Constitution's Week in Review 4-16-16

April 18, 2016


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

As I reported last week, many of the challenges to Ted Cruz’ claim to be a natural-born citizen and thus eligible to assume the presidency have been dismissed by courts and election commissions on the grounds that the plaintiffs lacked standing. In the eyes of the court, this means the plaintiff could not prove he or she would be personally harmed should they lose the case. 

A Washington, D.C. law professor found a way to remedy the problem of standing: he decided to run for President himself. By filing suit as a co-contender for the office[1] rather than a “lowly” citizen, Victor Williams, who teaches law at Catholic University, hoped the court will agree that he would suffer “a direct and concrete injury if an unqualified candidate were to be allowed” to run.  He was right, but his victory was short-lived.  An administrative law judge in New Jersey, Judge Jeff Masin, heard arguments on Monday and on Tuesday announced[2] that Cruz is indeed a natural-born citizen under the U.S. Constitution and therefore can run in the June 7 New Jersey primary.

The Judge further agreed with what I’ve been saying all along on this issue: that the NBC question "can never be entirely free of doubt, at least barring a definitive ruling" by the U.S. Supreme Court.
"Absolute certainty as to this issue is only available to those who actually sat in Philadelphia and themselves thought on the issue" Amen.  Stay tuned.

Article 3.  Replacing Scalia

By a vote of 92-0, the U.S. Senate confirmed Waverly D. Crenshaw Jr.[3] on Monday to be a U.S. district judge for the Middle District of Tennessee. Crenshaw is the sixth judicial nominee confirmed in 2016, bringing President Barack Obama's total to 324, just two shy of the total number of confirmations during President George W. Bush's entire eight-year term.  Who says the Senate is stonewalling?

First Amendment. 

I found this article[4] interesting: turns out the Bible is among the ten most challenged books in school libraries these days (holding down position #6), ostensibly for its depictions of “sex and violence,” charges that are obvious smokescreens for the real complaint: that it is a book of religious faith, which an increasing number of atheists find “offensive.”  I predict that those who wish to remove the Bible from all public view will eventually succeed.  Why?  Because they want their result more than those who revere the Bible want it to remain in the public eye.  The opportunity to speak up is slowly slipping away.

The backlash against attempts by some states which have taken steps to protect the religious faith of their citizens and their right to act in accordance with that faith has been nothing short of breathtaking.  Mississippi, Georgia and North Carolina are now in the LGBT community’s cross-hairs over attempts to pass Religious Freedom Restoration bills and so-called “bathroom bills,” which attempt to keep gender-confused individuals from using a bathroom of preference. 

“Offended” states have begun prohibiting their employees from traveling to those states in question, companies are promising to take their business elsewhere and, finally, rock stars are now cancelling concerts.[5]
Personally, I find the rock stars’ actions inconsequential, I have more important uses for my time than going to rock concerts, but I know that some of these performers enjoy large followings and thus their actions will undoubtedly have some effect. Reaction from the Christian community which sought the bills in question? Crickets.

Second Amendment

In an ominous turn, a state judge has decided[6]that a lawsuit filed against Remington Arms, Corporation, the firm that made one of the weapons ostensibly used in the Sandy Hook Elementary School shooting, can proceed despite a 2005 federal law prohibiting such lawsuits.  The families pursuing the suit argued that an exemption feature of the Protection of Lawful Commerce in Arms Act,[7] Section 4, Paragraph (5)(A) (ii), covers their suit.  This paragraph allows suits brought under charges that a gun manufacturer engaged in “negligent entrustment or negligence per se” in allowing the AR-15 weapon to be sold on the open market. 
 
In her decision, Connecticut State Judge Barbara Bellis said the broad immunity granted by the 2005 law to the gun industry doesn’t mean this particular case can’t be heard in court.  I think the judge can be rightfully be criticized for wasting the court’s valuable time; the charge of “negligent entrustment” seems to me to be nearly impossible to prove.  But naturally, gun control advocates will grasp at any straw.
 
