Rob Schenck: The Armor of Light, or the Disarmer of Right

I haven't been invited to a screening. Nor have I been provided an advance review copy on DVD of the Disney documentary, "The Armor of Light."

These days -- when the choice is lights, water, food vs. movie tickets for a documentary that is, frankly, a preposterously stupid attack on good people exercising Godly discernment, well, I'm sticking with food, lights, water.

If Rev. Rob Schenck​ wants to send me a copy of his documentary, I'll provide an updated commentary. In the meantime, I'm simply going to respond to Rob's publicized comments on the topic.

To put things in perspective, I became acquainted with Rob and his identical twin brother, Paul, when I served as counsel for Operation Rescue back in 1992, when local abortion businesses sued for an injunction to prohibit the nonviolent antiabortion group from conducting sit-ins at Buffalo, New York, abortion stores. The Schenck brothers were, at the time, co-pastors of a Buffalo church.

I have assisted Schenck, his brother, Paul, and co-laborers of theirs, such as Reverend Patrick Mahoney​, in numerous matters.

Among those matters:

• I convinced the Marshal of the US Supreme Court to discontinue a long-standing practice of prohibiting small groups to pray on the Plaza at the Supreme Court. The Schencks and Mahoney would have the benefit of that decision from then to today, allowing them to gather and pray for the Court, its work, its justices, its decisions, annually on the National Day of Prayer. 

• When the District of Columbia threatened regulatory enforcement action after Faith and Action set up a Ten Commandments Monument in the front yard of the ministry's office across from the Supreme Court, I corresponded with the District and the threats were withdrawn.

• After a federal district court in the Schencks' hometown of Buffalo imposed speech restrictions on pro-life activists near abortion businesses in Western New York, I served as co-counsel in the matter, assisting them in both the US Court of Appeals and the Supreme Court in their challenges to those speech limitations. 

So, frankly, there is a history with Rob.

Not a deep one, as I had enjoyed, for example, with Pat Mahoney, who seemed to have me on speed dial to assist with legal aspects of pro-life and pro-religious liberty activism, but a history nonetheless.

Nothing about that history would have led me to anticipate Rob Schenck's Marcus Junius Brutus style knifing of pro-life Evangelical and Catholic Christians. Allow me to elucidate.

"Rob Schenck, long opposed to abortion, now opposes Christians owning guns"

That's what the lede screams in a recent Religion News Service article about Rob Schenck and the upcoming release of the new documentary. Of course, I would gladly welcome Rob's correction of this lede from the Religion News Service. Does he, in fact, oppose Christians owning guns?

If you have the chance to converse with Rob when he visits your church, you might ask him, "Do you oppose Christians owning guns?" That question, by the way, is one capable of a simple "yes" or "no" answer. Of course, the theology supporting his view, whatever it is, would be a welcome addition to any answer he might provide.

In that same Religion News Service article, Rob is either badly misquoted, or badly informed. 

Consider this assertion attributed to Rob, which he makes, apparently, when visiting churches to talk about the issue of gun violence:

Every person who carries in your congregation is prepared to kill someone today. Are you helping them with that decision as a Christian?

That is an ill presumption not formed well on the facts or informed well of the minds and hearts of those who go about bearing arms. Why does Schenck say that such people are going about "prepared to kill someone today"? How perverse that is to another truth, one that is actually informed by the thoughts and intents of good, but well-armed, people. That other truth is this: 

Every person who carries in your congregation is prepared to save lives today. Have you encouraged them in good work they are prepared to do?

Mere semantics?

Well, I suppose.

We could ask the millions killed by the Third Reich, who, unarmed, could not engage in the blessed ministry of life, saving others, themselves, women, children, the elderly, from savage brutality and murder. We could ask them but, alas, they are dead. Disarmed before the opportunity to engage in the life-saving ministry of the exercise of Godly discernment and Godly force, they cannot now tell us whether there is a difference between being prepared to go about killing and being prepared to go about saving lives.

Rob has had the opportunity to be challenged in his newly found views by others.

He says, "pro-life colleagues say to me, ‘More babies are aborted than adults are shot, so why are you taking this on?’” Well, no one has to be a one-note Johnny, so I suppose the question is a bit silly as stated. One can be working daily at their job, developing skills in their ministry, relating to family, friends, neighbors, and engaged in a host of other activities. So being criticized for "taking this issue on now" seems, at least to me, silly. You see, the problem is not Rob's timing. It's Rob's thinking.

He offered this explanation for taking the issue on:

“[E]very life is of equal value.” Well, at the level of generalities it is true enough. But the failure to recognize that a nine-year-old boy's life, taken in a murderous act in an urban alley, is of equal value to the gang-bangers, prevented the continuation in this life of Tyshawn Lee. So, honestly, it is an unhelpful truth to say that "every life is of equal value."

