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Sunday, January 6, 2013

Sometimes the Mask Slips, Just a Little

Let's give up on the Constitution.

Somehow, one doubts that Mr. Seidman would have said such a thing during the tenure of G.W.Bush or R.Reagan.  But there are some rulers who can do no wrong.  (And "rulers" they would be.)


Back in 2001, the young politician B.H.Obama gave an interview on Chicago's public radio station in which he bemoaned the obstacle of the Constitution in the way of redistributing the wealth of the country.
But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it’s been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf.
-- B.H. Obama interview, WBEZ-FM  2001
Perhaps he never saw this scene about the perils of using the One Ring to do Good. 



Where have we heard this desire to drove people like sheep?  Alexis de Tocqueville anticipated the desire back already in the 1830s:
    I wish to imagine under what new features despotism might appear in the world: I see an innumerable crowd of men, all alike and equal, turned in upon themselves in a restless search for those petty, vulgar pleasures with which they fill their souls.  Each of them, living apart, is almost unaware of the destiny of all the rest.  His children and personal friends are for him the whole of the human race; as for the remainder of his fellow citizens, he stands alongside them but does not see them; he touches them without feeling them; he exists only in himself and for himself; if he still retains his family circle, at any rate he may be said to have lost his country . . . Above these men stands an immense and protective power which alone is responsible for looking after their enjoyments and watching over their destiny.  It is absolute, meticulous, ordered, provident, and kindly disposed.  It would be like a fatherly authority, if, fatherlike, its aims were to prepare men for manhood, but it seeks only to keep them in perpetual childhood; it prefers its citizens to enjoy themselves provided they have only enjoyment in mind.  It works readily for their happiness but it wishes to be the only provider and judge of it.  It provides their security, anticipates and guarantees their needs, supplies their pleasures, directs their principal concerns, manages their industry, regulates their estates, divides their inheritances.  Why can it not remove them entirely from the bother of thinking and the troubles of life?
-- Alexis de Tocqueville, Democracy in America

Prior ruminations.

24 May 10
http://tofspot.blogspot.com/2010/05/sometimes-mask-slips-little.html

10 Dec 10
http://tofspot.blogspot.com/2010/12/sometimes-mask-slips-little.html

20 Dec 10
http://dyn.politico.com/printstory.cfm?uuid=019EB533-0F21-F8DA-F234C7F317E5CAB8

17 Dec 11
http://tofspot.blogspot.com/2011/12/sometimes-mask-slips-just-little.html

24 Mar 12
http://tofspot.blogspot.com/2012/03/sometimes-mask-slips-little.html

23 Apr 12
http://tofspot.blogspot.com/2012/04/spring-housecleaning.html

"Where Congress is not willing to act, we’re going to go ahead and do it ourselves."
-- B.H.Obama
 

30 comments:

  1. I have actually read people asserting that it's the right to vote, not the right to bear arms, that protect us from this kind of tyranny.

    Apparently they don't notice that the Soviet Union had votes.

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  2. I was wondering if you were going to comment on this. It seemed that this man was channeling some of the feelings undergirding this Age of the Folk. But, I also think the average American likes the Constitution, if only because it provides some rudimentary barriers between the rulers and the people. Don't know how long that sentiment will last, though...

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  3. RBS and I were talking the other night about President Obama's birth certificate.

    I never lent credence to him being born somewhere else than America. To what I objected was his poor, foot-dragging performance and arrogant disregard of his fellow Americans. As many have stated, "If I need to produce my birth certificate for a driver's license, he can produce his for the Presidency."

    Where I fault him is that he's not an American in ideology [see GK Chesterton] and believes the Constitution is an obstacle to his goals.


    JJB

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    1. Being a natural born citizen is not a matter of where one was born, but rather of the citizenship status one does or does not interit at birth from one's parents.

      As BHO's father was not a US citizen at the time of his birth (nor at any other time), it is impossible for BHO Jr to be a natural born US citizen, no matter where he was born.

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    2. Ilion, you simply do not know the law on this. Under the 14th Amendment §1, everyone born in the United States is a citizen, with the rare exception of those not subject to the laws thereof, a phrase which has always meant people like foreign diplomats. Furthermore, his mother was an American citizen, and met the residence requirements of 8 USC § 1401(g), so that in itself would have been enough for Barack Obama to be a natural-born American citizen even if he had been born abroad, which he was not.

