Constitutional Commentaries - August 29, 2010

My audio Constitutional Commentary of August 29, 2010 is available for downloading free of charge HERE. In it, I discuss the subject of "Fake Warriors and the Unconstitutional Stolen Valor Act."

August 29 Constitutional Commentaries

Sunday's Constitutional Commentaries will be on the subject of "Fake Warriors and the Unconstitutional Stolen Valor Act." It may be heard HERE.

August 22, 2010 Constitutional Commentaries

The Commentaries covered

• Birthright Citizenship and Anchor Babies.
• Obama as a "natural born citizen."
• Blame for the Arizona immigration law decision.
• California's same-gender federal court ruling.

They may be accessed on my website HERE.

Worst Supreme Court Decisions: Blaisdell v. Home Building & Loan Association

My essay on Blaisdell v. Home Building & Loan Association -- Mortgages in Name Only -- is now available for viewing (free of charge) HERE.

Constitutional Commentaries - August 22, 2010

My audio Constitutional Commentary of August 22, 2010 is available for downloading free of charge HERE. In it, I discuss "Birthright Citizenship and Anchor Babies," "Obama as 'natural born citizen'," "Blame for the Arizona immigration law decision" and "California's same-gender federal court ruling."

My new "Constitutional Commentaries" Internet Broadcast

The Maine Center for Constitutional Studies has just announced the launch of its streaming Internet radio station, wMCCS, designed primarily to provide 24-7-365 broadcast of educational and talk radio over a musical backbone. (Click HERE for details.)

Founder, Ken Capron, has explained that "our station is an additional way to reach out to people who want to learn about historical and contemporary issues from authors, experts and pundits across the nation."

wMCCS will inaugurate its Internet-based programming at 2:00 PM EDT on Sunday, August 22, 2010 with my “Constitutional Commentaries,” a thirty-minute weekly series.

This first week I'm going to be discussing:

• Birthright Citizenship and Anchor Babies.


• Obama as a "natural born citizen."


• Blame for the Arizona immigration law decision.


• California's same-gender marriage federal court ruling.

To access the broadcast, and all future ones, click HERE. Once on the "wMCCS Streaming Internet Radio" page, in the right-hand panel you will find various media players which will allow you to access the broadcasts.

On Sunday, August 29, 2010, I'll be discussing the two recent decisions holding the "Stolen Valor" Act unconstitutional as a violation of the First Amendment.

Best Supreme Court Opinions: Korematsu v. United States

My essay on Korematsu v. United States -- Justice Jackson speaks for innocent American prisoners -- is now available for viewing (free of charge) HERE.

Animated morality lesson

Perhaps because this is animated the "American Idol" crowd will understand it:

http://www.youtube.com/watch?v=4wty7974IKg

No Controlling Precedent

These words were immortalized when then-Vice President Al Gore used them as an excuse to exonerate himself from fund-raising shenanigans while he was in the White House, making telephone calls from there. Ever since then, “no controlling precedent” has been shorthand to describe the rationalizing of cutting corners.

But to lawyers, especially constitutional lawyers, the absence of “controlling precedent” means something very different: that courts, preeminently the Supreme Court of the United States, writes on a clean slate; that there is no prior decision which requires the same result in a new case.

This is very important today because of a question just beginning to boil in the public arena: the meaning of six words in Section 1 of the Fourteenth Amendment, which provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” [My emphasis.]

The constitutional question is whether so-called “anchor babies”—children of illegal aliens, overwhelmingly Mexican, reportedly some 60,000 annually in Texas alone—are “subject to the jurisdiction thereof” and thus automatically citizens of the United States.

It is believed—but erroneously—that the Supreme Court has answered this question affirmatively.

It has not, even though many lawyers and commentators believe it has.

They cite to the Supreme Court case of Plyler v. Doe, decided in 1982.

The question of whether the children of illegal aliens were “subject to the jurisdiction” of the United States under Section 1 of the 14th Amendment, and thus citizens, was not even before the Court in the Plyler case.

How do I know?

Because Justice Brennan, author of the majority opinion in Plyer said so:

“The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens.” [My emphasis.]

In Brennan’s Opinion’s infamous footnote 10—relied on by the “anchor babies are citizens” crowd—he admitted that the Court had never ruled on the meaning of “subject to the jurisdiction thereof” as it may pertain to the America-born children of illegal aliens.

