Trump, Reagan, Cruz and the "Eleventh Commandment"

Last Friday, the US Senate provided an electrifying moment for those who care. Ted Cruz, whose candidacy for the President I cannot currently support, took to the Senate floor and rendered an stunning rebuke of Mitch McConnell, the Senate Majority Leader. You can view that moment in the video below:

Senate Republican Leadership angrily responded. Orrin Hatch, the longest serving Republican in the Senate, took to the floor and rebuked Ted Cruz, albeit without mentioning his name:

Brit Hume, one of the talking heads on the Fox News Networks, took out his shillelagh and went after Ted Cruz. In particular, Hume assailed Cruz's character, calling him a hypocrite:

Is Hume correct? Is Cruz a hypocrite who obeyed Ronald Reagan's "Eleventh Commandment" when it suited him, and disobeyed it when the need arose?

We have become like tinder, those of us who have voted Republican with a view toward (1) shrinking government, (2) reducing taxes, (3) liberating the free market, (4) reversing the decisions of a peremptory Supreme Court.

In face of consistent, constant, and long-standing support for the candidates produced by the party, we have nothing to show for our efforts. Instead, we have Speaker Mitch McConnell LYING to the Republican Caucus on the question of whether there was a deal to bring the Ex-Im Bank question to the Senate floor for a vote. McConnell fended off a vote to defund Planned Parenthood, the unflattered object of a series of recent expose videos by the Center for Medical Progress.

We have a Speaker of the House that, if he were to die before Obama's term in office ended, would ask to have himself buried with his rear end sticking out of the ground so that Obama could have someplace to park his bike. Boehner has FAILED to defund the overreaching programs of the Environmental Protection Agency. Boehner has FAILED to impeach Obama over "executive amnesty," Benghazi, Fast and Furious, or his murder of an American teenager in Yemen, killed by an attack drone because (as Obama's spokesmouth put it, "he picked the wrong parents").

Into the dried tinder of our labors, our hopes, our aspirations, Donald Trump has breathed fire like Smaug. Of course support for Trump is erupting like wildfire. He says the things that need to be said by a candidate that wants us, the great unwashed base of the Republican Party, to give him our vote (he doesn't want our money, either, as he is financing his own campaign).

Trump does not mince words:

• John McCain called folks that came out in droves to see Trump (and others) "crazies." In return, Trump cast doubt on portrayals of McCain as a hero. In Trump's words, he prefers heroes that "don't get captured."
• Trump says we are not getting the best and brightest of the Mexican people when we tolerate illegal immigration from our Southern neighbor. In fact, he said we are getting murderers and rapists, and, he assumed, some good folks too.
• After a fundraiser for Scott Walker referred to Trump as "DumbDumb," Trmp fired back on Walker, saying that Walker's Wisconsin was now a mess, "they projected a $1 billion surplus and it turns out to be a deficit of $2.2 billion."
• Trump poked Texas Governor Rick Perry over his new glasses, suggesting they were an effort not to look stupid.
• After Lindsey Graham accused Trump of "coming in like a wrecking ball" and risking the future of "his" Republican Party, Trump revealed Graham's personal cell phone number (a number Trump presumably was given by Graham who sought and got a campaign donation from Trump in his Senate re-election bid).

When Trump's remarks about John McCain were reported (albeit incompletely by most news outlets), some challenged Ted Cruz to join with other candidates, including Rick Perry, Lindsey Graham, and others, that have criticized Donald Trump. Cruz refused, and pleaded "Ronald Reagan's Eleventh Commandment:"

So, then, there you have Cruz invoking Reagan's Eleventh Commandment, "Thou shalt not criticize a fellow Republican." There you also have Donald Trump criticizing Republicans, both fellow candidates (Graham, Walker, Perry) and office-holders (McCain). And you have Cruz, after invoking the Eleventh Commandment to eschew criticism of Trump, exposing Senator Mitch McConnell as a liar on the Senate floor.

