The Myth of American Indivisibility

No nation is immutable; historically, nations evolve and devolve. And there’s no historical precedent which would uphold the assertion that America will be an exception to this rule.

And though our Founders had hoped their carefully crafted Constitution which created a confederated republic would remain intact in perpetuity, none deluded themselves into believing that, for better or for worse, the inherent depravity and falllibility of man wouldn’t inevitably, and likely irretrieveably, alter both the nature and structure of American society and government. Thus, from a historical perspective, the reconstruction of our society and its model of governance is likely inescapable.

Today, there is a degenerative ideological struggle for the very soul of our nation, both political and cultural. The increasingly acrimonious contention between big government (centralization of authority) and small government (decentralization of authority) proponents has led to a deeply polarized American citizenry along what may be accurately described as statist/socialist and constitutionalist/capitalist lines. In truth, political, economic and cultural indications clearly suggest that this ideological divide is most likely irreconcilable. But, take heart. This in no way preordains a bloody clash of arms for these “united States” to peacefully and satisfactorily readjust to this tectonic ideological divide. Although secession is no longer merely a remote possibility, what shape this readjustment will look like in the end is anyone’s guess.

But, first, let’s very briefly examine the enduring myth that secession is illegal, unconstitutional, treasonous, or otherwise constitutionally prohibited.

Not even Daniel Webster, a particularly ardent nationalist and respected orator, could prove that the Constitution was anything but a compact, aka contract, among the States and with the federal government requiring all parties to that contract to abide by the clearly defined terms of that agreement. As has always been the case, when a party violates the terms of a duly executed contract, that contract is, of course, null and void.

We need but to look to history to understand that even at its inception and early development, liberty-loving Americans have never been of one mind. Just as the thirteen colonies individually abolished their political bands with England, eventually acceding to confederation and, subsequently, to a “more perfect” constitutional federal union, a nationalist would, indeed, be sorely challenged to show that any of the States ever freely, knowingly or contractually surrendered or otherwise delegated their fundamental rights as sovereign entities to an ominipotent, overarching national government. Quite the contrary. Representatives of the original 13 colonies, which had individually agreed to secede from British rule, eventually fashioned a constitutional federal system of governance which painstakingly incorporated the core unifying principle of state co-equality and dual sovereignty in a constitutionally balanced federal system of governance.

In the Treaty of Paris (1783) which concluded the Revolutionary War, Britain explicitly recognized the independence and sovereignty of each of her 13 former colonies as did the American delegates who signed the treaty. Thus, from the outset, and most certainly during the drafting and ratification of the constitution, state sovereignty and the core principle of co-equality was enshrined with nary a word of protest or disagreement on the part of the framers, ratifiers or from the people themselves.

Since ratification of the Constitution in 1787, North Carolina and Rhode Island being the last States to join the union in 1790, Americans have been buffeted by threats of and movements toward secession in the north, south, east and west–NOT, as revisionists would have us believe, just in the south. State nullification of federal laws and civil disobedience have characterized America’s experiment in constitutional self-government since its inception. Though the War of Secession in 1861 – 1865, erroneously described by revisionist historians as the “Civil War”, seemed to have put an end to the notion that the several states “are and of right ought to be free” of unconstitutional constraints on their liberties by their co-equal partners in union, nullifying or otherwise repudiating federal overreach have become as commonplace today as they were before the War of Secession, aka War of Northern Aggression. In fact, as the ideological divide has sharpened in recent years, state and citizen resistance to federal encroachment has become even more pervasive and assertive than even before 1861. (Just type nullification or secession 2010, 2011 in your browser. Or go to the 10th Amendment Foundation or 10th Amendment Center for a comprehensive examination of historical and contemporary nullification actions. You’ll be astounded by the relevance and sheer number of serious nullification and secessionist movements in today’s America.)

Even Abraham Lincoln, often ideologically convoluted on the subject of secession and the sanctity and inviolability of the union, posited on the floor of Congress in 1847 that “any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right, a right which we hope and believe is to liberate the world.” And in his 1861 Inaugural Address, he proclaimed that “whenever the people shall grow weary of the existing government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it.” So much for indivisibility in perpetuity. Not even the pre-eminent “one nation, indivisible” advocate himself believed that.

