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Who are you going to believe? A former Solicitor General/former Acting Solicitor General or some random guy on the Internet? /Updated

Posted by Charles II on December 22, 2015

Scott Rohter is a Tea Party guy. His full bio state that his accomplishments in life are: “being a property rights activist since 1995” and writing articles for such noted law journals as Free Republic and Red State. It’s really quite an extraordinary life!  Which, in his own mind, qualifies him to interpret the Constitution.

And so, he states with full conviction:

The United States Constitution says that you have to be a Natural Born Citizen to be the President of the United States.  That means that you have to be born in the United States in order to be the President of the United States.  That just seems like common sense to me…  the kind of common sense that our Founding Fathers had plenty of.  It is also the kind of common sense that makes perfect sense in the dangerous world that we live in today.

There is no definition listed in the Constitution for what it means to be a Natural Born Citizen, but the Founding Fathers knew exactly what it meant.

This is because he personally knew the Founding Fathers, I guess. At any rate, he quotes as his authority The Law of Nations by Emerich [sic; it’s actually Emmerich, and also written Emer] de Vattel. de Vattel is of course the best source to cite because (a) he was Swiss, and (b) he died in 1767, well before the writing of the Constitution. The fact that the American Supreme Court has considered the issue, and despite the fact that in making rulings about the law they reviewed the proceedings of the Founders, it doesn’t count because:

The definition of what it means to be a Natural Born Citizen has been vigorously debated over the centuries and thanks to recent Supreme Court decisions it has been watered down by progressive judges to the point that it means just about anything they want it to mean.

Well, if by “recent,” you mean the Naturalization Act of 1790 and Supreme Court decisions from the 19th century, yeah, I guess if you make “recent” mean anything you want it to, then sure, Mr. Rohter’s ascension to the Higher-than-Supreme Court of the United States makes sense.

On the other hand, you could look at the work of a former Bush Solicitor General and a former Obama Acting Solicitor General, both now distinguished law professors at Georgetown who write in the Harvard Law Review:

All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.

The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law
and enactments of the First Congress.

Both confirm that the original meaning of the phrase “natural born Citizen” includes persons born abroad who are citizens from birth based on the citizenship of a parent.

The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like “natural born,” since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone’s Commentaries, a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.

No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were “natural born Citizens.” The Naturalization Act of 1790 provided that “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 . . . .”

The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress.

Rohter can’t even be called a liar or a fool, because he clearly inhabits some alternate reality where facts and history and reason bend to fit his prejudices. But of course, he call call people he disagree with liars and fools at will, because nothing matters except his opinion.

Arrogance will destroy this country. As we see in Iraq and Afghanistan, Libya and Syria, the Ukraine and the Bakken, Ferguson and Baltimore, it is already well underway. We’re all so d–ned sure of ourselves that we can’t take the time to look and listen.
Update: It turns out the the case is not cut-and-dried. Mary Brigid McManamon written a piece in the WaPo describing her research on the topic:

First, although Katyal and Clement correctly declare that the Supreme Court has recognized that common law is useful to explain constitutional terms, they ignore that law. Instead, they rely on three radical 18th-century British statutes. While it is understandable for a layperson to make such a mistake, it is unforgivable for two lawyers of such experience to equate the common law with statutory law. The common law was unequivocal: Natural-born subjects had to be born in English territory. The then-new statutes were a revolutionary departure from that law.

Second, the authors appropriately ask the question whether the Constitution includes the common-law definition or the statutory approach. But they fail to examine any U.S. sources for the answer. Instead, Katyal and Clement refer to the brand-new British statutes as part of a “longstanding tradition” and conclude that the framers followed that law because they “would have been intimately familiar with these statutes.” But when one reviews all the relevant American writings of the early period, including congressional debates, well-respected treatises and Supreme Court precedent, it becomes clear that the common-law definition was accepted in the United States, not the newfangled British statutory approach.

Third, Katyal and Clement put much weight on the first U.S. naturalization statute, enacted in 1790. Because it contains the phrase “natural born,” they infer that such citizens must include children born abroad to American parents. The first Congress, however, had no such intent. The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them. Moreover, that statute did not say the children were natural born, only that they should “be considered as” such. Finally, as soon as Madison, then a member of Congress, was assigned to redraft the statute in 1795, he deleted the phrase “natural born,” and it has never reappeared in a naturalization statute.

So,it’s not settled law. I don’t think McManamon’s view would prevail simply because it creates complications that the Supreme Court would avoid by defining away “natural born.” Otherwise we have two classes of citizen with different rights. What other rights are to be denied those not “natural born”? On what possible rational basis? But I will have to say: Scott Rohter might be right… even if it’s totally by accident. Only the Supreme Court can say for sure.