So, is Cruz a hypocrite?

I think not. And I think not for good reason, call it the North Carolina Corollary to the Eleventh Commandment.

When Ronald Reagan first invoked the Eleventh Commandment, he did it during his run for Governor of California, back in 1966. That run followed shortly after the 1964 election in which Barry Goldwater lost to Lyndon Johnson. Goldwater had been subjected to a barrage of criticism from East Coast Republicans, including Nelson Rockefeller, as too conservative. 

Whether it is speculation or true, the conclusion Reagan drew was that Rockefeller & Co. weakened the Republican nominee and insured LBJ's election. So, facing the same tough kinds of criticism during the Republican gubernatorial primary, Reagan invoked the "Eleventh Commandment," which he borrowed from California State Republican Party Chairman Gaylord Parkinson. In his autobiography, An American Life, Reagan later wrote:

The personal attacks against me during the primary finally became so heavy that the state Republican chairman, Gaylord Parkinson, postulated what he called the Eleventh Commandment: Thou shalt not speak ill of any fellow Republican. It's a rule I followed during that campaign and have ever since.

I voted for Reagan twice for president. I admired his service as President and appreciate his gift of Antonin Scalia to the Nation as a Supreme Court justice and his profound essay, Abortion and the Conscience of the Nation. But, the truth be told, Ronald Reagan did not follow that rule "ever since." In fact, when it was necessary, to keep his 1976 primary campaign alive, in the face of mounting primary victories by Gerald Ford, Reagan took the kid gloves off and unleashed attacks on Ford's presidency. Moreover, the tactic worked sufficiently well to turn Reagan's campaign around, resulting in wins in the North Carolina primary and others following it.

So, as it turns out, not even Ronald Reagan viewed the Eleventh Commandment as a political suicide pact. When he concluded that disobeying the Commandment was necessary to change the outcome of the 1976 Republican nomination race, he abandoned the commandment. Does that make Reagan a hypocrite? And, thus, does that mean that Cruz too is a hypocrite?

Perhaps.

Or, perhaps, the Eleventh Commandment is subject to some bending. If you need help understanding how it is that a "Commandment" can be bent, you might consider the examples of David taking the sacred "Shewbread" from the Tabernacle and feeding his mighty men with it, or the example of Jesus' followers plucking and eating grain on the Sabbath. Neither David nor Jesus would stand before you and say, "Rules were made to be broken." But Jesus did say, "The Sabbath was made for man, and not man for the Sabbath."

In like vein, Republicans can and should see that something like the Eleventh Commandment, which is a rule pertaining to elections and candidacies, are not "natural laws" like gravity. They exist because they have been invoked for typically good reasons. In the case of the Eleventh Commandment, the good reason is to avoid so weakening the eventual candidate of the party that the party's candidate loses to the opposing party's candidate. And, the Eleventh Commandment must be understood to include Reagan's North Carolina corollary: if obeying the Eleventh Commandment strictly means losing, think of it as the Eleventh Suggestion.

Shooting A Blank: Clement and Katyal Fire a Dud in the Qualification Wars

In a post on the Harvard Law Review Forum, Paul Clement and Neal Katyal recently addressed a question that has lingered over the two most recent quadrennial presidential elections: the ticklish question of eligibility to be elected President.

Setting aside more considerable qualification considerations, such as experience managing a large-scale enterprise, familiarity with and competence for the duties of the office, and the like, the question they addressed pertained to one particular qualification for the Presidency stated in the Constitution. To be elected, that qualification requires one to be a “Natural Born Citizen” of the United States. That phrase, “Natural Born Citizen,” appears nowhere else in the Constitution as originally enacted. It stands in contrast to its single exception, allowing one to be elected president though not a “Natural Born Citizen” if, “a citizen of the United States, at the time of the adoption of the Constitution.”

