No Surprise Here: New York City Drops a Deuce on the First ... Amendment

So New York City has decided to loosen its belt, drops its trousers, and drop a big old steaming pile on the First Amendment. They're threatening huge fines for businesses that refer to individuals by pronouns other than "pronouns of preference."

Lest the gentle reader conclude that I am on a jaunt of mere hyperbole, I quote here from the official website of the Mayor of New York. The website page contains a press release announcing the Human Rights Commission's strengthened regulations.

NYC Commission on Human Rights Announces Strong Protections for City's Transgender and Gender Non-Conforming Communities in Housing, Employment and Public Space

December 21, 2015 

Commission releases new guidance on gender identity and gender expression protections under New York City’s Human Rights Law to provide explicit examples to employers, landlords, business owners, and the general public on what the City considers discrimination under the lawGuidance protects rights of all New Yorkers by stating that enforcing dress codes, uniforms, and grooming standards that impose different requirements based on sex or gender may be a violation of the law 

NEW YORK—Today, the New York City Commission on Human Rights released new guidance that makes clear what constitutes gender identity and gender expression discrimination under the NYC Human Rights Law, making it one of the strongest in the nation in protecting the rights of transgender and gender non-conforming individuals. Although discrimination based on gender identity and expression has been illegal under the City’s law since 2002, previous guidelines never articulated the range of violations of the law. Today’s guidance provides bold and explicit examples of violations, sending a clear message to employers, landlords, business owners, and the general public what the City considers to be discrimination under the law. The guidance also offers best practices on how stakeholders can comply with the law. 

“New York has always been a diverse and welcoming city and our laws are designed to protect every New Yorker, regardless of their gender identity,” said Mayor Bill de Blasio. “Today’s new guidelines strengthen those laws by ensuring that every transgender and gender non-conforming person in New York receives the dignity and respect they deserve. I look forward to working with Commissioner Malalis and other stakeholders to continue enhancing protections for our city’s most vulnerable.” 

“Far too often, transgender and gender non-conforming individuals suffer discrimination, harassment, and violence on a scale many cannot imagine,” said Carmelyn P. Malalis, New York City Human Rights Commissioner. “New York City does not and will not tolerate discrimination on the basis of gender identity or gender expression. Today’s guidance makes it abundantly clear what the City considers to be discrimination under the law and the Commission will continue to aggressively enforce protections to make that promise a reality. Every New Yorker deserves to live freely and safely, free from discrimination.” 

“In New York City we protect the rights of transgender and gender non-conforming people – in the workplace, in the supermarket, and on the street,” said Counsel to Mayor Maya Wiley. “Today’s bold new guidelines send a clear message that we will uphold the dignity of our residents, no matter their gender identity. The Commission under the Chair’s leadership is redoubling its commitment to protect every New Yorker from unlawful discrimination.” 

Today’s guidance lists several ways employers, landlords, and business owners could violate the Law on the basis of gender identity and expression, including: 

• Intentionally failing to use an individual’s preferred name, pronoun or title.  For example, repeatedly calling a transgender woman “him” or “Mr.” when she has made it clear that she prefers female pronouns and a female title.

• Refusing to allow individuals to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender identity. For example, barring a transgender woman from a women’s restroom out of concern that she will make others uncomfortable.

• Enforcing dress codes, uniforms, and grooming standards that impose different requirements based on sex or gender. For example, enforcing a policy that requires men to wear ties or women to wear skirts.

• Failing to providing employee health benefits that cover gender-affirming care or failing to provide reasonable accommodations for individuals undergoing gender transition, including medical appointments and recovery, where such reasonable accommodations are provided to other employees.  (Federal and New York laws already require certain types of insurance to cover medically-necessary transition-related care.) 

Violations of the New York City Human Rights Law could result in civil penalties of up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct. There is no limit to the amount of compensatory damages the Commission may award to a victim of discrimination. 

So, say, for example, Bruce Jenner, who has flipped back and forth on his gender identity, walks into The Palm, sits at a table, and waits for a friend that will be joining him.

A short while later, some statist Nazi liberal walks in and asks the maitre de if Caitlyn Jenner is there. 

"Yes, he's seated in the corner booth." 

"Excuse me, what did you say?" 

"I said, he's seated in the corner booth." 

The statist, liberal Nazi says, "please let her know that I am slightly delayed," and walks out of the front door. 

Outside, the statist liberal Nazi pulls out her cell phone and dials 9-1-1. 

"9-1-1, what is your emergency?" 

"I'm in front of the Palm, and there's a crime occurring inside as we speak!" 

"Is it a robbery, are the culprits armed?" 

"No! It's not a robbery and they're not armed!" 

"Is someone assaulting, beating up a patron or employee?" 

"NO! There're no assaults going on!" 

"What exactly is the nature of the emergency?" 

