Sad to learn Ron Radosh joined the enemy

In a cogent essay, a leading conservative scholar and former high ranking State Department official, Peter Berkowitz, examines why about half the country believes elite legal progressives “have weaponized federal law enforcement.” He notes that “four criminal indictments [were] brought against Trump−all between April 4 and August 10, 2023, more than two years after he left office and just as the 2024 campaign ramped up….” In other words (as the Marxists used to say) it was no coincidence. 

Berkowitz characterizes as “reckless” the Colorado Supreme Court decision to remove Trump from the ballot on the grounds that he violated the 14^th Amendment’s prohibition on those who “engaged in insurrection.” He points out that Trump has never been charged (let alone convicted) of insurrection. 

Berkowitz excoriates neoconservative Robert Kagan’s argument that “the threat Trump poses to freedom and democracy in America justifies abusing the law to banish him from the political arena.” In this sense, Berkowitz notes, ”anti-Trumpers thereby facilitate the unraveling of the rule of law that they seek to avert.” 

Gabe Schoenfeld and fellow apostate Ron Radosh devote an entire essay to rebutting Berkowitz’s argument. They defend the efforts by the Colorado Supreme Court and the Maine Secretary of State to disqualify Donald Trump from running for president as “the working out of the rule of law.” Further, Schoenfeld and Radosh laud Kagan’s endorsement (he “deserves high praise”) of “taking every conceivable measure” to stop Trump.

What better language than “every conceivable measure” to describe the logic of war?

More.

Mukasey: Trump was never an "officer" of the US and the Supremes have said so twice, ergo, they'll have to defeat him at the ballot box

Trump can't be excluded from the election on the grounds that he was an officer under the 14th Amendment.

Here:

In U.S. v. Mouat (1888), the Supreme Court ruled that “unless a person in the service of the government . . . holds his place by virtue of an appointment . . ., he is not, strictly speaking, an officer of the United States.” Chief Justice John Roberts reiterated the point in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): “The people do not vote for the ‘Officers of the United States.’ ” ...

 Mr. Trump took an oath as president pursuant to Article II, not as an officer pursuant to Article VI. Because the Insurrection Clause applies only to those who have taken an oath “as an officer of the United States,” he can’t be barred by that clause from serving in any capacity. ...

Even a criminal conviction wouldn’t bar him from seeking and winning the presidency. The Constitution specifies only that a person seeking that office be at least 35, a natural-born citizen and a 14-year U.S. resident. If Mr. Trump is to be kept from office, it will have to be done the old-fashioned way, the way it was done in 2020—by defeating him in an election.

"Corporations are people" is based on the 14th Amendment, except it wasn't

Adam Winkler of the UCLA School of Law for The Atlantic explains, here.

Phyllis Schlafly correctly understood natural born citizenship to turn on the question of jurisdiction

Here is Schlafly in 2004:

The extensive litigation concerning American Indians illustrates that consent rather than place of birth is what controls citizenship. Indians did not receive citizenship until conferred by congressional acts in 1887, 1901 and 1924, long after ratification of the Fourteenth Amendment.

The Constitution states that "no person except a natural born citizen" is eligible to be President. Everyone recognizes that this provision disqualifies the Governors of California and Michigan who were born in Austria and Canada, respectively.

On the other hand, then Michigan Governor George Romney, whose birthplace was Mexico, ran for president in 1968, and Senator John McCain, whose birthplace was the Panama Canal Zone, ran for president in 2000. Both were "natural born citizens" because their parents were U.S. citizens and subject to the jurisdiction of American sovereignty.

It's not the physical location of birth that defines citizenship, but whether your parents are citizens, and the express or implied consent to jurisdiction of the sovereign.

Laurence Tribe thinks Ted Cruz is ineligible from one perspective, and buries "reputed born in the country" during the founding for a reason

Here in the Boston Globe:

'To his kind of judge, [Ted] Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive. ... This narrow definition reflected 18th-century fears of a tyrannical takeover of our nation by someone loyal to a foreign power — fears that no longer make sense.'

Oh really? They make more sense now than ever with the diffidently un-American Obama in the Oval, whom the originalist position should also have prevented but didn't precisely because liberal interpreters like Tribe have prevailed by burying truths.

Such as: Children born abroad to US diplomats and soldiers were considered at the time of the American founding "reputed born in the country". For example, Emer de Vattel, paragraphs 216ff., whom the founders used like a textbook:

"... it is not naturally the place of birth that gives rights, but extraction. ... the children born out of the country in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country."

So it's not just a simple matter of being born on US soil, otherwise every slave child ever born here would have been a natural born citizen, making that whole 14th Amendment thingy kind of beside the point. Tribe is taking only half of the originalist position and using it against Cruz, when there is another half, which should have made Obama ineligible.