Alternative meanings of the Natural Born Citizen provision of the Qualifications Clause of Article II have been, or could be, proposed. 

In fact, several methods can be identified for giving meaning to any word, phrase, clause, section, or article of the Constitution. Consider, for example, the contrast between a view that the Constitution is a document of fixed, determinate meaning, and a contrary view that the Constitution is an organic document the words, phrases, clauses, sections, and articles of which may acquire new meaning over time.  The former view, the one of a “hide-bound” Constitution, is often invoked by critics to describe the philosophy of Antonin Scalia and others who share his approach to construing the Constitution. The latter view, of the Constitution as a living, breathing, and evolving document, has often been invoked to describe the philosophy of justices such as Ruth Bader Ginsberg and Stephen Breyer.

I have never worked with Neal Katyal. 

As Senior Counsel with the American Center for Law and Justice, I worked with Paul Clement several times. Clement cut his teeth as a law clerk for Justice Scalia. Unsurprisingly, in our casual conversation and work together at the time, I discovered that, like Scalia, like me, and like Thomas Jefferson, Clement held the view of the Constitution as a document of intentionally drawn words, phrases, clauses, sections and articles, a document of fixed and discernible meaning. 

Yes, I did just bring Thomas Jefferson, the author of the Declaration of Independence into the conversation; and, yes, I realize that he did not participate in the drafting of the Constitution. But Jefferson was an early watchman on the walls against judicial tyranny.

In a letter to Judge Spencer Roane, dated September 6, 1819, Jefferson debunked a view, asserted by the Supreme Court, that it had the position of ultimate interpretation of the Constitution, over the coordinate branches, the Legislative and the Executive. Such a construction of the Constitution created the serious risk of tyranny by the Judiciary. Jefferson explained, “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” 

I treasure Jefferson’s view – of the Constitution as a hide-bound document of fixed and discernible meaning – and his warning – that judges might treat it as a waxen plaything, softening it with the touch of their analyses and decisions until it took the shape of their desires.

But even among us hide-bounders differences in approach to and resolution of constitutional questions will arise. Clement’s recent joint post, with Katyal, on the Harvard Law Review Forum, addressing the Natural Born Citizen provision of the Presidential Qualification Clause proves the point.

Clement and Katyal commit a regrettable error in construing the strands of English legal history that form the foundation of America's legal history. They seek, as lawyers and judges will do, to provide a particular meaning to a constitutional provision; in fact, they present a purposive interpretation of the history of the question of the Natural Born Citizenship requirement of Article II; that interpretation is not one obvious from the language of the document.

As an initial matter, Clement and Katyal seek to induce a sense that the constitutional phrase "natural born citizen" is uncertain of meaning. Given uncertain meaning, as our courts have played the Judicial Supremacy game, judges (and approved armchair quarterbacks) lend their service by “discovering” "authoritatively" the meaning to be ascribed to the uncertain provision. 

Mark DeWolfe Howe, a legal historian, described this judicial habit. He observed its repetition by Supreme Court justices who rewrote the scope and meaning of the Establishment Clause in a series of decisions from the late 1940s through the early 1960s. In “The Garden and the Wilderness,” Howe skewered the enterprising justices for being artisans of the history of the law, rather than pupils of it. 

Though he did not use the precise term, he suggested that the pretend historians of the Supreme Court were no more to be believed than was Aaron when he told Moses that he had not fashioned a golden calf while Moses was on the Mount but had only thrown gold into the fire, and the idol fashioned itself.

Clement and Katyal would have nothing about which to write on the subject of the Natural Born Citizen language, however, unless the meaning of the phrase was, in fact, fraught with uncertainty. Given six continuous years of controversy over the question of Barack Obama's status as a Natural Born Citizen – a contentious debate disdainfully summarized as the “birther argument" – perhaps we must simply accept that a rather clear and seemingly precise phrase, “Natural Born Citizen,” is neither clear nor precise or at least that it is only as clear and precise as Clement and Katyal will then show it to be.