"The maitre de just referred to an occasionally transgendered person by a pronoun other than their stated 'pronoun of preference.'" 

"Caller, please stay on the line while I dispatch the SWAT team!" 

"Caller, are you still there?" 

"Yes, I am." 

"I've dispatched the SWAT Team, they will be there in less than 5 minutes, in the meantime, I want you to make sure that you are positioned safely away from the restaurant, we do like to make sure that our citizens minimize their risk of harm during an active talker situation!" 

Yes, it is just exactly that inane.

Yes, it is just exactly that stupid.

And, yes, it is just exactly that vilely grotesque that an American municipality believes it has the right to regulate the dialects and dialogues of our common, commercial, conversations.

It may be the Big Apple, but the Democrats are in that apple like a big fat juicy worm!

Born in Liberty, Drowned in Govenment

The conservative blogosphere is full of the possibility that the President will shortly release a new set of executive actions designed to infringe on the Second Amendment right to keep and bear arms.

Patience and fortitude have their place.

But, as Thomas Jefferson quite directly stated, "the tree of liberty must be watered, from time to time, with the blood of patriots and tyrants. It is its natural manure."

A President must remain within the bounds of the Constitution.

A President that trespasses on the natural rights of men during his adventure outside of constitutional bounds commits impeachable "high crimes and misdemeanors."

A Congress that observes a criminal and tyrant in office and fails to impeach him for doing so foments conditions of revolution.

Obama is our new King George III.

The Republican Congress is our new Parliament.

The time to say, "enough" and "no more" certainly comes, if it has not passed already.

The very Declaration of Independence that is the fundamental document of this Nation's founding declares the unalterable principle, "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

That fundamental right -- to remove, by force if necessary, those agents of government and forms of government, that are destructive of liberty -- is as fundamental an aspect of the American experiment as any that claims to be such.

The question remains. Does our George III dare to impose on the great mass of the American people, who will, rather than surrender arms, remove him and do so, if necessary, by force and violence?

Our Nation knows no king. Our Declaration recognizes no right in government to deform or destroy liberty. I do not yearn for revolution, I yearn for the restoration of the American republic as a limited government answerable to the People and compliant with the Constitution.

But the long trail of abuses of this administration, together with the failure to attend to the pleas of the People to rectify these abuses, and to bring the President to heel, will either produce revolution, or serve as our sad epitaph:

Born in Liberty, Drowned in Government.

Sometime the Unraveling is Deliberate ... Learn to Recognize the Signs

Obamacare co-ops are collapsing.

Premiums skyrocket, you think. Then, the new year arrives and you realize last year's increase was just the lift off stage and now you're seeing the skyrocketing.

Co-pays ... up!

Deductibles ... up!

Now, you can look at all this, and think, My, how wise Hillary Clinton is to acknowledge "glitches" in the system. If that is your approach, you are an idiot, and a serious part of the problem. Allow me to illustrate why you are an idiot, and part of the problem, with a bit of video.

If you see a loose thread on an article of clothing, you may clip that thread (the wiser approach), or you may tug on the thread. Hilarious sight gags are born of the temptation to pull the loose thread on an unsuspecting person's sweater. Usually that sight gag is accomplished in places where the accidental unclothing of another is particularly unwelcome. Think Mr. Bean picking at the thread of a sweater on an elderly woman sitting in front of him in church.

That kind of unraveling you might well call unintended, accidental

But when you come across something like this video shows, you have to understand the unraveling is no accident, is not "unexpected," was capable of being "predicted," was, in fact, the design of the invention.

Now, as you watch Obamacare crap out across the Nation, taking even the sense of security provided by reasonable medical insurance coverage from millions of Americans, you can be sure that the ticking time bomb that was imposed on the Nation without a single Republican vote was just as deliberately designed to destroy as the unraveling device depicted above.

Remembering My Mom

My mom came into a new life of faith as the result of the prayers of two neighbors, Ida Gallaghan and Jane Nash. They knew she was having trouble quitting smoking, and they prayed for her to have the strength to quit. God answered their prayers, and it drew her in.

Now, my mom was raised staunchly Catholic. She attended Ursaline Academy in St. Louis, and St. Louis University, where she was a frequent attender at Daily Mass at the College Church. She took her Bachelors Degree in Science, and became a physical therapist.

My dad also attended Saint Louis University, graduating from the Law School there.

They met, fell tempestuously in love, and, although not permitted to do so by the Catholic Church, they married. A WWII vet, my dad returned to active duty for the Korean Conflict, leaving my mom behind (then pregnant).

When my dad came home, he came home to my mom and their first set of twins, Paul Henderson and Patricia Miljanich. My dad worked for a period of time as an adjuster for State Farm Insurance in New Mexico, where my siblings, Dave Henderson, Joe Henderson, and the second set of twins, Mary Henderson and Tom Henderson, and I were born. My dad then worked as an Assistant City Attorney for the City of Albuquerque. In the late 1950s, around the time I came along, the USMC started its own Judge Advocate General Corps, and he returned to full time active duty status, until he retired in 1978.

