The Constitution’s Week in Review - Jan 23, 2016

January 25, 2016

Article 2, Section 1, Clause 5: Natural-Born Citizen (continued from last week).

I don’t get as alarmed as many people over charges of “flip-flopping” among politicians.  I’ve changed my position on some pretty significant issues as I was confronted by new information that cast the issue in a new light, notably the issue of an Article V Convention to recommend amendments to the Constitution.  What altered my view was the realization that the government does indeed obey the Constitution; certainly not the one ratified in 1788, but just as certainly they obey the Constitution that multitudes of Supreme Court opinions have created.  

You may rail that the Supreme Court’s rulings are themselves unconstitutional or even bone-headed, but until you convince a majority of the American people that the Court’s interpretation is not to be followed, that’s what our system of government allows.  The government can legally follow a conclusive Court ruling, and they generally do.  This has led at least one Congressman to conclude that “Yes, the federal government can do most anything in this country.”

My position on Natural-Born Citizen has also changed as I’ve corresponded with experts I trust and read the analyses of others.

I’ve come to accept that Vattel’s definition is unlikely the source of the Constitution’s phrase.  As I’ve said previously, the Founders knew and respected Vattel’s work and had multiple copies of “Law of Nations” with them at the 1787 Convention.  The problem with sticking to Vattel’s definition (born in the country to two citizen parents) is that the definition is, by its inclusion in Vattel’s book, an international law view of the matter.  The qualifications of the President were, however, a purely domestic issue that did not require an international law solution.  Thirty-two of the fifty-five framers may have been lawyers, but they were “English” lawyers, steeped in English law.  The essay, "English Law and the Constitution," by Rob Natelson, explores that relationship.

As I’ve said numerous times, we will never know definitively what qualifications the Founders had in mind for the term since they choose not to provide them, but I now think the more likely candidate is Blackstone’s definition of “natural-born subject:” someone born in the country or to a citizen father.  This, of course, presents problems for Canadian-born Senator Cruz, who claims his U.S. citizenship through his American-citizen mother rather than his Cuban-citizen father.

I’m always struck by the headlines which state definitively that: “Cruz is eligible/Cruz is ineligible” (take your pick).  If you continue reading you generally encounter the admission that the issue is unsettled law; so how in the world can someone state definitively either way? There must be extreme pressure to produce a hard-hitting headline these days.

We may or may not have a resolution of this question before the election.  Left-wing Houston attorney Newton B. Schwartz Sr. has filed a legal challenge to Ted Cruz’ insistence that he is qualified to run for U.S. President.  Said Schwartz: “Only the U.S. Supreme Court can finally decide, determine judicially and settle this issue now.”  Not quite.

Even attorney Schwartz, who claims to have no axe to grind in the matter, should know that the Supreme Court does not have to hear the case at all.  They can simply say the matter is a political question to be settled by Congress and leave us where we currently are: guessing.  Or they could say that the 1790 Naturalization Act, as amended in 1795, or any of several previous Supreme Court cases which touched on the matter provides the precedent. 

Punting the question back into Congress’ lap as non-justiciable would not necessarily end the matter either since nothing could force Congress to act, except perhaps an outcry from the American people.  But then, allowing Congress to define the term would also fly in the face of the Defense of Marriage Act (DOMA) fiasco, where Congress attempted to define the word "spouse" and its related terms in such a way as to support the millennia-old definition of heterosexual marriage, only to have a 5-4 Court say they could not do so because it would exclude a politically-favored group.  Would a Congressional attempt to define “natural-born citizen” in such a way that someone, anyone, ends up excluded from that distinction be sustained by the Court?  Who knows?  Stay tuned.

Article 2, Section 3 Clause 5: “Take Care that the laws be faithfully executed.” 

 In this week’s Constitutional Corner and on Friday’s “We the People” we explored the Rule of Law.  It is therefore only fitting that this week the Supreme Court agreed to hear a case to determine whether President Obama is indeed obeying the law.  In one of the better-written and quite well researched short articles I’ve read in a long time, Josh Blackman, a constitutional-law professor at the South Texas College of Law, takes us through the history and constitutional arguments surrounding Obama’s decision to not enforce the law requiring illegal immigrants be deported.  I’ve reported in several previous “Reviews” concerning Judge Andrew Hanen’s decision to issue a stay of Obama’s Executive Order and put DAPA, as its called, on hold nationwide.  Look for a decision by the Court mid- to late-summer.  This could be a historic decision since, as Blackmon points out, the Court pointedly asked for the “Take Care” clause to be argued.  Please read Blackman’s article, "President Obama, meet the 'Take Care' Clause," published in the National Review, in its entirety.

Article 5.

Three big endorsements of an Article V convention by powerful political leaders last week led to posting of an open letter to Phyllis Schlafly, Director of Eagle Forum, a group with a long and respected history of supporting conservative causes. Written by Staff Counsel for The Convention of States Project Rita Dunaway, the letter applauded Ms. Schlafly for her decades of “in the trenches” work for conservative causes, but sought to demonstrate that the opinions expressed in her 2013 letter opposing the convention idea were just that, opinions, not statements of fact. 