Ted Cruz is not a natural born citizen only in part because he was born in Canada without military, diplomatic or some other "official" American cover, but Barack Obama is not a natural born citizen because he was born without citizen cover from both parents. Tribe wants to ignore the latter in the case of Cruz to obscure Obama's ineligibility and argue for the priority of soil against Cruz. It's the way liberals argue, by not telling the whole truth.

But blood was equally important with soil at the founding, and you might say that in the matter of presidential eligibility, the genius of the constitution was singularly expressed in the fusing of jus soli and jus sanguinis in the person elected to embody the executive power in order to protect it, and us.

Presidents should be born in the country, to (married heterosexual) citizens.

But good luck getting that through after what Obama and the Democrats have done to this country. Next stop, a test-tube president whose parents are a Chinese lesbian from Vancouver married to her kitty cat from a pet shelter in Seattle.

None of our early presidents were natural born citizens, but were grandfathered in by Article II

"Publius Huldah", here, correctly making the proper distinction between citizens, and natural born citizens who are eligible to be president:

In § 214, Vattel states that “fundamental law” may withhold from naturalized citizens some of the rights of citizens, such as holding public office. The Constitution is our “fundamental law”; and, following Vattel, Art. II, §1, cl. 5 withholds from naturalized citizens (except for our Founding Generation which was “grandfathered in”) the right to hold the office of President.

Remember! None of our early Presidents were “natural born Citizens”, even though they were all born here. They were all born as subjects of the British Crown. They became naturalized citizens with the Declaration of Independence. That is why it was necessary to provide a grandfather clause for them ["or a Citizen of the United States, at the time of the Adoption of this Constitution"]. But after our Founding Generation was gone, their successors were required to be born as citizens of the United States - not merely born here (as were our Founders), but born as citizens.

And do not forget that the children born here of slaves did not become “citizens” by virtue of being born here. Their parents were slaves; hence (succeeding to the condition of their parents) they were born as slaves. Black people born here did not become citizens until 1868 and the ratification of the 14th Amendment.

So! Do you see? If Our Framers understood that merely being born here were sufficient to confer status as a “natural born citizen”; it would not have been necessary to grandfather in our first generation of Presidents; and all the slaves born here would have been “natural born citizens”. But they were born as non-citizen slaves, because their parents were non-citizen slaves.

Scott Walker has nothing up his sleeve

In the last week Governor Scott Walker has stated he's for the 14th Amendment as currently (mis)interpreted, establishing birthright citizenship as the law of the land, for repealing birthright citizenship going forward, and against taking a position on the subject for now!

Scott Walker is a fish out of water, flopping on the pier.

CNN (justly) crucifies him for it, here.

On the merits of the issue Walker's flip-flops clearly show that he perceives the acceptable establishment view to be out of step with what he thinks the voters feel about it. Regular middle class folks with whom Walker identifies hate it that they're footing the bill for people who cut in line, go on government assistance and even commit crimes without serious consequences.

On the politics Walker looks unprofessional and unready for primetime, and when you get down to it, divided in his own mind about the issue.

The real Scott Walker has always been a little soft on illegal aliens but keeps changing his position because he senses voters aren't soft on them.

In view of his previously stated support for a pathway to citizenship, it's pretty obvious Walker has never had the fire in the belly on this subject which the Americans whose vote he's angling for possess.

And it's too late to do anything about it now.

He's done.

If he were wise he'd find a way to bow out, throw his support to Trump, and hope for a position in a Trump administration where he can do to government unions nationally what he's done to them in Wisconsin.

Please explain to us how and why "and" is superfluous in the 14th Amendent

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens . . .."

This Amendment had a specific meaning, not a broad meaning. Its intent was to settle the citizenship of emancipated slaves who had hitherto been State-less, that is, in a kind of limbo with respect to jurisdiction because they had been property, not persons. The Amendment meant to state that once freed they became persons who came under the jurisdiction of the United States, whether they were born slaves here or abroad.

Indians were not understood to be subject to the jurisdiction of the United States at the time, but were subjects of the Indian nations, and were thus not granted citizenship by the Amendment in 1868, else the 1924 Indian Citizenship Act making them so had been unnecessary.

Children of diplomats born in the US while their parents were representing the countries whence they came were not thereby granted citizenship either, because they like their parents were subjects of foreign jurisdictions. Senator Jacob M. Howard of Michigan, the author of the citizenship clause, said the Amendment excluded “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

Thus children born here to illegal aliens, like their parents, are subject to the jurisdictions whence they came and should not be granted American citizenship now, unless it please the people to do so.

It's that simple.