Posted in Constitution, Flying Monkey Right, history, libertoonians, propaganda, Uncategorized | 2 Comments »

Bigotry Struck Down

Posted by MEC on February 7, 2012

The 9th U.S. Circuit Court of Appeals has ruled that California’s Proposition 8 banning same-sex marriage is unconstitutional.

The people may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.

Posted in civil rights, Constitution | 2 Comments »

Then again, it’s easy to see why FOX makes such mistakes

Posted by Charles II on December 14, 2011

As bizarre as it is for an organization claiming to be delivering “news” to label a picture of Obama as Romney, it’s not so surprising that Obama gets confused with Republicans. Ryan Reilly, TPM:

The ACLU’s Laura Murphy said Obama “should more carefully consider the consequences of allowing this bill [National Defense Authorization Act, which includes a provision allowing indefinite detention of US citizens without charge or trial] to become law.”

“If President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law,” Murphy said in a statement. “The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.”

One could see the betrayal coming from a mile off. He’s signing it, even though it stands in flagrant violation of the provisions of the Fifth and Sixth Amendments.

Posted in Constitution, Obama Administration, totalitarianism | Comments Off on Then again, it’s easy to see why FOX makes such mistakes

If you want a new nation, write a new Constitution

Posted by Charles II on November 5, 2011

It seems increasingly clear to me that the first American Republic has failed and that we need to look forward to the second or, at the very least, to a transformation of the American Republic as profound as that of the New Deal.

Now, people have despaired many times. The Civil War certainly seemed like an irretrievable failure, yet somehow we pulled together and went on. The Great Depression seemed as if the capitalist system as a whole was unsalvageable, yet we salvaged it and re-wrote the social contract. Those terrible days of the 1960s, when we lived under the nuclear shadow and national leaders were being cut down seemed as though they would end in chaos.

So, it is not events alone that determine when a system fails. It is something inherent in the system itself. Just as a person can be terribly wounded, yet survive because of the will to live, a nation must have a will to live. Nations can exist for a time on the imperial hunger, a will to dominate and feast on the wealth produced by others. Unless they care about truth and about including all their members in their decisions, however, they inevitably make bad decisions, inflict the consequences on the weaker members, and fragment as more and more people start to understand that they are disposable.

That’s our history over the last ten years. Most Americans–even those not occupying– realize that they are regarded by the elites as pieces of trash. Fewer and fewer Americans believe that they enjoy the very spare list of human rights enumerated in the Constitution. Half of us don’t vote, and many of us who do believe that our concerns are not heard above the din of the Koch brothers and the corporations.

There is a movement in Congress to write a constitutional amendment to reduce the power of money in politics. I believe this is too narrowly focused. The problem with elections is equalizing the power of the voices of the people. It’s fine by me if Exxon has a voice. I just want it to be about as loud as my own. So we have to address the whole crooked system: from poll taxes and the exclusion of prisoners from voting to a media controlled by a hundred people to the power of corporate money.

I propose the following language:

“The right of the people to be accurately informed on issues pertinent to selecting representatives to government being essential to maintaining freedom and prosperity, elections shall afford all candidates access to means of communication adequate to discuss issues with their prospective constituents, shall forbid the use of concentrated wealth to corrupt elections, and shall require that all persons shall be able to vote.”

I think that the existing system will have to collapse to create an opening for a new one. But I would be happy to be proven wrong. But whether the first Republic is ending, or simply being transformed, we need to have a vision–a positive vision– of what we want. It is this vision of the “America that will be,” as Langston Hughes called it, that amounts to our national will to live. If we fail to dream, darker forces will have the opening they have always wanted.

Posted in Constitution, Constitutional crisis, freedom | 4 Comments »

What is liberalism?

Posted by Charles II on January 12, 2011

Crossposted from Sideshow:

Avedon, on Atrios, you asked for a definition of liberal philosophy. This would be my answer:

The core goal of liberalism is to maximize the freedom of everyone. This requires both limiting the excesses of the powerful and ensuring that the powerless are not denied the tools by which they may achieve their full human potential. Governments are instituted and laws are passed not to grant, but to serve and protect fundamental human rights. They must be as small as possible to achieve those goals, but large enough and independent enough to confront the powerful. Fundamental human rights cannot be enumerated, but are recognizable as whatever actions are required to act to keep us alive, free, and able to follow our hearts. Among ones that are clearly recognized are:
* The rights to associate with whoever we like, believe whatever we like, and say what we like, so long as our actions do not injure others;
* No one may be pressured to believe any particular doctrine, nor may the power of the state be used to promote one doctrine or suppress another;
* Our elected representatives must submit themselves to any non-violent criticism of their policies or their actions;
* We have the right when we do wrong to be charged openly and given a fair playing field on which to defend ourselves in a timely trial;
* The law must be neutral, favoring neither rich nor poor, powerful nor powerless, but always acting according to consistent principles;
* News must circulate freely, and all viewpoints must be heard;
* Our homes may not be invaded, nor our possessions or private expressions of beliefs searched without due process;