That same year, 2013, The Grassroots Institute in Hawaii predicted that the big news story of 2016 will not be the selection of a new President, but rather the first-ever convening of an Article V convention, a convention which will begin the task of fixing the structural defects in the Constitution created by a hundred years of progressive Supreme Court decisions.  Yet, with “The Donald” dominating the Republican primary race and thus the headlines, until the Republican candidate is selected in May, the Convention of States Project has its work cut out for it if it wants to fulfill the Grassroots’ prediction.  But as Ms. Dunaway pointed out, with Article V application-focused legislation filed in 37 states last year, the momentum is certainly gaining strength.

The doggedly-persistent “Publius Huldah” argued the folly of a Balanced Budget Amendment in Fairfax Free Citizen.  I try to make it a point not to argue for or against the wording of particular amendment proposals and I’m not convinced a balanced budget amendment can even become a successful limitation on Congress, but I’m willing to give it a try, because Publius’ alternative: “We stop the unconstitutional and frivolous spending one can read about all over the internet,” is a wish, not a plan.  Wishing and hoping is not going to change things.  As I point out in my comment rebuttal to her (whoever “Publius” is) until we take action to amend the ambiguous wording that has allowed the Court to dismantle the original limits to Congress’ power, nothing is going to change.  It’s like sitting in a leaky boat, watching the water rise higher and shouting” “I wish someone would make this water stop rising.”  Until the leaks are plugged, nothing is going to change.

Eighth Amendment.

As I reported last week, the U.S. Supreme Court struck down Florida's death penalty law Tuesday, declaring it unconstitutional because Florida law does not require that a jury make the life or death decision.

I finally got a look at the opinion (HURST v. FLORIDA) and I stand by my earlier statement: nowhere do I see in the 6th Amendment’s wording that the sentencing in a case be in any way linked to the jury’s verdict, and the opinion failed to persuade me that the thought is even implicitly there.  The fact that my originalist stalwarts: Associate Justices Thomas and Scalia joined in the majority is bothersome, especially given the weakness of the majority opinion.

A jury is charged with determining guilt based on the facts presented, which the Florida jury did, pure and simple: Hurst was guilty of murder.  Sentencing in any case should be based on statute law and may vary from state to state depending on the will of the citizens in that state; some may allow and some may forbid capital punishment.  Some states may even allow judges latitude in sentencing, to include assigning the death penalty when deemed appropriate, which the Hurst judge did, even with the assistance of a separate advisory jury, which also advised death.

While I think Florida’s procedures were a bit cumbersome, they expressed the will of the citizens of Florida.  Once again, nowhere in the Sixth Amendment do I find that the jury’s verdict need in any way be linked to a sentence assigned by statute law or at the discretion of a judge. 

I think the Court has engaged here in some “legislating from the bench” in giving the 6th Amendment words and meaning which do not therein appear.  I stand ready to be persuaded otherwise.

Some heralded the decision as one more step in eventually outlawing the death penalty in America.  I think their joy a bit premature; once Florida adjusts their procedures and laws, as the recent decision will now force them to do, I think we will see capital punishment resume in that state.  In addition, the “heralding” article, penned by a “Contact Reporter” namedScott Maxwell, demonstrates vividly why independent, unbiased journalism is in such a sorry state in this country.  If Mr. Maxwell were a columnist he would certainly be entitled to his opinion, but an unbiased reporter he is not.

"The a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please." --Thomas Jefferson

Constitutional Conversations – 8 February.  For my local subscribers, the next “Constitutional Conversations” will be coming up on Monday, 8 February, at Christopher Newport College, Newport News, VA (Freeman Center Room 201).  The topic: “Freedom of Speech.”  Nowhere is Freedom of Speech more imperiled today than on college campuses, thus I hope for a good turnout and a lively discussion.  Hope to see you there. 

Lessons in Liberty – 15 February.  For those both local and not, on Monday, 15 February you will have a wonderful opportunity to hear Pastor David Whitney, Senior Instructor at the Institute on the Constitution, speak on the subject: “The Most Powerful Vote You Will Ever Cast – Your Vote As A Juror.”  The presentation will be held at the Foundation for American Christian Education classroom but will also be Livestreamed to anywhere you happen to be.  Cost to attend, either locally or via Livestream is a whopping $10.  Most Americans know little to nothing of the real power of a jury, and judges have a vested interest in seeing it stay that way.  You should become informed in case you are ever called to serve. Go to to register.


"English Law and the Constitution," by Rob Natelson

"Why Ted Cruz is eligible to be President" CNN

"Ted Cruz is not eligible to be President," Washington Post

"Cruz's 'Natural Born Citizen' status tested in a birther suit," Bloomberg

"President Obama, meet the 'Take Care' Clause," National Review

"An Open Letter to the anti-Convention of States group," The Blaze

"Is Article V in our Future?" Phyllis Schafley

"The big political story of 2016 will not be about who replaces Obama" 

Hurst v. Florida, Supreme Court of the United States


Copyright ©2016

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. In addition to writing "The Constitution's Week in Review" at, he writes regularly for the Fairfax Free Citizen of Fairfax Virginia. Mr. Porter also teaches at various locations, as well as hosting a weekly radio broadcast ("The Constitution Matters"). The program can also be heard live on the Internet every Friday morning at 
Visit Gary Porter's website at