Friday, April 29, 2016

Understanding the Rules of Conventions and Why They Are Different

Diagram of Convention Structure

Why must the rules be adopted each time and why by 2/3?

Introduction

There has been much argument in the 2016 election cycle about the fairness of the primary process, that it is not democratic, that it is establishment, or fixed in some fashion. There have been accusations of cheating. Inevitably, some accusations of cheating will be true (there always are). In more cases, there are mistakes or outright incompetence in a messy and complex process. Most often, mistakes are made because people do not understand the rules and why they are important.

Here is one issue which comes up over and over again which many people seem to be confused about and I do believe it is manifestly unfair when it is done. The issue is the proper way to adopt the standing rules of conventions. The rules which are passed control the business of the convention. If the rules are not themselves passed fairly, nothing else can be fair. Understanding this issue is the beginning of a fair delegate process and of effective convention activism.

The Issue and Why It Occurs

In 2016, we are dealing with this issue within several Missouri Congressional Districts (as of the time of this writing, district conventions will occur tomorrow, 30 April). It has come up before at levels ranging from county to national. It is at the core of the controversy over the 2012 rules for the National Republican Convention and whether they apply at the start of the 2016 Republican National Convention (technically, they do not).

The bottom line is simply this: the rules from one convention do not carry over from one election to the next and the report of the rules committee must always be approved by a vote of 2/3 of the delegates. This procedure is not optional and a convention cannot be valid without following them.

I should note here that I do not accuse people of violating the rules in this case (necessarily) out of malice. In the overwhelming majority of cases, the error results in ignorance of the rules for several reasons:

  1. Most people, if they are experienced in the rules of order at all, are used to dealing with them in the context of regular meetings of organized societies. This is just as true of Republican (or Democratic, etc) Committeepersons who typically attend regular committee meetings. The rules of conventions are different and they are different for important reasons, but most people, even Presiding Officers, have simply not studied the appropriate sections of Robert's Rules.
  2. Before 2008, the Republican Party in Missouri was not accustomed to contested conventions. This is less true in other states, such as Michigan, where other state-wide primaries are conducted at the convention and therefore are almost always contested. Because of the lack of contested conventions, we have allowed ourselves to become sloppy about certain rules of order which were seldom used and seldom mattered. Some of the violations of rules we observed in 2008 as activists in the Ron Paul campaign were actually intended to shut us out (regardless of the rules) but many violations were the result of actual confusion and inexperience with the rules of contested conventions. In turn, new activists were often themselves inexperienced with the rules or with common practice.
  3. It seems convenient to violate certain rules of convention. Attempts to pass rules by less than 2/3 and carrying over rules from past conventions are often done in the name of efficiency. Robert's Rules of order attempts to balance efficiency against the rights of strong minorities: conventions meet to accomplish an agenda of party business. There are certain rights of minorities which are sacrosant, however, and cannot be violated for the sake of efficient meetings. In truth, the efficiency gains are illusory, anyway, given that Robert's Rules of Order specifies a sufficient framework of rules to carry out business without needing to force through or carry over convention rules.

The Simple Explanation

Although people may have difficulty understanding why conventions work the way they do (we'll get to that), the basic, correct process is simple, as James Lochrie, President of the American Association of Parliamentarians, explains:

The rules committee's mandate is to propose special rules of order and administrative policy (policy is described in chapter 2 ) for use during the convention. Often the same rules are used from year to year, but they should be adopted afresh each time. This provides an opportunity for delegate or members to add new rules or amend existing ones...

A two-thirds vote is required to adopt convention rules. Subsequent to this vote , individual administrative rules require only a majority to adopt or amend; rules of order continue to require a two-thirds vote to adopt or amend. If a convention rule of order is rescinded, the associated rule contained in the parliamentary authority returns to effect. [Meeting Procedures: Parliamentary Law and Rules of Procedure For the 21st Century. James Lochrie. Scarecrow Press. 2003. pp 177. Emphasis mine.]

Lochrie here is quite plain and is merely restating what is laid out in Chapter XIX of Robert's Rules of Order, Newly Revised, 11th edition and particularly in the section of the Rules Committee Report on pp 618. It is also a very old principle of parliamentary law that deliberative body (a body which meets to decide the answers to questions for some group) determines its own rules for how it goes about that process.

For legislatures, the approval of their own rules is a constitutional requirement. At the start of every legislative session, the US House appoints a committee to recommend rules for the next session. It is customary in the house for someone to move that the previous set of rules be adopted until the committee completes its task, but it still requires a motion both to use the temporary rules and to approve the new ones recommended by the committee:

It is proper here to adopt the following motion: Resolved, That a committee be appointed to prepare and report a system of rules and regulations for the government of the House, and until such report is made and approved, that the Rules of the last House be adopted. This is done in obedience to the13th section of the first article of the constitution, which vests each House with power to determine upon its own rules of proceeding. [Joel Barlow Sutherland. A manual of legislative practice and order of business in deliberative bodies. Jacob Frick and Co. Philadelphia. 1821. pp 173]
Sutherland's book was in turn cited by Thomas Jefferson's manual of parliamentary law.

