William Jacobson on Natural Born Citizens

From earlier this month, William A. Jacobson (Legal Insurrection) has this impressive post — actually a long scholarly essay — on the eligibility clause: natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz.  Short version: he thinks there is not a clear case for ineligibility of any of the three.  (Quite an impressive set of comments too, although the vitriol runs pretty high).

My thoughts are here (regarding Cruz).

As to Jindal and Rubio, I think there is no substantial textualist/originalist argument against their eligibility, as they were both both in the United States (although to non-citizen parents).  Whatever else it did, English law considered a “natural born subject” to be anyone (other than the child of a foreign ambassador or invader) born within English territory, without regard to the citizenship of the parents.  Absent evidence to the contrary, it seems appropriate to read the constitutional language in light of its English predecessor. 

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Nullification is no mere “Constitutional Right”

As Thomas Jefferson made clear when he wrote the Kentucky Resolutions in 1798, Nullification is not something that’s permitted to the people of the states by any document – it’s their natural right to resist oppressive power. From this, one could easily posit that this right is one that the federal government is barred from infringing under the 9th Amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

More on the 9th in a future power. Here’s Jefferson:

“that every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”

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From Drugs to Taxes, New Amendments Won’t Make a Difference

From talk show hosts to taxpayer defense organizations, a lot of people out there are justifiably sick over how our government is operating.  Many of them have proposed new Constitutional Amendments, either to reign in the power of the federal government, or to force it to exercise its constitutionally delegated powers and responsibilities.  It occurred to me while driving (I do a lot of thinking and praying behind the wheel), that the things these groups propose are why the Constitution was written in the first place – to define yet limit the powers of the federal government.

Congress, presidents past and present, and the Supreme Court have disregarded their Constitutional responsibilities and limitations on their authority for over a century.  If they fail to respect the Constitution and all the Amendments currently included in it, any proposed new Amendments, even if they got past 290 Representatives, 67 Senators and 38 state legislatures, will do nothing to restore one iota of our God-given freedoms.

In the year 1919, the 18th Amendment to the Constitution was ratified, which stated:

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David Barron and Martin Lederman on Congress’ Power to Limit War

In my post on Congress’ power to declare a limited war, I noted that the leading scholarship in support of Congress’ power is by Saikrishna Prakash (here).  I should also have added as well the outstanding two-part article “The Commander in Chief at the Lowest Ebb” by David Barron and Martin Lederman in the Harvard Law…

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The Original, Legal Meaning of the Constitution vs What They’ve Given us Today

Some people – including the former law instructor who now serves as President of the United States – believe that it is impossible to reconstruct the Constitution’s original meaning. As this book demonstrates, that view is substantially incorrect.

The Original Constitution fills a void that has existed for a long time—the need for a clear, complete, easy-to-read guide to what our Constitution really means.

Using evidence overlooked by nearly all other writers and assessing it with scrupulous objectivity, The Original Constitution tells you the truth about the Constitution. The Constitution the Founders gave us, that is, instead of the distorted version of it foisted upon us today.

In The Original Constitution you will learn:

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My First Constitution Day Post: September, 2007

Sometimes I enjoy re-reading old blog posts from the early days of the Tenth Amendment Center, which in our first year or so was little more than a quickly-growing blog.

The principles seem quite similar to what they are today, as evidenced by this Constitution-day post from 09-17-07:

Today is a day that’s not celebrated like many other “holidays” in American society. You see, September 17th is Constitution Day – a day that appears to be nearly forgotten in America.

Sadly, over the years, people have stopped paying attention to the Constitution. It’s rare to hear people talking about the rules for government when discussing current events. And, it’s even more rare to hear politicians refusing to pass legislation because it’s not authorized by the Constitution.

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Criminals Break the Law…So Let’s Pass More Laws?

Those of us who understand and value our unalienable, constitutionally-protected right to keep and bear arms often use this argument regarding gun control:

Gun “laws” don’t work because criminals don’t obey the law!

This seems like a logical argument since criminals, by the very definition of the word, ignore and break the law. Synonyms for criminal include lawbreaker, crook, offender and wrongdoer among others.

Of course we’re not saying that we don’t need laws, we’re just saying that additional laws won’t stop criminals – who by definition are already breaking the law – from breaking the law.

Many people agree with this line of thinking, but apparently only when it comes to gun control.

Example: Several members of the Ohio General Assembly – including some of the more liberty-minded members – support calling for an Article V convention for the purpose of passing an amendment to the Constitution. Ohio HJR 3 calls for an amendment which ”shall provide that an increase in the federal debt requires approval from a majority of the legislatures of the separate states”.

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Congress’ Power to Authorize Limited Hostilities

Does Congress have constitutional power to authorize limited strikes on Syria?  In his otherwise outstanding post on Congress’ war powers, Michael Stokes Paulsen suggests that the answer might be no:

… [I]t is fruitless, and equally unconstitutional, for Congress to authorize the use of force but attempt to micro-manage how it is to be used (as some versions of the proposed resolution now being debated would do). As noted, the conduct of war, once authorized, lies in the hands of the president. Congress has the power to declare war, and the president does not. But the president has the power to conduct war as Commander in Chief—and Congress does not.

I’m not sure which versions of the resolution are meant here, but the principal proposal — (a) limiting the use of force to degrading Syria’s chemical weapons capacity, and (b) limiting the use of force to air power — seems well within Congress’ power to declare a limited war.

The leading article on this subject is by Saikrishna Prakash in the Texas Law Review: The Separation and Overlap of Military Powers.  From the abstract:

Absent from war-powers scholarship is an account of when war and military powers separate and when they overlap. Making arguments sounding in text, structure, and history, this Article supplies such a theory. Numerous English statutes and practices help identify the meaning of the Constitution’s war and military powers. Additional insights come from the Revolutionary War and the half-dozen or so wars fought in the three decades after 1789. In those early years, Congress micromanaged military and wartime operations. Presidents (and their advisors) acquiesced to these congressional assertions of power, expressing rather narrow understandings of presidential power over war and military matters. Using early history as a guide, this Article argues that the Constitution grants Congress complete control over all war and military matters. Some authorities, such as the powers to declare war and establish a system of military justice, rest exclusively with Congress. Military authorities not granted exclusively to Congress vest concurrently with the President and Congress, meaning that either can exercise such powers. In this area of overlap, where congressional statutes conflict with executive orders, the former always trump the latter. Tempering Congress’s ability to micromanage military operations are significant institutional and constitutional constraints that typically make it impossible for Congress to move military assets on a far-off battlefield. In sum, the Constitution creates a powerful Commander in Chief who may direct military operations in a host of ways but who nonetheless lacks any exclusive military powers and is thus subject to congressional direction in all war and military matters.

While I would not go quite as far as Professor Prakash (see here), I agree that Congress has substantial ability to set the goals and limits of the use of force in connection with an authorization of war. 

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