Growing up, we had another sister, Mary McKevitt. It wasn't until I was 10 or 11 that I realized she was our cousin, not the oldest of us kids. My folks raised Mary Pat as part of the family due to unfortunate circumstances in her home. That opening of our family and home to others was a hallmark of the kindness and hospitality my mom embodied.

My parents raised us in Albuquerque, then at Marine Corps Air Station Cherry Point, then back in Albuquerque, then in the Falls Church, Virginia, area, and the last of us (me) turned 18 while we were living at Camp Lejeune, NC.

My mom loved God. She spent hours each morning in prayer and reading God's Word. If you were known to one of the Henderson kids, she likely prayed for you. If you were friends of the Henderson family, you undoubtedly had the blessing of her hospitality too. She always told me, "You just add more water to the soup." And she did.

Life wasn't all roses.

Apparently suffering from PTSD after Korea, my dad didn't come straight home when he returned from deployment. She worried about that privately, but never said anything about it to us, until she told me the story three years ago. He slept all day and wouldn't find a job. In a fit of desperation, she went out and had too much to drink!

Apparently that reaction on her part scared him into action.

There were rough financial roads. We were a big family on a tight budget. When we were stationed at Cherry Point, base housing allotments would not have sufficed, and they bumped my dad up to housing above his grade as an officer. We met and became friends with the family of Helena Bernier and her husband, Dick Bernier, who were also catholics, and with the Martin family there. Between the various families, a group of boys went to a cave near the housing area and smoked, allowing my brother Tom to join in, and then regretting the decision when he turned green and vomited. He was carried home by a Marine.

My mom practiced her physical therapy in several iterations.

I remember as a young tot going to the Cerebral Palsy School in Albuquerque where she worked. I was there with her on the day President Kennedy was killed. She also worked for the National Orthopedic and Rehabilitation Hospital that was located in Clarendon, off I395 in metro DC. One of the board members, Ted Mack of Ted Mack's Amateur Houractually brought his horse into the x-ray department there because he thought it had a broken leg. She also worked with the Onslow County Health Department when my dad was stationed at Camp Lejeune and after he retired.

When the twins, Paul and Pat, were going to take First Communion, the priest and my parents had a meeting to discuss their status in the church. Because my dad had not had his first marriage annulled, they were told they could not receive communion if they continued to live together as husband and wife. They were offered something truly obscene called the Pauline privilege, in which they lived together as a brother and a sister. 

The rigors of that arrangement undoubtedly added strain to the tough life that all military families experience, and that large families experience too. I used to think that I was the youngest child because, when they finally got it right, they stopped trying. As it turns out, and as with many other things in life, I was wrong.

I can only write from my own perspective so pardon that.

My earliest memory of my mom was an occasion when I was still in my crib. So I couldn't have been older the 10 or 11. I remember climbing out of the crib, and toddling down the hall to find my mom sitting with a group of lady friends, having tea. I think that might have been a young officers' wives meeting at Cherry Point, but I'm not sure.

My mom taught me how to cook. If you've eaten a meal at our table, then some aspect of that goes back to the training she gave me. I remember, with particular fondness, late nights before Thanksgiving and Christmas, in my teen years, helping get the turkey ready for overnight roasting. She showed me how to stuff and truss the bird. (I learned to the flip the bird all on my own though.)

She also passed down to me the recipe for a Henderson family favorite. In the New Hope Church Cookbook, I offered the recipe as Etouffe du Frummage, but growing up we always just called it "cheese stuff," a wondrous melange of cream cheese, blue cheese, french dressing, and worcestershire sauce, used as a dip with vegetables.

When we were still in Virginia, I think I was 12 or 13, and Tom 13 or 14, she bought us a gel printing set. I don't even know if you can find them any more. It was a box the size and shape of a high quality writing paper container. You could type or write or draw on a carbon sheet, lay that master on the gel, and then reproduce copies of what was on the carbon onto blank white paper. That was my first experience blogging.

She also worked us a good bit. 

We had chores -- something that never hurt anyone. As we entered our teen years, she got us to volunteer working with what used to be called "retarded" youth. Her own experience working with handicapped children, as a physical therapist, was, I'm sure, influential in leading her to do that with us. To this day, I love and appreciate that she did that, particularly when I consider how lightly some consider devastating notions like aborting a child because it has Down's Syndrome or some other "defect."

My mom and dad did work hard for us to be in Catholic schools. She also often expressed a sort of betrayal that she felt from Catholic schooling we received, because she found much of what was taught inconsistent with Church doctrine. Later, when she learned about one of her son's being taken advantage of by the parish priest, her sense of betrayal was deepened.