Logically, since secession was never in any way prohibited under the constitution, under the 10th Amendment, therefore, States have clearly reserved the right to secede from the union. In fact, contingent upon their ratification of the Constitution, and without any voices of objection raised by either the Framers or other states, Virginia, Maryland and Rhode Island explicitly reserved their right to secede, i.e. to  reassume those powers granted to the federal government, should their sovereign rights be violated by the latter.(Note: Virginia cited its conditional ratification of the Constitution as a legal basis for her subsequent Ordinance of Secession.)

As H. Newcomb Morse points out in the Stetson Law Review, “because the Constitution did not forbid secession, then every state acceding to the Constitution had the implied right of seceding from it” as well. To wit, the 10th Amendment clearly stipulates that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Slamdunk obvious to all but the hardened big government nationalist that nullification and secession remain perfectly constitutional and anything but treasonous .

Further, in the Madison Papers, James Madison observed that implicit in the contractual relationship between the states and the federal government “a breach of any one article by any one party [to this contract], leaves all other parties at liberty to consider the whole convention as dissolved.” Thus, if the Founders intended the union to be legally indissoluble, would not the Framers and Ratifiers have specifically included that prohibition in the Constitution? Of course. And given that the northern armies were removed from southern states only after those states had each incorporated into their constitutions a clause specifically relinquishing their right to secede in the future, a reasonable person must logically conclude that the inherent right of secession most certainly existed before the Confederacy’s defeat. Like, how could the states surrender a right unless they had it in the first place? Also, were any leaders of the defeated Confederacy tried for treason by the victorious North? Nope! As Gene Kizer noted in his Right of Secession, “there were no treason trials against former Confederates because any one trial would likely prove the legal right of secession, and imminently practical Northerners were not about to lose in a court of law what they had won on the battlefield.”

Thomas Jefferson’s Kentucky Resolutions of 1798 reaffirmed state sovereignty and independence and the absolute right of the states to determine for themselves when the Constitution which embodies the state-federal contract is violated by the federal government. In short, Jefferson observed that “the several States composing the United States of America, are not united on the priniciple of unlimited submission to their General Government.” And in his draft Declaration of Protest in 1825, Jefferson noted that while the states greatly valued the “blessings of their Union” that “they would, indeed, consider such a rupture as among the greatest calamities which could befall them; but not the greatest. There is yet one greater, submission to a government of unlimited powers.”

Without specifcally reviewing the litany of American nullification and secessionist activities here, the reader is encouraged to research, among others, the following nullification and secessionist events in our country’s history: New England’s Hartford Convention which set New England on the course of secession, precluded only by the sudden conclusion of the War of 1812 in 1815; the Tariff Compromise of 1833 which merely delayed the inevitable constitutional showdown between the South and the North; nullification by ten northern states of the Fugitive Slave Laws of 1850; the Kentucky and Virginia Resolutions of 1798 authored by Jefferson and Madison in opposition to the Alien and Sedition Acts, etc………

In the Constitutional Convention of 1787, the word “accede” (agree to), which is the opposite of the word “secede”, was liberally used to describe the legal relationship between the ratifying States and the Union. And to short-circuit any specious argument that the Constitution was not a co-equal compact between the States and the federal government, these quotes from James Madison himself:     

“That this assembly doth explicitly and peremptorily declare, that it views the powers of the federal
government as resulting from the compact, to which the States are parties.” (Virginia Resolutions of 1798)

“[The Constitution is] a compact among the States in their highest sovereign capacity.” (Madison’s ltr to Mr. Everett in 1830)

Some have and will continue to desperately advance the argument that the preamble of the Constitution speaks about “We the People” as the forgers of the Constitution, thus undermining the compact argument, the latter which forms the legal basis for the right of a state’s withdrawal from the union. In fact, the Constitution was, indeed, ratified by the people of each state, but in special State constitutional conventions and not directly by the people. Thus, it is obvious that the Constitution was not ratified, (acceded to) by a referendum of the general American population of a non-existent supreme nation state. In fact, the use of the words “We the People” in the preamble was necessitated by the practical matter of the Founders not being able to accurately predict which of the States would evenutlaly accede (join) and which would not. Thus, listing the individual sovereign states in the preamble as parties to the union before all States actually acceded was impractical. In fact, had the Convention listed the States and all but one acceded, then the “union” would have been invalid owing to an absence of unanimity. Thus, the Constitution applied only to those states which ratified it which, at the beginning, consisted of only nine of the thirteen States. Implicit then is the fact that from the outset States were not and could not be coerced into joining the union. Thus, ratification was a strictly voluntary process and the framers never delegated authority, either explicitly or implicitly, to the federal government or to any of the other states to coerce individual states into joining or remaining in the union.  

