Who are “We The People”?

The preamble to our Constitution identifies those to whom it applies with the opening phrase “We the People of the United States”. But who exactly are these people? Recent disputes related to immigration, and in particular to illegal immigrants, make this a crucial legal issue. Focusing more closely, I want to address this question. “What exactly makes someone who is not a US citizen or a qualified alien eligible for constitutional protections?” Two Supreme Court decisions are most often quoted in reply to this question.

In Kwong Hai Chew v. Colding (1953), the Court found in an 8-1 decision that a permanent resident of the United States could not be deported without a hearing under the constitutional right to due process.

In Plyler v. Doe (1982), the Court held that a Texas statute which withholds from local school districts any state funds for the education of children who were not “legally admitted” into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. The issue of jurisdiction was found to be irrelevant.

But note that both of these cases were understood to apply to persons who are residents of the US. So the issue devolves into what constitutes residency.

Consider the following hypotheticals and see if you can discern a bright line that clearly indicates residency in the US. Have any of the following individuals established residency that is sufficient to qualify for constitution protection?

Someone who approaches the US border and plants his left foot firmly on US soil?

Someone who is standing in Mexico, while waving one foot in the air over US soil?

Someone who visits the US Embassy in Germany? (Our embassies are sovereign territory.)

Someone flying over the Aleutian Islands on a trip from Canada to the Far East?

Someone who trips on a tree stump in Canada and lands on US soil?

Someone who falls overboard into US territorial waters while exercising free rights of passage?

Can you answer these questions confidently, using a clear and unambiguous rule? I believe that I can. The writers of our Constitution never intended that incidental or even deliberate touching of US territory in and of itself confers any kind of claim for Constitutional protection whatsoever. They intended this to apply only to those who purposefully enter our territory, with our explicit or implicit permission, and with the clear intention to remain more than momentarily. There is no other possible reading of either the Constitution or our founding documents like the Federalist Papers. Thus, my answer to all of these questions is “None have established residency.” Do you disagree?

Now consider how the preceding might apply to those sneaking over our southern border. At which point will they have established residency? We have both laws and customs that grant a hearing for claims of refugee status from prospective immigrants. But as far as I know, we have no laws that grant status to those who can’t find sustenance where they now live, or who are at risk from endemic criminality in their homeland, or who simply want a better life for themselves and their families. For those with valid refugee claims, we have policies and procedures in place to process them. But none involve sneaking over our borders.

It is fair to respond that our policies are sometimes overly restrictive and are almost always ponderously slow. But if we can truly claim to be a nation of laws, then these criticisms cannot override legal considerations.

The bottom line seems to be that people trying to avoid our ports of entrance don’t achieve resident status thereby, and hence they are not yet one of “We the People of the United States”. We can grant them due process at our discretion, but I see no constitutional requirement to do so. However, it remains an open question for those clever or lucky enough to escape detection and actual take up residency within our borders.

In his usual bombastic manner, President Trump has called for prompt expulsion of those caught while violating our borders, without due process of law. This has been widely condemned, but I am not so sure that he is entirely off-base with this idea. An old Southern expression comes to mind, “Even a blind hog can find an acorn once in a while.


Our Constitution: A Historic Perspective

Most historians view our Constitution as one of the greatest developments in human society. Clearly it was far from perfect in its origins, though it is continually changed – mostly for the better – through amendments and evolving interpretations. But one important aspect is rarely mentioned.

Two acknowledged stains on the original concept were its accommodations to slavery and the lack of a Bill of Rights. Both have been remedied, though the first of these is frequently viewed by black commentators as imperfectly redeemed. Yet there actually was a far worse defect that was so deeply embedded in our psyche that it was never even discussed by the founders. Not once during the Constitutional Conventions or in such basis documents as the Federalist Papers was the idea of equal rights for women even mentioned.

Do you recognize this quote? “We the People of the United States, in Order to form a more perfect Union …” To be more accurate, it should have begun, “We the White Men of the United States …” And so we have this painting of our founders.

Historians agree that there are two aspects of our current political situation that would totally amaze the founders. One of these is the participation of women in having the vote and in holding office. Even the thought of a female President would have had them rolling in the aisles of Independence Hall in 1776. And one can’t help noting that black men achieved the vote, at least nominally, long before we grudgingly granted women’s suffrage. During America’s early history as a nation, women were denied many of the key rights enjoyed by male citizens. For example, married women couldn’t own property and had no legal claim to any money they might earn, and no female had the right to vote in national elections. Women were expected to focus on housework and motherhood, not politics. Don’t you see at least a faint echo of slavery in these views, quite unremarkable at the time?

