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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.
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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 »

A national treasure

Posted by Charles II on November 24, 2014

Andrew Bacevich:

Consider the following claims, each of which in Washington circles has attained quasi-canonical status.

* The presence of U.S. forces in the Islamic world contributes to regional stability and enhances American influence.

* The Persian Gulf constitutes a vital U.S. national security interest.

* Egypt and Saudi Arabia are valued and valuable American allies.

* The interests of the United States and Israel align.

* Terrorism poses an existential threat that the United States must defeat.

For decades now, the first four of these assertions have formed the foundation of U.S. policy in the Middle East. The events of 9/11 added the fifth, without in any way prompting a reconsideration of the first four. On each of these matters, no senior U.S. official (or anyone aspiring to a position of influence) will dare say otherwise, at least not on the record.

Yet subjected to even casual scrutiny, none of the five will stand up.

Bacevich is a national treasure. An Army colonel who lost a son, he has spoken out against our dangerous and ineffective policy with great courage.

Posted in history, Homeland Security, international, Iraq war, military | Comments Off on A national treasure

Kissinger says US dealings in Ukraine were inept

Posted by Charles II on November 13, 2014

Crossposted from DK.

Der Spiegel:

SPIEGEL: So let’s talk about a concrete example: How should the West react to the Russian annexation of Crimea? Do you fear this might mean that borders in the future are no longer incontrovertible?

Kissinger: Crimea is a symptom, not a cause. Furthermore, Crimea is a special case. Ukraine was part of Russia for a long time.

SPIEGEL: What you’re saying is that the West has at least a kind of responsibility for the escalation?

Kissinger: Yes, I am saying that. Europe and America did not understand the impact of these events, starting with the negotiations about Ukraine’s economic relations with the European Union and culminating in the demonstrations in Kiev.

Ukraine has always had a special significance for Russia. It was a mistake not to realize that.

…the West could not accept the annexation; some countermeasures were necessary. But nobody in the West has offered a concrete program to restore Crimea. Nobody is willing to fight over eastern Ukraine. That’s a fact of life.

We have to remember that Russia is an important part of the international system, and therefore useful in solving all sorts of other crises, for example in the agreement on nuclear proliferation with Iran or over Syria. This has to have preference over a tactical escalation in a specific case…. I don’t think it’s a law of nature that every state must have the right to be an ally in the frame work of NATO.

SPIEGEL: America is very polarized. The level of aggression in the political debate is extremely high. Is the superpower still even able to act at all?

Kissinger: I am worried about this domestic split. When I worked in Washington, political combat was tough. But there was much more cooperation and contact between opponents of the two big parties.

Posted in history, international, Russia | Comments Off on Kissinger says US dealings in Ukraine were inept

History

Posted by Charles II on August 6, 2014

Gareth Porter:

For most of the last five decades, it has been assumed that the Tonkin Gulf incident was a deception by Lyndon Johnson to justify war in Vietnam. But the U.S. bombing of North Vietnam on Aug. 4, 1964, in retaliation for an alleged naval attack that never happened — and the Tonkin Gulf Resolution that followed was not a move by LBJ to get the American people to support a U.S. war in Vietnam.

The real deception on that day was that Secretary of Defense Robert S. McNamara’s misled LBJ by withholding from him the information that the U.S. commander in the Gulf — who had initially reported an attack by North Vietnamese patrol boats on U.S. warships — had later expressed serious doubts about the initial report and was calling for a full investigation by daylight. That withholding of information from LBJ represented a brazen move to usurp the President’s constitutional power of decision on the use of military force.

Posted in history | Comments Off on History

Remembering Liberty

Posted by Charles II on June 9, 2014

All states do cynical things. One can’t condemn any government for a single bad deed. But the US response to the sinking of the USS Liberty is one of those things that has to be acknowledged before the American people can have any confidence in their own government, much less that of Israel. The basic story is this:

On the 47th anniversary of that unprovoked attack let’s be clear about what happened: Israeli messages intercepted on June 8, 1967, leave no doubt that sinking the USS Liberty was the mission assigned to the attacking Israeli warplanes and torpedo boats as the Six-Day War raged in the Middle East. Let me repeat: there is no doubt – none – that the mission of the Israeli Defense Forces (IDF) was to destroy the USS Liberty and kill its entire crew.

There were notably heartless actions by the pilots who engaged in the attacks–and notable bravery by American sailors–that makes this an emotional issue. Critics of Israel point to it as the moment in which that state learned that it could act with impunity, poisoning subsequent relations between the countries. That’s probably not true, since the US can always re-assert itself. And, of course, this plays into the Israel-Palestine conflict and the broader Israel-Arab conflict. Those deserve to be judged on their own merits/demerits.

