What Constitution did President Obama Teach?

Barack Obama famously declared that as a former teacher of Constitutional law, he actually respects the Constitution, unlike his predecessor in the Oval Office. Subsequent events make it fair to wonder exactly how he shows this respect.

Some on the Left barely conceal their disdain for the world-changing handiwork of dead white males. Reverence for the Constitution isn’t universal even among its chief custodians. Justice Ruth Ginsburg raised eyebrows when she advised Egyptian civic activists she wouldn’t look to the US Constitution as a model today. She pointed instead to the constitutions of South Africa, Canada, and the European Charter of Rights and Freedoms, praising them as “great work,” more recent and more generous in protecting “human rights.” The late Justice Thurgood Marshall also was cautious about putting too much stock in Constitutional guidance, asking a PBS interviewer: “What does the Constitution say about rocket ships?”

Actually, the Constitution says as much about rockets as it does about horses and buggies: basically nothing. The Constitution is not the US Code of Statutes, setting out the federal law. It’s more like the rule book or citizens’ owners’ manual that governs the government. It’s a uniquely successful compact in history. But it remains vital only as Americans understand it, support it, and demand politicians do likewise.

Citizens who accuse President Obama of violating the Constitution should have a clear idea what they mean. This would include being able to explain to a friend or child basic constitutional principles and describe the ways they are threatened. Here’s my attempt at a simple, easy to share explanation: Life is hard and sometimes dangerous. Government can help protect peace and security, but it’s important to think seriously about what government should be and do, as our Framers had to when they organized America.

The big thing they realized is government is unique. Some things need governing, but others just involve voluntary cooperation. Lots of people or groups--like street preachers, hotdog vendors, corporations, your mother—have things they want you to do: repent, buy stuff, call home. But government decides things you have to do or can’t do, at the risk of fines, jail, or, at some level of resistance, getting shot.

Government’s essence is controlling people—forbidding things, requiring things, and extracting the taxes to pay for things. Our Founders realized the power to control people, as opposed to offer or invite in voluntary exchanges is potentially dangerous. It must be limited and channeled, as in the apocryphal wisdom of George Washington: like fire, government is a dangerous servant and fearsome master.

The Founders figured out controlling people involves three different kinds of power: making rules, enforcing rules, and resolving disputes between people and between the enforcers and the people. They also realized the controllers could be kept honest and fair only if those different powers were kept apart: the people who make the rules shouldn’t be the ones who enforce them; the enforcers shouldn’t decide disputes between themselves and the people.

That’s why the Founders arranged separation of powers. They created Congress in Article I, the Executive in Article II, and the Supreme Court and judiciary in Article III.

Our Founders also realized the young nation sat at the edge of a continent it might grow to fill. Even the 13 colonies had a diverse mix of heritage, religion, resources, climate, industry, and so forth. They determined people should govern themselves as locally as possible. Daily government was left with the states. The national government would be limited to matters that truly needed to be nationally uniform. It was delegated only enumerated powers.

The Founders crowned their structure with a Bill of Rights, identifying some, but not all, of the sacred liberties and protections needed for the free pursuit of happiness. The finished work was an intellectual revolution more spectacular than the military revolution that made it possible. The path has not always been smooth or safe. But most people agree, it’s the most successful system of governing ever designed.

Some clever and sophisticated people today say the Constitution is outdated. It was designed for a small, simple society. Our modern world needs something more complex. This claim is curious, both as a matter of observable history and of theory.

If you hear such criticism, you might challenge it. Historically, ask if any other national system has lasted longer, or produced better fruits, including freedom, due process, stable government, opportunity, prosperity, and a magnetic draw to people around the world.

On theory, ask what has changed in the world or human nature that suggests government’s controlling powers shouldn’t be limited. Or why it makes sense to mix the powers to legislate, enforce, and judge. Ask too, if rigid, centralized government across diverse states and communities, geography, cultures, and economies makes any more sense than before.

The critics likely will talk about how things should be different; but they won’t show that anything has ever worked better than the United States Constitution. But the Transformer and his supporters find it very inconvenient. And for some, that’s all that matters.

Obama navigated the Constitution cleverly making leaders of both major parties complicit in his blatant disregard for the Constitution - “No person except a natural born Citizen...” He understood, having co-sponsored two Senate actions in 2008, Senate Bill 2678 and Senate Resolution 511, that he himself, as 14th Amendment author Congressman/Judge John Bingham explained in the 1866 Congressional Record, not born “of parents not owing allegiance to any foreign sovereignty”. Obama has never claimed to be a natural born citizen.

Obama and his Harvard sponsor, Larry Tribe, understood that the Constitution does not contain definitions because, as Madison explained, word definitions change over time, Its framers wanted their Constitution, based is it was upon “The Laws of Nature and of Nature’s God”, to have eternal meaning. As Chief Justice Morrison Waite explained in Minor v. Happersett, “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens... “

Obama carefully described his status as a 14th Amendment, a “Naturalization amendment”, citizen. He honestly told us he was born a subject of the British Commonwealth by the British 1948 Nationality Law. He said “I am a native-born citizen of the U.S.”, a clever construction, true because his birth in Hawaii made him native-born, like American Indians, who were not naturalized by the 14th Amendment because their allegiance was to another government. Obama was naturalized by “man’s law” based upon the 14th Amendment, which explicitly never mentioned natural born citizenship.