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    3. DNA-
      His father was here as an official exchange student for the gov't of his nation, and at the time of his birth under existing laws his mother wasn't old enough to have enough years in the US to confer citizenship. (You had to live in the US for X years...after adulthood. Yeah, I think it's a headbanger, too, but nobody bothers to do the research to find if there was case evidence for that being waived if you'd lived in the US your entire adult life.)

      There is a decent argument to be made, and that's why Ilion said natural born citizen. If you're really interested, there are some good lay-outs of who counts as official reps for their gov't and such.

      And the whole blanking thing could have easily been avoided if the stuck up blanker had just had the basic decency to release a certified copy of his birth certificate.

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    4. Someone who gives that old 'willfully ignorant' vibe: "Ilion, you simply do not know the law on this."

      On the other hand, this fellow gives every indication of simply not caring about the law or the truth of the matter.

      Someone who gives that old 'willfully ignorant' vibe: "Under the 14th Amendment §1, everyone born in the United States is a citizen, with the rare exception of those not subject to the laws thereof, a phrase which has always meant people like foreign diplomats."

      As I said, this fellow appears to simply not care about the law or the truth of the matter -- the immediate issue is not whether BHO, Jr, is merely a citizen of the USA, but rather whether he is a natural born citizen of the USA. The two are not the same thing: not all citizens of the USA are natural born citizens of the USA. That most citizens of the USA are simultaneously natural born citizens of the USA makes the two terms and states of citizenship neither equivalent nor coterminous.

      Someone who gives that old 'willfully ignorant' vibe: "Furthermore, his mother was an American citizen, and met the residence requirements of 8 USC § 1401(g), so that in itself would have been enough for Barack Obama to be a natural-born American citizen …"

      Ah! So this person is asserting that BHO, Jr, was born with dual-citizenship.

      But, it is logically impossible simultaneously to be a citizen/subject of two nation-states and a natural born citizen of one nation-state. It is, in fact, to avoid this very situation that being a natural born US citizen is a Constitutional requirement for being President or Vice-President of the US of A – the Framers explicitly made that requirement as European history had informed them of dangers of the Chief Executive having split or conflicting natural loyalties.

      =========
      Someone who gives that old 'willfully ignorant' vibe: "… even if he had been born abroad, which he was not."

      The issue is not, and never has been, where BHO, Jr, was born.

      Nevertheless, this fellow emphatically does not know that BHO, Jr, was not born abroad – he and his sort have not one shred of evidence to support the assertion that BHO, Jr, was born in the US of A.

      What we do know is that the man himself has claimed foreign birth, when it served his purposes, and now claims domestic birth, as that presently serves his purposes – in other words, what he *know* is that he *lies* about his place of birth.

      Hell! Even the man’s wife appears to have believed that he was born in Kenya (there are at least two video clips, from different events, of her referring to Kenya as his birthplace or native land or “home country” … here is one)

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    5. Foxfier: "There is a decent argument to be made, and that's why Ilion said natural born citizen."

      In fact, Ilíon said "natural born citizen" because the US Constitution requires that the US President and Vice-President be a natural born US citizen. It does not require this of Senators nor of Representatives ... nor of Supreme Court Justices.

      Foxfier: "And the whole blanking thing could have easily been avoided if the stuck up blanker had just had the basic decency to release a certified copy of his birth certificate."

      The issue isn’t where he was born, but whether he is a natural born US citizen – and we have enough information to know that he is not, and never can be, a natural born US citizen. The same applies to Marco Rubio and Bobby Jindal, on the GOP side.

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    6. Ilion-
      as they failed to define "natural born citizen," we can only assume the meaning from other sources. Yet another question of fact that gets ignored in the desire to throw disdain around.

      Your burning desire to pick fights out of air rather than do something constructive is noted. In the spirit of age old wisdom, one can only pray that you are not on one's side.

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    7. as they failed to define "natural born citizen," we can only assume the meaning from other sources.

