Thursday, March 26, 2015

Hillary's Twelve Dirty Words (or Phrases)


polarizing
calculating
disingenuous
insincere
ambitious
inevitable
entitled
overconfident
secretive
will do anything to win
represents the past
out of touch

I had thought that Hillary's calculating failure to admit to her secretive email server until reported in the New York Times, a paper that she would, undoubtedly, have thought she was entitled to some cover from, reflected her overconfident assumption that the Presidential mantle was inevitably hers. Her insincere comments following disclosure of the scandal reveal her continued belief that she will be carried on the pillowed berth on which the lap dance media had carried her during Bill's presidency. Some may now wonder whether the coziness of that relationship, a relationship that represents the past, the halcyon days of Clinton and oral sex in the Oval Office, will result in her actions being glossed by the media.

Apparently, despite a New York home, Hillary is so out of touch with New York and its paper that she thought she was entitled to win despite her disingenuous explanations for the server and the failure to provide access to all her emails. 

The question remains, for this polarizing figure in American politics, though what difference at this point does it make, is whether she is willing to do anything to win?

Abraham Lincoln: "C" List Speaker?

I hold a grudging admiration of Abraham Lincoln. His personal story inspires and amazes. A fitting emblem of a hardier time, he knew the cost of physical labor, the importance of self-improvement, and the value of reasoned explication of the principles to which he adhered. At the same time, he held an odious opinion regarding the ability of whites and blacks to co-exist. Worse, in pursuit of saving the Union, he undertook a regrettable assault on civil liberties, adopted a program of involuntary servitude, and sought to impose an unconstitutional income tax.

Still, this autodidact was a master rhetorician. Consider, for example the profundity of his 272 word address at the dedication of a battlefield cemetery at Gettysburg:




Lincoln was not the marquis speaker that day in Gettysburg. That honor feel to Edward Everett, a renowned American orator, Massachusetts governor, member of Congress, and President of Harvard University. His oration, which preceded Lincoln’s, extended two hours. Lincoln’s remarks, by contrast, extended two minutes. Everett recounted the battle of Gettysburg, illuminated its causes, costs, and consequences, and likened this act of State – the dedication of a national battlefield cemetery – to the solemn and somber honors by the Athenians to noble and honored war dead.


For all its force, emotion and power, Lincoln’s 272 words are, to this day, among the most recognized of public remarks. Brevity, however, was not his only rhetorical tool.

Lincoln, a lawyer, mastered facts, sifted principles, and spoke plainly. Among his extended speeches, his speech at the Cooper Institute in 1859 is my favorite. Lincoln’s address is often referred to as the Cooper Union address. It was one of a series sponsored by the Brooklyn, New York church of leading abolitionist Henry Ward Beecher. When Lincoln agreed to give a speech on the condition that it might be a political one, the Young Republicans of New York assumed sponsorship of the event and the venue was moved to the Cooper Institute.

In the Cooper Union address, line by line, precept by precept, Lincoln built a case that soundly and completely refuted the two year old decision of the Supreme Court in Dred Scott v. Sandford. In Dred Scott, the Supreme Court ruled that Congress lacked power under the Constitution to restrict slavery in the federal territories. Lincoln’s scholarly refutation built the case that the majority, at least, of the Framers of the Constitution expressly held the view that Congress would have power to regulate and restrict slave-holding in the territories.

But Lincoln did more than refute the contemptible Dred Scott decision (contemptible for its miasmic contention that blacks were not, nor could ever be, citizens within the meaning of that term as used in the Constitution). He set in sharp relief the severe conflict that would fulminate and then culminate in the War between the States:





Lincoln’s Cooper Union address, and others made on the same East Coast and New England tour, were the equivalent in Lincoln’s day to modern politicians’ trips to Iowa and New Hampshire. As it turns out, the October 1859 address likely set in motion Lincoln’s nomination as the Republican candidate for President.

In the immediate aftermath of the speech, a small scandal threatened.

It was alleged that Lincoln was paid to give the speech. In his correspondence, in fact, he acknowledges receiving the sum of Two Hundred Dollars for expenses and the like. By today’s standards, that seems a modest sum. Allowing for inflation and the change in the value of the dollar between 1859 and today, he received then the equivalent of about $5700.00 for the address (although, as it seems, he also made substantial inroads to the Republican nomination with the speech).

Imagine that! Fifty seven hundred dollars paid to host, and to hear from, an attorney not then leading in polling inside his own political party. Second-, even third-tier, colleges and universities could afford such a speaker. But with such a discount rate, such a speaker would likely have been priced out as insufficiently lucrative to be managed by any self-respecting speakers’ bureau, according to this post from Nick Morgan.