The Slightly More Complex Explanation

In order to really understand the reason that convention rules must be passed in the way that is required, it is useful to know two things: first, why conventions of delegates have to be handled differently from regular meetings of ordinary societies and, second, why they must require two-thirds to pass. I go into this process and its reasons step-by-step in < a href="https://www.scribd.com/doc/310968332/CaucusProcessAndRobertsRules-Handout">a course I teach on caucus and convention activism and the rules of order, but I will hit the highlights here.

Why Are Conventions Different?

The bottom line is simply this: in regular meetings, each meeting is part of a continuous session of roughly the same body of people. The county committees, for instance, are seated in periodic elections. In between elections, they can set standing rules for themselves which carry over (unless amended) from one meeting to the next. After each election, they are required to reorganize, and that includes a reset of the standing rules adopted by the previous body. As noted above, the same thing happens with the US House after an election (or, technically, any adjournment of any body sine die ("without day").

But with a convention, every convention has adjourned without day and every body of delegates is elected anew. In every election cycle, the decisions are made by different people under different circumstances, and they have a right to decide their own (potentially) peculiar methods for doing so, according to the circumstances they face. In election year where the presumptive nominee has already been decided by the time of the Missouri primary is not best governed by the same rules as an election year in which four strong factions (none of which are a majority) must come to some agreement!

Why a 2/3 Majority?

Parliamentary law in general and Robert's Rules of Order in particular are designed to move forward the business of the majority while protecting the rights of strong minorities (and individual members). While the majority has an interest and right to an efficient order of business, minorities have the right to express an opinion, nominate candidates, vote, and take part in the determination of the rules. The rules of order therefore are an attempt to compromise between these conflicting interests. A simple majority (50%+1) is required to move business forward, such as to pass a resolution, but actions which "strip rights, constrain debate, or change normal rules" require a 2/3 vote.

As noted in RONR11 pp 619, a rules committee report will almost always contain rules which "strip rights, constrain debate, or change normal rules," so when passed as a package, such a report always requires 2/3 to be adopted. There is actually a handy little procedure described on that same page for separating out individual rules for its own vote, at which point the rule in question may or may not require 2/3 to pass. By following that procedure, the body can efficiently pass all of the rules that are agreed on and then deal separately with the issues which require debate. This, again, achieves the objective of balancing a legitimate need for efficiency against the rights of minorities.

Why is it not really necessary, anyway?

People attempt to have rules carry over and make the passage of a body or rules by a simple majority because they are afraid of the convention ending up without any rules to follow at all. While this would indeed be concerning, it cannot really happen as such. At the start of a convention, the delegates are bound by the rules of order specified in the bylaws of the society (in the case of the district/state conventions, this is Robert's Rules of Order, Newly Revised). These rules are in effect until the rules committee report (a set of recommended rules) are adopted--- and if the report fails to be adopted.

As it turns out, Robert's Rules of Order includes--- and has included for some time--- a fairly complete framework for bootstrapping conventions, nominating, holding elections, and amending documents. While it can be more efficient to add to that (such as setting limits on debate for and against more appropriate to the situation, or to specify how slates of delegates will be nominated, or what committees shall be appointed to handle convention business), it is not a disaster if these customizations do not happen. It is quite possible to simply fall back on the rules of order and plough forward. Because no extra rules exist during the convention bootstrap process, as it elects its own convention officers and rules, Robert's Rules already specifies the procedures in a clear fashion. In the 11th edition, these procedures are all organized in their own chapter (XIX) for easy reference.

The Lochrie (2003) book referenced above also has its own chapter on the convention process, in a less detailed and easier to read format than Robert's Rules. The Lochrie book is also available in Kindle format to put on a tablet or phone, highlight and bookmark. My copy of Robert's Rules always looks like it has been attacked by a sticky-note factory so that I can find what I need quickly, but I am finding the convenience of the Kindle book quite appealing.

Conclusion

Personally, I want to win for my cause and my candidate. This is why I research the rules and why I train others. But I want to win fairly, both because of my own sense of honor, my faith in the principles of self-government (and that the Orderer of this world, in the end, knows what He is doing), and for the practical reason that if I win unfairly, I damage my own integrity that of my candidate and of my cause. If I win unfairly today, it will not serve my cause tomorrow.

If we do not pay attention to the rules, then we will be exactly what some of the Trump-supporters claim us to be; I will not be a part of that.

Tuesday, April 26, 2016

Bathroom Wars: Tribalism Is Only Sometimes Bad

During the ongoing Bathroom Wars, I note the inherent tribalism of both extremes of the debate, of those who are bigoted against LGBT individuals and of the LGBT activists themselves. In some respects this is not a problem, per se, because people have some right to be tribal in their approach even when it is irrational. However, the modern Progressive position and that of Progressive LGBT activists for decades has been staked against that tribalism and everything it stands for. Therefore, the Progressive position in this and other issues is inherently hypocritical where a bona fide nativist or bigot is not: they explicitly state their tribalism,them against the world.

Four Characters of An Honest Approach

More honest still are the people who:

  1. Admit their tribal tendencies in their own life and interactions;
  2. Realize that other people who do not fit into those boxes have a right to exist and to their own choices regardless;
  3. Admit the utility of those tribal tendencies and of a hierarchy of difference in guiding social interactions and societal structure;
  4. Realize that there are times and places where we need to seek relationships outside those molds to check our own assumptions or surpass our own limitations, that, too, testing boundaries is part of developing our own sense of who we are;

The homophobes and bigots in the Bathroom Wars have at least gotten to #1 on this list and do not apologize for it. They often pull in aspects of #3 in a self-examined manner but may or may not have figured out #2 to any significant degree (often lumping everyone who is different for any reason in the "pervert" category). This depends on whether they are actively hostile to LGBT individuals or merely want to be left alone themselves. Clearly, whenever this behavior leads to violation of anyone else, it is wrong and must be opposed. But that kind of bigotry is not the only problem.