Indeed, Dietrich Bonhoeffer, the German theologian killed by the Nazis for his part in a plot to assassinate Hitler testifies contrarily. Bonhoeffer's actions testified that Hitler's life was not equal in value to the lives of Jews, Gypsies, the handicapped, the prisoners of war, and the millions of others that would continue to be killed by Hitler's blood feud against Europe. Bonhoeffer, no doubt, struggled in coming to his fatal conclusion, that Hitler's life was worth less.

Bonhoeffer might well be a kind of model for Rob, but the effect of that model is a mirror reverse. Bonhoeffer came to the crisis of Nazism's rise and dominance on the continent a pacifist. He left it a conspirator seeking the assassination of Hitler and the overthrow of the Nazi regime. Here is a brief excerpt from a wonderful National Review article, republished on the 70th anniversary of Bonhoeffer's excommunication and exultation to glory:

Bonhoeffer’s part in the conspiracy was to work with the Allied authorities, specifically the British, to obtain their assurance that they would negotiate a peace with the post-Hitler government. Unfortunately, British prime minister Winston Churchill had decided that for propaganda purposes his nation’s enemy had to be not just the Nazis but all Germans, and he refused to cooperate with the conspirators or even acknowledge them. Pres. Franklin Roosevelt did the same. That decision delayed the end of the Nazi regime and ultimately doomed the anti-Hitler forces within Germany. There were at least three major conspiracies working against Hitler at the time, and the membership of these groups was overwhelmingly Christian.

While involved in one of these conspiracies, Bonhoeffer wrote an extraordinary essay, “After Ten Years: A Reckoning Made at New Year 1943,” in which he summarized his thinking about Christian duty and reiterated his views on the real source of good works:

“Who stands fast? Only the man whose final standard is not his reason, his principles, his conscience, his freedom, or his virtue, but who is ready to sacrifice all this when he is called to obedient and responsible action in faith and in exclusive allegiance to God — the responsible man, who tries to make his whole life an answer to the question and call of God.”

Rob, as portrayed in the article, is fond of rephrasing well-known aphorisms in ways that impute ill intent and dark hearts to those who will bear arms. For example, there is a saying, "An armed society is a polite society." Rob's more loquacious restatement charges the circumstance with evil hearted darkness:

When people take a gun on their body, even if only to protect themselves and their loved ones, it changes the relationship you have with another human being because it suggests, at least, that if we find ourselves in conflict, you will be injured or die and I will survive and those are the terms of our relationship.

Really? So you support Trump, another supports Cruz. The resulting dinner table conflict will result in someone being wounded or killed? The hyperbole is great in this one. 

Why is Rob's take on conscientious gun ownership so disposed to perceive evil in the minds and hearts of gun owners? Why not say, instead, "When people are armed for self-defense and the defense of others, it assures those that are unable to do so that someone will stand for them when evil would strike at them?"

Oddly, Schenck serves as a religious liberties adviser to Jeb Bush's presidential campaign, a fact I became aware of when he published it on his Facebook account. No word whether the Bush campaign yet feels the need to distance itself from this new opponent of the natural right of self-defense. Remember, as Governor, Jeb Bush signed Florida's Stand Your Ground Law, the much-ballyhooed statute permitting the use of force, including lethal firearms,  Of course, the Bush campaign has other, more pressing worries, like whether it can survive to the primaries.

Schenck does seem intent on making a brouhaha about his views. That is evident from his decision to go on the offensive against the National Rifle Association. In the article, Schenck is noted to express "concern about how much the 5 million-member organization is shaping the[] mindset" of their evangelical Christian members. Speaking from both sides of his mouth, Schenck is quoted as saying, “I’m not anti-NRA” while criticizing NRA messages as "fostering a culture that suggests to people they can solve the problem of security threats to themselves and others by simply buying a gun and using it[.]"

It as this point in the article when bad exegesis of God's Word gets pressed into service to try and place Rob's views on a foundation of Holy Writ. Schenck invokes the incident during the Passion of Christ when Christ rebukes Peter for drawing a sword and using it to defend the Lord from capture. But Rob fails to address the unique character of the events of the Passion, and he neglects to balance that supposed doctrinal footing against other passages of the Bible in which God commands that plows be beaten into swords. Peter's natural response was unnatural in light of God's design. It is important to note, though, that Jesus didn't rebuke Peter for using the very same sword to protect women, infants, children from criminals or tyrants.

On one point, I can agree somewhat with Rob. He believes that many who are opposed to new restrictions on gun ownership and use are motivated by fear.

True enough.

I fear the moment when good people allow themselves to be disarmed, or worse, because of our republican form of government, order themselves to be disarmed. Doing so makes sheep of men, and strips families and communities of their nearest, natural (and therefore God-designed) defenders and protectors against crime and tyranny. Now we know that Rob is being half again too cute though in word choice and reasoning with this last point. He makes fear out as "a failure of faith, so it is a contradiction to the Christian life and message.” Yes, true enough. But that fear is the failure to place one's trust in God. Those who arm themselves because to do so is to keep tyranny and crime at bay do not go about in the faithless fear of the doubter. Rather they go about in the informed, reasoned understanding that broken man has seldom failed to plumb the depths of evil, and so to be armed is to be ready to prevent broken man from violating the image of God in others by heinous crimes and imperious interposition.