Liberalism has wandered very far afield of what it really is. For example, a dedication to small government could be achieved by reducing the size of the powerful interests which government is designed to keep in check. This is, I think, a better solution than making government bigger. Or, for example, if true non-profits competed against insurance companies, that would be an acceptable and non-governmental solution to the health insurance crisis (I’ve always wondered why the doctors didn’t create such entities; perhaps now they will). Modern, complex states do need government. The right is kidding itself if it thinks that there can be high standards of living and limited government. But my vision of liberalism involves a lot less government, especially that part of government that starts and wages wars.

Posted in Constitution | Comments Off on What is liberalism?

Boycotting Arizona

Posted by Phoenix Woman on May 5, 2010

On this Cinco de Mayo, the fine folk of have a message for us:

Dear friends,

Major League Baseball players and coaches are speaking out strongly against Arizona’s new anti-immigrant law, SB 1070. The MLB is more than 25% Latino, and they don’t want to play ball in a state where they and their Latino fans are subject to racial profiling.

These players need our support. Will you join me in demanding that Major League Baseball move the 2011 All-Star Game — now scheduled for Phoenix — as long as racial profiling is legal there?

The All-Star Game represents one of the highest-profile events every season in baseball — second only to the World Series. As much as $60 million will be spent in the host region during All-Star Game weekend.

MLB is already feeling the pressure, and if they pull the game from Phoenix, it would send a powerful message that extremism and discrimination will cost Arizona.

Please sign the letter to MLB Commissioner Bud Selig, and ask your family and friends to do the same:

You know what to do.

Posted in civil rights, Constitution, Constitutional crisis, Hispanic issues, immigration, Mexico | Tagged: | 1 Comment »

Why I’m not a member of the ACLU (and why you shouldn’t be either)

Posted by Charles II on January 29, 2010

The ACLU does a lot of good stuff. The southern California chapter deserves a lot of credit for taking on tough issues, like Tasers. But the national organization consistently sides with corporations against human beings. They were longtime defenders of the tobacco companies’s right to addict people, even as they were taking large amounts of money from the industry. More recently, they sided with Citizens United against the FEC, a case that resulted in the overthrow of all campaign finance restrictions on corporations:

Citizens United v. Federal Election Commission … Section 203 of the Bipartisan Campaign Reform Act of 2002 prohibits unions and corporations (both for-profit and non-profit) from engaging in “electioneering communications.” The legislative definition of an “electioneering communication” was upheld by the Supreme Court in 2003 and then substantially narrowed by the Supreme Court in 2007. In scheduling this case for reargument, the Court specifically requested briefs on whether section 203 should now be struck down as facially unconstitutional. The ACLU has consistently taken the position that section 203 is facially unconstitutional under the First Amendment because it permits the suppression of core political speech, and our amicus brief takes that position again.

Harvey Wasserman and Bob Fitzrakis, SC:

The Supreme Court’s atrocious Citizen’s United green light for unlimited corporate campaign spending had a willing accomplice — the American Civil Liberties Union.


As long-time supporters, we are horrified by the ACLU’s betrayal of political reality and plain common sense.

Standing proudly with the victorious corporate hacks on the steps of the SCOTUS was none other than the legendary First Amendment crusader Floyd Abrams.

Keith Olberman has called him a “Quisling” for aiding and abetting this catastrophic confirmation of corporate “personhood.”…

It has been reported that the ACLU Board is now considering endorsing limits on campaign spending. Abrams has been reported as arguing that “The worst thing you could do – the absolutely worst thing you could do – is transform a civil liberties organization into a liberal political organization.”

But this decision has transformed the ACLU into a conservative political organization, working to arm the ultimate enemies of democracy with unlimited monetary and political power.

The Center for Constitutional Rights is a far more worthy organization to receive your contributions than the ACLU.

Posted in ACLU, capitalism as cancer, civil rights, Constitution, corruption | 2 Comments »

Two Kinds Of Terrorists, Two Kinds Of Reactions

Posted by Phoenix Woman on January 20, 2010

AP Photo/Steve Helber

While the Republicans were putting on their show trial questioning of various Obama Admininistration figures concerning How Awful It Is that the Underpants Gnome, Umar Farouk Abdulmutallab, was being tried in a civilian court as a criminal as opposed to being tried in a military court as an enemy combatant or whatever, the Virginia authorities caught a guy named Christopher Speight.

Who’s he? Oh, nobody in particular, just someone who likes to wear military outfits, collect gobs of explosives, and kill people:

Bomb technicians discovered a “multitude” of explosives Wednesday at the home of a man suspected in the shooting deaths of eight people, and crews were detonating the devices as more details about the gunman came to light.