Many of those in the LGTB-advocacy and the Progressive wing generally (those who appear to be actively promoting the ordinances which started the issue) have not even found #1 or have but reject #2 with respect to people who are not transgender. Post-1965 Progressive thinkers tend to be actively and explicitly hostile to #3: the stated goal is to break down and destroy traditional structures wherever they are found, in marked contrast to pre-1965 Progressives. In college, I frequently encountered and opposed both of these categories:

  • those who would do violence against or otherwise harass an LGBT individual who was doing no harm to them (which is how I found myself participating in a Bigayla sit and and march, being knocked to the ground by an attacker while standing in front of a transgender student I did not even agree with), and
  • those extremists on the other side who labeled heterosexuals or cisgender individuals "perverts" and wanted to break down any vestige of distinctions (while simply replacing them with their own categories and distinctions)

People who generally oppose both extremes but believe that upending everyone and everything else is not the right approach accept 1 through 3. These are the people who realize that the bathroom issue is not about transgenders per se (but much more fundamental societal issues) and who advocate for access to single-occupancy or otherwise re-purposable facilities to accommodate any and all needs for additional choice in private spaces. Many of these folks (myself included) don't really care why someone expresses the need for that space. #4 is where we all need to get to and is specifically evidenced by, say, Carly Fiorina's team-management at HP where the goal was to assemble teams with different approaches to a problem in order to court divergent views [@CITATION NEEDED]. I explicitly used that same approach to filling out design/problem solving teams at the Pentagon/AFSAA back in the 90's and actively picked up 'discards' from other teams who had been rejected for divergent views I wanted access to and I did that again in my own consulting business later on.

Folks on both sides who are comfortable with their own identities (as much as humans are capable of being so), who may or may not advocate for their favored choice but at the same time have no desire to impose their views or choices on everyone else are also exhibiting (at least) characters 1-3. So, neither the tribalism of the LGBT community banding together for self-protection against bigotry and to advocate for their cause nor the tribalism of the Christian advocating for heterosexual relationships within marriage is bad as long as that remains within the bounds of the public peace.

We Are Required To Attempt All Four

I also believe that as Christians, we are explicitly commanded to exhibit all four of these characters. We must make space for people to make their own choices while attempting to maintain our own integrity ("discernment" vs "judgement") and our own social structures; being a disciple to others requires reaching out to them and developing divergent relationships without compromising our own principles or the exercise of our faith. These are not easy things to do and they are not meant to be. We will often fail at these things, but we are still commanded to attempt them.

It is also particularly necessary to attempt these approaches in the context of little-r republican self-government. This is where the current tribalism in American politics does hurt us as Ronald Dworkin so ably points out in Is Democracy Possible Here: without agreement on fundamental principles of self-government, there can be no rational policy debate no matter what positions and facts we bring to it

Rejecting Moral Relativism and Strict Utility, Thomas Aquinas

None of this means that we embrace moral relativism (which I explicitly reject). The idea that all persons are entitled to be accorded with some level of dignity for their beliefs does not presuppose an equal dignity of those beliefs. At some level, people are simply entitled to hold beliefs which are wrong, insincere, or even self-destructive without unwarranted interference. Whether their beliefs are right, wrong, or neither particularly right nor wrong is independent of the dignity accorded to the person as a fellow being and fellow creation.

Nor does the requirement for recognizing that dignity in others erase the special duties we may owe. As St. Thomas Aquinas noted in his Summa Theologica, the universal requirement for charity toward others does not mean that we do not choose to favor those to whom we owe a special relationship (self, family, friends, community, fellow citizens) all other things being equal. A man may sacrifice himself for a stranger and at some points may have a duty to do so, but the same duty is not owed, all other things being equal, for him to sacrifice his family or community for a stranger or strangers. A man may (and often ought) bend his customs or traditions as a sign of respect for the dignity of a stranger, out of Christian mercy and charity, but does not have duty to destroy his customs or traditions, to abandon his faith, simply in order to avoid offense. As a man, I do not have a duty to abandon my manliness nor a woman to abandon her womanliness because someone else finds it offensive, but that may mean I am not entitled to enter their private space.

Ending the Bathroom Wars Requires Some Balkanization

On the issue of bathrooms upon which we have become so fixated, different communities create slightly different social structures for balancing privacy, efficiency, and simple bodily needs. A single-occupancy room provides the most privacy but often the least efficiency. Bathrooms separated by gender provide some degree of privacy and some degree of efficiency but do not work for people who (for whatever reason) require a degree of privacy or utility not allowed in that structure, e.g.:

  • dad with a female child
  • someone with a medical condition requiring discretion
  • a pre-op transgender
  • a disabled man needing assistance from a wife
  • someone who has suffered abuse who will not disrobe in front of others, etc.

Note that we do not necessarily care whether the need is "reasonable"; the mere desire for accommodation ought generally be enough. Bathrooms separated by gender with one or more designated "family restrooms" provide a good overall mix of function.

