The Constitution’s Week in Review – 26 March 2016

March 28, 2016

Article 2. Natural Born Citizen Clause (to be continued until it is definitively settled).

Several of my readers replied to last week’s story of Ted Cruz’s latest court challenge, unanimously declaring Pennsylvania Judge Dan Pellegrini’s reasoning[1] woefully deficient.  I agree, the judge failed to consider, or else failed to acknowledge the issue of dual citizenship as well as other factors surrounding Cruz’ birth status.  If the petitioner appeals last week’s ruling this would provide the opportunity for an appeals judge to bring more existing law and analysis to bear on the question than did Judge Pellegrini.

Article 3. Replacing Scalia

In Michael Paulsen’s view, Antonin Scalia will rank as “one of the five greatest Supreme Court Justices in U.S. history.”  Tough act to follow.  Read Paulsen’s reasoning here.[2]  I especially liked seeing a list of Scalia’s dissents that are worth reading; Paulsen calls them the best judicial opinions of all time: “Morrison v. Olson (1988); …Webster v. Reproductive Health Services(1989), Planned Parenthood v. Casey (1992), and Stenberg v. Carhart (2000); … United States v. Windsor (2013)...”  These can all be downloaded from  If you want to understand how the Constitution should be interpreted, read Scalia’s dissents.

Speaking of “bringing more analysis to bear,” more [3] and more[4] commentary has begun to appear over how the Supreme Court would probably vote if Judge Merrick Garland were to join the bench.  Everyone I’ve read, even liberal sources, agrees Garland will move the Court significantly leftward, the only disagreement being how far.  Senator Mitch McConnell continues to state that no hearing will occur prior to a new President taking the White House, even as some Republican Senators up for reelection this November have said they will provide the Judge with a courtesy interview. Senator Chuck Grassley, the Chairman of the Senate Judiciary Committee, has put his reasoning out on his website. The Left seems not to have ever heard of Senator Joe Biden’s speech[6] on the Senate Floor in 1992.

Meanwhile in the States:

One of the complaints of the homosexual lobby in their quest for “marriage” equality has been the denial of civil marriage benefits traditionally extended to heterosexual couples, such as tax breaks, etc.  Those benefits were available only when in possession of a state-issued marriage license.  

The State of Alabama, who’s Supreme Court recently announced that Alabama judges are bound to uphold existing state law rather than abide by the Obergefell opinion, is considering a bill[7] to remove the state from further controversy by no longer issuing marriage licenses -- to anyone.  

Senator Greg Albritton (R), the bill’s sponsor said:

“the intent of the bill was to remove the state from an issue it should have never involved itself with in the first place.”

If the bill, which overwhelmingly passed the Senate, survives the House and receives the Governor’s signature, you’ll be married in Alabama when you say you are and are willing to sign an affidavit to that effect, no ceremony whatsoever will be required, whether in a church or in front of a Justice of the Peace.

I could find no one speculating as to what impact this would have on institutions and businesses which rely on a marriage license before extending marriage-related benefits.  I suspect they will still insist on some sort of evidence that the commitment has been recorded with the state.

First Amendment.

The Georgia legislature has passed a Religious Liberty bill that has caused an uproar by the movie industry, corporations threatening economic boycotts. The NFL has threatened to not hold a Superbowl in Atlanta if it is signed into law by the Governor.  If the NFL gets away with this blatant blackmail,[8] this year’s Super Bowl will have been the last professional football game I will have watched.  Disney has threatened to pull all film projects from the state as well.  If so, I see no reason to ever watch another Disney film – ever.  The pressure on Christians to roll over and play atheist seems to be mounting.  Perhaps this is because the church insists on remaining silent.  When was the last time your pastor preached on religious freedom in America?

The Little Sisters of the Poor have not remained silent, and because of this they have had yet another day in Court.[9]  We’ll know in a month or two whether the Sisters (and their 37 co-plaintiffs) will be allowed the same waiver extended to PepsiCo, Chevron and other secular companies.  It all comes down to this: should you be able run a religious charity or even a normal business in the USA commensurate with your religious beliefs?  Apparently, it depends on the beliefs; if they are ones shared by atheists, you will be expected exemplify them (i.e., honesty), but if not, you’re on your own if you decide to make them part of your business model.

When I was on active duty with the Air Force it was clearly understood that you did not enjoy complete freedom of speech, whether on duty or off.  But that was before social media arrived.  Now the lines have blurred as to what you can say and not say on social media, as this Army soldier[10] found out.  I suspect he might have gotten away with the racial slur if he hadn’t also included a threat against the President-elect, his soon-to-be Commander-in-Chief.  Lesson learned.
Eighth Amendment: Cruel and Whatever?

Ohio failed in an attempt to execute a condemned prisoner because multiple attendants could not find a vein for the administration of the lethal drugs.  The condemned prisoner argued that the state had had its one and only try to execute him; the Ohio Supreme Court said otherwise.[11] In olden times, if the state tried to hang a man and the rope broke, the state obtained a stronger rope and tried again.  If they used a firing squad and the guns misfired, they obtained better guns.  If they had tried an electric chair and the power had gone out, well, you get the picture.  
I guess the suit was worth the try.


I hope by now everyone has heard the story behind the word: “gerrymander.”  In case you haven’t: Elbridge Gerry was one of three gentlemen unwilling to sign the Constitution on 17 September 1787.  Upon his return home he explained his actionin a letter[12] to his fellow Massachusetts legislators.  In 1812, while serving as the state’s Governor, Gerry signed into law a bill re-drawing district lines to favor the Democrat-Republicans, of which he was a member.  The outline of one district was said to resemble a salamander (many gerrymandered districts today take even more bizarre shapes) and so the Boston Gazette newspaper coined the term in ridicule.[13]

My home state of Virginia was accused by the Federal Election Commission of not having enough “minority-majority” districts to satisfy them, so the FEC sued the state.  Their chief complaint was that too many black voters were crammed into Virginia’s Third District, thus diluting the effect of black voters who might have been included in other districts.  The fact that the present Third District lines made it virtually impossible for a non-black man to win that seat went unremarked.  When the Virginia Assembly refused to redraw the lines itself a judge was ordered to do it (with the help of an “expert” – I didn’t know there were experts in such things).  The new district lines have caused considerable consternation (for instance: I’m moving from Virginia’s 1st to its 2nd District).

The November national election and a June 14 primary election to support it were to be conducted under the new boundaries, and this caused the present Virginia delegation in Congress to ask the Supreme Court to order a delay in implementation of the new boundaries.  After first turning down the request in December the Court changed its mind and heard arguments this week.[14]  Hopefully a decision will be expedited; those responsible for setting up and running the June primary (the Virginia Election Commission) are sitting on pins and needles, wondering if their present planning will need to be quickly re-wickered.
Elbridge Gerry could not be reached for comment.

Has America’s Character Changed Since The Time of The Founders?

Well, duh!  I found this essay "Has America's Character Changed Since the Time of the Founders"[15] an interesting read and hope you’ll take the time to read it yourself.  Having studied the lives of the Founders a bit, I’m continually depressed that Americans today seem caught up in self-actualization.  The Obergefel decision  was chock-a-block full of the concept. 
When you study the concept behind Jefferson’s “pursuit of happiness” phrase you discover that Jefferson was focused not on the internal: i.e., self-actualization, but rather the external: the pursuit of a virtuous life, a life of service.
The essayist asks a very pertinent and insightful question: “Can our liberties remain secure as the Christian faith continues its exile into the margins of American life?”  I think the answer is a resounding, No!  What do you think?


[12] newnatn/usconst/egerry.html
[13] See more at:

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 
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