When Rob recently posted on Facebook that he had a "confession to make," I paid attention. I don't know Rob well. Perhaps he had one of the common garden variety vices? We had just then seen that R.C. Sproul got stepped back by the Board of Ligonier Ministries when he advised them that his email address would be revealed as part of the Ashley Madison email reveal. As it turned out, though he would not say anything about the relationship between his organization's financial need and his troubling decision to go to war with the Christian doctrine of justifiable force, his "confession" was one of pride. He stated that he had never asked for funding for Faith and Action, and had declined to do so because he enjoyed the appearance on not having to do so in order to survive as a ministry.

His decision to become an apologist for Christian disarmament, an apologist for a reckless, and unscriptural, view of self-defense and defense of others, and an antagonist within the pro-life movement, already often enough fractured, but now being fractured again by his taunt that one cannot be pro-life and pro-gun, these things, appear to be compelling Rob and his ministry to pay a financial exaction. Donations, according to the article, are down.

Not only are donations down, but, from appearances, his views have earned him some distance from pro-life leaders, and some admiration from rather strange bedfellows. Where Schenck's views opposing gun ownership were expressed, in the documentary, he is confronted by Troy Newman, of Operation Rescue, who rejects Schenck's take on the matter: “You’re afraid of firearms; I’m not.” On the other hand, an officer of the National Council of Churches, a liberal bastion, spoke glowingly of Rob's conscience-driven transformation: “I could see Rob was willing to go where his conscience was leading him even though this put him at a crossroads with his tribe. That’s one of the most difficult choices a person can make.”

Perhaps Rob's new course is fixed and unalterable. He is, however, a man, and unlike God, he can change. I hope that he does so, that he comes to his senses and turns from this unfortunate damaging dalliance with the notion that Christianity calls us to unilateral disarmament in the face of bullies and tyrants.

The Governors Do Well To Take a Stand ... Yet They Lack Power to Deny Refugees Admission to Their States

When the States created the federal government via the ratification of the United States Constitution, among the powers donated to the Congress was power to enforce the "Law of Nations."

The "Law of Nations" is a legal term of art. It refers to the customary body of laws governing relations between nations. Within the scope of the Law of Nations is the question of migration from and to other nations. Thus, whatever were the powers of the States prior to the ratification of the Constitution, with the ratification Congress received that power from the States.

So, it seems quite likely, for this reason, and no other, that the federal government -- Congress specifically -- decides the rules for immigration to the United States. Enforcement of such laws as Congress enacts regarding immigration is the duty of the Executive Branch. 

This conclusion is supported in the outcome of longstanding Supreme Court cases, although the reasoning of those cases has not looked to the Law of Nations power exclusively, and, unfortunately, has sometimes taken the view that regulating immigration is a power "inherent to our national sovereignty." That troubling formulation fails to accord respect to the role of the States in creating the federal government, and inquiring whether, and how, their original power over migration was transmitted to the federal government.

While the federal government has the power to regulate migration into the United States under the Law of Nations Enforcement Clause, the question of how to manage the current press to admit refugees from the Syrian crisis is not answered in the Constitution. Rather, the specifics of how to treat refugees is governed by federal statutes.

Under the 1980 Refugee Act, the Congress requires consultation with the States as to placement of refugees, but not approval. Settlement of refugees, however, does not mean that the States are obliged to provide material support and benefits to those refugees; in fact, federal funding is the carrot for the stick of placement. So, this administration should be consulting with the States, and this administration should give consideration to whether unwilling states are the best placement for refugees, if being so placed means not having access to federally funded support programs.

Long and short of it, the Governors are right to take a stand, but wrong to think that the Constitution grants them the power to enforce that stand to the complete exclusion of refugees into their States.

One further matter.

Because refugees are lawfully admitted to the United States, they enjoy the equal protection of the laws. That equal protection is guaranteed against federal violation by the implicit requirement of equal protection in the Due Process Clause of the Fifth Amendment, and by the express requirement of the Fourteenth Amendment's Equal Protection Clause.

Mizzou Cops: Be a Hero, Report Speech that Offends You

Don't like Christmas?

Sue your local town for their display. That'll teach them.

Don't like that Christian baker's stand on gay marriage?

Send a test couple in and have them try to order a gay wedding cake, then report their refusal to your local or state human rights commission. That'll teach them.

Don't like letters to your campus newspaper casting aspersions on the notion of "white privilege?"

Complain to your campus administration, see if you can get disciplinary action against a student that uses grade level appropriate vocabulary, writes in a style consistent with recognized rules of grammar, simply because of the idea he expresses, that "white privilege" is a fallacious narrative that dismisses the efforts of those who supposedly enjoy "white privilege" and ignores the failures of those who do not enjoy that same privilege to grapple with other causes of their underprivileged state (such as the fractured brokenness of families in certain ethnic groups).

