World Net Daily is citing an outdated post-Revolutionary War act repealed by Congress that only recognized “free white persons” as citizens to make its case that Miami born Marco Rubio is not a “natural born citizen.”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

Rep. James Clyburn and a group of House Democrats are urging President Barack Obama to invoke the 14th Amendment to raise the debt ceiling if Congress can’t come up with a satisfactory plan before the Tuesday deadline.

Clyburn, the third-ranking House Democrat, said Wednesday that if the president is delivered a bill to raise the debt ceiling for only a short period of time, he should instead it and turn to the phrase in the Constitution that says the validity of the U.S. government’s debt “shall not be questioned.”

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Republicans in Congress are hewing to the best traditions of the founders of the nation, and the founders of their own party, in their effort to keep a lid on federal borrowing. The idea that there is some constitutional bar to their refusal to raise the debt limit betrays Democratic desperation.

The Constitution was established so that a stronger Union would be able to pay its debts. The Confederation government had already defaulted on its Revolutionary War obligations. Thus the new government assured its creditors in the new Constitution, which provided that “All debts contracted and engagements entered into, before the adoption of this Constitution, shall be valid against the United States under this Constitution, as under the Confederation.” The Federalists and their successors paid off the entire national debt by the 1830s.

After the Civil War, the American people settled permanently the possibility of repudiating the national debt. Section four of the Fourteenth Amendment simply says, “The validity of the public debt of the United States, authorized by law… shall not be questioned.” Thus the Republicans foreclosed the possibility that, should the Democratic party return to power, it would repudiate the war debt—or pay the Confederate debt.

While other provisions of the Fourteenth Amendment provoked intense debate, section four did not. “I need say nothing of the fourth section,” said Representative Thaddeus Stevens, “for none dare object to it who is not himself a rebel.”

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Seeking to make virtue out of vice, the political Left has launched a desperate, devious and dangerous ploy to prevent the spending cuts that the public demands.

They are laying the groundwork for President Obama to bypass negotiations and to ignore the $14.3-trillion statutory ceiling on federal debt.  They want him to instruct the Treasury to borrow whatever it needs to satisfy grandiose spending designs, by claiming that the borrowing limit is unconstitutional.

If this happened, it would add a constitutional predicament to our economic crisis.  And it would worsen our economic problems.

The Left bases their plan on a dangerous misreading of the 14^th Amendment.  They employ deceptive rhetoric to depict the big spenders as the saviors of the Constitution.  They claim it’s the Constitutional remedy to protect our economy from the supposed alternative Armageddon’s of defaulting on debt or devastating reductions in spending.

The Left adds that this also would save us from the evil Republicans who won’t go along with job-killing tax hikes.

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Time magazine’s cover story shows the U.S. Constitution and asks, “Does it still matter?” Reading this story, we kept waiting for Emmanuel Goldstein to show up for the Two Minutes of Hate. It was difficult to discern whether we were reading Time, or George Orwell’s 1984.

It portrays the Constitution as an outmoded document that we should ignore to whatever extent is expedient to pursue someone’s vision of a better society: “We cannot let the Constitution become an obstacle to a future with a sensible health care system, a globalized economy, and evolving sense of civil and political rights.”

The story shows all sorts of poll questions that present a false choice, such as, “The 14^th Amendment says that any person born in the U.S. automatically becomes a U.S. citizen… Should [it] be revised?” The Citizenship Clause says no such thing, because it adds that anyone not “subject to the jurisdiction” of the U.S. is not a citizen.

That’s why children of foreign ambassadors, prisoner soldiers and heads of state born here do not become citizens. Federal law excludes them, but that exclusion would be unconstitutional if what Time said were true (which it’s not). The question is how broad that “jurisdiction” clause is. Could Congress exclude children of illegal aliens? It’s an active debate in legal circles, with no clear answer.

Instead, the questions should have included: “Are you more interested in the Constitution today that you were four years ago?” “Do you agree or disagree with candidates discussing the Constitution more in their campaign speeches this year?” “Are you now aware that the Constitution only vests the federal government with power over specific areas of life, leaving the states sovereign to decide  all other issues?”

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How was I to know [he] was with the Russians, too?

Justice Stevens’ opinion leaves him on the wrong side of history regarding the importance of the 2nd Amendment.

Part III deals with Justice Stevens’ dissenting opinion in McDonald v. Chicago, Justice Scalia’s responsive concurrence, and a general summary of the issues.  Part I dealt with the plurality decision written by Justice Alito, the dissenting opinion of Justice Breyer, and is relevant to a discussion on the doctrine of incorporation.  Part II dealt with Justice Thomas’ brilliant concurrence, rejecting the doctrine of incorporation for the “privileges and immunities” clause of the 14th Amendment.