What Clement and Katyal do is to attempt to establish that a phrase of plain meaning and import was not intended as such by those who drafted and ratified the Constitution. That obvious meaning, it seems to this reader, is that one is Natural Born Citizen if one’s citizenship arises as a consequence of their natural birth within the United States.

On this point, English common law is instructive. 

Every one of the newly independent States adopted English common law as a rule for the decision of cases until modified or repealed by acts of their legislatures. While we rejected the tyranny of the Crown and disassociated ourselves from our brothers in Parliament because of their indifference to our suffering, we retained the majesty of the English common law. [For those to whom English common law is an unfamiliar concept, it is the entire body of judicial made law resulting from the decision of cases in England over the course of centuries. By adopting English common law, newly independent States generally populated with Englishmen and their descendants retained a familiar and workable body of law for the resolution of disputes.]

Under English common law, there was no such thing as a “Natural Born Citizen.”

Rather, a different but related concept existed, “Natural Born Subjects of the Crown” or “Natural Born Subjects.” The concern over one's status in England as a “Natural Born Subject” existed for many reasons. A primary reason for needing certainty about status as a “Natural Born Subject” was that English law limited hereditary title and the capability to inherit properties to those who were “Natural Born Subjects.” Thus, one’s status – whether one was a Natural Born Subject – could powerfully affect the course of one’s life. And, as it turns out, under English common law, only a person born within the realm of Great Britain, within the kingdom, could lay claim to status as a “Natural Born Subject.”

As it turns out, the meaning of “natural born” in English common law is too confining for their purposes, it must be stretched. That stretching is the hallmark of their error and their erroneous conclusions regarding the eligibility of Ted Cruz, John McCain, and George Romney (Mitt’s dad) to be elected to the Presidency.

Their conclusion conflates English statute law and English common law. 

The significance of that conflation cannot be overstated. As noted, under English common law, only persons born within the realm were entitled to status as “Natural Born Subjects.” Hard choices faced those living with such a reality. Called to service, engaged in mercantile trade, traveling for study, many reasons provoked Natural Born Subject to remove to other lands. Living abroad – even in service to the country and Crown – would risk that offspring would suffer disinheritance of title and property. So Parliament necessarily, wisely, granted to specific categories of persons born abroad status as Natural Born Subjects.

In fact, Clement and Katyal gloss over this dichotomy. English statutory law, enacted by Parliament, extended “Natural Born Subject” status to additional classes of persons not within the English common law’s sweep of the term. It is from that premise – Parliament’s expansion of the scope of “Natural Born Subject” – that Clement and Katyal illogically leap. The leap is illogical because they refer to the vaunted role of English common law in understanding our early legal history and as a source work for understanding the Constitution but then invoke English statute law to give meaning to our Constitution’s “Natural Born Citizen” provision. But what was transmitted, via the adoption of English common law in the newly independent States of 1776, was that Natural Born Citizen status would be determined, not by parentage, but by birth within one of the united States (or citizenship in them at the time of the adoption of the Constitution).

Through the Constitution, the People and the States granted limited legislative power to the Congress of the United States. The Constitution defines the scope of, and the appropriate subjects of, that donated legislative power.

Among the powers given solely to it, the People and the States provided, in Article I, Section 8, that Congress had authority “to make a uniform rule of Naturalization.” “Naturalization” converts one that was a foreigner, an alien, into a citizen. 

In the United States, whatever requirements for naturalized citizenship set by the Constitutions and laws of each of the thirteen independent States would be superseded by such “uniform rule of naturalization” as Congress might enact. 

And, as Clement and Katyal point out, Congress quickly acted to adopt such a uniform rule of naturalization, the Naturalization Act, exercising its Naturalization Clause power to create such uniform rules as it did. 

