World Net Daily is citing an outdated post-Revolutionary War act repealed by Congress that only recognized “free white persons” as citizens to make its case that Miami born Marco Rubio is not a “natural born citizen.”

WND’s argument comes in the wake of several 2011 articles, which make a birther argument that recently elected U.S. Senator Marco Rubio of Florida is not natural born because his parents were alien residents at the time he was born in Miami in 1971.

WND’s editor Joseph Farah pushed that theory on FOX News with Sean Hannity last week,  an interview that was quickly picked up by The Hill and the Daily Caller. The birther movement’s attention turned to Rubio last year when rumors began surfacing that he was a potential candidate for the vice-presidential position on the 2012 Republican ticket, despite his assertion that he was not interested in the position. Since the 12^th Amendment requires that the vice-president possess all the necessary constitutional requirements to serve as president, Rubio’s citizenship came into play.

Throughout their reporting, WND has relied on three major arguments: the first being the treatise “The Law of Nations” by Swiss philosopher Emer de Vattel, which they argue was an influence on our forefathers. Vattel wrote, “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” They also cite a U.S. Supreme Court case from 1875, Minor vs. Happersett, alleging that the case only uses the term “natural born citizen” by referring to persons born in the United States of U.S. citizen parents. Finally, they rely on the Naturalization Act of 1790, which defined a natural-born citizen as: “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.”

There are significant problems which each one of these three flawed arguments.

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Today, the U.S. Supreme Court will hear McDonald v. Chicago, in which the Court will decide whether the City of Chicago can disarm its citizens by forbidding them from owning handguns, or whether gun ownership is a “privilege” of citizenship protected by the U.S. Constitution.  In doing so, it will reconsider whether courts should play a more robust role in the protection of the basic liberties of the people.

Such a statement may seem counterintuitive.  Of course courts protect rights; it’s their job to interpret the Constitution to do just that.

But the practice of constitutional law has unfortunately long since been about more than the simple application of the plain text.  That’s because the Constitution—the point of which is to limit government power—is a rather inconvenient roadblock when government wants to do something without restraints.  Courts, in many cases, have abandoned their responsibility to apply the clear commands of the Constitution and have become extremely deferential to legislatures, especially with regard to progressive policy goals the judges themselves often share.  It seems crazy that we would let legislatures determine when laws they themselves create violate the Constitution.  But that is exactly what has happened.  We’ve let the fox guard the henhouse.

Some call this judicial “restraint,” but increasingly, a more accurate term would be judicial abdication.  And judicial abdication is every bit as dangerous as judicial activism, and arguably even more so because it allows politicians to disregard whatever constitutional limits they find inconvenient, which leads to unchecked expansion of government power.

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