This year does seem to be the climactic crescendo of butt-hurt gripery. 

And now, because nothing says "you've gone too far now" like calling out the goons, the campus doughnut gatherers at the University of Missouri are inviting students to report speech that is "hurtful" or "offensive."

Really?

Hey Captain Krispy Kreme, what about the First Amendment? 

What about its role in drawing lines between private speech and government actions responding to speech and speakers?

We may be witnessing one of those crystalizing moments in a culture, when it becomes clear that things cannot continue as they have been.

There are so many "disaffected" folks today. From those upset at the absence of decorations on cups to those upset when a false rape story is exposed as a false rape story to those upset when you white folk wonder just what the hell you're "white privilege" actually gets you, like if maybe you could use it to get a Frosty for free at Wendys.

The very popular meme, 2015, the year when everybody was offended by everything, pretty much tells the tale. Part of that reflects, I suspect, real instances of pain and hurt. I would think, for example, that joking about gas ovens would offend today's grand- and great-grandchildren of Holocaust victims and survivors, and intimidate them with the implication that the underlying Antisemitism of another era really went skin deep and not away. Still, in this country, the right to be unoffended is guaranteed by the right to move on down the road, use earplugs, avert your eyes, or stay away from offensive people. It is not protected by a right to have government agents and agencies threaten, coerce, or intimidate those who express offensive ideas.

You can get a perspective on why offensive speech is protected here. That's the ACLU's take on the subject. I think you're going to be hard-pressed to find "racists" in that lot. And their underlying point, that protecting offensive speech is necessary to the defense of all free speech, is, frankly, unimpeachable. A brief excerpt from that page is worth the read:

Where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech -- not less -- is the best revenge. This is particularly true at universities, whose mission is to facilitate learning through open debate and study, and to enlighten. Speech codes are not the way to go on campuses, where all views are entitled to be heard, explored, supported or refuted. Besides, when hate is out in the open, people can see the problem. Then they can organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance. 

Justice Oliver Wendell Holmes, in a fictional dialogue with a divinity student, said a thing that is startlingly true, as true now as when he wrote the words: "The very aim and end of our institutions is just this: that we may think what we like and say what we think."

Apparently not so, at least not so at the University of Missouri, or at least not so if the glazed crusaders of the campus succeed in settling a blanket of fear over the minds and mouths of students that otherwise ought to be engaging in lively exchanges of ideas and opinions on a public college campus.

This political correctness is more so a campus disease, although the pretenders to offense have been around for a long time and have, like Thomas Jefferson's "sappers and miners," been working away at the undermining of absolute liberty of speech and opinion. 

I suppose one explanation for the prevalence of such gripery on campus is the unfortunate convergence of the unformed minds of youth with the misformed minds of Prog-Libs. In any event, as this report from FIRE, the Foundation for Individual Rights in Education, demonstrates, the problem of coercive speech codes is real, and, unfortunately spreading. 

The tale of the abuse of Mike Adams, a professor at the University of North Carolina-Wilmington (my college alma mater, no less) illustrates how Prog-Libs work to eliminate competing voices and ideas. Here's a link where you can follow his story, one in which he ultimately prevailed over UNC-W. Professor Adams enjoys pretty good ratings from his students (as evidenced by his RateMyProfessor page here). And he's had a resurgence in news coverage due to an EPIC introductory lecture in which he questions the mental capacity of individuals that reach such conclusions as finding an Establishment Clause violation in the paraphrasing of the Declaration of Independence.

I admit entertaining a perverse hope that some sugar addled Campus Blart responds to a report of speech hurt by overstepping her boundaries and arresting some misguided Republican or Libertarian, some benighted soul suffering under a delusion that the public university of their State was set up for the education of all, rather than the education of preferred opinion-holders. And then, when that happens, I hope the poor student drops a dime on the cop and gets some quality legal representation to sue her jelly donut laden butt into the poor house.

In the meantime, it's time for folks to call these speech codes and their fans what they are: illiberal policies enforced by thin skinned tyrants.

Starbucks Ain't No Thing ... Try My White Families Line of Kwaanza Cards

The Starbucks thing is just that ... a thing. I say let it go.

But, at the same time, I've been thinking of designing some softer approaches to the favored holidays of other religions and groups:

My "White Families" line of Kwaanza cards

My "You Missed the Messiah 2000 Years Ago" Line of Rosh Hoshanna Cards

My "Here's a Photograph of an Atheist Burning in Hell" Greeting Card

My "No Monarch But Me" Line of Birthday Cards for the Queen's Birthday

My "We Never Should Have Declared Independence" line of fireworks (all duds)

My "I'm Feeling Ambivalent" Line of Valentine's Chocolates

My disposable place settings, when you are fairly certain the wedding you've been invited to won't be too far separated in time from someone's visit to divorce court

My "Hey Redskins Fans, If You Want a Superbowl Franchise, Switch Your Allegiance" T-Shirts

Message me if you would like to make a purchase!