To the contrary, however, the decision of Congress, when it enacted the Naturalization Act of 1790, to extend Natural Born Citizen status to persons who were not, in fact, by operation of the common law, "Natural Born Citizens" was not a proper exercise of the Naturalization Clause power. (Congress reversed that exact position just five years later when it repealed that Act by adoption of the Naturalization Act of 1795.) 

The essence of naturalization is to make one a citizen that is not a citizen. 

So the whole, express, power of Congress concerning citizenship is related to naturalization, and it is limited to the task, of making, as it were, citizens out of whole cloth. But therein lays the rub for Clement and Katyal. While Parliament had the power to grant Natural Born Subject status to persons denied that status by operation of common law, the Congress of the United States is a legislative body of limited and defined powers. 

For Clement and Katyal to succeed, they must identify a legitimate ground upon which Congress could expand the meaning of the Natural Born Citizen provision. 

Though decades of sifting have sought it out, no Revisionary Power Clause extends such power to Congress, the Courts, or the President, anywhere in the Constitution. There is, of course, Article V, with its established processes for amending the Constitution. The Naturalization Act was not such an amendatory exercise.

So, the Naturalization Act notwithstanding, the question will remain whether the candidate was born in the United States to parents not present here on diplomatic service from another Nation. If that analysis governs, Clement and Katyal have reached the wrong conclusions about the eligibility of Ted Cruz, John McCain, and George Romney to be elected President. While each of these would certainly be entitled to claim citizenship under the Naturalization Act, none is a Natural Born Citizen.

The conclusion Clement and Katyal reached regarding Barry Goldwater’s eligibility, however, might be supported for an oddly different reason. Goldwater was a citizen of Arizona at the time that Arizona, by admission as a State of the Union, adopted the United States Constitution. His eligibility, nearly two hundred years after the ratification of the Constitution, might well be justified under the sole exception to the Natural Born Citizen provision, namely that one must be a citizen of the United States at the time of the adoption of the Constitution.

Digging to China

Democrats think that the best policy for growing employment is government spending.

This policy is best understood as 312 million people standing in a large hole in the ground.  From this 300 million,  about 4 million step forward (federal employees, including postal service and military forces), take shovels, and begin digging as a way of getting out of the hole.  As they dig, they can't throw the dirt out of the hole, it's too big, so they throw it on the other 308 million.

The hole gets deeper.

As the hole deepens and the dirt is being tossed, some of the 308 million get covered by the dirt.  Eventually some of those folks actually disappear.  According to publicly reported information, some 90 million of those remaining 308 million folks have been buried to the point of invisibility.

The hole gets deeper.

When will the madness stop?

When the number of those not yet buried shrinks to the point that those remaining can no longer support those with shovels?

No.

Because, outside the hole, there are others, who are happy to lend their moral support to the madness.  Folks who will lend to the endeavor.  Folks who know that if they can convince the diggers to keep digging, the hole will be, eventually, so deep that there can never be an exit to level ground, to the sunlight, to life, to prosperity.

But because Democrats only know taxation and government spending as the solution to a weak economy and high unemployment (hole digging), they readily accept the cheer offered from Red China.

When will enough Americans be so insulted by the tossing of dirt on them by Democrats and their taxing and spending that they will understand that this life or death struggle cannot be won by toleration, by a friendly disposition, and by "taking it."

Here is a truth from the framers of our Independence:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

You see, so long as the Democrats (and their RINO fellow travelers (John McCain, for example)) seem apologetic for the dirt that gets tossed on folks, there is that natural, human, tendency to "suffer, while evils are sufferable."  Not that such apologies are sincere, for we know that the faking of sincerity is the politician's gift.

But the time comes when the evils are NOT sufferable.  There comes a time when those who suffer understand those whose sole aim seems to be economic enslavement through confiscatory taxation.  And in that day, the great will rise, if necessary, by force, and throw off the tyranny of those whose economic compasses point only to the wallets of others.