And the Congress has every right to make that rule consistent AT ANY TIME if it has not been so in practice or in litigation, as Article One, Section Eight of the Constitution makes clear:

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Meanwhile the importance of jurisdiction for citizenship is otherwise seen to be paramount because no one except an idiot or a malcontent questions the citizenship of a John McCain or a Ted Cruz because they were born to citizens while living abroad.

And even if it could be proven that a Barack Obama was born abroad it wouldn't make any difference to his citizenship because his mother was a citizen of the United States and subject to the jurisdiction thereof.

Anyone in the world can renounce jurisdiction and pledge allegiance to another flag if one chooses, and it is entirely within our rights as Americans to set the conditions for welcoming as well as bidding farewell to those who do so. 

Nat Hentoff Says Obama Wasn't Fully Qualified To Teach Constitutional Law At The University of Chicago

Here, but that's just for starters:

Hentoff called this the worst state the country has ever been in, “Even worse than Woodrow Wilson’s regime, when people could be arrested for speaking German.” Compounding the problem he says, is the digital age, which has allowed the president to engage in unprecedented domestic spying with the apparatus of the National Security Agency. WND asked if Obama really posed such a threat, considering he was a professor of constitutional law. “People forget, he taught a course that he was not fully qualified to teach. But nobody seemed to care,” Hentoff observed.

He also pointed out that Obama was the only editor of the Harvard Law Review to never publish an article, something that went virtually unnoticed when voters considered his qualifications. “See, that was a case of affirmative-action and people feeling, ‘Hey we ought to do something important, symbolically, and here’s a black guy, and he’s articulate, so we’re gonna do this.’”

Hentoff mentioned that former U.S. Supreme Court Justice William O. Douglas, the man Time Magazine once called “the most doctrinaire and committed civil libertarian ever to sit on the court,” once personally lectured him that “Affirmative-action on a racial basis is a total violation of the 14th Amendment, no doubt about it.” And, referring to Obama’s presidency, the journalist said, “That’s what that kind of affirmative-action did for us.”

He told WND that he firmly believed the president does not care about due process, the separation of powers, the concept of a self-governing republic or many other basic American ideals. And that’s why, he said, “What Obama is doing now is about as un-American as you can get.” Hentoff wanted to make sure no one thought he was engaging in hyperbole. He said it was literally true that Obama is “the most un-American president we’ve ever had.” And just to make sure everybody heard him, he added, “I hope the FBI got all of that.”

The Constitution Was in a Shambles Long Before Obama Came on the Scene

So says Lawrence Hunter here, who thinks the expedient of a Bill of Rights was only a parchment barrier to begin with:

The Founders gave us The War Power Clause of the Constitution vesting the exclusive power to declare war with Congress. Politicians replaced it with The War Powers Resolution and presidential wars of whim.

The Founders gave us myriad constitutional restrictions on the powers of the federal government both explicit and implicit. Politicians and judges replaced them with a series of court rulings, on the Commerce Clause for example, so sweeping in their expansion of the federal government’s regulatory powers beyond the Constitution’s writ that, in the words of Cornell Law Professor William Jacobson, “The Commerce Clause has proven voracious enough to swallow the rest of the Constitution. Any scraps left over will be devoured by the Due Process and Equal Protection clauses of the 14th Amendment.”

The Founders gave us habeas corpus and the Fourth Amendment, protecting against arbitrary arrest and guaranteeing that people would be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Politicians replaced them with The Patriot Act and the Homeland Police State, preventative detention, rendition, unauthorized wiretaps, secret searches and seizures and TSA.

The Founders gave us the Fifth Amendment, guaranteeing the people protection against over-reaching police and prosecutors, forced self-incrimination and double jeopardy, and against laws that would confiscate private property without due process and just compensation. Courts and Politicians gave us a series of rulings and legislation allowing the police, prosecutors and judges to act arbitrarily in the name of the general welfare, public safety and national security without regard to the cherished Rights of Englishmen that were passed down to us through the United States Constitution.

The Founders gave us the Eighth Amendment protecting the people against the imposition of excessive fines and infliction of cruel and unusual punishments. PB&J gave us RICO, prosecutorial charge stacking, extortionate plea bargaining, lawless and pathological judicial/prosecutorial misconduct, GITMO and water boarding.

Obama: When Life Begins Was "Above My Pay Grade"

But not now:

Today marks the 38th anniversary of Roe v. Wade, the Supreme Court decision that protects women's health and reproductive freedom 

[at the expense of someone else's life],

and affirms a fundamental principle: that government should not intrude on private family matters

[like buying health insurance, giving food and water to the chronically hospitalized, eating hamburgers and french fries for lunch, smoking cigarettes around your kids, spanking them, purchasing and using trigger locks . . . and once upon a time selling your slaves' children to the highest bidder].