Aboard Camp Lejeune, she encouraged our formation of a prayer group that met in our home, at MOQ 2218, every Friday night for several years. We met the Alberts there, including Kathy Cardwell, Donna Albert Royal, Carolline Albert, Kristy Albert. We also met Horace Avila there, and Kimberly Chandler Marshburn, and Gerald Wayne, and Dennis Helmer. There are too many other folks -- teens and young Marines -- who gathered and worshiped with us there to be able to name them all.

When our dad retired from the Marines, he found that practicing law was not much to his liking. So he found a teaching job with the Justice Cabinet of the Commonwealth of Kentucky. The program provided basic police training to Kentucky police. My dad taught constitutional law of arrest, criminal law, and criminal procedure. 

Of course, that meant that they would relocate. My mom stayed behind till their house sold. The last time I lived at home with my mom was back then, and when the house sold, we packed up their belongings and I drove them to Kentucky.

My mom and dad remained very much part of our lives, even with me out of the nest.

After Terri and I married, and relocated to St. Louis for law school, we saw them pretty frequently, on weekends and holidays. My mom and dad actually were the first ones to point out my future employer in my first legal position, Thomas Patrick Monaghan Law Office. His exploits, representing some young abortion businesses bombers, had been written up in a Catholic journal, which my mom sent to me.

After law school, we lived with my folks for about two months, while I studied for the bar, and while we prepared to go to work for Free Speech Advocates, in a little hole in the wall hamlet in Central Kentucky. If they hadn't helped with rehabbing a gosh awful 12x70 trailer on the Monaghan's property, we would never have gotten started in the 25 years of pro-life, pro-religious liberties, constitutional law practice that took me from Free Speech Advocates to Christian Advocates Serving Evangelism to the American Center for Law and Justice..

My mom was a big cheerleader for the work we did, and she and my dad loved Terri Lawson Henderson as well as in-laws ever did.

Life has changed a lot over the years. 

Folks who seemed to be dear friends abandoned me in the darkest season of my life. Neither my wife nor my mom did so. I know that these circumstances in which we were living challenged her, but my mom was aware of her own nature, and never spoke a word of condemnation to me.

In the last couple years, as I began trying to produce more consistent writing on my blog, my mom became a serious cheering section, constantly encouraging me to write, and we spent lots of time on the phone reading my posts and discussing their meaning. I will treasure those times for the rest of my life.

I'm sure there are more things I could write, we are talking about a young woman of 90 being remembered by an old man of 57 that had known her all his life. 

It is enough, for now, to say, that in every significant respect, she loved me to the best of her ability, taught me many lessons well, most importantly, the lesson of looking to the Lord as author and finisher of our salvation.

While I miss her terribly, I can say, as she would, in faith, that she is now rejoicing, with her husband, our dad, her son, Tom, our brother, and her granddaughter, Meriam, our niece, all in God's gracious and glorious presence.

Love you Mother!

Misheard Lyrics and The Constitution

Take a trip with me down the road of sensible thinking.

When radio personalities "Don and Mike" were on the air, they had the occasional bit involving "Misheard Lyrics."  For example, Creedence Clearwater Revival never recorded "there's a bathroom on the right," although their song "Bad Moon on the Rise" was a hit.   Similarly, Paper Lace never recorded a version of "Billy, Don't Be a Negro" but both they and Bo Donaldson and the Heywoods performed "Billy, Don't Be a Hero," a one hit wonder piece about the Vietnam Conflict.

The misheard lyric might be an amusing bit and an interesting phenomenon.  And these are undoubtedly cases of mishearing.  CCR just never did "There's a Bathroom on the Right."  Check their discography.  Folks who thought they heard that song are quite surprised to discover that the lyric actually is "There's a bad moon on the rise."

So what?

Well, suppose that we sang the Constitution.  

Suppose that in the singing of the Constitution, someone thought the lyric said, "Congress shall make more laws respecting an establishment of religion, or prohibiting the free exercise thereof."  Would the fact that someone, anyone, thought that the lyric was "make more laws" justify Congress ignoring what the Constitution actually says?  Be careful how you answer, because while you may be fine with more laws "prohibiting the free exercise" of religion, would you be happy with "more laws" "abridging the freedom of speech, or of the press?"

For that matter, both the Fifth Amendment and the Fourteenth Amendment contain Clauses guaranteeing "Due Process of Law." Forget whether you currently understand what "Due Process of Law" means.  Just suppose that in our Constitutional Opera, someone thought that the libretto read, "Two crosses and claw."  How easy it would be, if the State or the Federal Government wanted to take your property, your liberty, or your life, to obtain two crosses and a claw?  Would you voluntarily surrender your property, your liberty, your life, if a Sheriff showed up at your door, with two crosses and a claw?  Or would you insist that the Sheriff had gotten it wrong, had misunderstood?