In fact, as it turns out, Lincoln’s $200.00/$5700.00 speech marks him as quite the piker. In contrast, according to this post, Bill and Hillary Clinton each price out at about $200,000.00 per speech. Another way to think about those numbers is their value in 1859 dollars. It turns out to be a less-than-flattering comparison for Mr. Lincoln. Lincoln speaks for $200.00; Bill and Hillary can only be had for about $7,000.00. Even a time-traveling Karl Rove, the Republican operative, would have drawn a more princely sum than Lincoln, his current draw of about $25,000.00 per speech would have cost $825.00 in 1859 dollars.

And there you have it. Whether tyrant, or savior of the Union … the Great Emancipator or jackbooted thug. The most polarizing and passionate and reasoned man of his, and of many other, generations, a C List speaker!

Monday, March 23, 2015

Vattelic Fetishism

As a lawyer with over quarter century experience in the practice of federal constitutional law, and nearly a decade teaching advanced constitutional law, I can tell you this truth: the outcome of cases can nearly perfectly be predicted by knowing what legal standard a court will apply to any particular question. Like a student writing the results of a lab experiment before, or without, actually conducting the experiment, the outcome of many cases is entirely predicated on the test adopted by the court deciding the case. For example, in cases alleging violations of the right to freedom of speech, when a court announces that the case is governed by the strict scrutiny standard, the chances are extremely good that a government injury to freedom of speech will be found. On the other hand, when the court states that it is applying the reasonableness test, the chances are very good that whatever government action is in dispute will not be found to violate the right.

It is really just that simple. We can tell where others will have us end up by paying attention to the path on which they invite us to walk. Reasoning through disputes over the eligibility of various candidates to be President of the United States is a like experience.

In one camp, relying on English common law, some will contend that a person is a natural born citizen if they are born on United States soil. In the other camp, relying on Emmerich Vattel’s Law of Nations, some will contend that a person born on United States soil is not a natural born citizen if the person’s father is not a citizen of the United States. As the birther movement waxed in the earlier days of the Obama administration, those that depended on the outcome promised by applying principles from the Law of Nations began the torturous work of reconstructing the American Constitution to suit their theories.

Vattel’s Law of Nations, an eighteenth-century treatise, has enjoyed something of a renaissance in the last six years. Not a broad one, across the Nation, the renaissance for this author came from one quarter, namely activists opposed to Barack Obama’s election to the presidency, whose opposition results from their view that Obama is ineligible because he is not a “natural born citizen.” I have discussed this constitutional prerequisite here, here and here. Those activists invoke Vattel because he espoused the principle of jus sanguinus, the rule that one takes the citizenship of one’s father, a principle they have concluded should govern determination of citizenship for the United States.

Invocation of Vattel’s work as a talismanic determiner of citizenship, however, falls flat. True, in the Law of Nations, Vattel states the principle of jus sanguinus. True, jus sanguinus makes the all important questions in deciding citizenship, who is your father and of nation is he a citizen? But, despite the value found by many of the framers in Vattel’s orderly explication of natural law, his views do not now, nor have they ever, governed the disposition of legal questions in the United States.

First, jus sanguinus is contrary to the rule of English common law. Under English common law, one’s standing within the civic community was determined by jus soli, which makes the all important question, not who is your father, but where were you born? (This fact is incontestable: English common law limited status as “natural born subjects” to those persons born on English soil. Parliament enacted statutes to extend that status to persons born away from England because that status was denied to them by common law.) The significance of the English common law approach, adopting jus soli, appears in the following paragraph.

Second, at independence, all thirteen original States of the union by their constitutions, statutes, or judicial decisions, adopted the body of English common law for the decision of legal questions. So called Reception Statutes accomplished the adoption of English common law. Here are the Reception Statutes, or Constitutional Reception Clauses, of Virginia, Delaware, New York, North Carolina, Pennsylvania and Massachusetts. Some in the “birther” movement contend that Vattel’s Law of Nations governs citizenship because it contains an early reference to “natural born citizens” and defines them according to jus sanguinus. They even bolster the claim with the assertion that America is not an English common law nation. That latter claim they bolster by quoting George Mason, who, in a rhetorical flourish made during the Virginia Ratification debates, denied that the common law of England was the common law of the newly independent States. Virginia, as the link provided above demonstrates, enacted a Reception Statute. Virginia, of course, was George Mason's home.