An astutue and highly regarded student of American democracy, Alex de Tocqueville, in his Democracy in America,  observed that “the union was formed by the voluntary agreement of the States; and in uniting together they have not forfeited their nationality, nor have they been reduced to the conditon of one of the same people. If one of the States chooses to withdraw from the compact, it would be diffcult to disprove its right of doing so, and the Federal Governement would have no means of maintaining its claims directly either by force or right.”

That said, what most folks don’t know and precious few historians will tell them is that the South did not simply awake one morning and heedlessly gallop headlong into a glorious, rebel-yelling War of Secession merely to keep slaves in bondage. Not at all. Secession was carefully debated and some of the greatest legal minds of the day were engaged in those debates. Of singular importance in the South’s decision to peacefully withdraw from the union–and only with the consent of the citizens in each state–was the conveniently overlooked fact that for decades the onerous federal taxation of the South had effectively retarded the South’s industrial development, thus arguably ensuring its prolonged dependence upon slave-based agriculture. To wit, an estimated 70% of all taxes were paid by 6 million Southerners, all of which was spent in the North and West where nearly 20,000,000 citizens resided! Clearly, a disproportionate and unconstituional burden on the South. Also, for years high-minded Northern Abolitionists actively and illegally aided and abetted slave revolts in the south which resulted in murders, rapes and significant property damage. Of fundamental importance too is the fact that the wealthier North which relied upon a captive Southern market to sustain its prosperity was averse to allowing the South to peacefully withdraw from an increasingly unproductive and economically onerous union with the North. Thus, though reluctant to make the break, the South, feeling itself victimized and bereft of reasonable options, could no longer rationally justify its remaining in the union at any cost. And, of course, that was their right then, and it remains the constitutional right of all states today.

And this extremely important point: though Art 1.10 of the Constitution reads, in part, “No State shall enter into any Treaty, Alliance or Confederation…without the consent of Congress”, as a practical matter the southern States did not violate this article in 1861 because they hadn’t confederated or allied themselves with one another until AFTER each had separately withrawn from the Union. Only after they had each withdrawn from the United States of America did they individually opt to become members of a new Union, that being the Confederate States of America.

So, whether the revisionists and nationalists like it or not, both nullification and secession are completely legal and respected constitutional principles. Clearly, our Founders would solidly espouse the view that if nullification were to fail to safeguard individual liberty, constitutional order and the rule of law, then secession would be the only reasonable, albeit unfortunate, lawful recourse.

Back now to America’s transformation and our path forward.

When in the 50’s Nikita Khruschev warned that the Soviet Union and Communism would “bury” the USA and the West, he was only half right. I believe that the American union as we know it is being “buried”, but it is Americans who are doing the shoveling and the Progressives who are hastening the process.  Since the advent of Progressivism over a century ago, America’s transformation has been underway. What the Soviets couldn’t accomplish by bluster and intimidation, Progressives have been striving to achieve with surprising success and rapidiity. But, not all Americans have been content with that conversion.

Greatly contributing to the accelerating political and cultural polarization in the country is the current President’s tactical reliance on racial politics and class warfare to further exacerbate those societal divisions necessary to “fundamentally transform the United States of America”, the goal of which is to usher in a socialist/statist system of government, something totally foreign and, indeed, anathema to most Americans.

In a persuasive article appearing on the FactsNotFantasy blog, author Alan Caruba succinctly summarizes the accelerated makeover Obama and his predecessors have been perpetrating. To wit, the federal government has seized control of one-sixth the nation’s economy, by “asserting control over the provision of healthcare”, the administration has seized control of GM and Chrysler “arbitrarily casting aside the rightful expectations of their bondholders and other creditors”, the administration is favorably considering a UN treaty “that would render the Second Amendment null and void”, the administration has sued AZ for enacting an immigration law that mirrors its own and has joined legal forces with foreign countries to similarly sue AZ and other states who are attempting to stem the tide and cost of illegal immigration in their territories, the FCC is asserting its control over the internet despite a court order to cease and desist, and the explosion of an overreaching and extremely costly federal empire of agencies with “no legitimate basis in the Constitution” has become the order of the day (Dept of Education, EPA, Dept of Energy, to name a few). And as the big government tide continues with breathtaking rapidity, grassroots and state-level pushback has begun in earnest. Nullification and secessionist movements are growing in popularity and strength, and both options are now considered by many thoughtful Americans as perfectly legitimate and even inevitable.

