Sorry, but spicing things up with strong adjectives doesn't really alter the marginal substance of the question. Let me try to give you where I'm coming from on this, because this is important to me, and I really wouldn't have picked a fight with you unless it was important.
I am a graduate of Liberty University School of Law, one of only a handful of programs that actually tries to address at a root level the systemic problems of modern legal culture. One of these problems actually does stem from what we believe is a real connection between a fixation on modern authority and the selection of a fluid model for constitutional interpretation.
Before we get to that, one of the intrinsic problems in finding modern authorities for the NBC question is the whole nature of precedent law. Where there is a lack of directly applicable precedents, combined with a collective disinterest in the subject matter, there is no motive to become an expert on the subject. In terms of post-revolutionary precedents, Chester Arthur comes closest to being directly on point, but his case was never adjudicated. Modern, “living,” Constitutional scholars of merit are simply not inclined to spend their credibility on analyses that have no prospect of enhancing their careers, and even more so when the whole exercise would be so speculative in nature. You see this mentality at work right away in Law Review. The more successful students tend to stay with safe, mainstream topics that will help them get jobs after graduation.
Which gets us to the other, deeper problem, which is modern legal culture. If you’ve been through the law school wringer with your eyes open, you know that Nietzsche’s will to power dominates the mental landscape of the modern legal academy. Not openly, of course, disguised as it is in various “critical studies” curriculums, and woven into the social fabric of even the most basic classes. Nevertheless, students are systematically guided via authority and peer pressure to be dismissive of ancient authority, particularly when it conflicts with modern cultural values. To those so conditioned, the law becomes a mere artificial construct, a tool to give or take away power, to do good or make money or whatever, but certainly not a binding guide. Dead people, and dead white males in particular, should not have tyrannical control over the present. The present belongs to us, and we can make of it whatever we can get away with.
Hence the notion of a living Constitution. And that it should be associated with a preference for modern authority is no surprise. Modern legal authority is near-monolithically tainted with the same set of liberal premises, so naturally it will be a self-reinforcing system. Modern legal “authorities” tend to be career-oriented liberal conformists. Many of them, that I have personally read, seem to lack even the capacity to reflect on their own set of unquestioned liberal premises. It is simply the air they breathe, the air they were trained to breathe in law school.
Nevertheless, if you are willing to look outside the self-contained liberal universe of the legal academy, you will find people of skill and merit who take the NBC question and its corollaries very seriously and who engage the relevant arguments very effectively. Unfortunately, these people are not in power, and have been marginalized by those who are.
For example, no doubt you have heard of Leo Donofrio and dismissed him as not an answer to your “valid” question. Am I right? Then you draw specious and unsupportable inferences about Roberts et al supporting the mainstream view because they chose not to throw their careers away on a highly speculative and controversial area of law. Yet you really don’t know their actual, stated position, do you.
So my question to you would be this: Can you identify any legal authority of merit whose willingness to opine on the subject would not be affected either by their career or by the dominant liberal legal culture, who has stated the mainstream view, which I take to be that the NBC clause does not disqualify Obama from being president? And your proposed authorities cannot be classified as anti-NBCers by double-dark guessing games and questionable inferences, but only by explicitly taking a position, preferably published.
And if, after all this demonstration of good will, you still wish to paint me and “All” NBCers with your overbroad brush, I will wear the designation of “ass” with pride, as it will cement my association with some of the finest people I have ever known during this last half century of my life, including both the stalwarts of constitutional integrity I knew back in the day, as well as my many like-minded brother and sister FReepers. No one is perfect, but these are good people, with some exceptions. Not the other way around.
Peace,
SR
Very insightful and very well stated.