Thursday, February 4, 2016

Let's Play Twenty Questions, the Constitution Edition

What follows will not convince you of anything. I am not trying to force you to accept my views on the subject at hand. Rather, I offer this entry to provide a framework that a constitutionalist, a conservative, may recognize as appropriately respecting the Constitution as crafted, drafted, and ratified by the Framers of our federal government.

Some blog writers, radio talk show hosts, television personalities, and politicians simply sweep aside the constitutional questions raised by Ted Cruz's candidacy for election to the office of the President of the United States.

Oddly, those same bloggers, pundits, and politicians recoil at the identical behavior of gun control enthusiasts who would sweep aside the Second Amendment's true meaning and purpose in favor of the gun control agenda. These same folks rebuke Congress for the hubris of ordering Americans to purchase products of any kind (health insurance being the bell weather for determining whether Congress has the right to bully Americans into becoming consumers of any product or service). In fact, as the last Term of the Supreme Court came to a close, with decisions contorting language, history, law, and fact, these individuals could be found decrying the piracy of the swashbuckling Robertson Court.

These very people, quite rightly, usually seek to hold the agents of government to a strict and unyielding read of the Constitution as a document of fixed and determinable meaning. Yet, when confronted with the reality that such an approach to the Question, the question of Ted Cruz's eligibility to be elected President, they engage in slighting of the issues and attacks on the competence of those whose identical views about the Constitution, on how that document is to be read, to be understood, and to be applied, have, in this sole instance, led them to the conclusion that Cruz's Canadian birth to an American mother disqualifies him from holding the office of the President.

Here's a video of Mark Levin engaging in the sort of sleight of mouth on the topic:


Well, okay, that was the Wizard of Oz, but Mark's snarkish, breezy, off the cuff, and unsupported dismissal of the Eligibility Question is hard to distinguish from the frantic efforts of a Kansas medicine man doing his level best to disguise his smoke-and-mirrors distraction from The Question, and, I suppose, The Answer.

So, if you are happy with smoke-and-mirrors, hit the "next" button up above.

If you don't really care about the meaning, scope, and application of the Constitution, hit the "next" button up above.

But, if you claim to be a constitutionalist, a conservative, a supporter of limited government, or a proponent of an invigorated federalism that returns stolen or abdicated powers to the States, I hope you will read the rest of this entry.

Thinking about the Constitution, about the role of that document in understanding the structure of the general, federal government of the Nation, about the limitations that document sets out on the powers of, the scope of, that government might be a lost art, like the study of "dead" languages, important to those that study them, but not to anyone else. 

Or, it might be that, just as the Queen's English was lost to the Cockney-accented Eliza Doolittle, Americans come to the Constitution ham-fisted and stumbling because our families and schools have failed to make the language and meaning of the Constitution a vital component of civic participation.