I think you would.

And here's why I asked you to come along with me on this walk.

At the moment where you insist that the Constitution guarantees Due Process of Law, not Two Crosses and a Claw, you put in play the important question of the meaning of the Constitution. 

Which of these views do you hold:

• The Constitution a document of fixed and discoverable meaning?  
• The Constitution is a document of changeable meaning?  
• Is the Constitution a document that offers each of us the permission contained in Humpty's dumpy reasoning:  "'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'"

You might think this is just a rant on my part, leading to the inevitable, "The Constitution is a leather bound document.  Its words are fixed and determinable.  If you want to change it, amend it, don't twist it."  And, well, yes, it is that too.

But this rant is also a cautionary tale.

On the day when the hard route is to convince two thirds of Congress and three fourths of the States to amend the Constitution to your ends -- clarifying, for example, the exalted constitutional status of abortion rights -- you have gone to the Courts, and with deliberate misdirection, the judges have twisted the Constitution to a new meaning.

On the day when the hard route is to convince two thirds of Congress and three fourths of the States to amend the Constitution to your ends -- prohibiting teacher composed and led prayers in school -- you have gone to the Courts, and with deliberate misdirection, the judges have twisted the Constitution to a new meaning.

Perhaps you feel secure.

But the five judges who rule in favor of your preferred constellation of liberties and rights today, will be moldering in the dirt tomorrow, and how will you fare with the new regime.  Social commentary reflects a reality that one generation is often repulsed by and rebels against the mores and excesses of the previous.  In the end, we wobble back and forth between the spectrum's ends on a variety of choices and behaviors. 

So.

Do you really prefer that the Constitution be the product of misheard lyrics?  Do you always get the benefit of the mishearing?  Will you always get the benefit of the mishearing?

Of course, put in context of our times, I offer these thoughts so that you will bring them to bear on the Second Amendment to the Constitution. After all, media reports indicate that the White House intends to put a hot spotlight of focus on gun issues in the final year of Obama's presidency.

The Supreme Court decision in the Heller case confirms what readers of history and the amendment have known.  At stake in the Second Amendment is the right of an individual to bear arms, and that the particular purpose of those arms was resistance of government tyranny.  

Now, you might want to mishear that lyric. But your having misheard it doesn't change its meaning, and won't change our tune.  This is the essential right of the People.  Even superior to the right of freedom of speech, the right of armed defense against tyranny is the basis of every right.

So next time you're in the car, singing along to "There's a Bathroom on the Right," enjoy it, but leave the lyrics of my Constitution alone.

Is He, or Isn’t He: Only Cruz’s Constitution Interpreter Knows for Sure

Ted Cruz is not eligible to be elected president. Or, he is eligible to be elected president.

All the difference between eligibility and ineligibility can be discovered in the meaning of a single phrase in the Presidential Eligibility Clause, found in Article II of the Constitution. The Presidential Eligibility Clause conditions eligibility on age, duration of residence in the United States, and one’s status as a “natural born citizen.” Cruz is eligible, and would have my support, if he is a “natural born citizen.” Cruz is ineligible, and cannot have my support, if he is not a “natural born citizen.” So, for me, at least, the words of the Constitution, and the meaning of those words, are of considerable moment.

I have gathered the blog posts examining the question here. I have concluded that Ted Cruz – a man I value and appreciate for his principled stances in a Senate of spineless Republicans – is not eligible to serve because he is not a “natural born citizen.”

I’ve been told that my reasoning and resources are good, but that the result I reached is wrong.

I would have thought that resolving a question like the one regarding Cruz’s eligibility to be elected president would be done by analyzing two things: the qualifications required, and his satisfaction of those qualifications.

Having done the work, I remain surprised by the rejections made out of hand. More surprising to me are denunciations from those who appear to be (a) committed constitutional conservatives and (b) proponents of limited federal government. Cruz’s father, I think, cannot be faulted for supporting his son’s candidacy. Nor, I suppose, can those be faulted who support Cruz but whose writings, words, and lives have not been devoted to constitutional conservatism and limited government.

This post speaks to others.

In it, I invite those who value the study of the Constitution, those that conclude that our nation is adrift for reasons that include that we have severed our moorings to a Constitution of fixed meaning creating a federal government of expressed and limited powers, to give this question a fresh and honest evaluation. If, in all other circumstances, your natural inclination is to decry federal adventurism beyond the boundaries set out in the Constitution, I ask you to give patient consideration to this last argument. If you are not within one of these groups, I offer the evaluation of presidential eligibility as a tool for understanding how one may choose to pursue and find the meaning in that two hundred old document in these modern times.

Let me begin by stating a ground on which I will gladly withdraw my charge the Ted Cruz is not eligible to be elected president:

To be eligible, Cruz must be a “natural born citizen” of the United States, and I must be convinced of his status as such.