If Americans cannot soon reverse the Progressive/Statist tide and return to their constitutional and republican roots, the slide toward disunity is most certainly irreversible.

Finally, being inevitable in the human experience, change should not necessarily be feared or stubbornly resisted. If the cultural and political changes serve to safeguard the liberty, security and happiness of a society, then it should be embraced. However, should the changes occasion a reckless disregard for individual rights and the individual pursuit of happiness, then it is up to “we the people” to re-direct the course of events. Unity simply for the sake of unity is hollow and self-defeating. The challenge, then, is to either 1) forge a workable division of the union which would safeguard state and regional self-determination, or 2) fully restore federalism as orginally intended by our Founders, this to preserve our political unity while protecting diversity among the states. The only other choice is for us all to quietly submit to an authoritarian national government. What shape the eventual transformation takes is completely in our hands, and that is precisely where it should be.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certqain unalienable Rights, that among these, are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed. That, whenever any form of Governmetn becomes destructive of these ends, it is the Right of the people to alter or to abolish it, and to institute new Governement, laying its foundaiton on such Principles, and organizing its pOers in such form, as to them shall seem most likely to effect their Safety and Happiness…But when a long train of abuses and usurpations, pursuing invariably the same OBject, evincs a desing to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Governement, and to provide new Guards for thier future Security.” Declaration of Independence, July 4, 1776

“The several States composing the United States of America, are not united on the principle of unlimited submission to the General Government.” Thomas Jefferson, Kentucky Resolutions, 1798

“It should be remembered that the founders, by their own actions, showed that they considered liberty more precious than unity.” Robert F. Hawes, Jr. One Nation, Indivisible? 2006

“The ultimate authority, no matter where any of its derivatives may be found, resides in the People alone.” Thomas Jefferson

Obama’s Eligibility Remains Serious Constitutional Issue

I believe it’s well past time for us all to re-focus like a laser on what could well be a constitutional issue of calamitous historical proportions. Toward that end, I have carefully written this post. And please note that this is not an Obama witchhunt. Not at all. It is nothing less nor more than a battle for the Constitution itself.

Despite my 22 years of immigration counseling experience, trying to accurately, briefly and clearly summarize the issue of Obama’s eligibility–or ineligibility–for the Presidency has been especially challenging and time-consuming. Though I have managed to compact much within this summary, I apologize in advance for the unavoidable length. I hope it proves to be a useful exercise and that it will stir wider, fearless and more objective discussion of the subject. Why? Nothing less than what remains of our Constitution is at stake.

CONTENTION: Obama, born in 1961 of a US Citizen mother and a British Citizen (born in Kenya), was born a “US Citizen” by virtue of his mother’s US Citizenship; however, since Obama’s father was not a US Citizen, thus not “attached to the US”, Obama, even if born of a US Citizen mother within the jurisdiction of the US, is not, by definition and Constitutional intent, a “natural born citizen” as is specifically required by Artile II, Sec 1 (Presidential Clause) of the US Constitution, and is, therefore, ineligible to assume the Office of the President.

British citizenship was conferred to Obama at birth by act of British law. Thus, he is born of dual citizenship.

Art II, Sec 1 of the Constitution, the so-called Presidential Clause, stipulates that “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 the President; neither shall any Person be eligible to that Office who shall not have attained the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

Within the context of the Framers’ actual meaning (letter of the law) and the Framers’ express purpose (intent of the law), being a “natural born citizen” requires that citizenship must be passed on by the constitutionally pertinent principle of natural law (see Law of Nations by E. Vitel-1758 which which profoundly influenced the Framers’ intent when fashioning the Constitution) which assumes that citizenship is inherited from one’s father’s citizenship. To wit, Vatel stated that “natives”, or natural-born citizens, are those born in the country of parents who are citizens”, and that “as society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their right.” Again, the accent is on the father’s citizenship status at the time of the child’s birth.