In some places, the requirements are different. The all-female dorms at college had customs and social structures for when a visiting male had to pee. If the visitor did not obey those customs, he could well expect to be summarily ejected. In the coed dorm I lived in at points, each hall had a single bathroom where, say, one person could use the shower and the other the stall at the same time. Customs for resolving that issue with mixed sexes also existed. When I visited the Legends bar and dance club (this particular one being an LGBT hangout), they had their own social conventions for the restrooms which one either accepts or leaves. That is all as it should be: a city such as Springfield, MO or Charlotte, NC ought not attempt to enforce the same structure on Legends that it does a Franciscan monastery, on a public hall and a private business.

Sometimes when you arrive at someplace where the rules are not what you expect or where you need extra consideration, you must appeal them to the proprietor or community. Sometimes the community or individuals may be gracious and sometimes not. Sometimes asking for consideration requires revealing a private need (such as a disabled man needing assistance from his wife) that you would prefer not to reveal or which risks humiliation. Although we should try as communities to set the best policies we may and attempt to deal graciously with the exceptions, it is an unfortunate fact of humanity that this often fails--- sometimes spectacularly--- but it is not a problem that blunt use of legal force can necessarily solve.

There will always be exceptions and there will always be ungracious people. The debate within constituencies on what policies to have will often be ugly (as all policy debate often is) and that is OK. Somehow we need to find the means to live together (or live apart, see 1-3 above) to resolve things as best we can, not necessarily such that everyone gets what they prefer.

Friday, April 15, 2016

Citizenship, the Constitution, and Morality: is it 'wrong' to support Cruz?




Who is that masked man? Hero? Villain? Or just another candidate?

Revision 1.01 (See Changelog);

Introduction

There has been much written on the subject of natural born citizenship and whether Ted Cruz is eligible under the Constitution to be president. I have made my position clear and will lay it out again, but that is not what this post is about. Rather, it is about the imputation made that Ted Cruz is wrong--- as in immoral--- for putting his hat in the ring and that his supporters are wrong--- as in immoral--- for supporting him. This imputation has come from some people whom I otherwise respect, so it is important to answer it fully. In order to do so, we will have to get back to first principles, what the purpose of the clause was in the Constitution, and the very meanings of illegality and immorality.

I will argue that Cruz' candidacy may or may not be legal. The term birther is often used pejoratively to pretend that there is no issue. That being said, it is a convenient label for the "nativist-leaning strong natural-rights-based natural born citizen interpretation position" which is otherwise too darn long to read and type repeatedly (but you should read "birther" where I use it to mean precisely that). I argue that Cruz is a natural born citizen (hereafter NBC), but it cannot be absolutely proved one way or the other. Law on citizenship, immigration, and naturalization is messy and complex. I do not object to people who wish to vote against him on that count, but I think they are mistaken and I do object to the idea that people are immoral or 'traitors' for disagreeing. Along the way, I will also outline a few of the potential positions on NBC I do find immoral.

This post is not written for lawyers but for the lay person attempting to understand the underlying legal issues. As such, some liberties must necessarily be taken with terms of legal philosophy which would otherwise require substantial study for the reader to approach. As this subject is already complex enough, I try to avoid that when possible and provide some sources for further reading for the truly masochistic. For this reason, I have tried to keep citations understandable for people who want to dig more without conforming to, say, standards for a law review.

The Natural Born Citizen Clause and Originalism

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident... [US Constitution, Article Two, Section 1, Clause 5]

The inclusion of the clause is believed to have come from a letter of John Jay (Federalist Papers author and later Chief Justice of the Supreme Court) to George Washington:

Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the american army shall not be given to, nor devolved on, any but a natural born Citizen. [Jay 1787]

The problem is that the term "natural born" is not defined in the body of the Constitution. This is not uncommon: the Constitution is a compact document which does not define most of its terms. Terms in the body are either legal terms of art defined in British common law (e.g. "Habeas Corpus", "Right To Keep and Bear Arms", "Privileges and Immunities", etc) or use the plain language meaning (according to usage at the time it was written).

That seems reasonably straight-forward except that there is incessant argument about how to interpret or "construct" the meaning of the text from its words. There have been entire books written on this subject, but to vastly simplify, the schools of thought range from the "living Constitution" theory which--- in its strict form--- posits that the text of the Constitution does not matter per se; the document as a whole needs to be interpreted in the context of modern times and the will of the people as expressed through their democratic institutions. On the other end of the spectrum is originalism, in its strict form stating that all Constitutional terms must be interpreted in historical context as the language was understood at drafting or ratification.

In practice, neither extreme makes sense and most jurists do not belong in either category. The living constitution approach goes against the express purpose of the document to delegate limited powers to the government and to require a substantial process for its amendment. It also effectively puts the interpretation of the document in the hands of the very people (the agents of the federal government) the document is intended to limit. In particular, for purposes of this conversation, a proponent of the living constitution in some form is unlikely to even care whether a candidate strictly meets the NBC requirement.

Strict originalism makes no sense in part because the Constitution uses common law terms which were understood in the common law itself to require context and change with the time (e.g. "due process" or "cruel and unusual punishment") or to depend on terms which change with the time (the right to keep and bear arms in common law applied to the "common arms of the day"). Clearly these terms may not be understood solely in historical context. Additionally, many of the framers were not themselves legal experts; they themselves were learning some concepts as they went, they may not have strictly understood or agreed on certain definitions, but they did keep some specific references on hand that we know they worked from and relied on during the process and that they considered authoritative.