How can that conclusion be justified?

I think either of two possibilities exist in which that conclusion would be satisfied.

First, if it can be shown that the Presidential Eligibility Clause’s use of the phrase “Natural Born Citizen” included, as proposed and ratified, persons born outside the territorial United States to parents, only one of whom is, at the time of the birth, a citizen of the United States, that would resolve objections in Cruz’s favor.

Second, if it can be shown that Congress has power under the Constitution to endow status as “natural born citizens” on persons that would not otherwise be “natural born citizens,” and that Congress has, in fact, exercised that power to grant that status to Ted Cruz, or to a group of persons that includes Cruz, that too would resolve objections in Cruz’s favor.

Cruz could be a “natural born citizen” if the Congress of the United States, as created by the States in article 1 of the Constitution, was endowed with the power to define the meaning of the term “natural born citizen” as used in the Constitution, or to expand the meaning of the term “natural born citizen” beyond its accepted understanding at the time through the exercise of a power granted to it by the States through the Constitution.

As to the first proposition, Cruz could be a “natural born citizen” if the term “natural born citizen” means a person born to a citizen of the United States, even though born outside of the territorial boundaries of the United States, even if the child is born to parents of whom only one is a citizen, and even if the child is born in a nation that also claims the child as a citizen of their country.

To further clarify this first point, I do not mean we now decide that now, today, that this is what “natural born citizen” means. Rather, I require that it be shown that the term “natural born citizen” meant such individuals were natural born citizens at the time that the Constitution was proposed and ratified.

In all the discussions of Cruz’s eligibility with which I am familiar, no proponent of his eligibility has offered a basis in the language of the Constitution or the history of its crafting and ratification to support a view that the language selected by the drafters of the Constitution or the ratifying parties to it, or the intentions driving the choice of that language, extended “natural born citizen” status to anyone other than some class of persons literally, actually, and really born within the United States. On this point, for example, Michael Ramsey, at the Originalism Blog, wrote:

The “natural” in “natural born” citizen/subject stillmeant in the eighteenth century (as it had much earlier) a citizen/subject bythe law of nature (as opposed to a citizen/subject by statute).  For people in the English tradition thatwould have meant people who were citizens under common law.  That in turn meant only people born withinthe sovereign’s territory (and children of English ambassadors).  In this view, the statutory expansions gavesome children born abroad the same rights and duties as natural born subjects,but those children remained nonetheless only statutory subjects (since astatute could not alter the law of nature). Notably, only this version gives content to the word “natural” in“natural born.”

General agreement appears to exist for the proposition that persons born outside the United States, with the possible exception of those born to parents in active diplomatic service of the United States, can be citizens but could not be natural born citizens unless that status can be granted by Congress. In other words, under a straight-forward, textual reading and application of the Presidential Eligibility Clause, Cruz would be ineligible.

So, for Cruz to be eligible, Congress needs to have expanded the category of persons that meet the “natural born citizen” criterion. As to that second proposition, that Congress has done so, substantial objections exist to the claim that Congress has done so. Substantial objections also exist as to the proposition that Congress has the power to do so.

Congress first exercised its power under the Uniform Rule for Naturalization Clause in 1790. At that time, Congress enacted the Naturalization Act of 1790.

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: Provided also, That no person heretofore proscribed by any state, shall be admitted a citizen as aforesaid, except by an act of the legislature of the state in which the person was proscribed. (Emphasis added.)

As the excerpt shows, in that first Naturalization Act, Congress actually asserted a power to define certain persons born outside the territorial jurisdiction of the United States to be “natural born citizens.” That Congress did so certainly suggests that Congress was aware of the possibility that it possessed a power to define who would be “natural born citizens,” or at least to expand the definition of that class beyond those who were, in fact, “natural born citizens” under common law.

The 1790 Act certainly holds hope out to those who support Cruz’s candidacy, that Congress has power to make Cruz eligible as “natural born citizen.”

One disturbing fact, however, changes any considerations raised by the “natural born citizen” language in the 1790 Naturalization Act. 

In 1795, just five years later, Congress repealed that Act and substituted another naturalization law in its place, the Naturalization Act of 1795. In crafting the replacement Naturalization Act, Congress omitted the language granting “natural born citizen” status to persons born outside the territorial boundaries of the United States. In its place, the new Act simply defined such persons as “citizens of the United States.”

The act of repealing a constitutional provision or a statute with language expressly accomplishing some purpose, and replacing that constitutional provision or statute with another omitting the exact language, bears significance in resolving the meaning of the legal provision.