The judge’s decision brought Congress’ 2005 law back into the spotlight, with Hillary Clinton supporters pointing to her promise to repeal the law if elected.[8]  I note that absent from Clinton’s promise was an explanation of how a President can unilaterally repeal a law of Congress.  If Clinton, however, were to be elected President and Democrats placed back in the majority in both Houses of Congress, it is likely the act will be repealed, and then the deluge of suits will force many gun manufacturers, perhaps all of them, out of business.  It is also likely that this unfortunate constellation will herald the end of freedom in America.
 
Fifth Amendment

When confronted by the police, when does your right to remain silent take effect?  According to this case reported in a Richmond newspaper,[9] the criteria is whether or not you are officially in custody.  Portsmouth, Virginia resident Wayne McClellan learned that the act of asking for an attorney or even saying you’d like to remain silent does not force police to end an interview.  Why? In the eyes of the police, McClellan was never in custody, he was not under arrest, he was free to leave at any time.  McClellan apparently didn’t see it that way and eventually confessed to the crime of murder.  In the 2013 case of Salinas v. Texas[10] the Supreme Court said that your right to remain silent must be verbally invoked.  If you simply remain silent without stating your reason for doing so, this act can be presented as evidence against you.

So in summary: If confronted by police, ask whether or not you are under arrest.  If not, insist on your right to leave or resume your travel.  If you are placed under arrest, verbally indicate you are asserting your 5th Amendment right to remain silent and then actually do so.  Also note that the Supreme Court decided in 2012 that Miranda warnings[11] are not required when a person is not in custody.  So don’t expect them until you’ve been placed under arrest.

Government waste:

The 2016 version of the Pig Book[12] is out.  Read and weep.
In a somewhat related announcement, it has been discovered at the Department of Housing and Urban Development (HUD) that an employee, even an intern, can’t be fired(13) for work-related misconduct without being first convicted of a crime. Meanwhile, as the cited article points out, over at the Veterans Administration, they have decided that being tried and convicted of criminal activity does not disqualify you from continuing as an employee.  You can’t make this stuff up.

Sources:

[1] http://www.nbcnews.com/news/us-news/law-professor-candidate-challenges-cruz-citizenship-n554046
[2] http://www.nj.com/politics/index.ssf/2016/04/cruz_can_appear_onted_cruz_can_appear_on_nj_primary_ballot_judge_rules_nj_primary_ballot_judge_rules.html
[3] http://click.heritage.org/TyrMT0i0p0000Hb30e4dsT0
[4] http://hosted.ap.org/dynamic/stories/U/US_CHALLENGED_BOOKS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2016-04-11-10-00-40
[5] http://www.usatoday.com/story/news/2016/04/11/evening-news-roundup-monday/82894720/
[6] http://www.newsweek.com/sandy-hook-lawsuit-gun-violence-victims-sanders-clinton-ar-15-448090
[7] https://www.gpo.gov/fdsys/pkg/PLAW-109publ92/html/PLAW-109publ92.htm
[8] http://www.newsweek.com/hillary-clinton-gun-control-policy-379950
[9] http://pilotonline.com/news/local/crime/when-must-police-stop-asking-a-suspect-questions-it-s/article_0e58b2bc-a834-5509-be29-cde3c0e6b9b3.html
[10] https://www.oyez.org/cases/2012/12-246
[11] https://en.wikipedia.org/wiki/Miranda_v._Arizona
[12] http://cagw.org/sites/default/files/pdf/CAGW_PigBook_2016_Online.pdf
[13] http://dailycaller.com/2016/04/08/hud-cant-fire-anyone-without-criminal-charges-even-interns/
 

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 www.ConservativeTruth.org, 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 www.1180WFYL.com. 
Visit Gary Porter's website at http://constitutionleadership.org/