The intent of the Framers with respect to the meaning of “natural born citizen” (vs “born in the US” or US Citizen”) within the context of the Presidential Clause specifically takes into account the father’s allegiance and citizenship at the time of a child’s birth. Thus, the father’s citizenship and, thus, his “attachment to the US” at the time of the child’s birth, carried more weight than merely the geographic location of the child’s birth. Why? Still reeling from British rule, the Framers, as represented by the words of John Jay in a July 1787 letter to George Washington, who presided over the Constitutional Convention, wanted to avoid dual citizenship or dual loyalties of any future Commander-in-Chief by declaring expressly “that the Commander-in-Chief…shall not be given to nor devolve on, any but a natural born citizen”, this to insure future leadership’s freedom from foreign influences.

This correspondence directly influenced how Art II, Sec 1 was subsequently written, which holds that “no person except a natural born citizen, or a citizen of the United States at the time of the Adoption of the Constitution, shall be eligible to the Office of the President.” (Notice the distinction.)

The first Nationality Act in 1790 declared that “the children of citizens [plural]of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.” (Notice what appeared to be the central importance of the father’s statu–even if both parents were US Citizens at the time of the child’s birth.)

However, the Naturalization Act of 1795 stated that children born to citizens beyond the seas are citizens of the United States but are not legally considered “natural born citizens” of the United States. ( A more exclusionary definition which adds the geograhic requirement as well.)

Also, we should note that the primary author of the citizenship clause in the 14th Amendment, Sen. Jacob Howard, declared that the citizenship clause of the Amendment was, again, by virtue of “natural law” and not by “act of law.” (This would mean that a child born to a US Citizen father was “natural born.)

In 1871, Rep. John Bingham, a Framer of the 14th Amendment, stated that a child is a US Citizen if born of naturalized parents inasmuch as a naturalized father as part of the naturalization oath “absolutely renounces and abjure all allegiance and fidelity” to other sovereignties, thus establishing his firm “attachment to the United States” as well.(So, born of US Citizen parents within the jurisdiction are the overriding factors in determining “natural born citizenship.”)

Note too that US Title 8 Sec 1401 provides that US Citizenship alone is not sufficient to qualify one for President or Vice President, the clear inference being that he or she must be natural born.

In 1800, Charles Pinkney, a Framer of the Constitution and, later, the S.C. Governor, said that the Presidential Clause was designed to firmly “insure attachment to the country.” (No dual loyalties on the part of either parent.)

Art IV, Sec 2 provided that no act of Congress was required to make citizens of the individual states citizens of the US; only State Legislatures had authority to grant State citizenship which, in turn, conferred upon them US Citizenship.

Further, in Savage vs Umphries (TX) 118 S.W. 893, 909, the court ruled that “as a man is a citizen of the country to which his father owes allegiance, it is incumbent on one alleging in an election contest that a voter is not a citizen of the US to show that such voter’s father was not a citizen thereof during his son’s minority.”

In 1820, Rep. A. Smith (VA), stated that “when we apply the term citizens to the inhabitants of States, it means those who are members of the political community. The civil law determined the condition of the son by that of the father. A man whose father was not a citizen was allowed to be a perpetual inhabitant, but not a citizen, unless citizenship was conferred on him.”

And what does the 14th Amendment have to say about this?

The primary author of the citizenship clause in the 14th, Sen. Jacob Howard, declared that the citizenship clause of the Amendment was, again, by virture of “natural law” and not by “act of law”. This would mean that a child born to a US Citizen father is, therefore, “natural born”.

In 1866, per the 14th Amendment, the terms “subject to the jurisdiction of the US” was defined as meaning “not owing allegiance to any other sovereignty.” In the same year, Sec 1992 of US Revised Statutes declared that “all persons born in the US and not subject to any foreign power, exluding Indians not taxed, are declared to be citizens of the US.”

In 1871, Rep. John Bingham, a framer of the 14th, stated that a child is a US Citizen if born of naturalized parents inasmuch as a naturalized father as part of the naturalization oath “absolutely renounces and abjures all allegiance and fidelity” to other sovereignties, thus establishing his firm “attachment to the United States” as well. So, it would seem that born of US Citizen parents within the jurisdiction of the US are the overriding and defining factors in determining “natural born citizenship”.

On Sec. 1992, Rep. John Bingham, stated that “every human being born within the jurisdiction of the US of parents [plural] not owing allegiance to any foreign sovereignty is, in the language of the Constitution itself, a natural born citizen.” (Very definitive for purposes both of the 14th Amendment and the Presidential Clause.)

*See Perkins vs ELG, US 325 (1939) ruling which provides the two criteria expressed by Rep. John Bingham must exist before one can be called a “natural born citizen.”