      Indeed, which is why I'm not convinced of Illion's comments above -- which only begs the question at issue: what is a natural born citizen? He asserts a definition, but doesn't back up the assertion he makes.

      I'm not a fan of RedState, but this diary does a decent job of at least demonstrating American legal history supports the definition of natural born citizen as anyone born in the United States regardless of the status of parents (except in special cases, such as children of ambassadors):

      On this “Natural Born Citizen” Issue, Part I: From Alexander Hamilton to Lynch v. Clarke

      On this “Natural Born Citizen” Issue, Part II: From William Learned Marcy to Wong Kim Ark

      On this reading, Barack Obama is a natural born citizen. And so are Bobby Jindal and Marco Rubio.

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    8. jmhenry-
      If I remember the counter-argument-- it's been five years, pardon my memory!-- a lot of the counter-case is based on English common law and the way that Obama's father was an official representative of his nation.

      I'd wager that the way that his father falsely entered marriage with Obama's mother might short-circuit that consideration, though. I know that the tradition of protections for young women (and their children) who are enticed into fraudulent marriages is rather strong, and I would guess the fact that his grandparents raised him would support them acting in the stead of birth parents for legal classification.

      Maybe that's why Obama was being such a jerk about it-- he didn't want to point out that his dad was a criminal that lied to a teenage girl to get her to enter an illegal marriage with him. Might explain why he doesn't seem to get along with his half-brother so well. That would hurt.

      If it had been discussed like adults, same way that McCain's question of natural born citizenship was handled (ignoring the grandstanding-- his parents were on an American base, officially representing the country, and both were citizens of sufficient age, so it was pretty open and shut) then some sort of actual progress could be made.

      Honestly, the childishness makes me tired. The cases aren't that hard to make, most of the research is out there-- heck, I collected lots into a post at one point, way back when. Instead, folks try to shut down exchange of information.

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    10. And, by the way, this issue of whether a would-be President is or is not a natural born US citizen has arisen before, with Chester Arthur – and this was *also* after adoption of the 14th Amendment.

      There was no question or doubt that Arthur was born in the US – and was thus, by the 14th, was a US citizen – nor that his mother was a natural born US citizen from a long line of US citizens. The question was not whether Chester Arthur was a citizen, but whether he was a natural born citizen, given that there were valid questions of whether his father was a US citizen at the time of Chester’s birth, for his father was a natural born British subject.

      It’s claimed that Arthur and his partisans (within the GOP) lied about the year in which his father became a naturalized US citizen, backdating it to before Arthur’s birth, so as to falsely claim that Chester Arthur was a natural born US citizen. Now, whether or not Arthur and his partisans did lie about the year his father was naturalized, the fact remains that the issue turned on whether his father was, in fact, a US citizen at the time of Chester’s birth.

      If Arthur lied about being a natural born citizen, he at least did so because everyone still cared about the Constitution. But we’re so beyond that these days … we just ignore it, and demonize those who will not ignore it.

      (*) Well, other than the bit with Cromwell.

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    11. "I'm not a fan of RedState, but this diary does a decent job of at least demonstrating American legal history supports the definition of natural born citizen as anyone born in the United States regardless of the status of parents (except in special cases, such as children of ambassadors): ... On this reading, Barack Obama is a natural born citizen. And so are Bobby Jindal and Marco Rubio."

      Dewd, do you understand, do you even care?, that the Wong Kim Ark case was not *about* what 'natural born citizen' means? The term isn't even alluded to in the Court's ruling.

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    12. Dewd, do you understand, do you even care?, that the Wong Kim Ark case was not *about* what 'natural born citizen' means?

      Yeah, dewd, I do care. But since you're more adept at juvenile insults (even toward people who are sympathetic to you), then I'm beginning to think you don't really care.

      For example, you whine that Wong Kim Ark was not about what natural born citizen means, but in just the previous comment, you cite Minor v. Happersett -- which also was not about what natural born citizen means. Even worse you cite an in-passing comment from the case that doesn't even support your argument:

      Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

      Did you catch that? They didn't resolve "these doubts" -- as in, this particular class, although disputed some quarters, is irrelevant to this case.

