Wednesday, March 18, 2015


Law Professor & Former ACLJ Senior Counsel 
Shreds Harvard Law Review Over Article II


Former American Center for Law and Justice senior counsel & attorney Jim Henderson published a rebuttal to the Harvard Law Review publication on Article II eligibility written by two Solicitors General formerly under Obama and Bush. Both claim foreign born persons can now be POTUS so long as they were born to one citizen parent.

Never mind Article II was never amended or repealed and all other presidents and vice-presidents constitutionally eligible after the grandfather clause were all born on U.S. soil to two U.S. citizen parents.

And never mind the final arbitrator on such constitutional issues is the Supreme Court of the United States.

Not two political lackeys!

Excerpt via Attorney Jim Henderson:

Shooting A Blank: Clement and Katyal Fire a Dud in the Qualification Wars 
[...] 
I have never worked with Neal Katyal. As Senior Counsel with the American Center for Law and Justice, however, I worked with Paul Clement several times. Clement cut his teeth as a law clerk for Justice Scalia. Unsurprisingly, in our casual conversation and work together at the time, I discovered that, like Scalia, like me, and like Thomas Jefferson, Clement held the view of the Constitution as a document of intentionally drawn words, phrases, clauses, sections and articles, a document of fixed and discernible meaning. Yes, I did just bring Thomas Jefferson, the author of the Declaration of Independence into the conversation; and, yes, I realize that he did not participate in the drafting of the Constitution. But Jefferson was an early watchman on the walls against judicial tyranny. 
In a letter to Judge Spencer Roane, dated September 6, 1819, Jefferson debunked a view, asserted by the Supreme Court, that it had the position of ultimate interpretation of the Constitution, over the coordinate branches, the Legislative and the Executive. Such a construction of the Constitution created the serious risk of tyranny by the Judiciary. Jefferson explained, “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” I treasure Jefferson’s view – of the Constitution as a hide-bound document of fixed and discernible meaning – and his warning – that judges might treat it as a waxen plaything, softening it with the touch of their analyses and decisions until it took the shape of their desires. 
But even amongst us hide-bounders, it appears, differences in approach to and resolution of constitutional questions will arise. Clement’s recent joint post, with Katyal, on the Harvard Law Review Forum, addressing the Natural Born Citizen provision of the Presidential Qualification Clause proves the point. 
Clement and Katyal commit a regrettable error in construing ours’ and England’s legal histories. They commit the error is seeking, as lawyers and judges will do, to provide a meaning for a constitutional provision, in particular a meaning that is one less than obvious from the language of the document. 
As an initial matter, Clement and Katyal join in a popular, but unwise legal sport usually reserved to justices of the Supreme Court. (That excess on their part can be forgiven; both have served as Solicitor General of the United States, a position often referred to as “The Tenth Justice.”) That legal sport consists of artificially inducing an uncertainty about a word or provision of the Constitution. Given an uncertainty of meaning, as our courts have played the game, judges (and other armchair quarterbacks) magnanimously lend their service to the enterprise of “discovering” the intended meaning to be ascribed to the uncertain provision. Mark DeWolfe Howe, a legal historian, described this habit, as he observed its repetition by Supreme Court justices who rewrote the scope and meaning of the Establishment Clause in a series of decisions from the late 1940s through the early 1960s. In “The Garden and the Wilderness,” Howe skewered the enterprising justices for being artisans of the history of the law, rather than pupils of it. Though he did not use the precise term, his words and tone suggested that the pretend historians of the Supreme Court were no more to be believed than was Aaron when he told Moses that he had not fashioned a golden calf while Moses was on the mount, but had only thrown gold into the fire, and the idol fashioned itself. 
Clement and Katyal would have nothing about which to write on the subject of the Natural Born Citizen language, however, unless the meaning of the phrase was, in fact, fraught with uncertainty. Given six continuous years of controversy over the question whether Barack Obama satisfied the Natural Born Citizen provision – a contentious debate disdainfully summarized as the “birther” argument – perhaps we must simply accept that a rather clear and seemingly precise phrase, “Natural Born Citizen” is neither clear nor precise, or at least that it is only as clear and precise as Clement and Katyal will then show it to be. 
In fact, what Clement and Katyal actually seek to do is to establish that a phrase of plain meaning and import was not intended as such by those that drafted and ratified the Constitution. That obvious meaning, it seems to this reader, is that one is Natural Born Citizen if one’s citizenship arises as a consequence of their natural birth within the United States. On this point, English common law is instructive. Every one of the newly independent States adopted English common law as a rule for the decision of cases until modified or repealed by acts of their legislatures. While we rejected the tyranny of the Crown, and disassociated ourselves from our brothers in Parliament because of their indifference to our suffering, we retained the majesty of the English common law. [For those to whom English common law is an unfamiliar concept, it is the entire body of judicial made law resulting from the decision of cases in England over the course of centuries. By adopting English common law, newly independent States generally populated with Englishmen and their descendents retained a familiar and workable body of law for the resolution of disputes.]           [...] Continued @ Just Saying. Hat tip Saska.

Attorney Henderson also commented on an article pimping the HLR publication at Overpasses for America:

Like it or not, Paul Clement, with whom I've worked in the past, and Neal Katyal, unknown to me, are in error. 
Their unfortunate HLR Forum piece mishmashes English Common Law and English Statute Law to assert, essentially, that Congress had the power to extend Natural Born Citizen status to Americans born abroad.      [...] - Overboard for America.


     [...] More @ Overpasses for America.


In related news USA Today also reports a foreign born person can now run for POTUS:

     [...] More @ USA Today.