On June 22, 1874, Congress issued a joint resolution that stated the “United States has not recognized a double allegiance.”

Of contemporaneous interest is that according to the US State Department’s Foreign Affairs Manual (7 FAM 1131.6-2 Eligibility for Presidency), “the fact that someone is a natural born citizen pursuant to a statute [“natural born citizen” and “by statute” is incongruous) does not necessarily imply that he or she is such a citizen for Constitutional purposes.” The incongruity created by the statement’s use of “natural born citizen” and “by statute” notwithstanding, it appears that a naturalized citizen (by law/statute) is not eligible to assume the office of the President, but it seems to be generally agreed that children born within the jurisdiction of the US of naturalized parents are considered to be “natural born citizens” since that child’s parents are, as part of the naturalization process, required “to renounce and abjure any allegiance or fidelity to any foreign sovereignty” and, thus, are, at the time of the child’s birth, “attached to the US.” Similary, and more obviously, a child born within US jurisdiction of two US citizen parents is also considered a “natural born citizen”.

So, it appears that there is no better way to insure “attachment to the US” then to require the President to have inherited his American citizenship from his US Citizen father or, at the very least, from both his parents. The Framers’ rationale for this would be that any child born in the US of an alien father, or a father of dual allegiance, can be removed by their father to be raised in another country only to be returned later in life bringing with him/her foreign influences. Thus, for purposes of complying with the Presidential Clause, a person born of dual citizenship/allegiance cannot be said to be a natural born citizen. Again, and within the context of the Presidential Clause, the child inherits natural born citizenship from the father alone because, through the laws of nature, the child inherits the condition of the father.

Within the meaning of the Presidential Clause, one can accurately say that there are essentially two types of citizenship: 1) “natural born citizenship” meaning one who, by operation of nature (descent), was born of an American citizen father, or, as further expanded upon in successive legislation and opinion, was born of two US Citizen parents, and 2) a “US Citizen” meaning one who, through operation of law (statutory) was granted citizenship through naturalization, either automatically at time of birth or voluntarily some time after birth. (See John Bingham opinion above.)

The recent Wrotnowski vs Bysiewica stay request which was denied by SCOTUS on 12/15/08 asserts that Pres. Chester A. Arthur’s father was a British citizen at the time of Chester’s birth–and the facts appear to clearly substantiate that assertion–and that, therefore, Chester A. Arthur was ineligible under Art II, Sec 1 to assume the office of President. And since the facts of the Arthur case were very similar to that of Obama’s, it was plantiff’s hope to force the Court to review Obama’s eligibility to be President as well.

So, even if Obama verifies his birth within the jurisdiction of the US, he is a US Citizen by virtue of his mother’s American citizenship, but he is not a natural born citizen because he was born of an alien father and is, therefore, not, by definition and intent of the Presidential Clause, a natural born citizen.

And if Pres. Chester A. Arthur was ineligible to be President because his father was a British citizen at the time of Chester’s birth, should the Supreme Court rule Chester Arthur’s breach of law a defensible precedent for granting Presidential eligibility to Obama since his father too was a British citizen at the time of Obama’s birth in 1961? On this question, the Framers’ method for repairing the breach is per constitutional amendment. Clearly, the Framers did not want a President at birth to be born of dual citizenship. As someone much smarter than I said, “making errors in the past does not mean that we need to repeat them in the future.”

From this summary of law, I think it can be most reasonably concluded that since a child derives his attachment to the US from his US Citizen parents, a child born of US Citizen parents within the jurisction of the US, inclusive of those US parents who were naturalized US citizens at the time of the child’s birth, is very clearly a “natural born citizen”.

Finally, this form Thomas Jefferson in a letter to Judge Wm. Johnson in 1823: “On every question of construction of the Constitution, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probably intent in which it was passed.”

And this from Pres. George Washington in his Farewell Address in 1796: “If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular way wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by ursurpation; for through this, in one instance, may be the instrument of good, it is the customary weapon by which free governements are destroyed.”

Absent the Electors’ denying Certification of the Election or individual lawmakers demanding verification of a presidential candidate’s eligibility, it is properly left to SCOTUS or the amendment process to determine the constitutional eligibility of anyone who wishes to assume the Office of the President. Allowing this constitutional issue to fester will surely have unintended and very unsettling consequences for our country in the future. For if the Constitution is to be ignored or cavalierly misinterpreted, our Republic is irretrievably doomed.