      One must look elsewhere to determine whether a person born in the United States -- regardless of the status of parents -- qualifies as a natural born citizen. (Hint, start here: On this “Natural Born Citizen” Issue, Part I: From Alexander Hamilton to Lynch v. Clarke)

      So, you wave around an irrelevant comment from Minor, and dismiss Wong Kim Ark, because God forbid you have to face Lynch v Clarke:

      Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born.

      Oops.

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    13. The post concerns tendencies toward absolutism. Birther comments are beside the point, and comments calling other commenters snarky names are disallowed. Some have been deleted, new ones will be deleted. Play nice.

      I care less whether "natural-born" means the father but not the mother was a US citizen or whether it excludes "Caesarian-born" than about an ill-concealed desire to rule by decree.

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  4. The guy's been a constitutional law professor for forty years, and he doesn't know what an English-model constitution is? He doesn't understand the concept of lame-duck sessions or the power of the purse? I learned that stuff in ninth-grade civics, and my ninth-grade civics was an elective choked almost to extinction with anti-Bush diatribes. Of course, it isn't that he doesn't understand. It's that he takes the inexplicable and unbelievably short-sighted view that the people in power are always going to effect policies he likes.

    "This isn't to say we should abolish freedom of speech, because Americans currently favor freedom of speech" and "We shouldn't have an absolute dictator, but gosh, wouldn't the Congress check him in a post-Constitutional government?" just make me want to smack upside the head anyone who gave this article credence and lecture them for a good two hours.

    In the words of the Bee Gees, or at least the words of someone who used them for a ringtone:

    We can try
    To understand
    The New York Times' effect on man.

    If they're still defining the reality of most Americans, that's a very scary thing.

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  5. Googling around a bit, and availing myself of the oracle Wikipedia, turns out that Mr. Seidman is a champion of critical legal studies, a wholly-owned subsidiary of critical theory. Soooo, insofar as he is consistent (unlikely to be very far) he professes to believe that there isn't any truth, really, and that it's all class struggle or something. This doesn't stop him from being very worried that we're getting this Constitution thing all wrong - whatever that means.

    So, he's a mush-headed ninny, who happens to be a tenured professor at a major (Jesuit!) university, influencing, no doubt, hundreds or thousands of students who would need to regurgitate what he's feeding them if they, you know, want that degree to further their careers - in accord with academic freedom and all that, of course.

    My question: How does Mr. Seidman's approach differ, really, from Oliver Wendall Holmes's 'the law is what judges say it is'? which has been the de facto standard for at least the last 100 years or so.

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  6. This same debate occurs in Canada. A bit of background:
    From 1867 to 1982, Canada's constitution dealt solely with the division of powers between jurisdictions. The concept of rights and responsibilities was not a part of the written constitution. By contrast, our jurists relied on the centuries old English tradition of an unwritten constitution, and our judiciary had evolved extraordinarily good arguments to strike down bad laws in some cases, but they were always ultimately subject to the will of the Crown in parliament. Nevertheless we tended to do pretty well with our civil liberties.

    In 1982 this changed with the Canadian Charter of Rights and Freedoms which was implemented in imitation of the American model and subsequently interpreted very liberally with catastrophic effects on the moral fabric of the country.

    In Canada it is social conservatives who oppose a written constitution and social liberals who see it as a necessity.

    Originalism has never received serious consideration in Canada because it conflicts with the broader trend of English and Canadian legal interpretation.
    To my mind, Oliver Wendell Holmes was always right: while text does tend on its face to restrict permissible readings, where a particular rule is meant to govern the complexities of modern government, how can we actually say any given meaning is the right one, unless (as in the scriptures) its intent was the expression of a single person? It is solely the will of the Judge who makes the decision which gives the written article expression as enforced law.

    If the constitution is the expression of a social contract binding a polity, and agreed upon in a kind of compromise at a convention of several people, isn't it entirely possible that as a text is more vague or uncertain on a particular point, it may have multiple mutually exclusive interpretations? If we are unable to tap into the public feeling of the 18th century, how can we know at all? Doesn't it render the entire exercise of originalist interpretation futile?