A Sometime Fallacy: "If You Don't Like [Fill In The Blank], Don't [Fill In The Blank]"

"If you don't like ... don't ..." is a form of reasoning I see in social media outlets fairly often. 

I see where it has a certain appeal. After all, our preferences can often be respected simply by the common sense of skipping our dislikes and serving our likes. 

Here's an example: 

If you don't like grapefruit juice, don't drink it.

Okay, that works. 

I don't drink beverages that I do not like. Apple cider vinegar, for example, a legendary cure for many ills (according to Mother Earth News, at least), is something that tastes nasty to me, even when watered down substantially. So I don't drink apple cider vinegar. No harm to others, no foul.

Does this reasoning always work?

Let's try another one.

If you don't like pencils, don't use one. Okay, that works too, at least to the point that if what I don't like is using a pencil. But what if what I don't like is having to read things written in pencil? Then it would be more like this: If you don't like reading pencil writing, don't read pencil writing. 

Still, that seems okay. 

There is, however, a problem with that approach. My preference begins to impact interrelationships between me and others. 

For example, a child completes a homework assignment in pencil; the parent requires the child to redo the homework in pen, "I don't like reading pencil writing, so redo your homework." That works too. Except when the child states, "Dad, the teacher said we aren't allowed to turn our homework in written with pen." Now, for the simplistic "if you don't ... don't ..." to work, we have to concede that it is acceptable to impose our preferences on others.

Here's yet another example of how the reasoning breaks down.

We used to live near Bardstown, Kentucky. That town is the home of Maker's Mark. You know, the bourbon with the waxy red seal? If you don't like Maker's Mark, don't drink it! Okay, that works. But what if what is going on is that you don't like the smell of sour mash which is part of the distilling process? It hangs low on the community for weeks and weeks at a time. "If you don't like the smell of sour mash, don't smell it?" Excuse me? Do you mean don't breathe?

Ultimately, many of the "If you don't ... don't ..." formulations simply evanesce like a vapor when held up to thoughtful analysis.

Why?

Maybe John Dunne had the answer?

In one of his best known poems, he wrote, "no man is an island, Entire of itself." In that view of things, the choices we make, or do not make, the preferences we serve or ignore, all these things touch more than us each alone.

Now, in the light of the liberty I value, I recognize that each other must be allowed that same liberty that I prize for myself.

"If I don't like drinking beer, I won't drink beer" works well, but if I embody my dislike for the taste of beer in a rule that none may drink beer, none may brew beer, none may sell or serve it, then I have embodied the notion of my liberty in a mallet with which my own liberties may be savaged. So there is a limit to be discovered in the enjoyment of my liberty if my liberty is to be preserved.

Sometimes that limit is expressed in the none-too-blunt, "your right to swing your fist ends at my nose." So we constrain the "If you don't like getting punched in the nose, don't get punched in the nose" contention with this better rule, "Don't punch people in the nose."

Now, to the point of it all.

Mixed in with the "if you don't like ... don't ..." litany is this little ditty:

"If you don't like abortion, don't have one."

That reasoning works very well.

So long as an abortion consists on a non-Donne-ian act, one that is truly an island to itself, then simply foregoing the disliked abortion is a good way to allocate and preserve liberty.

But what if abortion is not an act that consists of one person, like an island, taking an act that affects only their interest? What if the abortion act is more like the great, dreaded, "Big one" in which the San Andreas fault rips California  from its moorings and sends millions into the Pacific?

In other words, what if abortion KILLS someone other than the woman having the abortion, or maims but doesn't kill them? What if, as much as abortion supporters hate this idea, what if abortion ends the life of a human person?

Then, if that is the case, saying "if you don't like ... don't ...." makes as much sense as saying "If you don't like rape, don't rape." The problem with the approach is that, apparently, rapists either like raping, or they rape despite their revulsion to the act.

So, thank you for reading this far. 

Thank you for thinking about what goes into maintaining liberty. Thank you for entertaining the possibility that some things that are dressed in the clothes of liberty are, in fact, kinds of tyranny that actually would prefer to eat liberty for breakfast and pass it through their bowels like a hot, steaming pile, than actually surrender preference to principle.

Here's Donne's complete poem. Your reward for sticking this one out to the end:

No man is an island,
Entire of itself,
Every man is a piece of the continent,
A part of the main.
If a clod be washed away by the sea,
Europe is the less.
As well as if a promontory were.
As well as if a manor of thy friend's
Or of thine own were:
Any man's death diminishes me,
Because I am involved in mankind,
And therefore never send to know for whom the bell tolls;
It tolls for thee.

Sam, A Natural Born Catizen, for President?

Our recently deceased cat, Sam, came to me in a dream last night after the Republican debate. It was a joyful if surprising reunion. Recent news stories portraying cats as neurotic would-be murderers clearly came out of the canine community. Sam, though undeniably a fierce hunter, was a dignified and gentlemanly member of our family.

Sam quickly threw me for a loop.

