A lot has been said, nay regurgitated, about the Constitution recently. The chief dispensers of vomit, on which their flock so eagerly feed on, have been the conservative media. We've all seen Beck crying and heard Limbaugh yelling (and watched our stuffed animals hang themselves after being forced to listen to Hannity). Eventually their inane rantings work their way to a number of politicians who are so inept at legislating they believe Boss Limbaugh to be an authority on Constitutional Law. Along with them are a sizeable minority of Americans who resent formal education and reason to the point they think Sara Palin is an expert on public-policy. Never mind that these are the same people who tried, over the last 40 years (and the last 8 in particular), to undermine the Constitution so broadly and swiftly that in some sense it is a miracle they didn't just do away with the document and supplant it with a pretty picture of a 1970s Dodge Charger with a note (scribbled in crayon) that reads, "Repulilkans good, demokrats bad."
Anyways, I've digressed a bit. So today, I am going to talk, quite rationally, about a few Constitutional complaints being raised by the right.
Complaint 1- "The Birther 'Problem'"
We are all quite familiar with Orly Taitz and her inability to understand the most basic of legal procedures. The complaint, as far I've been able to make out, is that Barack Obama is not qualified to be President of the United States because he is a Kenyan by birth. To advance her argument she has found people facing deployment and tried to get a legal stay on it because the order is unconstitutional per her original assertion of Obama's citizenship. Further, she tries to argue taxpayer standing for herself in attempts to challenge the President.
Let's set aside reality for a moment and assume Orly was right about Obama's place of birth. We know that Obama's mother was an American citizen- providing Obama with citizenship as a right of birth. This is called jus sanguinis (I've noticed you like Latin, Orly) and is a foundation of citizenship law. Obama was not naturalized, nor did he ever have to be, because he has birth-right citizenship. The 14th Amendment gave Congress the power to enforce laws surrounding Citizenship, which they did and which recognized this citizenship by blood.
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f3a1b6b1b8e1e010VgnVCM1000000ecd190aRCRD&vgnextchannel=96719c7755cb9010VgnVCM10000045f3d6a1RCRDThen there is the issue of standing and political questions (the former is needed for a case and the latter are questions the Court cannot rule on). Congress and Congress alone has the authority to act here, denying her standing. And the question is so blantaly about politics that any Court who issued a verdict on it would see a reversal pretty quickly.
Complaint 2- "The Nobel Problem"
Again, an oldie but a goodie. The basic argument is that Obama cannot accept the Nobel Prize without a Congressional consultation because of the Emolument clause.
Per Article I Sec. 9:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.
The logic behind the argument is fatally flawed. First- the committee who gave the prize, while being elected by the Parliament of Norway, has been privately funded and is officially not a functioning body of the Norwegian State- they make their own rules and choices etc....
Secondly, this clause was obviously aimed at removing the influence of Lords and Barons and all that old time shit from running our government, what good would independence be if Lord Huntington was elected President and took his orders from the Throne?
Finally, the argument is just plain silly. A prize, that anybody can be nominated for and win, means they can honor whomever they wish.
Complaint 3- "Health Care Reform is not a power Congress has to legislate"
This is a classic Constitutional argument, so I saved it for last. This has been notably advanced by evil-cyborg Michelle Bachmann of Northern Minnesota. This argument comes up a lot in different forms (any one remember the Brady Gun Bill), and it boils down to the elastic clause and commerce clauses of the Constitution being grounds for Congress to make laws. This is coupled with the resurgence of the 10th Amendment which grants the states the right to legislate areas not enumerated to the government or the people.
It is a bit tricky to simply dismiss this argument on its face (quite unlike the other two), mostly because it actually has some legal basis in reality (both sides could draw up historical precedent pretty quickly), but we can say that the last 70 years the precedents have tended to favor the ability of Congress to use taxation as a form of regulation. We could also note that controlling health care costs amongst the states is probably essential to fair interstate commerce.
Okay, so I didn't offer an in-depth legal analysis, mostly because there is no depth to their complaints. I find it odd that a political party that showed no deference to the Constitution such a short time ago expresses a new-found interest in the document all of a sudden. Not surprisingly then the arguments are political talking-points and not substantive legal criticisms.
Lastly, remember which side is led by the Constitutional scholar and which side is led by a moose hunter.
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