And then there’s the fact that the president who directed the American response to the attack on USS Liberty was perhaps simultaneously both the best and the worst of post-WW II presidents. For those who hate him, it is easy to turn his indifference toward American servicemen into a bloody rag. The stories of both the dead and the survivors would break your heart. But lots of presidents have been indifferent to servicemen. That is, after all, why there have been so many wars and so little response to problems like PTSD, Agent Orange exposure, and Gulf War Syndrome. Just because those men suffer and die out of the public spotlight doesn’t mean that presidents are ignorant of the human consequences of their inaction.

The main issue, as far as I am concerned is the US response:

When President Johnson learned that the USS America and USS Saratoga had launched warplanes to do battle with the forces attacking the Liberty, he told Defense Secretary Robert McNamara to call Sixth Fleet commander Rear Admiral Lawrence Geiss and tell him to order the warplanes to return immediately to their carriers.

According to J.Q. “Tony” Hart, a chief petty officer who monitored these conversations from a U.S. Navy communications relay station in Morocco, Geiss shot back that one of his ships was under attack.

And then, to add insult to grave injurywas this element of the US response:

[According to a commission led by] former Chairman of the Joint Chiefs of Staff (and before that Chief of Naval Operations) [Admiral] Thomas Moorer…

… surviving crew members were later threatened with “court-martial, imprisonment, or worse” if they talked to anyone about what had happened to them; and were “abandoned by their own government.”

How come Admiral Moorer, along with Marine General Ray Davis and Rear Admiral Merlin Staring were the only senior members of the military to demand that the human beings aboard the Liberty be acknowledged?

Yesterday was the 47th anniversary of the sinking of USS Liberty. Refusing to politicize it in any way, let’s make sure that it is never forgotten. Let’s make sure that the memory of what our government did never be forgotten. And let’s try to make sure that the survivors of that and all acts of war receive humane treatment for all wounds, visible or not.

Posted in Conflict in the Middle East, history, military, veterans | Comments Off on Remembering Liberty

Ah, nostalgia

Posted by Charles II on October 20, 2013

Andrés Cala, Consortium News:

In Galicia, an area in Spain’s northwest, the mayor of another town under Popular Party rule proudly showcases in his office a picture of fascist dictator Francisco Franco. The mayor also plays the fascist anthem to anyone who will listen. Yet, he has faced no official reprimand.

And earlier this month, a small town near Madrid, also governed by the Popular Party (or PP), allowed a fascist group to put up a stand in a public school exhibiting Franco-era and Nazi memorabilia. Officials later apologized and said that they weren’t aware of the stand.

Though anecdotal, these incidents fit with a rising public nostalgia for the Franco era in Spain and are symptomatic of a broader resurgence of extreme right-wing ideology in Europe and globally.

Another point of concern is that nationalist, populist and fascist movements have historically found fertile ground during times of economic pain… mainstream democratic parties have seen their legitimacy questioned and their political support drained.

In Spain – and to a lesser extent in some other European countries – the immediate danger is not so much from a handful of incipient reactionary movements, but rather from the underlying official permissiveness from more mainstream conservative parties, like the Popular Party, bordering on patronage.

Some elected Popular Party officials and party militants are openly making the Nazi salute, proudly displaying fascist flags and other memorabilia, and posting pro-Franco messages on social media sites.

Amid the Popular Party’s recent political success, with its latest high-water mark the gaining of an absolute majority in parliament, many of the party’s stalwarts have reminisced about the Franco era as a prosperous time, though it wasn’t.

Secessionist plans from Catalonia, Spain’s economic motor, have served to unite nationalist forces and radical fascist groups, but the most forceful opposition to Catalonian separation is coming from the right wing of the Popular Party, led by former Prime Minister Jose María Aznar. (emphasis added)

Cala goes on to add that this is a Europe-wide, if not a worldwide phenomenon, with France’s Marine Le Pen’s French National Front, Greece’s neo-Nazi Golden Dawn, and Progress Party leading the way into the abyss. Spain isn’t quite that far down the road… but the tolerance of the Popular Party for fascist expressions could end up mainstreaming it.

When will people learn that reaction doesn’t–almost by definition, can’t– solve problems?

___
Posted, with an addition about how the proper response to the rise of ultranationalism, anti-immigrant sentiment, and outright fascism is an extension and affirmation of human rights, at Daily Kos

Posted in Europe, fascism, history, Tea Party | 1 Comment »

If you really want to know what the Founders said…

Posted by Charles II on September 19, 2013

The National Archives has made it possible: see here.

John Adams to Abigail Adams

Phyladelphia Octr. 9. 1774

My Dear

I am wearied to Death with the Life I lead. The Business of the Congress is tedious, beyond Expression. This Assembly is like no other that ever existed. Every Man in it is a great Man—an orator, a Critick, a statesman, and therefore every Man upon every Question must shew his oratory, his Criticism and his Political Abilities.