“Jim,” he spoke, “I need your support in the Republican presidential primary, can I count on you?”

“I had no idea you were running,” I told him.

“Why, because I am a feline-American?” he hissed at me.

Clearly, I was on dangerous ground with my old buddy.

“Sam, you know, as a black man,” I reminded him, “I can be neither prejudiced nor speciest.”

“What then?” he retorted.  As he did, his posture shifted to that familiar low-slung threat posture of the hunting cat.

With trepidation, and as matter-of-factly as I could manage, I said “well, Sam, old friend, you are dead!”

“And?” he replied.

I looked down, worrying that he might see my incredulity at the whole prospect of a ghost running for, let alone winning, the Republican nomination for the presidency.

Pausing for a moment, I considered how to explain the Sam that he really was not eligible to be elected president, and how to do it without being mean or ugly, and certainly without stepping on his toes, err, claws.

I could, I thought, take an indirect route.

I could paint a portrait of service as president in such a light that Sam would see that it was not something in which he was truly interested. The long hours, the handshaking, the baby kissing, the endless fundraising, the mundane tasks of the presidency would eat into the normal routine of one who enjoyed lounging on the back of the couch, there basking in the sunlight coming through a window, or chasing the occasional mice, birds, or squirrels, or staring longingly at the cat food bag. Being indirect had its advantages, especially when the person, err, cat to whom I was speaking came equipped with a sharp set of claws.

Still, while cats may creep in on soft paws, I preferred the direct route.

“Sam, what is the point of running for the office of president if you’re not eligible to be elected to it? As strange as it may seem to you,” I told him, “although there are very few legal requirements to be eligible for the office of president, the truth is that you probably do not satisfy one of the requirements, perhaps more than one.”

At this point, Sam was licking his paws and using his moist paws to groom his face. He paused, “go ahead, do tell.”

“It’s like this, Sam,” I said, reaching back into my memory of the Constitution, “to be eligible to be elected president, the US Constitution sets a small number of qualifications.”

My ethereal visitor stretched, as felines do, pawed the couch cushion on which he sat, as though he were kneading dough, then, settling down, simply said, “Proceed.”

“Article II of the Constitution creates the Executive Branch of the federal government. By executive, the Constitution means that part of the government that actually executes or carries out the laws.”

“Jim,” he snapped, “I’m not a school kid, get to the meat of it, and quick, because I’ve shortly got to go get to the meat of a bird!”

“Very well,” I responded, “in Article II, the Constitution has one clause, the Presidential Eligibility Clause, which sets the qualifications necessary to be elected president. It says,” and here I recited as best I could from memory:

“No person except a natural born citizen, or a citizen ofthe United States, at the time of the adoption of this Constitution, shall beeligible to the office of President; neither shall any person be eligible tothat office who shall not have attained to the age of thirty five years, andbeen fourteen Years a resident within the United States.”

“So,” I resumed with my explication of the text, “you have to be a natural born citizen, you have to be at least 35 years old, and you have to have resided in the United States for the previous fourteen years at the time of the election.”

Sam eyed me, quizzically. He harrumphed.

“Well, I was born in the Commonwealth of Virginia,” he reminded me.

(Sam was part of our family from about a year after his birth. He was, as I wrote in a previous post, A King Among Cats. While he had not previously told me where in the Washington metro area he was born, I always assumed he was a native Virginian.)

I could see where this line of thinking of his was leading.

“Sam, no doubt you were born in Virginia,” I assured him, “but it takes more than being born in Virginia to be a natural born citizen. You have to be a person.”

He interrupted me, “I thought you said you weren’t speciest?”

“It’s the Constitution, Sam, not me,” I replied apologetically.

He countered, “Is that the same Constitution that, according to the Supreme Court, considered black people like you to be chattels, property, and not persons?”

Obviously, Sam had been listening to my musings over the years, and knew my constant criticism of the Court for its oftentimes purposive misinterpretation of the Constitution. He had found my weakness, or at least my soft spot.

“Well, yes, it is. But the fault there was the Supreme Court’s, not the Constitution’s, and as so many for so long had behaved as though the Constitution was a blank slate on which creative justices were entitled, as justices, to write their preferred meanings of the words, rather than to apply the words with their common meanings.”

“I remember you saying once that one the justices had claimed that rivers, trees, streams and such should be treated as persons. Why would you think that a tree is a person, when it isn’t even a fellow member of the animal kingdom like you and me, and that we cats couldn’t be persons too?”

“Sam, you remember what I said then, if you remember me talking about Justice Douglas and his dissenting opinion in the Sierra Club v. Morton case.” I continued, “Justice Douglas was simply ignoring the plain meaning of the words of the Constitution, perhaps it was just an aspect of his advancing age and confusion, or, perhaps, he fell under the delusion of folks who thought trees were persons but babies before birth were not. In any event, his argument was made in a dissenting opinion because no other justice on the Supreme Court has ever claimed that non-humans could be persons.”