Because of the dissing, dismissive, snarling, and unsubstantiated rejection of constitutionally based concerns about the eligibility of Ted Cruz, I offer a series of questions that may illuminate what matters to you about how the Eligibility Question should be developed and discussed. If you are inclined to prefer a WWE or UFC style attack on those that are asking these questions, again, please hit the "next" button above. Otherwise, let's begin.
Question 1.
Does the Constitution matter?
Question 2.
Is the Constitution a document of fixed meaning?
Question 3.
Are judges, Congresses, and Presidents able to change the words/meaning of the Constitution by any means other than the amendment processes set out in Article V of the Constitution? 
Question 4.
Is the Constitution a creation of the States and of the People establishing a federal government of limited, fixed, and defined powers?
Question 5.
Do the President, the Courts, and the Congress have any power or extension of power other than those expressly stated in the Constitution?
Question 6.
If the Constitution does not grant a power or authority to the Congress, the Courts, or the President an express power, may they nonetheless exercise powers not granted?
Question 7.
If the terms of the Constitution are of fixed and definite meaning, how do we determine their meaning and how do we understand their terms?
Question 8.
Does the Constitution define the qualifications for the office of the President?
Question 9. 
Does the Constitution provide definitions of the terms it uses to define the qualifications for the office of the President?
Question 10.
If the Constitution is of fixed and determined meaning, and if the Constitution provides the Qualifications for the Office of President, and if the Constitution does not define the terms used to describe the qualifications for the Office of President, how do we determine the meaning of those terms?
Question 11.
If we define the meaning of the terms of the Qualifications Clause using ordinary meaning at the time of the ratification of the language, what is the meaning of the term "natural born citizen" in the Clause?
Question 12.
If the meaning of "natural born citizen" at the time of the ratification of the Constitution was "any person born in the United States, except children born to foreign diplomats and emissaries on duty in America," is that still the meaning of that language today?
Question 13.
If "natural born citizen" now includes a class of persons larger than "any person born in the United States, except children born to foreign diplomats and emissaries on duty in America," what caused the expansion of that class of persons beyond the original meaning of the language of the Qualifications Clause?
Question 14.
Is the expansion of the class of persons included within the definition of the term "natural born citizen" the result of congressional Acts granting status as "citizens" to certain persons born abroad to US citizens?
Question 15.
If the expansion of the class of persons included within the definition of the term "natural born citizen" is the result of congressional Acts granting status as "citizens" to certain persons born abroad to US citizens, what is the basis of Congressional authority to enacts legislative acts expanding that class of persons?
Question 16.
If Congress exercise power under its authority to do so under the Uniform Rule of Naturalization Clause, then isn't citizenship obtained at birth under such statute citizenship by naturalization rather than by natural birth as a citizen?
Question 17.
If Congress has power to make "natural born citizens" of the United States out of certain persons born outside the United States to citizens of the United States, what limiting principle exists to prevent Congress from exercising it Naturalization Clause power to redefine "natural born citizen" to include other persons or classes of persons favored for natural born citizenship?
Question 18.
If Congress has power to make "natural born citizens" of the United States out of certain persons born outside the United States to citizens of the United States, what limiting principle exists to prevent Congress from exercising it Naturalization Clause power to redefine "natural born citizen" to include other persons or classes of persons favored for natural born citizenship?
Question 19.
If Congress can grant natural born citizenship status under the Constitution as it is presently written, can Congress grant natural born citizen status to others, for example, to persons that have, although born outside the United States, been elected to serve as a Governor, Representative, or Senator?
Question 20.
What will you do with your conclusions to these questions? 
Concluding Thoughts

These are the questions that Mark Levin mocks, that Glenn Beck ignores. 

These are the questions that I have repeatedly requested Senator Ted Cruz to answer. These are the questions not addressed by Paul Clement and Neal Katyal in their blog post on The Harvard Law Review's Forum blog. These are the questions that Thomas Sowell won't answer. These are the questions that Fox News doesn't address.

Many who pooh-pooh the questions, readily deliver withering blows against those that call for gun controls because such controls ignore the constitutional dimension of the right to keep and bear arms. These same folks that demonstrate here that they just don't care about the meaning of the inconvenient Constitution rightly excoriate the Congress for leaving legislative duties to administrative agencies, correctly lambaste the President for his imperial adventures in rule by regulation, and properly skewer the Supreme Court for its trespasses of the bounds of that very Constitution.
The Constitution! They cry.
The Constitution! They demand.
The Constitution! They implore.
The Constitution! They accuse.
And, for the most part, I am with them. The Congress lacked power to turn administrative agencies into sub-legislatures via regulation. The president lacked power to adopt by regulation what belongs to Congress via statutory enactments alone. The Supreme Court lacks power to sit as a super-legislature. The entire framework is askew, legs akimbo, government run amok. On that, no doubt, they are right.

But, in being right there, their wrong here is compounded and confounding. How can their pleas for respect and observation of the Constitution be anything but a mockery if, where most inconvenient, in respect to the eligibility of the presidential candidate with whom I have the closest policy affiliation, the pundits, conservatives, professors, Solicitors General, and assorted others do not speak with a single voice: 
"The Constitution puts this office out of your reach, Senator Cruz. Your value to the cause is great, and great purposes lie before you to be filled, but we cannot and will not grant to others the right to ignore the Constitution by our act of doing so here."