Remember, in our system, courts do not make the law. Rather, they interpret the law in applying it in real instances of conflict between parties (either between governments and individuals in criminal cases, or between individuals (including corporate persons) in civil cases. Courts, accomplishing their tasks, sometimes must probe for the meaning of statutory language. When they do so, they follow established rules governing how statutory language is read.  (Judges and attorneys call these rules “canons of construction.”)

Humans do not own the corner on language. Many species communicate. The plaintive sounding song of the humpback whale carries at great distances. Rabbits tamp the ground to warn of danger. Bees engage in elaborate "dances" to communicate the location of food to the hive.

To date, however, there have been discovered absolutely no schools for semiotics, the study of symbols, gestures, language, set up by whales, rabbits, bees, or any other non-human creatures. Perhaps this fact surprises you. Perhaps the idea makes you chortle. Still, it is worth noting this apparent difference between humans and other creatures, that we not only have language, but that we study the languages of humans and of other creatures, a characteristic so far not identified among other creatures.

Searching for meaning in words is an aspect of a lawyer's lot in life. While not everything done by a lawyer involves the meaning of words and the search for such meaning on behalf of clients, it is enough of the life of an attorney that we all know that it was the lawyer in Bill Clinton that actually imagined that it would make sense to argue, "it all depends on what the meaning of 'is' is."

To choose words and phrases in communicating may reflect no thought whatever, if one's utterances consist entirely of a well-developed stream of consciousness in speaking or writing. Among communicative activities directly polar opposite to stream of consciousness, I suppose the best examples are offered by the crafting of legal language in statutes, constitutions, and contracts.

Lawyers, as much as theologians, are as likely to be found arguing over fine points of language, as though the difference in life and death can be decided by knowing how many angels can dance on the head of a pin.

Let me offer some examples of the use of language, and changes to language, in such documents.

Eighteen Year Olds and the Right to Vote

The Twenty Sixth Amendment to the Constitution prohibits federal and state governments from denying individuals the right to vote if they are age 18 or older:

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Prior to ratification of the Twenty Sixth Amendment, States could set a higher minimum age for voting, as could the federal government. The addition of the amendment changed that circumstance by limiting the powers of the federal government and the States in respect to the narrow category of voting restrictions based on age. 

Now, suppose you were 18 years old, and you attempted to register to vote, but your local election official told you that your State limits voting to persons age 21 or older. You would immediately object. If necessary, you would bring a lawsuit challenging the state law as a violation of the federal constitution. After all, the Twenty Sixth Amendment prohibits States from discriminating against you, respecting the right to vote, based on your age, so long as you are at least 18 years of age.

And guess what? You would win your suit.

Slavery and Involuntary Servitude

Here's another example.

Suppose you worked as an Assistant District Attorney in Utah. You were contacted by a detective in a local police force in Utah. He received credible information indicating that a rancher located in the county has a small group of Native Americans held captive and forced to perform unpaid labor. You file for a warrant based on the affidavit of the police informants and the police execute it on the ranch.

Circumstances are exactly as information indicated. The police arrest the rancher and you charge him with kidnapping and several other related charges. The US Attorney, shortly afterward, files federal charges as well.

The rancher claims he is immune from prosecution under the 1852 "Act in Relation to Service." That Act, passed by Congress, allows chattel slavery of blacks and Native Americans in Utah.

The rancher's attorney indicates his intention to use this defense at trial. You file a motion to exclude that defense and any evidence related to it. You point out to the Court that Congress repealed the 1852 Act in 1862 when it outlawed slavery in federal territories, and that the States nullified the 1852 Act when they ratified the Thirteen Amendment prohibiting slavery and involuntary servitude. The Court accepts your motion and prohibits the defense from asserting the Act as a defense.

You see how this is going?

Obama's Third Term as President

Consider one more example.

Barack Obama believes he can be elected to a third term in office. In fact, he decides to run for that third term. He files papers to be placed on the Democratic Primary ballot. The State Board of Elections announces that the Board has met, considered the filing, and denied the application to place Obama on the ballot. The Board states that, in its judgment, pursuant to the Twenty Second Amendment, Obama is ineligible to be placed on the ballot, despite having met all other requirements under state law. 

Obama files suit in State court. He files proof and pleadings demonstrating that he has met every eligibility requirement set out in State law. He demands an injunction barring the printing of the Democratic Primary ballots unless and until his name is added to the ballot. The Board of Elections files a short defense. In it they cite and rely on the Twenty Second Amendment:

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once.  

But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

The State court dismisses Obama's suit. His emergency appeal is denied by the appeals court. The State Supreme Court denies review. The US Supreme Court denies his petition for review.

Each and every court that considers the case agrees that the Twenty Second Amendment, which limits anyone from being elected more than twice to the presidency, supersedes Article II's omission of any limit on the terms of a President.

Language Matters. The Omission of Language Matters.

We could do this kind of illustrating all day.