Obama was recognized as president by almost all congressmen, Nathan Deal of Georgia asked for written confirmation of Obama’s eligibility. He was answered with a detailed examination of a decade or more of his IRS returns and threatened by the House Ethics committee. Obama has never been required to sign a statement claiming he is a natural born citizen. Political parties support candidates and parties are private corporations. Nancy Pelosi attested to Obama’s eligibility. One and perhaps two states required a declaration of eligibility, Hawaii and Arizona, and Pelosi submitted two different documents, one with and one without the words “natural born Citizen”.

Most assume this issue has is old, as indeed it is, over two hundred years old, and that is has been resolved and buried. It cannot be resolved except by amendment or by a re-interpretation of the legal precedent used in dozens of Supreme Court cases. The willing violation of the Constitution by both parties will always be part of our history, but the money and contracts secured by maintaining the power structure insures temporary power and profits of those cronies involved.

Thus far Democrats have only floated natural born citizens for the 2016 presidential election. Republican candidates being discussed are mostly naturalized citizens, Jindal, Rubio, Haley, Cruz. Does anyone believe that is a coincidence? Does anyone believe that Obama’s cronies don’t understand the Constitution, and won’t challenge a naturalized citizen, as they did challenge Supreme Court Justice Charles Evans Hughes in the 1916 election? (Missouri Attorney Breckinridge Long, “Is Mr. Charles Evans Hughes a Natural Born Citizen within the Meaning of the Constitution? Chicago Legal News, 1916). That essay provided that foundation for the case dismissing Hughes had he defeated Woodrow Wilson. If we hope to return to Constitutional government we must either amend the Constitution or convene a Constitutional Convention to change presidential eligibility as Conyers and Hatch and Menendez tried to do. We must stop lying to each other about what remains clear in our legal history, or acknowledge that monarchy is here to stay. Already, as explained by Stalin, “in Democracies it only matters who counts the votes.” In the U.S. the SEIU counts votes in virtually every state. Elections are here to give the proletariat the illusion of having some voice in government.

Conyers tried twice between 2001 and 2006 to pass an amendment that would have made Obama eligible. Frank and Menendez also tried, once each. Orrin Hatch wanted Schwarzenegger to be eligible, as did Rohrabacher; each filed amendments. So did Nickles, though if he had a favorite, it isn’t clear who that was.

Every Senator knows Obama sits in violation of the Constitution, having been born to an alien. Obama knows the Constitution, and understands, in former SEIU president Andy Stern’s words, “The power of persuasion, and if that isn’t enough, the persuasion of power”.

Ah I remember your name danamco, and you are of course correct that today a president must be a U.S. citizen, as, of course, all natural born citizens are. For good reason, the Constitution’s rigorous framers did not specify a U.S. Citizen in Article II Section 1 Clause 5.

As we novices attempted to unravel who was eligible, most of us without much historical context, the language of our framers seemed puzzling. During the late 1780s each former colony had its own citizenship laws. A few states would have made slaves, of which there were many whose families had been resident for generations, into citizens. The union would have failed and North America would have been neighboring states with different languages, perhaps at war as their colonizers dictated. Naturalization, citizen’s by man’s laws, had to come later.

Because a union was urgent, given the imminent danger of an attempt to reverse the Revolution, our framers wisely punted, using Article 1 Section 8 which, among many other things, requires Congress “to establish an Uniform rule for Naturalization.” Congress didn’t get around to it until 1867, following the Civil War, where Southern States could not secede or fight another war.

In 1787 there was no federal definition for who were citizens, only the requirement that the most important citizen protecting our rights to individual sovereignty be “natural born”. Then, as Chief Justice Waite explained, and John Bingham, and dozens more, “it was never doubted that natural born or “Natives” were those born in the country to citizen parents. as cited by John Marshall in his 1814 decision in The Venus, 12 U.S. 253, and in dozens of other cases.

That is also the reason for the construction of the decision, a construction I didn’t understand until I had read Leo Donofrio’s explanation several times, of Chief Justice Waite in Minor v. Happersett. To have standing Virginia Minor needed to have been a citizen before the passage of the 14th Amendment. Before the 14th Amendment there was no federal definition so Justice Waite asserted that because Virginia minor was a natural born citizen, born in Missouri to two citizen parents she was a natural born citizen, and therefore a citizen. That made the definition into precedent, and even Justice Gray quoted Minor v. Happersett, citing it as precedent.

Waite’s reaoning sounds tautological, but our founders were disciplined, and understood the need for rigor, particularly if a nations is to be founded upon laws, and not men. Benjamin Franklin, Dr. Franklin, an active and not honorary member of the Royal Society of London, ordered the first English translations and delivered the first copies of Vattel’s “Natures’ Law and the Law of Nations”, to his colleagues in The Colonies in the 1760s. Jefferson made Vattel our new nation’s law book at our first law school, founded by Jefferson in 1779 at William and Mary. John Marshal, a student at Jefferson’s law school at William and Mary, cited Vattel as the most concise authority in his clarification, dictum because it wasn’t essential to the decision, but important to our history to understand the two classes of citizenship, natural born and naturalized, since the case, The Venus, was about the prerogatives of citizens in question during the War of 1812.

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