A distaste from Barack Obama does not warrant the flight of fancy required to impose Vattel’s continental views on these Englishmen who had just become the new Americans. Moreover, even were Vattel relevant at our founding, those who depend on him, and on jus sanguinus, fail to account for an intervening fact of constitutional dimensions: ratification of the Fourteenth Amendment. That amendment, a tonic to the erroneous Dred Scott v. Sandford decision, defined citizenship and, for the first time, ensconced a definition of “citizen” where neither Congress nor Vattelists can dislodge it with ease:  in the Constitution. Ultimately, it appears that insistence that Vattel’s views govern these issues for the American republic are mere obstinancy, and approaches fetishistic dimensions.

Saturday, March 21, 2015

Deuces Wild ... and Foreign Born Americans Too!

In 1790, Congress first exercised its constitutionally granted power to "establish a uniform rule of naturalization." Until Congress acted, from their independence in 1776, the thirteen original States each exercised independent power -- as any Nation might -- to provide rules for immigration and naturalization. Interestingly, when Congress adopted the Naturalization Act of 1790, it took three separate steps. First, it adopted a uniform rule for naturalization. Second, Congress conformed its new rule to existing State practices. Third, Congress adopted a rule defining certain offspring born abroad to American citizens as "natural born citizens."

That uniform rule for naturalization provided only that a person having resided two years in the United States, and proving that he is of good character, could apply thereon to a common law court, take an oath to support the Constitution of the United States, and he would, upon the court's grant of the application, be a citizen of the United States. Excepted from that broad and gracious rule of naturalization, the Act withheld citizenship from any person previously proscribed by a State from obtaining citizenship, except if they were allowed by an act of the legislature of the State that had refused their previous application. As for children born abroad being treated as natural born citizen, the Act provided, "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[.]"

Many of us, when young, learned a card game or two. If, like me, you played with other children whose logic failed them but who yearned for increased odds of winning, you probably have heard the refrain "deuces wild." In truly pathetic cases of illogic, you may have heard multiple cards name wild, not just deuces.  Only the dealer's call counted in that magical transformation. If, on examination of his dealt hand, your buddy, called out "deuces wild," it did not affect the rules, but it gave you a powerful hint about the card in his hand.

In cards, as a social convention, rules and variations are established by the house, or the dealer. If you do not like the called rules, you simply decline to ante up and sit out the hand.  Convention empowers the dealer. Convention allows the dealer to choose whether deuces are magically transformed into wild cards.  

So Congress, as I noted above, enacted the Naturalization Act of 1790. In doing so, Congress declared that offspring born abroad to American citizens were, nonetheless, "natural born citizens." That act, that fact, poses, rather than answers, important questions.

First, if "natural born citizen" status was conferred simply by the fact of one's parentage, then why was Congress compelled to provide such a clarification at all? 

Second, while convention permits the dealer to call the rules in a hand of cards, does a like convention authorize Congress to call "deuces wild," or, more properly, "citizens born abroad are natural born citizens?"

As to the former question, Congress was compelled to act because it was known and understood that a "natural born citizen" needs must have been born in the jurisdiction of the Nation. At the same time, denial of the status of one's offspring as "natural born citizens" might have deterred qualified citizens from engaging in foreign service or the development and enhancement of commercial relationships abroad. (Consider, for example, that John Jay's service to the Nation took Jay and his young family abroad, and that three of his six children were born in Europe.) But with this question openly stated, it becomes obvious that our national legislature was not of the view that one's status as a citizen, even one's status as a "natural born citizen," was a kind of civic genetic characteristic, capable of transmission by parentage.

As to the latter question, there is no convention empowering Congress alone to alter or amend the language of the Constitution. Yes, as Article V of the Constitution provides, Congress can propose amendments of the Constitution to the States for their consideration. The sole role of Congress in the Article V amendment process is the proposal of such amendments. Congress lacks an "imposition power" to unilaterally amend the Constitution. In the case of the 1790 Naturalization act, that imposition -- making foreign-born deuces wild -- exactly describes what Congress attempted ... and what neither convention nor the Constitution authorized Congress to do.

Imagine your reaction as a youth, when your buddy, now the dealer, dealt a hand of cards, and then, upon examining his own hand, called out, "deuces wild!" Now the system is playing being gamed to his advantage. Elementary fairness is breached. In the case of "natural born citizen" status, elemental constitutional fairness requires that the language of the Constitution -- not preferences personal or political -- should govern. Whether one disputes the eligibility of a Ted Cruz or a Barack Obama, the Constitution should still be trump.