Although there are many schools of thought which fall between these two extremes, Ronald Dworkin, in "Taking Rights Seriously," outlines the general requirements that any approach must have if it is rationally compatible with the expressed intent of the Constitution. In general, these approaches depend on interpretation of the actual text ("textualism"), attempt to understand but do not solely rely on historical context, particularly the public intent of the framers, and do so with an appreciation of the natural (or "fundamental") rights our system is designed to protect which, if rights are to mean anything at all, must trump other considerations of law [Dworkin 1980 pp 131-149]. We follow that approach here. The Constitution Society [Roland 2016] also has a good online reference for constitutional construction and the pitfalls of certain approaches.

Historical Context for NBC

Many of the prominent arguments against Ted Cruz as a NBC rely on the text of "Law of Nations" by Vattel [Chitty 1883]. Others (including myself) argue that Blackstone's [1753] "Commentaries on the Laws of England" are the correct source. In the end, however, it does not actually matter to the question because neither source supports the birther argument. We know that the Framers owned, referred to, and frequently quoted both works.

Blackstone

Blackstone first states the obvious that those children born in England to British subjects are 'natural born'. He then expands that to talk about children born abroad to British subject parents:

Yet the children of the king's ambassadors born abroad were always held to be natural subjects:(z) for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father the ambassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2, that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England; and accordingly it hath been so adjudged in behalf of merchants.(a) But by several more modern statutes(b) these restrictions are still further taken off: so that all children, born out of the king’s ligeance, whose fathers (or grandfathers by the father’s side) were natural-born subjects, are now deemed to be natural-born subjects themselves to all intents and purposes; [Blackstone 1753 pp 239]

Blackstone also has some comments on differences between British and French law in this regard. The important point is that Blackstone makes it a matter of law (passed by Parliament) who is natural born and who is not. This is not a fixed concept beyond the constitutional pale of the legislature in common law tradition. So, what about Vattel?

Vattel

Many making the birther argument quote one passage from Vattel's "Laws of Nations" for the idea that natural-born is an extremely fixed and limited term, "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." [Chitty 1883 § 212] However, this is not the whole story, even according to Vattel:

It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also. [Chitty 1883 § 215 (58-59)]

Once again, it is made clear that this is a matter of statute: the status of children born to citizens abroad depend on the law of the nation to which citizenship is claimed and may be affected by matters such as residency of the child and parents. Vattel does not consider the matter to be rigid and unchangeable either.

Common Law Practice and Constitutional Authority

Both authors, Blackstone and Vattel, are simply summarizing common period practice such as this:

[A]ll Children born out of the Ligeance of the Crown of England [i.e. born out of England's jurisdiction], or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively ... are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever. [British Nationality Act 1730]

The Constitution, of course, grants to Congress the power "To establish an uniform Rule of Naturalization". Wait? Naturalization? If a natural born citizen is not naturalized, then does Congress have the power to define law with respect to natural born citizens? Yes, actually. Again, going back to legal practice of the day, laws dealing with the term natural born were commonly lumped under the heading of 'naturalization laws' such as the Foreign Protestant Naturalization Act which made "The children of all natural born subjects born out of the ligeance of Her Majesty Her Heirs and Successors shall be deemed and adjudged to be natural born subjects of this Kingdom to all intents, constructions, and purposes whatsoever." This act, specifically allowed children of exiled protestants to return to England as natural-born subjects.

Some birthers claim that there is a false equivalence between natural born subject and natural born citizen and that, for some reason, natural born citizen is a fixed and immutable category. There is no actual basis for this claim, however, as Vattel, for instance, says the same thing about natural born citizens that Blackstone does about natural born subjects. Even more telling is the fact that there is an early US law, passed by the Massachusetts legislature in 1884 which makes Lafayette and his heirs "natural born citizens" in precisely the same way that prior British acts made returning protestants "natural born subjects":

Be it enacted by the General Assembly of Maryland—that the Marquiss de la Fayette and his Heirs male forever shall be and they and each of them are hereby deemed adjudged and taken to be natural born Citizens of this State and shall henceforth be intitled to all the Immunities, Rights and Privileges of natural born Citizens thereof…

It is also interesting that this act connects the natural born citizen with "immunities, rights, and privileges", strikingly similar to the later language of Article IV and the 14th Amendment. The point, however, is that early Americans believed the terms equivalent and that it was a status which could be dispensed by a legislative body. The Further Reading section delves deeper into the common law issue, the concepts of jus sanguinis vs. jus soli, and the impact of the 14th Amendment on the definition of natural born with references for further exploration.

US Law Applying To Cruz

301 a) The following shall be nationals and citizens of the United States at birth: ..