Despite the fact that the political elite and our politicized judicial system have, so far, effectively dodged this issue and Obama devotees and fearful media talking heads on the left and the right have successfully shut down honest public discussion of this issue by their dismissive and derisive attacks on the so-called “birthers”, this issue is simply not going away. Nor should it. From my perspective as a retired INS-accredited immigration counselor, it is a serious, fundamental constitutional issue which screams for objective and judicious scrutiny and resolution. And until this issue is authoritatively, constitutionally and satisfactorily resolved, the very soul of this constitutional republic remains in serious jeopardy.

Finally, this: if my analysis is correct–and I sincerely believe it is–then I ask that we not exacerbate this constitutional quandary or otherwise further muddy the waters by our urging Sen. Rubio to run for either the Presidency or Vice Presidency. While Mr. Rubio is a stellar and principled patriot and leader for whom I have nothing but the deepest of respect and admiration, it is my understanding that he was born on US soil, yes, but born of permanent resident alien parents–not of US citizens. So, unless SCOTUS renders a ruling–God-willing in keeping with the clear meaning and intent of the framers for a change–that “natural born citizenship” does, indeed, apply to children born of non-citizens on US soil, then, sadly but properly, Sen. Rubio is clearly ineligible. And unless someone has better information than I, I believe Gov. Jindal of Louisiana is likewise ineligible.

So, let’s keep it simple, on point and void of emotions. No matter how we want to slice and dice, no matter what our political leanings may be, one plus one must always equal two. SCOTUS, we need a rigidly constitutional ruling.

Feds Usurp State Immigration Authority

Being an ‘ole immigration counselor, and having perfunctorily accepted the general notion that the feds are, in fact, pre-eminent in the area of immigration, I decided to research the matter for myself. Lesson learned yet again: ALWAYS question the feds ANY TIME they claim primacy on ANY issue. Why? Chances are they’ve overstepped their Art 1 Sec 8 enumerated powers. And, indeed, on the matter of immigration law they have grossly violated the constitution with impunity, proving once again that all the feds require in order to expand their powers is a submissive State and an uninformed citizenry. But, a ray of hope: on the matter of immigration, and illegal aliens specifically, Alabama is successfully reasserting its rightful constitutional authority over immigration. The lingering concern for me, of course, is whether or not Alabama will eventually back down if the imperious and overreaching federal judicial system once again thwarts the Constitution by trampling on State sovereignty.

On September 28th, US District Judge Sharon Blackburn upheld most of Alabama’s recently enacted immigration law, arguably the toughest immigration law passed by any State to date. Horror of horrors!!! And, of course, the bleeding hearts and open border simpletons among us are in an uproar! Oh, the indignity!!!

Essentially, Blackburn ruled that Alabama’s law enforcement officers may check the immigration status of those they suspect may be illegal entrants. Shocking!!! Unbridled tyranny!!! Fascism!!!

The ruling also upholds the law’s requirement that all businesses use E-Verify, a national database operated by the US Citizenship & Immigration Services that allows employers to check potential employees’ Social Security numbers to determine if they are work-authorized. Sedition!!! Shameless racism!!!

Also upheld is the requirement that all school enrollees must present a birth certificate within 30 days of enrollment, this to determine the legal status of their parents. (Note: the law does not prohibit an illegal alien’s attendance.) Oh, the humanity!!! Have we no heart???

On the flipside, the Judge blocked the law’s 1) prohibition against an illegal’s applying for a job, 2) imposition of civil action against employers who knowingly hire illegals, 3) criminalizing the harboring and transportation of illegals, and 4) prohibiting businesses from claiming deductions on wages paid to illegals. A confident and appropriately assertive Alabama plans to appeal these negative portions of the ruling straightaway. My sense is that Governor Bentley has no intention of continuing to obediently yield Alabama sovereignty to an overweaning federal government. Not this time anyway–I hope.

My research into this subject quickly and manifestly shows that federal primacy relates only to matters of naturalization, but that immigration still remains very much a State power.

We must remember that the Ninth and Tenth Amendments to the Constitution clearly reserve those powers and rights not specifically granted by the Constitution to the federal government to the States or to the people. Simply put, if a power is not specifically granted to the federal government (Art 1 Sec 8), that power falls within the sole purview of the States. The Ninth was intended to preserve all rights existing under state laws as of 1791. The intention of the Tenth was to prevent future federal encroachments upon the states via its exercise of non-delegated powers.