But a small problem like that wouldn’t stop Brennan. Undeterred by the absence of any precedent, the High Priest of the Living Constitution slipped into his opinion’s footnote 10 the gratuitous statement that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Who asked him?

No “anchor babies” were before the court. The “jurisdiction” question as to them was not before the Court. The Court had, by his own admission, never addressed the question.

This means that constitutionally the “anchor baby-citizenship question is wide open. And a smartly designed statute to define and deny the citizenship status of anchor babies would eventually have to be evaluated by the Supreme Court.

Despite the incompetent, agenda-driven progressives Obama is seating on the High Court, good lawyering might, just might, relieve the American body politic of the heavy, unwanted and constitutionally unnecessary burden of anchor babies— and remove from them the precious American citizenship they do not deserve.

We Lost . . . So Don't Appeal!!

There’s an old legal (not lawyer) joke, that I’ve updated. . . . . . . .

Long non-jury trial. Waiting for judge’s decision.

Weeks later, lawyer in New York.

Client on vacation in Florida.

Finally, lawyer sends client two word text message: “Justice triumphed.”

Client responds: “Appeal at once!”

An understandable reaction. You lose a case, you appeal.

But not always.

The will of the voters of California regarding same-gender marriage—a policy choice properly belonging, under the Tenth Amendment, not to the federal courts but to the states—has been thwarted by a single federal judge in a single federal district (in Northern California).

Why do I italicize single (twice)?

Because California’s Proposition 8 has been declared unconstitutional in only one of the 94—that’s right, 94!—districts in the federal court system. Yes, 94!

Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional under the Equal Protection Clause of the 14^th Amendment applies only in his district. It is not worth the paper it’s written on in the other 93 federal districts.

That said, the disgruntled losers in Walker’s court are ready to kick butt: “We’re going to appeal,” they holler. “Up to the Ninth Circuit,” they promise.

Brilliant!

The United States Court of Appeals for the Ninth Circuit covers fifteen federal districts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington (State) and two territories (Guam and the Northern Mariana Islands).

So let’s play it out.

The Prop 8 losers appeal to the Ninth Circuit.

If they win there, the Ninth Circuit reversing Judge Vaughn, Olson and Boies take the case to the Supreme Court of the United States. And a loss there by the opponents of same-gender marriage turns the decision of a single judge in a single federal district into the law of the land—despite the Tenth Amendment and the will of California voters.

But let’s say the Prop 8 losers’ appeal to the Ninth Circuit fails, and that court affirms Judge Vaughn. Then the losers take the case to the Supreme Court. And a loss there by the opponents of same-gender marriage turns the decision of a single judge in a single federal district into the law of the land—despite the Tenth Amendment and the will of California voters.

I am saying plainly and emphatically that the Vaughn-court losers should pack their bags and go home—and not turn their minor-league loss into yet another repudiation of the Tenth Amendment at the hands of the Ninth Circuit and/or the Supreme Court.

I can’t contact those lawyers, but perhaps someone who reads this essay can. If so, I urge you to remind them that there is much to lose by losing again . . . . . and again.

But there is much to gain by not appealing: erasing completely all the effort and money expended by the anti-Prop 8 forces—all of it!—by leaving their consequence quarantined in a single district in Northern California.

Ask the Prop 8 supporters’ lawyers, “What price glory?”

Worst Supreme Court Decisions: Muller v. Oregon

My essay on Muller v. Oregon -- Ladies, Laundries, And Eventually The Third Reich -- is now available for viewing (free of charge) HERE.

Kyl and McCain Are Responsible For Judge Bolton's Decision, Not Bill Clinton

For years I have been pounding the point that when voters elect a United States Senator they are "electing" federal judges.

That's because seats on the federal bench are little more than political patronage.

Senators recommend judicial candidates to the president who, usually regardless of party, rubber-stamps the Senators' choices--especially for the United States District [trial] Courts, and often for the United States Court of Appeals (though there the process is more complicated because each of those courts have jurisdiction of district courts in several states).

Yes, Bill Clinton "appointed" Judge Bolton.

But she was recommended by Republican Senator Kyl and voted for by Republican Senator McCain and all other Republicans in the Senate.

With Republicans like those, who needs Democrats to load the federal judiciary with "Living Constitutionalists"?