A person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years." [66 Stat. (1952) 235-36; Title III, ch. 1, section 301(a) and (a)(7), emphasis in the original]

This was the US law applying at the time of Ted Cruz' birth. The law was amended in 1986 to further relax the residency requirements for the citizen parent, but Ted Cruz' mother meets either set of requirements:

The parties have stipulated that the Candidate was born on December 22, 1970 in Calgary, Alberta, Canada; that his mother, Eleanor Darragh, was born on November 23, 1934, in the State of Delaware; that his mother is and always has been a United States citizen, since the moment of her birth; that at the time of the Candidate's birth, his mother had been physically present in the United States for more than ten years of her life, including at least five years after she reached the age of fourteen; and that the Candidate was a citizen from the moment of his birth. [Elliott v Cruz. pp 104-105]

Facts which are stipulated are those which are not disputed by either party. In this opinion by Judge Dan Pellegrini, he holds that 1) the question of whether Ted Cruz is eligible to run for president is not barred by the Political Questions doctrine (i.e. that the court had authority to decide the matter) and 2) that Cruz is a natural born citizen in the meaning of Article II.

The bottom line is therefore, that Congress has Constitutional authority to write law defining who is and who is not natural born and under the law which Congress has written, Ted Cruz is, in fact, natural born.

Some have made a big issue of Ted Cruz' alleged Canadian citizenship which he may or may not have been eligible for at birth. The position of US law on the matter is that neither a US citizen nor the US Congress has any authority over foreign law. We cannot set or change Canada's citizenship requirements. Therefore, if a person who is eligible for US citizenship at birth according to our law and has taken no affirmative action to make any allegiance elsewhere as an adult, they have not given up their status as a US citizen at birth. Examples of what might forfeit that status would be taking a foreign title ("Prince", or "Czar of All the Russias"), actively claiming foreign citizenship or taking an oath of allegiance to a foreign country (e.g. after voluntarily enlisting in their military). No one has accused Ted Cruz of any of these things to my knowledge and therefore, as a matter of US law, they are simply not relevant. If Vladimir Putin, in a dastardly plot to destroy Donald Trump, declared him to be a Russian citizen, it would not affect Donald Trump's legal status under US law in the least, nor his eligibility to run for president (of the US).

What If Congress Does Not Have Authority?

Even if we set aside the work of both prominent period authorities that the question of children born to citizens abroad is not one decided by the legislature and ignore the explicit authority delegated to Congress in Article I § 8, if we assume that the Framers intended natural born to be a rigid and immutable category (a position which I no longer accept but which some people urge us to), where does that leave us? The Constitution itself is not a fixed document: it has been amended a number of times since 1787 and this modifies the question somewhat. If we did wish to go down this somewhat convoluted path, it actually ends us back up in the same place. (This is one of those sections which can be skipped by those not of a masochistic bent.)

First we would have to start with the original meaning of natural born in 1787. We see that from both Vattel and Blackstone above, citizenship follows that of the father. So, if a child is born abroad to a US citizen father, they are natural born US citizens. What of a child born to a US citizen mother? The 14th Amendment requires equal consideration of the law to all born in the US and subject to its jurisdiction. Note that the critical question at this juncture is not whether Ted Cruz is being treated equally under the law because he would only be entitled to run for president if he were qualified under Article II which itself hinges on the natural born question!

In fact, what we want to look at is the rights of Ted Cruz' mother. She has a property interest in the birthright of her son in the same way she has a right to equal treatment under the law in willing real property to her child. Passing a birthright is unquestionably a "privilege and immunity" of citizenship which belongs to all Americans. Saying that a father can pass that birthright and yet not a mother would arguably be unconstitutional under the 14th Amendment. Therefore, the original period definition only conferring natural born status on the children of US citizen fathers would not today pass Constitutional muster. Standing on this definition I would find immoral as it would conflict with the natural law guarantee of equal concern and equal dignity under the law (see Dworkin) for all citizens.

Note that it would be perfectly Constitutional by this argument to deny NBC-status to all children born abroad, and, although this might or might not have been what was intended by the Framers and certainly would have been an easier standard to enforce, it was not what was said by the Framers given the common law definitions above. Several attempts have been made to pass Constitutional amendments clarifying or modifying the NBC requirement in some way over the years, but none of them have yet passed. We can wade into some additional brambles here, but none of them, in the end, actually bear different fruit, so, for the sake of the reader, we will leave the discussion at that.

And Now To the Heart of the Matter

What with one thing or another, we can now deal with the real issue at hand: is it wrong (as in immoral) for Ted Cruz to run for office or for people to support Ted Cruz for office?

At some level this question is silly: if, as laid out above, Ted Cruz is a natural born citizen, then clearly it is not wrong for him to run or for someone like me to vote for him. Even if the above arguments are somehow legally incorrect, however, one would have to suppose malfeasance in both Cruz and his followers to say that it is wrong (as in immoral) to support his campaign. One would have to suppose that we all know that Ted Cruz is ineligible (despite perfectly credible arguments to the contrary) and are supporting his campaign to undermine America or for some other equally villainous and yet completely inexplicable end. The Supreme Court has never directly addressed this question and even in the lower courts, the legal record on the matter is just developing (though all, so far, in Cruz' favor). So, why would it be immoral or some rejection of the Constitution to support his eligibility?

At another level, there is a deeper issue, which is that the natural law interpretation of 'natural born' lends a legitimacy and moral weight to the question it does not deserve. Having a standard for who may serve as president and obeying that standard (whatever it is) is important. I feel very strongly about enforcing the plain meaning of the Constitution when we actually understand what it says and I believe we have a duty to attempt that understanding. Unfortunately, we have never actually agreed what natural born standard is and it has never been adjudicated at a level which could be considered authoritative.