One day a thing is lawful. The next day, by a change in the law, it is not. One day a State or the federal government has a power -- such as the power to impose prohibition -- the next day it does not. One day a man is eligible to be elected thrice or more to the presidency, as was FDR, the next day, as Obama, he is not. All the difference in the world is a change in language. 

So, while it can be tedious, and trying, understanding language can be pretty important. In fact, that is probably why "reading" heads the list of the Three R's.

So what?

Well, I'm about spent on arguing this point, particularly as few seem to care. Yet, there is something quite troubling about the laissez faire approach being taken to the question of Ted Cruz's eligibility to be elected president.

You see, there was a time when Congress expressly provided by law that certain persons born abroad were, nonetheless, "natural born citizens." Congress used that precise formulation in its adoption of the Naturalization Act of 1790. That precise formulation was repealed and replaced by Congress when it adopted the Naturalization Act of 1795. To my knowledge, Congress has not subsequently granted "natural born citizen" status when extending "citizen" status to persons born abroad to certain citizens of the United States.

Cruz, an attorney that has practiced constitutional law and argued cases before the US Supreme Court, has remained surprisingly silent on the question. He hasn't really addressed the question, except in the brief assertion that, as his mother was a citizen at the time he was born, he is a natural born citizen and eligible to be elected.

Others that do address it, whether as surrogates for him or commentators, largely assume a power within the Congress to provide a definition of the constitutional term "natural born citizen," or they largely assume a power possessed by Congress to grant "natural born citizen" status to some group of persons (for Cruz's eligibility, that would have to be a group that included him).

Yet, they are never required, in the public dialogue to answer direct and pointed questions regarding the thesis that Congress can provide definitional meaning to the terms of the Constitution, or the thesis that Congress possesses a power to grant "natural born citizen" status to persons who, by reason and nature, would not otherwise be thought to meet the requisites for "natural born citizen" status.

So, as I come to the end of my treatments of this matter, there is this last set of questions, about Congress' ability to grant "natural born citizen" status to persons born outside the United States. 

Commentators such as Clement and Katyal, in a Spring 2015 blog post on the Harvard Law Review Forum, take the position that one is a "natural born citizen" -- even when born abroad -- so long as the person does not have to take any positive action to acquire citizenship. "While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings." (Clement and Katyal's reference to "the relevant materials," however, is not to the Constitution, or the Debates on the Constitution, or the Debates on the Ratification of the Constitution. Rather, they simply refer to subsequent enactments of naturalization provisions by Congress. Calling those "the relevant materials," short-circuits any need to explain the absence of such an approach in the Constitution, in the Notes on the Constitutional Convention, or in the Debates in the States on the Ratification of the Constitution.)

By Clement's and Katyal's reasoning, children born abroad in a variety of circumstances contemplated by Congress would be "citizens at birth" without having to apply for naturalization as citizens, and, as a consequence, they would also enjoy the status of "natural born citizens," including eligibility to be elected president.

Nonetheless, there are difficulties for those that make this argument.

Congress does have an express power at play in these cases. The Constitution grants to Congress the power to make a uniform rule for naturalization. One obvious problem, then, is whether the power of naturalization includes a power to grant status as "natural born citizens." I have contended that it does not include such a power. My thinking on this point reflects the fact that "naturalization" is the process of making one a citizen that is not a citizen.

In response, certain commentators contend that, because Parliament in England granted "natural born subject" status to certain individuals born abroad (who by common law and statute law would not be English subjects, and would not have right of hereditary title, among other difficulties) that the US Congress, when granted the power to make a uniform rule for naturalization obtained a like power --within the power to naturalize aliens -- to make certain individuals"natural born citizens."

Something important, however, is missing in their commentary. There is no citation to, discussion of, or application of, any evidence of any contemplation or discussion of such a grant of power by the States to the Congress when they ratified the Constitution, or by the drafters of the Constitution as they formulated it. 

It is, in fact, entirely a post-hoc rationalization that simply cobbles onto the stated power of naturalization an additional, unstated, power to give new meaning to the phrase "natural born citizen" in the Constitution, or to confirm in Congress a power asserted by Parliament when it granted "natural born subject" status to various individuals overtime. 

Particularly troubling in such commentary is the complete failure to question whether the outcome -- Congressional power to make Cruz, or McCain, or Mitt Romney's father, "natural born citizens" -- was a matter of express grant by the States via the Constitution to the Congress. That troubling omission says much because it completely ignores that our federal government is, as even school children are taught, a government of limited, express, donated powers. 

Ultimately, if such evidence were brought forward, I would gladly surrender the position and affirmatively support Ted Cruz in his pursuit of the Republican Party’s nomination and of election to the presidency. In absence of that evidence, in absence of a substantive discussion of the troubling issues that his candidacy raises under the Constitution, I cannot conscientiously proceed as though the issues don’t exist, or that all substantive questions have been resolved in his favor.