I am committed to protecting this constitutional right


[except for the aborted child]

[which by the way was never intended by the framers of the 14th Amendment, but I digress].

I also remain committed to policies, initiatives, and programs that help prevent unintended pregnancies, support pregnant women and mothers, encourage healthy relationships, and promote adoption

[all of which are an intrusion on private family matters].

And on this anniversary, I hope that we will recommit ourselves more broadly to ensuring that our daughters have the same rights, the same freedoms, and the same opportunities as our sons to fulfill their dreams

[except for fatherhood and the right also to kill their unborn children].

-- Barack Insane Obama, January 22, 2011, here

In August of 2008, here, deciding when a baby is entitled to human rights was above his pay grade.

Obviously it isn't now. A baby isn't entitled to protections. A father isn't either. Only a woman is. That's what Obama is all about, not equality of rights, but special rights for protected classes of human beings. And that makes him no different than the slave holders of the past. 

When Will We Say NO! To Revolutionary Jurisprudence?

From the dissenting opinion of William H. Rehnquist (1924-2005) in Roe v. Wade, January 22, 1973:

"To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.

As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature.

By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.

While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted.

[T]he drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."


May he rest in peace.

Gabrielle Giffords' Democrats Promoted Libertarian as True Conservative to Divide Vote on her Right

The following excerpts come from the website of the Libertarian Party candidate, Steve Stoltz, whom the Democrat Party (yes you read that right) promoted in its literature as the true conservative running against the Democrat incumbent Gabrielle Giffords, shot in Tucson on Saturday, to bleed off votes on the right from the Republican challenger Jesse Kelly:

As a Libertarian, I am socially liberal, compassionate and humanitarian, but I am also fiscally conservative and principled.

The United States should have sound money that is backed by gold not the “monopoly money” of a fiat currency that is essentially counterfeited by the printing presses of the Federal Reserve which causes massive inflation.

As a Libertarian I believe that everyone owns their own body and can do ANYTHING they want with it, so long as they do not infringe upon someone else’s life/health, liberty or property (the 4rth amendment of the constitution says that people have a right to be secure in their person).

Government has no authority over the nature of a person’s consensual sexual relationships - even if they desire to engage in promiscuity and immorality.

The government has no right to tell a person what food they can eat, has no right to restrict their access to vitamin and mineral supplements, has no right to prevent a person from taking experimental drugs or getting medical treatments they feel will cure them of disease.

It is ironic that laws limit access to drugs, while the FDA has permitted poisonous/toxic substance like aspartame to be introduced into beverages.

Drugs like marijuana should be legalized, with increasing amounts of regulation and taxation applied to the more addictive drugs.

Society should lift prohibitions, but should regulate drugs the way alcohol currently is.

Lifting some drug prohibition could have a positive impact on national security.

Marriage is a legal contract protecting the rights of two individuals who decide that they want to live together and share property.

The state’s sole role is to enforce the property rights of the union, without placing stipulations on the nature of the union, whether it is between heterosexuals or homosexuals.    

The equal protection clause of the 14th amendment says that every US citizen shall enjoy the equal protection of the law.

Since no group should be given special treatment relative to over another, the military’s current policy of “Don’t ask don’t tell” is un-Constitutional, and should simply be reduced to “Don’t ask”.

The military should not expel a member who has already proven they can do the job merely because that person has identified himself/herself as homosexual.

I believe the government must respect the 2nd amendment, and place absolutely no restrictions on gun rights.

Although I am totally opposed to violence, I find it amazing that those who would place restrictions over a private citizen’s access to guns also seem to place blind faith in the integrity of the police, merely because they are agents of government.

Social security ... The system should be restructured so that younger persons invest in a privately held account, the way the government originally sold it.

I do not believe that it is moral for a wealthy person to hoard their wealth without trying to use it to help people.

[I]t doesn’t make sense for the government to document illegal aliens.

I do not believe that illegal aliens who give birth in the United States should instantly be granted citizenship (i.e. “anchor babies”).

I don’t believe illegal aliens should enjoy special access to entitlements relative to US citizens.

[W]hile it might be unfair for the children of illegal aliens who don’t pay property tax to receive a free education in US school systems, they nonetheless fall under the same category as the children of US citizens who receive a free education because their parents rent and don’t pay property tax.

The illegal alien problem is a multi-faceted social problem that can’t be solved merely by erecting a fence.     

Female reproductive rights/abortion – I am pro-choice.    

The focus of the military should be primarily to defend the nation’s borders against invasion.

As a Libertarian, I believe that in order for anything to be regarded as a crime, there must be a victim.  Civil fines for traffic violations that do not result in an accident or property damage or personal injury, and merely raise money for the state represent victimless crimes.