    Originalism has allowed American social conservatives the home field advantage in constitutional debates because the United States has tended to become more socially liberal over time. I'm not saying you should cease to exploit this advantage, but it is not a winning position in the long term because eventually, the constitution is just a piece of paper. It is not a sacred document; the conclusions of the founders are not holy writ. You've been lucky that your constitution is so very good and adaptable and it may last a long time yet, but it is not perfect, nor is it a panacea to your country's problems.

    The only thing which guarantees the freedoms and prosperity of a people is its virtue and reasonableness in the present. A virtuous and reasonable society will make for itself good laws and will select good judges. A well written constitution may be a tribute to the ideals of a nation, but it is not guarantee that those ideals will be perpetuated. This is clear enough from the numerous 20th century totalitarian regimes which have adopted eloquent and high minded written constitutions (often modeled on the American one) and then proceeded to disregard them altogether through "interpretation".

    The fact that Seiden wants to ditch the constitution for the wrong reasons does not in any way undermine his argument.

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    2. ...Except the States are not Canada and -- for good and ill -- ditched the whole "unwritten Constitution" thing long ago. Our social/governmental traditions and demographic makeup are quite different to those of the Commonwealth nations, despite sharing a language and a lot of history with many of them.

      A typical problem with bills of rights is that they are seen as having *granted* rights instead of protecting certain areas of behavior -- privacy, intellectual and religious freedom, self-defense, etc. -- from infringement by government, both the whims of officials and the tyranny of the majority. In the worst case, they become vehicles of entitlement to the labor of others, which tends (especially in poorly-limited democracies) to create unbridled expansion thereof.

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  7. You raise many interesting and valid points. Maybe it's best to see my and others attachment to the Constitution as a useful and meaningful document carrying the force of law as attachment to a marker of a sane and virtuous people? That it is evidence that we Americans were not always crazy? That an appeal to abide by a the Constitution is an appeal to return to virtue and sanity? Because it's hard to argue that the written word will prevail where the will of the people has been corrupted against it.

    Be that as it may, in this particular case, it seems Mr Seidman's complaint boils down to saying our attachment to the Constitution stands in the way of him and his implementing Marxism. To which I can only say: thank God! and cling to it like a drowning man clings to his life preserver.

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  8. Yeah, this is a sentiment that goes quite a ways back, really. Woodrow Wilson bemoaned checks and balances and separation of powers in his Congressional Government. National greatness was just over the horizon, if only that flawed Constitution didn't stand in the way. We have great tasks ahead! And checks and balances holds us back!

    If there is anything both the Bush and Obama eras should make clear, it's that there are partisans on both sides who fall in love with the Constitution when "the other guy" is in office, but all the sudden discover all sorts of flaws in the Constitution when "their guy" is in office and is blocked from Doing What Is Good. That Man For All Seasons speech would do just as well for Boumediene v. Bush.

    Anyway, I have absolutely no idea what Mr. Seidman means when he says rights like freedom of speech and religion should be protected out of "respect, not obligation." The whole article is trash, but that part is particularly strange. Are we supposed to rely on the inherent goodness of political leaders to protect these rights? I mean, really? "Respect, not obligation"? Dear God...

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  9. "There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country."

    This is very frightening stuff. How influential is this clown?

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  10. Anecdotally, among private-pilot plane owners, lawyers are the most accident-prone.

    JFK, Jr., forex.

    One can imagine a cartoon: "Well, St. Peter, I objected to this law of gravity..."


    JJB

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  11. I read the NY Times article until this line regarding the first ammendment and such: "We should continue to follow those requirements out of respect, not obligation."

    That's when the cackling in my head started to drown out everything else. Because, you know, those in power are oh so good at respecting us ordinary schluubs as it is.

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  13. pointless projectionist: "as they failed to define "natural born citizen," we can only assume the meaning from other sources."

    jmhenry: "Indeed, which is why I'm not convinced of Illion's comments above -- which only begs the question at issue: what is a natural born citizen? He asserts a definition, but doesn't back up the assertion he makes."

    Beg the question? You can't even use *that* phrase correctly, and you're condemning me for not having supplied a definition of 'natural born citizen' that you will accept ... so as to include Obama?!

    The Constitution doesn't define 'State' nor does it define 'citizen', nor 'naturalization'. Are we therefore unable to know the meanings of those terms?

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