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Burning the Constitution

Plus ça change, plus c’est la même chose

A Google alert brought me to the article, “Impeach Obama? 2014 Impeachment Starts Operation American Spring,” at The article is headed by this Jon McNaughton portrait of a stern-faced Obama burning the US Constitution.


Interested readers can look at the specific items that article suggests might be impeachable offenses, but I found nothing especially egregious or out of line with things done by other US presidents who were not impeached, and certainly nothing reaching the lawlessness of Watergate or Iran-Contra. Nor is there anything new about an image of a president burning the Constitution:


The preceding cartoon1 depicts the United States as symbolized by the eagle rescuing the Constitution from being burned by Thomas Jefferson. It literally refers to the defeat of Jefferson by Adams in the 1796 presidential election.

1A version of this image (with a less clear face) was incorrectly labeled as George Washington in a prior article on this blog. That has been corrected.

Ah-nold for President?

imageAustrian-born action film star, former California governor, and naturalized US citizen Arnold Schwarzenegger is often given as the classic example of someone who is not eligible to run for President of the United States. Some years back there were proposals for a Constitutional amendment floating around Congress to change Article II to make Schwarzenegger eligible. They went nowhere.

Is it time for a President Schwarzenegger? The “governator” himself thinks so according to an article at The Washington Times, “Arnold Schwarzenegger lobbies for law change to seek presidency.”

“Schwarzenegger has been talking openly about working on getting the constitutional rules changed so he can run for president in 2016,” a source said, The [New York] Post reported. “He is ready to file legal paperwork to challenge the rules.”

Source? I don’t know. The preceding statement is pretty muddled. No one can “file legal paperwork” to change the Constitution. There are only two ways that can happen, as specified by Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; …

I have significant doubts about the veracity of this story at the Washington Times. I also have significant doubts that the Country is in any mood to adopt such an amendment, particularly before the 2016 election.


The Washington Post, confirming my doubts, reports that Schwarzenegger is not planning to lobby to have the Constitution changed.

Orly Taitz should read the Constitution

I don’t know how Orly Taitz passed the citizenship test, much less the bar exam, given her complete ignorance of the Constitution. Yesterday Taitz wrote:

Obama was running deficit  that is 3 times higher than the deficit that was incurred by Bush.

What’s wrong with this picture? Whether the number is right or wrong (I didn’t look it up), all federal spending is authorized by Congress. The President signs spending bills, but he doesn’t write them (he doesn’t write the ones that get passed).

Taitz goes on to say:

So in spite of additional 650 billion that he took from us in taxes this year, he managed to incur the same 1.2 trillion debt in 2013.

In fact, all revenue bills must begin in the House of Representatives, currently controlled by the Republican Party.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

— US Constitution, Article I, Section 7.

The lack of factual content makes the Orly Taitz blog less than worthless.

Can Obama be impeached?

There has never been an ineligible President. The gauntlet of press scrutiny, campaign, debate, election, electoral college vote and Congressional objection always works even though one group, the birthers, think it didn’t.

Since early in the birther controversy, the birthers have often said, justifying their quo warranto actions in court, that Obama could not be impeached because he is not really President, and that the Attorney General opinions that a sitting President cannot be arrested or indicted do not apply because Obama is not really the President.

One may not believe that Obama is an eligible President, or one may say that he not the rightful President, but he is the President.  The Constitution sets forth certain eligibility requirements for the President, but the Constitution has been amended since it was ratified in 1789. The 12th Amendment says:

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

The person having the greatest Number of votes for President, shall be the President.

Once a candidate passes the hurdles of the election, and after the Congress counts the votes, and after any objections are resolved, the winner of the election becomes the President-elect, and after he takes the oath of Office on January 20, he is the President, no matter what Article II says about eligibility. Terry Lakin’s expressed concern that his military orders were illegal shows a lack of understanding of the Constitution, as well as the Uniform Code of Military Justice.

There is certainly no distinction in the Constitution between impeaching an eligible or an ineligible President. Obama is now the President, whether he is eligible or not. Who lives at 1600 Pennsylvania Avenue? I do not doubt that Congress, using the power of Impeachment can remove an Article II ineligible President; however, the President is the President until they do. Further, impeachment is not a magic reset button erasing all of the executive orders issued and the legislation signed. Until a President is removed from office, he is the President.

That essential denial that Obama is the President is what has always led me towards a racist interpretation of birtherism. It is the essential denial of what happened that indicates that their is a clash between Obama being President and their world view — not just a disagreement over eligibility, but a clash between the person and the office. Birthers go beyond just saying that a mistake was made; they say that it really didn’t happen. If Obama’s assumption of office were considered just a mistake, then birthers would be satisfied for Congress to correct the mistake through impeachment. Birthers, however, don’t only want Obama out of the White House, they want him never to have been there, and that is impossible.

The Constitution assigns the matter of removing the President to the Legislative Branch of the government. The courts have no role1, and I can not believe that they will ever assert one. As a practical matter, President Obama is eligible and as his own party has a majority in the Senate, and so he will not be impeached and removed from office—but he could be.Chef Justice Rehnquist presiding in the Senate impeachment trial of Bill Clinton

1Excepting that the Chief Justice presides over the impeachment trial in the Senate.

Framer v. Farmer


The authorities say that it is abundantly clear that those born US Citizens in the country are natural born citizens1, from whom we elect may Presidents. They also say that in all likelihood those born US citizens anywhere are also natural born citizens and eligible as well; however, they say that an argument can be made against the second group.

I frankly have had a hard time achieving clarity on that second group. Part of the difficulty stems from the question of whether “natural born citizen” is a term of art derived from the English Common Law phrase “natural born subject,” or whether “natural born” is taken from popular usage. That question led to this article’s title, and I think the answer to the question is “both.”

The courts have said repeatedly that the Constitution is correctly interpreted according to the definitions of the Common Law with which the Framers were familiar. One exposition of this principle was made by Chief Justice Taft in Ex Parte Grossman 267, U.S. (1925):

The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.

However, I have some reservations about that statement. The foregoing is descriptive of the Framers, but the Framers did not enact the U. S. Constitution; they only wrote it. It was in state conventions where the document was debated and eventually adopted. For me the question is not what the Framers wrote, but what the Country ratified. Some of those delegates were lawyers and some were farmers.

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The Framers on “foreign influence”

US ConstitutionNo person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

US Constitution

Those who argue that US Presidents must be born in the country to two US Citizen parents (“twofers” herein below) make representations about what the writers of the US Constitution intended. They typically focus on a letter from John Jay to George Washington, written while the Federal Convention of 1787 was considering the qualifications of the Presidency. Jay wrote:

Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen. [underlining in the original]

The twofers then apply the logical fallacy of begging the question, something like:

  • Since Jay said “natural born citizen” he must have intended that only the most pure form of citizen be Commander in Chief.
  • The purest form of citizenship is being born in the country to two US Citizen parents
  • Therefore a natural born citizen is one who is born in the country to two US Citizen parents.

However, Jay didn’t say anything about extremes or purest forms. (Jay himself had three children born overseas before 1787, two in Spain and one in France.) Twofers use what they think he meant to define what he meant. The only hint Jay gives is “not a foreigner” and no one today, and I think not in 1787, would consider anyone born in the United States to be a “foreigner,” but rather than what I think, let’s examine next who the Framers thought a foreigner was.

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