“Well,” he retorted, “at least you admit that a Supreme Court justice agrees with me. What’s the rest of your poor argument?”

I knew the rest of this conversation would not go well.

“As I said,” continuing my explanation, “to be eligible you have to be a ‘natural born citizen’ and the Constitution has always been understood to exclude any candidate from that category that is not a ‘human’ person. But you have to be more than a person, and more than just a citizen. You have to be a ‘natural born citizen’ to be eligible.”

Apparently that distinction caught his attention, “What’s the difference between a ‘citizen’ and a ‘natural born citizen?’”

“Exactly the right question, Sam!” I showed my excitement at his reasoning through things.

“A citizen of a country is a person, a human, that owes duties to that country and that enjoys rights and privileges not available to those who are not citizens,” recalling the things I wrote about citizenship in another post. 

“But the Constitution uses both the word ‘citizens’ and the phrase ‘natural born citizen’ so we have to be sure we understand each word and whether there are differences.”

He nodded encouragingly, so I continued.

“’Natural born citizen’ appears just once in the Constitution, in that presidential eligibility clause,” I winced a bit as he had his fun scratching me with his claws, “and nothing in that part of the Constitution defines ‘natural,’ ‘born,’ or ‘citizen,’ or ‘natural born citizen.’”

“If the words are not defined,” he posed the question, “why can’t they mean whatever they need to mean in order for me to be eligible to be elected President?”

“Because,” I tartly replied, “you, Sam, are no Humpty Dumpty and the Constitution is not ‘Through the Looking Glass!’”

“So, as you can see, there are actually two kind of citizens in the Constitution. One kind of citizen is a natural born citizen, the other kind of citizen is a not a natural born citizen.”

At that point, Sam pushed his head under my hand. I'd almost forgotten how much he enjoyed having his forehead and chin scratched. I began to work gently on it.

“Well Jim,” he asked, “What's the difference?”

“The difference, Sam” I explained, “is that some persons are born as citizens of a country, while others become citizens by operation of a law. Persons who are born citizens of a country are ‘natural born citizens.’ Others, immigrants to the land, for example, apply for citizenship through a process called ‘naturalization.’”

“You see, before the Constitution, each of the 13 states had their own power to make citizens out of persons who were not yet citizens.”

At that point, Sam jerked his head up against my hand, “There you go with that person thing again.”

“I’m sorry, Sam.”

I continued, “In any event those who came to one of the states prior to the adoption of the Constitution could become citizens through the state law process for that state. With the adoption of the Constitution, the process for becoming a citizen was subject to change. The Constitution assigned to the Congress power to provide a uniform rule for naturalization.”

“In fact, after the Constitution was ratified, among its first acts, Congress passed the first Naturalization Act. The Constitution did not define ‘natural born citizen’ but, honestly, a definition for citizen was not needed. Because the meaning of ‘citizen’ was clear, and the phrase ‘natural born’ was readily understood to mean ‘one that was born in the country as a citizen, one who owes special duties to the country and who enjoys special status or privilege within the country, was the understood meaning of that term in the Constitution.’”

“So the Constitution gave to the Congress no power to define citizenship. It gave only the power to Congress to provide a uniform rule for becoming a citizen, ‘naturalization.’”

“So, some people are citizens because they are born here. Becoming a citizen by birth within it is an effect of our legal descent from England. At the time of our revolution, in England, everyone born within the United Kingdom was considered a subject of the crown. Our revolution from England did not have to do so much with our dislike for, or intolerance of English law, but with our rejection of the tyrannical application of it to Englishmen living in the colonies. So, when the colonies separated from England, and asserted their own separate station as nations, one of the first legal acts of those new nation-States was to adopt English law as the body of law for each of the States.”

“I don't want to get too deep in the weeds, Sam, but at that time, this legal principle – jus soli – governed citizenship by birth in England, and in the United States. Some other nations took a different approach. They followed a rule called ‘jus sanguinis.’ Under ‘jus sanguinis,’ a person, when born, took the same citizenship as their parents. Neither England nor the United States ever followed jus sanguinis.”

“So, when the Constitution said that to be elected president one had to be a ‘natural born citizen,’ it was making clear that while there were both ‘born citizens’ and ‘naturalized citizens’ only a ‘natural born citizen,’ that is born here in the United States, enjoys the special status of eligibility to be elected president.”

“You see, Sam, if the only issue of eligibility for you was whether you were born here, you would be eligible to be elected president. That other matter, though, the fact that the term ‘citizen’ is limited to ‘person,’ pretty much puts the kibosh on your eligibility.”

“Once again with the speciest dominance,” Sam retorted. “I can’t count on four paws the number of times I have heard you talk about the Dred Scott case, where the Supreme Court ruled that blacks were not, could never be, ‘persons.’ You’re an attorney, and a constitutional law attorney at that, couldn’t you file a lawsuit to get a decision that I am a natural born feline citizen?”