The Consequence of this is, that Business is drawn and spun out to an immeasurable Length. I believe if it was moved and seconded that We should come to a Resolution that Three and two make five We should be entertained with Logick and Rhetorick, Law, History, Politicks and Mathematicks, concerning the Subject for two whole Days, and then We should pass the Resolution unanimously in the Affirmative.

Posted in Congress, history | 2 Comments »

Remembering Paul Weyrich

Posted by Charles II on May 23, 2013

My post on how the right is seeking to attack the IRS for its questioning of anti-abortion groups which may have broken the law unearthed a Max Blumenthal article on Paul Weyrich:

In 2001, Weyrich circulated a commentary accusing Jews of murdering Jesus. When a conservative writer named Evan Gahr attacked Weyrich as a “demented anti-Semite,” he learned how powerful the conservative founding father truly was. In short order, neoconservative activist David Horowitz barred Gahr from writing for his FrontPageMag and forced him to apologize to Weyrich.

Obsessed with ideological purity, Weyrich homed his most vitriolic attacks on the Republican congressional leadership. David Grann’s classic profile of Weyrich as a “Robespierre of the Right,” published in 1997 in the New Republic, is probably the best window into Weyrich’s often destructive efforts to force the GOP to the hard right. “The problem with Gingrich,” Weyrich said of the House majority leader at the time, “is that he does not have any immutable principles that he would die for.” (Weyrich sued The New Republic for libel after it published Grann’s article, a suit that was dismissed.)

In 1996, Weyrich was diagnosed with a debilitating spinal injury. Five years later, the injury consigned him to a wheelchair. He spent the last years of his life in constant pain, and took heavy doses of painkillers. In 2004, after a bad fall, Weyrich’s legs were amputated. But he soldiered on, addressing conservative conferences and pumping out a steady flow of commentaries urging the Republicans to stay tethered to their right-wing base.

In September 2006, foreshadowing Rep. Michelle Bachmann’s notorious remarks about her congressional colleagues two years later, Weyrich called for an FBI investigation of reporters who harbor subversive attitudes and urged the resurrection of the House Un-American Affairs Committee.

Paul Weyrich was truly one of God’s weirder pieces of work.

Posted in history, Republicans as cancer | 3 Comments »

Even Meryl Streep can’t whitewash this

Posted by Charles II on April 9, 2013

Seumas Milne, The Guardian, in January (via Greenwald):

Not only in former mining communities and industrial areas laid waste by her government, but across Britain [the late Prime Minister Margaret] Thatcher is still hated for the damage she inflicted – and for her political legacy of rampant inequality and greed, privatisation and social breakdown. Now protests are taking the form of satirical e-petitions for the funeral to be privatised: if it goes ahead, there are likely to be protests and demonstrations.

This is a politician, after all, who never won the votes of more than a third of the electorate; destroyed communities; created mass unemployment; deindustrialised Britain; redistributed from poor to rich; and, by her deregulation of the City, laid the basis for the crisis that has engulfed us 25 years later.

Thatcher was a prime minister who denounced Nelson Mandela as a terrorist, defended the Chilean fascist dictator Augusto Pinochet, ratcheted up the cold war, and unleashed militarised police on trade unionists and black communities alike. She was Britain’s first woman prime minister, but her policies hit women hardest, like Cameron’s today.

A common British establishment view – and the implicit position of The Iron Lady – is that while Thatcher took harsh measures and “went too far”, it was necessary medicine to restore the sick economy of the 1970s to healthy growth.

It did nothing of the sort. Average growth in the Thatcherite 80s, at 2.4%, was exactly the same as in the sick 70s – and considerably lower than during the corporatist 60s. Her government’s savage deflation destroyed a fifth of Britain’s industrial base in two years, hollowed out manufacturing, and delivered a “productivity miracle” that never was, and we’re living with the consequences today.

What she did succeed in doing was to restore class privilege…

Predictably, even The Guardian is now full of amnesiac hagiography. I was unable to watch any of the US electronic media, knowing it would be even worse.

Posted in history | 1 Comment »

The wheels of justice

Posted by Charles II on December 29, 2012

Some of you may know Victor Jara, a Chilean musician who was swept up in the Pinochet mass arrests and executed. The legend is that, while interned at the Chile sports stadium (now Victor Jara Stadium), he encouraged resistance by playing his guitar. When his captors smashed his fingers and told him to play, he continued his defiance by singing until at last they silenced him with machine gun bullets. It probably happened a little differently, but there’s no doubt that he faced death bravely.

Aside from politics, he was just a great guitarist and vocalist.

Via Bohica at DK, his killers have been indicted: Lieutenant Pedro Barrientos, Lieutenant Colonel Hugo Sánchez, and six more.

I hope God adds a little to their sentence for their crimes against acoustic guitar.

Hear Arlo sing his story.
___________
Update: Litho has more.

Posted in abuse of power, history, Latin America | 1 Comment »

 
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