As the federalistblog points out, “because the States retained just about everything they had before joining the union, and the fact this is clearly enumerated in the Constitution, gives Congrss no more authority to authorize entry of immigrants or asylum seekers within the individual States any more than it has the authority to direct another country to accept them.” In fact, before and after the 14th Amendment, most States actually had their own immigration commissioners to supervise state immigration activities as well as state immigration representatives in various foreign countries to encourage legal entries into their states of specially qualified persons. But, by slow erosion of the Constitution over the years, the feds have pretty much usurped nearly all authority over immigration matters. Willfully negligent or otherwise financially dependent, aka bought-off, States have, by their silence over the years, stupidly and irresponsibly consented to this–and countless other–federal encroachments.

Rep. John Bingham, co-author of the14th Amendment, argued that while States may not deny entry of US Citizens, States may forbid entry of aliens and to deny their right to acquire property in the States.
Surely, ‘ole John must have been a crackpot. Huh?

Justice Taney argued Congress has no right to authorize the introduction of aliens without the express consent of the States involved. He also cited Holmes v Jennision, Groves v Slaughter, and Prigg v Pennsylvania to demonstrate that the States alone had the power to expel and exclude. Another Constitution-first troublemaker!!!

In a note to Congress, Pres. Grant asserted that the federal government was prohibited from interfering with immigration matters and that “responsibility over immigration can only belong with the States since this is where the Constitution kept the power.” And all this time I thought Grant was a nice guy!!!

The challenge for the feds over the years has been to prove that immigration somehow directly relates to foreign affairs, thus incident to its exercise of delegated powers under Art 1 Sec 8. However, because the federal government has been unable to constitutionally or cogently demonstrate that relationship, it has simply usurped state authority. And, as said, up to now States have routinely submitted.

While Art 1 Sec 8 specifically grants Congress the power “to establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States”, nowhere in the Constitution is Congress granted authority over matters related to immigration. NOWHERE!!! (Note: by definition, “immigration” relates to the movement of people while “uniform rules of naturalization” relate solely to citizenship requirements.) Again, the Constitution’s enumerated federal powers say absolutely nothing about immigration; thus, if immigration/asylum authority is not expressly granted to the federal government, it is, therefore, expressly withheld from it. Fullstop.

In a nutshell, for the feds to rightly claim constitutional primacy in immigration–or in any other matter–two conditions must be met: 1) that power must be expressly delegated to the feds, or be “incidental to a delegated power granted to Congress”, and 2) that power must be expressly withheld from the States. On this subject, the Constitution very clearly places primacy with the States. But, constitutional primacy is utterly irrelevant if the several States are inclined to ignore or otherwise duck that primacy.

None other than Thomas Jefferson unequivocally stated that States retained jurisdiction and authority over immigration matters: “Alien friends {as opposed to enemy aliens] are under the jurisdiction and protection of the laws of the state within they are; that power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens…”

James Madison succinctly explained that “the powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State govenrments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce with which the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

The short of it is this: since the Articles of Confederation, the sovereign States–not the feds–have had exclusive authority over immigration matters, and that authority was carried over into the Constitution itself. Clearly, the culprits here are the States themselves who have cavalierly and gratuitously surrendered their sovereignty. Well, up until now that is.

However, to checkmate further federal violations of the Constitution and to reverse the litany of violations already committed, I urge all readers to do their own research on this and a whole host of other subjects. You may be surprised and very much appalled by the extent of federal overreach perpetrated on the Republic over the years. In short, take nothing for granted. Accept nothing at face value. Challenge long-held assumptions, court rulings and popularly held notions about the Constitution which simply don’t square with the Constitution. Don’t expect to be properly educated by the media’s agenda-driven talking heads and political elite, most of whom have already bought into the myth of federal supremacy in nearly all spheres of our lives. Don’t routinely acquiesce to your own State’s shortsighted failure to exercise its and your constitutional rights. Finally, on ALL constitutional matters scrupulously question with boldness and probity. Leave no stone unturned. As the final arbiters of what is and what is not constitutional, it is encumbent upon We the People–not a gaggle of dopey self-serving attorneys–to be the experts. Research!!!! To determine what is and what is not constitutional, rely on the Founders, your own integrity, resourcefulness and objectivity, and most certainly NOT on the feds–and not even on your own lackadaisacal State authorities who, by negligence, have ceded so many of our rights to an increasingly unbridled national government.