The question as usually put does not actually rise to a level of natural law (except in the Equal Protection sense discussed above). We may have all been endowed by or Creator with "certain unalienable rights", and I firmly believe that to be so, but I do not believe that we were endowed by our Creator with Frenchness, or Americanness, or Missouriness, or Californianness; that is something we choose both collectively and individually. Good faith disagreement on those issues is bound to happen but is not inherently immoral (either way) in the sense that, say, violations of free speech are inherently immoral.

This is not an argument that a nativist view of the Article II standard is per se wrong. If we take for the sake of argument that an excess of nativism is a vice (a strict anti-immigrant stance, for instance, legal or otherwise), it does not follow that nativist preference in the approach to the Office of the President is a vice. Clearly it is important, just as Jay's letter states, that the Chief Executive have sufficiently undivided loyalties! Rather the argument here is that even given a nativist stance on the Office of President, the meaning of the law and the concept with regard to children of citizens born abroad is not and cannot be clear as our Constitution was written. Because the Americanness of an individual is not an objectively measurable or rigid natural law standard, an appeal to a higher morality cannot be expected to resolve the ambiguity in the way that we arguably can with equal protection or free speech. Therefore, disagreement on what precise standard to use cannot be considered a moral wrong.

When the question of Cruz' eligibility for the presidency first came up, I did not support him as a candidate, but I still argued that the birther arguments were incorrect. I began researching the questions when John McCain and Barrack Obama were running and have continued to develop my knowledge of this arcane area of law and of the founding-era sources over time. Although I began with the idea that there was in fact a legitimate question, as I uncovered more sources, as I actually read the commonly cited sources, the questions became weaker, not stronger. After Rand Paul dropped out, it was fairly natural to transfer support to Ted Cruz: no nefarious plot, just support for a good candidate who will, I believe, support good Supreme Court nominations in the next four (or possibly eight) years. Leading up to the rally for Cruz in Springfield, I formally reached out to the campaign to lend my expertise on the convention process and became a volunteer.

As a matter of personal honor, Ted Cruz is a better American than many people I have known of otherwise unimpeachable pedigree. He is an outsider candidate with experience within the political system but who has consistently demonstrated that he is willing to stand up to the establishment for his principles, no matter the personal cost: an outsider-insider. He has, along the way, made enemies in the Texas GOP whose incumbent he defeated to become Senator, in the Bush Administration to whom he gave the honest Constitutional advice he was retained to provide, of the Republican Whip in the Senate when he refused to go along with the party line, etc. He has always been extremely congenial to the grassroots Republican activists like myself and we have returned the favor by organizing a ground-game in our states for his campaign second to none, even the campaigns of past-cycles for Ron Paul where many of us first gained our convention experience and grass-roots organizing skills. I am standing in this election beside people who were my opponents in past elections but who have gained my respect as honorable enemies (I am finding I prefer to have them on my side).

I, for one, will stand with Ted Cruz, and I am not alone. Reject him, reject me, reject us all. Better yet, stand with us and make the country better.

Further Reading

The Elliott v Cruz decision provides a good summary of the legal history of the natural born citizen issue, including past legal briefs and court decisions. Judge Pellegrini in turn cites and partially quotes two other reports, one by Charles Gordon [1968] (written when George Romney's eligibility was at question) and the other a Congressional Research Services Report [Maskell 2016] written in 2011 and recently updated. Both are available to download and read at no cost.

Gordon summarizes the law in four points:

  1. The reference to "natural-born" in the presidential qualification clause must be considered in the light of the English usage, well known to the Framers of the Constitution. The English common law, particularly as it had been declared or modified by statute, accorded full status as natural-born subjects to persons born abroad to British subjects.
  2. Although the evidence of intent is slender, it seems likely that the natural-born qualification was intended only to exclude those who were not born American citizens, but acquired citizenship by naturalization. The Framers were well aware of the need to assure full citizenship rights to the children born to American citizens in foreign countries. Their English forebears had made certain that the rights of such children were protected, and it is hardly likely that the Framers intended to deal less generously with their own children. The evidence, although not overwhelming, unquestionably points in the direction of such generosity.
  3. This gloss of prior history and usage is not dulled, I believe, by the Naturalization Act of 1790 or by the fourteenth amendment. The 1790 act, enacted soon after the Constitutional Convention, recognized such persons as natural-born citizens. The fourteenth amendment, adopted primarily to confirm the full citizenship denied to Negroes by the Dred Scott decision, did not refer to "natural-born" citizens, did not purport to limit or define the presidential qualification clause of publicized the Constitution, and did not, in my estimation, bar a construction of that clause to include children born abroad to American parents.
  4. Nor is such a construction foreclosed by questionable dicta in United States v. Wong Kim Ark and other Supreme Court decisions. These dicta are not addressed to the presidential qualification clause and cannot control its construction.