“Alas, Sam,” thinking that I might not dissuade him from his pipe dream, “it took a Civil War, nearly a half million dead, and 80 billion dollars of war-making expense to get to the point where the Nation rose up and reversed Dred Scott by adopting the Fourteenth Amendment. I suspect we aren’t ready in this country to fight a costly, deadly war to win you status as a feline-citizen. Perhaps PETA would take on the case?”

“In any event, friend, the other eligibility conditions present problems for you.”

“How so,” Sam asked me.

 "Well, Sam, under the Eligibility Clause, you have to be at least 35 years old and you have to have resided in United States for the previous 14 years. By my best reckoning, you were about 11 years old when you passed away. That means  you would not have been 35 years old nor would you have lived in the United States for the previous 14 years.”

“Now just a doggone minute,” Sam interrupted me, “you know, and I know, that cats age differently than humans. In fact, you say I was 11 years old but most feline experts agree that I was 15 by my first ‘human’ birthday, 25 by my second ‘human’ birthday, and had reached the human equivalent of 60 years of age at the time I turned 11 in human years.”

“I have another bone to pick with you,” Sam continued.

“Didn't you say that, to be eligible to be President, a person had to be a ‘natural born citizen’ of the United States? And didn't you say that to be a ‘natural born citizen’ of the United States one had to be born in the United States?”

“Certainly,” I replied.

“But there is a Republican candidate for the nomination who was not born in the United States. Why is he eligible to be elected president and I am NOT?”

“You're referring to Ted Cruz,” I said, “in my book, Ted Cruz would make an excellent president, but, like you, he is not eligible to be elected, at least not according to my understanding of the Constitution.”

“This is a long-running dispute that I have had with those who say that Ted Cruz is eligible to be elected president. Ted was born in Canada. By Canadian law, Ted Cruz was born a citizen of Canada. Canada, like the United States, is a nation whose laws were based on English common law. Unlike the USA, Canada continues its close relationship with the United Kingdomas part of the Commonwealth of Nations. A person born in Canada, is, by Canadian law, a citizen of Canada and also a subject of the crown of England.”

“Well then, Jim,” Sam again interrupted, “why is Ted allowed to run and I am NOT?”

“Sam, remember when I said that the Constitution grants to the Congress the power to make a uniform rule for naturalization? All the way back to the first Naturalization Act and coming forward, Congress has asserted a power to grant ‘natural born citizen’ status to persons born outside of the United States under certain conditions.”

“This explanation may be a little convoluted, but let me put it this way:  In England, under the common law, every person born within the boundaries of the kingdom was a subject of the crown, what we would call a ‘citizen.’ There was one exception to that rule: children born to foreign emissaries - - representatives from foreign countries serving their country in England - - were not considered citizens or subjects of the Crown.”

“That special rule reflected international law and international legal principles that were necessary to allow a system of international diplomacy.”

Sam stretched again. I considered that I might be losing his attention but continued, “Here's an example.”

“Suppose the government of France, under King Louis, sent an ambassador to England. The Ambassador brings his family with him. While serving France in England, the French ambassador’s wife gives birth to a son. Under English law, absent the exception, the Ambassador now has an English son, and the English Crown has a new subject, and the French Crown has an ambassador with a foreign son. So the principle developed, that children born to foreign emissaries on duty in another country did not have the citizenship of the nation in which they were born. Instead, they had the citizenship of their parents’ home nation.”

“Jim,” Sam interrupted again, “that doesn't explain why Ted Cruz is eligible to run for president and I am NOT. Was one of Ted parents an ambassador to Canada?”

“No, you're right, Sam,” I said. “That doesn't explain how Ted is eligible, and no, neither of his parents were ambassadors to Canada. In fact, Ted’s mother was a US citizen; his father was an expatriate citizen of Cuba. Under the jus soli rule I mentioned before, Ted clearly would not qualify as a ‘natural born citizen.’ Instead, today, and at the time of Ted Cruz birth in Canada, to the Naturalization Act provides that certain children born outside the USA to certain citizens of the United States are citizens at birth.”

“When Congress passed the Naturalization Act, as I said, they were exercising the Naturalization power. The first Naturalization Act expressly provided that persons born abroad to certain US citizens would be ‘natural born citizens’ of the United States. Congress subsequently repealed that act, and never again included such a provision in future versions of the Naturalization Act.“

“Just a second, Jim,” Sam snapped, “you said ‘naturalization’ made people who weren’t citizens into citizens. If Congress used its naturalization power to pass the Naturalization Act and included in the Act a section making some people born outside the United States citizens at birth, then wouldn’t those persons actually be ‘naturalized citizens?’”

“And that, Sam, is exactly why Ted isn’t eligible to be president, much as I like the man, his character, and his policies.”

Suddenly Sam stood. He turned and turned, rubbing his side against my leg. Then he turned and looked up at me, “Jim,” he said, “I wonder if you would mind helping me draft a press release? I think I’m going to withdraw from the race.”

“My pleasure, Sam,” I said, petting his head as he faded into memory, “my pleasure entirely.”