge order someone[6] to place their finger on their iPhone and thus provide their fingerprint to unlock the device?  Does ordering this constitute an illegal search or does it violate your right not to “testify” against yourself?  Interesting question; let’s extend it to other examples.  Can the government compel you to unlock your safe in order to inspect its contents or must they be required to use their own means to gain access (lock-picker, explosives, etc)?  Can the government administer a “truth serum” to get you to reveal the location of your secret cache of survival supplies?

The California judge in the present case has precedent: two years ago, a federal judge in Virginia issued a similar order.[7]

I would be interested in hearing your thoughts on this.

Meanwhile, in the states:

You may recall my reporting not too long ago that the Chief Justice of the Alabama Supreme Court, Judge Roy Moore, had ordered Alabama judges to ignore the Supreme Court’s Obergefell v. Hodges ruling, which purported to make homosexual marriage “legal” in the United States.  Well, the homosexual lobby has had their revenge: Judge Moore has been suspended[8] pending an investigation of ethics complaints over his action.  The linked article contains an interesting photo: a protester holding up a sign saying that the judge’s job is to “uphold the law, not make it.”  The protester is seems to ignore the possibility that the Supreme Court did just that.

Upcoming Events:

Lessons in Liberty.  If you read Mr. VandHei’s criteria for a presidential candidate in the first article I linked to, you may have finished feeling “Isn’t there more we want in a president than that he or she ‘be authentic and capable of having a rolling, candid, transparent conversation with voters on social and conventional media?’”  On May 16th join us to hear Dr. Jim Davids speak on “Choosing Godly Representatives,” from 7-9pm at the Foundation for American Christian Education.  Attend in person or online.  $10 either way.  Register at

Constitution Seminar in Norfolk, VA.   Hampton Roads residents can learn what their Constitution says and means by coming to a CLI Saturday Seminar on 21 May sponsored by Concerned Veterans for America.  The seminar will be held from 8:30am-5:30pm (note new times) at the VFW Post 4809, 5728 Bartee St, Norfolk, VA 23502 (next to Military Circle Mall).  There is no charge for this event, but pre-registration is required through this Eventbrite link. Participants will receive a 150-page Student workbook, Pocket Constitution, and lunch.  There is no better deal around.  In an 1820 letter to William C. Jarvis, Thomas Jefferson wrote: “The people themselves,… their discretion [informed] by education, [are] the true corrective of abuses of constitutional power.”  This class will equip you to identify and correct those abuses.

Constitution Seminar in Williamsburg, VA.  Hampton Roads residents will have a second opportunity to learn what their Constitution says and means by coming to a CLI Saturday Seminar on 11 June in Williamsburg, VA.  The seminar will be held from 9:00am-6:00pm at a location to be announced shortly.  Participants receive a 150-page Student workbook, Pocket Constitution, lunch and a chance to win valuable door prizes.  The seminar will cost $40 per person, but registrations prior to 7 June receive a $10 discount.  Due to room size, this seminar is limited to 10 participants.  Pre-registration is required via email to:

Constituting America continues to post new essays in their 90-Day Challenge.  Hope you are enjoying this peak into American history. Friday’s essay looked at “Eugene Debs’ Socialism and the U. S. Constitution.”  Given the amazing popularity of Socialist Bernie Sanders, perhaps Americans need a lesson on this subject.

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