You may recall that we addressed the legacy of Justice Stevens’ in a previous article:

Justice Stevens, a member of the Court since 1975, displayed distrust for freedom and voted on the wrong side of many significant constitutional issues.  He willingly eroded individual rights in favor of intrusive government policy.  Stevens’ uneasiness with freedom and individual rights led him to substitute textually sound, constitutional arguments with “intangibles” and fearful hypotheticals involving individuals abusing their rights at the expense of others.

Sure enough, he is up to the same shenanigans in what will be one of his last opinions.  To our benefit, Justice Scalia makes sure that Stevens leaves SCOTUS with a swift kick in the pants. (more…)

Send lawyers, guns and money…the sh%$ has hit the fan!

Seriously!  Justice Thomas opened a whole new chapter in constitutional jurisprudence with his concurring opinion regarding the 14th Amendment’s “privileges and immunities” clause.

Part II deals with Justice Thomas’ concurring opinion in McDonald v. Chicago. Part I dealt with the plurality decision written by Justice Alito, and the dissenting opinion of Justice Breyer, and is relevant to a discussion on the doctrine of incorporation.  Part III will address Justice Scalia’s concurrence directed at Justice Stevens’ dissent.

Let me preface this article by saying Justice Thomas is my favorite Supreme Court Justice.  Progressives often ridicule him for being “silent,” but why should he bother asking attorneys questions when their arguments focus on SCOTUS swing-vote, Justice Kennedy.  His textual approach to interpreting the Constitution makes the most sense.  While originalism and textualism both seek the original meaning of a statute or provision of the Constitution, originalism seeks the intent of the authors, where textualism focuses on the contemporary meaning of the text.  Primary sources on the intent of authors leads to a cogent argument, but primary sources on the meanings of words promotes a sound argument (and if you never learned logic then you have some studying to do; progressive arguments are rife with fallacies). (more…)

I’m the innocent bystander…not anymore!

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

It is so ordered.

And so, our 2nd Amendment right to firearms settles into its proper place among our pantheon of fundamental rights.  The truth of the matter is that we always retained that right, but the law had been interpreted contrary to the Constitution.

Two arguments were the focus of McDonald v. Chicago: (1) the narrow interpretation of the 14th Amendment’s “privileges and immunities” clause adopted in the Slaughter-House Cases should be rejected; and (2) the 14th Amendment’s “due process” clause incorporates the 2nd Amendment right.  Justice Thomas addressed the first argument in a concurring opinion (arguably the bigger precedent), but we will turn to that topic in Part II.  Justice Scalia skewered Justice Stevens’ dissenting opinion in another concurring opinion, but that will be the topic of Part III.  First let us examine Justice Alito’s plurality opinion concerning the second argument, and the dissent of Justice Breyer. (more…)

At long last the 2nd Amendment has been considered a personal right per the Supreme Court of the United States. In McDonald v the City of Chicago the Supreme Court has ruled in a 5 to 4 decision that Chicago’s gun banning laws are not in keeping with the right to self-defense as enshrined in the U.S. Constitution. After 200 some years we are finally accorded our rights officially. Further, the Court found that the 2nd Amendment was meant to protect the very people that Mayor Richard Daley and his comrades are trying to forcibly disarm: black Americans.

The decision threw out the Seventh Circuit ruling upholding Chicago’s gun ban and ordered the Seventh to revisit its decision. This new ruling does not specifically strike down Chicago’s gun ban but the opinion leaves little room for the Seventh to up hold Mayor Richard Daley’s gun banning efforts.

One of the main questions before the Court was whether or not the 14th Amendment served to shore up the rights in the 2nd. The Court found that it did, indeed. In fact, it is interesting to note that the ancestors of the very people that the 14th Amendment was meant to specifically protect — newly freed slaves, called freemen — are today those that Mayor Richard Daley and others like him want to disarm. Daley and his ilk want to disempower blacks and other minorities and tie them plantation-like to their government authority.

In the majority opinion in the McDonald decision specifically notes the history of the 14th Amendment and its preceding basis for being the protector of the freemen.

After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that “no freed- man, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife.” (pg 23)

There was but one reason why freedmen were prohibited from having firearms and that was so that they would be unable to defend themselves against terrorists like the Klan or be able to enjoy the fruits of citizenship. Scalia notes that the Freedman’s Bureau began to add rules to its repertoire to specifically affirm the newly freed black’s right to self defense (pg 27).

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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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