Christopher Bryan Speight, a 39-year-old security guard, surrendered to police at daybreak Wednesday after leading authorities on an 18-hour manhunt following the shootings at a house in rural central Virginia where deputies found a mortally wounded man and seven bodies.

The victims were four adults, three teenagers and a child. They were identified as 16-year-old Ronald Scruggs; 15-year-old Emily Quarles; 43-year-old Karen and Jonathan Quarles; 38-year-old Dwayne and Lauralee Sipe; 15-year-old Morgan Dobyns; and 4-year-old Joshua Sipe.

So why aren’t the Republicans insisting that this guy — who has very likely killed eight more people than Abdulmutallab ever will — be tried in a military court as a terrorist or enemy combatant? It wouldn’t be because he’s not only a white guy, but likely a white conservative Christian guy, would it?

Posted in Constitution, hypocrites, Obama Administration, Republicans, Republicans acting badly, terrorism | Comments Off on Two Kinds Of Terrorists, Two Kinds Of Reactions

This Is What Decency Looks Like

Posted by Phoenix Woman on November 13, 2009


Ten-year-old Will Phillips, in the West Fork School District in Washington County, Arkansas, did something very brave recently:

There’s a 10-year-old lad, a fifth-grader at West Fork Elementary, who decided he wasn’t going to say the Pledge of Allegiance at school anymore because there was no liberty or justice for all in America, as the pledge’s rote recitation asserts.

He’d concluded that gay people didn’t get equal justice or liberty in this country and that he was loath to mouth something suggesting they did.

That is to say the boy was thoughtful, sensitive, courageous and free.

And it wasn’t just a one-time action, either:

The class had a substitute teacher that week, a retired educator from the district, who knew Will’s mother and grandmother. Though the substitute tried to make him stand up, he respectfully refused. He did it again the next day, and the next day. Each day, the substitute got a little more cross with him. On Thursday, it finally came to a head. The teacher, Will said, told him that she knew his mother and grandmother, and they would want him to stand and say the pledge.

“She got a lot more angry and raised her voice and brought my mom and my grandma up,” Will said. “I was fuming and was too furious to really pay attention to what she was saying. After a few minutes, I said, ‘With all due respect, ma’am, you can go jump off a bridge.’ ”

Will was sent to the office, where he was given an assignment to look up information about the flag and what it represents. Meanwhile, the principal called his mother.

“She said we have to talk about Will, because he told a sub to jump off a bridge,” Laura Phillips said. “My first response was: Why? He’s not just going to say this because he doesn’t want to do his math work.”

Eventually, Phillips said, the principal told her that the altercation was over Will’s refusal to stand for the pledge of allegiance, and admitted that it was Will’s right not to stand. Given that, Laura Phillips asked the principal when they could expect an apology from the teacher. “She said, ‘Well I don’t think that’s necessary at this point,’ ” Phillips said.

And of course, since he’s sticking up for gay people, he’s getting the usual sort of harrassment. But he’s standing firm, if you will, in his refusal to stand for a pledge that he believes is untrue.

You are a good young man, Will Phillips. Good and brave and honorable. I can’t wait to see what you’ll be like in another ten years.

Posted in Constitution, family values, freedom, gay rights, heroes | 6 Comments »

This Big Story Broke Yesterday, But I’ll Bet This Will Be The First You’ll Have Heard Of It

Posted by Phoenix Woman on July 25, 2009

I guess the members of the GOP/Media Complex have been so busy haranguing President Obama for speaking honestly about the illegal arrest of Professor Henry Louis Gates, and/or threatening him with even nastier treatment unless he started bowing down to them (shades of the “White House Travel Office Scandal”, when the press took their perk-dispensing buddy Billy Dale’s side despite his having over $50,000 in office funds stuffed into his private personal bank account), that most of them can’t be bothered to talk about this story (h/t Teddy Partridge) about how in 2002, Dick Cheney wanted to see if he could illegally use US troops on US soil to go after alleged terrorists, instead of letting law enforcement officials handle the job:

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

A decision to dispatch troops into the streets to make arrests would be nearly unprecedented in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.

The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.

That it does.

Of course, that Dick Cheney thinks the Constitution is his own personal roll of toilet paper is not news. What is news, as Partridge notes, is that this story looks to have been released by Bush entouragers as a way of pushing back against this story and this one, both of which make Bush look bad (and at least one of which was Cheney trying to look good by making Bush look bad over the Scooter Libby mess).

Posted in anti-Americanism, Bush, BushCo malfeasance, Busheviks, Constitution, Constitutional crisis, Dick Cheney, evil, Republicans, Republicans acting badly, Republicans as cancer, rightwing moral cripples, terrorism | 4 Comments »

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