[Gordon 1968]

These points agree with and expand upon my summary above as well as deal with the most common counter-arguments, including the idea that the 14th Amendment requires a strict construction of "natural born", and the common misreadings of Supreme Court cases which come close to but do not touch the issue of the presidential qualification clause. The word dicta may not be familiar to many readers and is important to understand when exploring court opinions:

Dictum
(Plural dicta) "a statement, remark, or observation in a judicial opinion not necessary for the decision of the case. Dictum differs from the holding in that it is not binding on the courts in subsequent cases. [Gifis 2010 loc. 5762, emphasis mine]

The Congressional Research Service Report also summarizes the legal and political history of natural born citizen and includes this in its summary:

Although the eligibility of U.S. born citizens has been settled law for more than a century, there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term "natural born" in England and in the American colonies in the 1700s included both the strict common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent). Legal scholars in the field of citizenship have asserted that this common understanding and legal meaning in England and in the American colonies was incorporated into the usage and intent of the term in the U.S. Constitution to include those who are citizens at birth. [Maskell 2016, Summary, expanded on pp 14-16.]

These documents go into the debate between of whether US citizenship is governed in formal legal terms by jus soli (law of the soil) or jus sanguinis (law of the blood): the answer is that the US is and has always been a hybrid of both.

References

[66 Stat. 1952]
US Statutes, Chapter 66 163-282, 1952. http://library.uwb.edu/static/USimmigration/66%20stat%20163.pdf . The 1952 version is relevant because it is what was in effect at the time of Ted Cruz' birth. The PDF is images only, no searching, no cut-and-paste.
[Blackstone 1753]
Blackstone, William. 1753. Commentaries on the Law of England. E-book. Vol. 1. The Online Library of Liberty. http://scholar.google.com/scholar?hl=en&btnG=Search&q=intitle:Commentaries+on+the+Law+of+England#4.
[British Nationality Act 1730]
British Nationality Act, 1730. United Settlement. Retrieved 3 March 2016.
[Chitty 1883]
Joseph Chitty, Esq., Editor. The Law of Nations or Principles of the Law of Nature Applied To the Conduct and Affairs of Nations and Sovereigns From the French of Monsieur de Vattel. Philadelphia. T. and J.W. Johnson and Co. 1883. http://www.constitution.org/vattel/vattel.htm
[Dworkin 1980]
Ronald Dworkin. Taking Rights Seriously. Harvard University Press. Cambridge, MA. 1980
[Elliott v Cruz]
Elliott v Cruz. Pennsylvania Commonwealth Court. Opinion of Dan Pellegrini filed 10 March 2016. https://www.scribd.com/doc/305408749/Ted-Cruz-Judge-Decision-PA-March-10
[Gifis 2010]
Gifis, Steven H. Barron's Law Dictionary, Sixth edition (kindle). Barron's Educational Series. NY. 2010. ISBN: 9780764143588. http://www.amazon.com/Law-Dictionary-Trade-Barrons-Quality-ebook/dp/B004ASNFZK/ref=mt_kindle.
[Gordon 1968]
Gordon, Charles. 1968. "Who Can Be President of the United States: The Unresolved Enigma." Maryland Law Review 28 (1): 1–32. http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2068&context=mlr.
[Jay 1787]
John Jay, letter to George Washington 25 July 1787 as found in Founders Online. http://founders.archives.gov/documents/Washington/04-05-02-0251. Accessed 16 April 2016.
[Maskell 1968]
Maskell, Jack. Qualifications for President and the 'Natural Born' Citizenship Eligibility Requirement. Congressional Research Service. Washington, DC. 2010. https://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016 .
[Roland 2016]
Jon Roland. Principles of Constitutional Construction. The Constitution Society. 2016. http://www.constitution.org/cons/prin_cons.htm
. Accessed 2016-04-17.

Changelog

0.1
Initial partial draft, 2016-04-14
0.2
Added placeholder for Jay Adams' letter. Expanded discussion of morality and the nature of natural law. 2016-04-15
0.3
Added note on use of the term "birther" which I have not successfully avoided and I admit is somewhat hypocritical. 2016-04-15
0.4
Added HTML5 sections for navigation and TOC. 2016-04-15
0.5
Added text of Jay letter. First pass clean-up of citiations; bibilography-linking. 2016-04-17.
1.0
Finished fleshing out references. Added Further Reading section. General cleanup. First feature-complete draft. 2016-04-20
1.01
Basic cleanup. Added a few links to definitions of unfamiliar terms. Added a note on nativism and the presidency.

Tuesday, April 5, 2016

Carry My Cross: Thoughts on Mathew 16:24

Then Jesus said to his disciples, "Whoever wants to be my disciple must deny themselves and take up their cross and follow me." [Mathew 16:24 (NIV)]
As Churchill wrote, "A man's life must be nailed to a cross of either Thought or Action." [Winston Churchill in "My Early Life", as quoted in Larry P. Arn. Churchill's Trial. Kindle ed. 2015. Location 1090.]

The image of being nailed to a cross is one of being fixed in one form or another. Choosing thought, you must think. Choosing action, you must act. What does this mean to a Christian?

If you are to be nailed to a piece of wood for a thought, it out be a Good Thought; if for an action, it ought be a Good Action. There is no sense in being nailed up for a mediocre thought or a half-hearted action.

There also seems to be a connection here to Coollidge's comments on the finality of the principles of the Declaration. The finality of "...that all men are created equal, that they are endowed by their Creator with curtain inalienable rights..." nails that thought up for all time, and it is a thought worth getting nailed to a piece of wood for.

We may be called to suffer for our faith, but we are not called to do so to no purpose. When choosing to take a stand, we ought always reach to the highest narrative; the highest narrative in any story is always love.

Greater love has no one than this: to lay down one's life for one's friends. [John 15:13 (NIV)]