The second aspect of our political life that would amaze our founders is the power of the Presidency. Nowadays, when we speak of the U.S. government what we usually mean is the executive branch. So, when we are represented to foreign powers, they look to the President as our leader and spokesman. That would astonish and horrify the founders. While we have a balance of powers between the branches of government, it is absolutely clear that the founders gave preeminence to Congress as the true representative of our nation. The President was viewed as a tightly circumscribed manager. And in fact, there was strong consideration given to having him selected by the legislature rather than chosen by popular election. The bastard offspring of this debate is our Electoral College. All things considered, I am not entirely sure that a popularly chosen President has turned out to be the best compromise, given the regal powers now bestowed on this office.

The Reach of our Constitution

The Constitution of the United States is our founding document. It sets principles for our laws and our conduct pertaining to them. But, regardless of our appreciation of its genius, it doesn’t apply universally beyond our borders. According to Supreme Court decisions, there are even limits to its application to our own citizens when they are residing abroad. And when foreigners are concerned, its applicability is very limited. In general they gain its protections only when they step on U.S. soil. The specific legal exception is when a foreigner has an established relationship with our country, such as holding a visa or a green card.

US President Donald Trump signs Executive Orders in the Hall of Heroes at the Department of Defense Friday, Jan. 27, 2017 in Arlington, Va.  (Olivier Douliery/Abaca Press/TNS)  1196704

So, what does this mean for the current dispute over President Trump’s executive order pertaining to immigrants from seven specific international hotspots? I have read arguments by informed scholars on this topic and as usual they don’t fully agree. However, I am always attracted to analyses that seem more objective because they contradict expectations. Harvard’s Alan Dershowitz is a renowned constitutional expert who espouses generally progressive viewpoints. But recently in a television interview, he forthrightly argued that due process rights don’t extend beyond our borders to non-citizens. This was my belief also, but I have no legal pedigree to back it up.

The recent decision by a federal judge staying this executive order cites, among other things, the violation of due process rights of potential immigrants from the specified seven countries. I believe that is a reversible error, but it is possible that other constitutional arguments may be relevant. For example, there is the issue of fair application of our laws and implementation procedures. Is this a proscribed ban on Muslims, as many proclaim? If it is, then it is so incompetently written that it fails almost totally to achieve its objective, so perhaps we should give it a pass. After all, it doesn’t apply to the vast majority of Muslims. If the Trump administration wished to ban Muslims, how could they have overlooked Indonesia, Pakistan, India, Egypt, Bangladesh, Turkey, and Nigeria, just to mention a few? Still, Trump’s statement that an exception should be carved out for Christians is revealing and perhaps damning.

It seems likely that this executive order will be argued before the Supreme Court because there have been conflicting decisions in lower courts. When this happens I suspect that the order will be blocked. However, that will almost certainly not be based on the merits of the case!

The reason for this is aptly encapsulated in a comment by SCOTUS nominee Judge Neil Gorsuch, “A judge who likes every outcome he reaches is very likely a bad judge.” I wholeheartedly agree. I think we have at most only two Supreme Court justices who successful pass this test, Chief Justice Roberts and Justice Kennedy. If you can always – always – predict a judge’s opinion simply by knowing the nature of the case then they are not judges at all, they are advocates. This indictment applies to a significant degree to the remaining six justices, as it certainly did to the recently deceased Antonin Scalia.

Reasonable people might disagree with Gorsuch’s observation because it will mean that occasionally a good judge must rule against his instincts and beliefs solely in support of the written law. Of course, one could always point to bad laws that should not receive such respect. However in general, laws are not bad or written with evil intent, and interposing one person’s beliefs is a slippery slope to oligarchy or worse. We are truly a nation of laws. They are what distinguish us. If you believe that sometimes they should be ignored when they violate your principles, consider what happens when someone who sincerely believes otherwise reaches a position of power. Is that really the precedent you wish to establish?

So, let’s return to Professor Dershowitz. I am sure that his instincts guide him toward believing that due process should apply universally. It is the very essence of fairness. But he is an honest man and he understands the law. So, perhaps reluctantly, he applied it to Trump’s executive order. I suspect he might be a good judge by Gorsuch’s standard. Evidently being a progressive doesn’t always mean that good intentions trump impartial analysis, which pleases me and gives me hope for our future.

The Third Presidential Debate

The big takeaway for the chattering classes seems to be Trump’s coy refusal to accept in advance the results of the coming election. Really this isn’t surprising but for some reason people never seem to take what he says at face value. He has said this before and it is entirely consistent with his general approach to life. Of course surrogates, like his campaign manager and his daughter, immediately came forward to disavow this unprecedented position. However as I write this, I am listening to Trump’s first post-debate rally. He just explained, “Of course I will accept the election results … if I am the winner!” The crowd roared its approval and broke into a familiar chant, “Lock her up! Lock her up!” I don’t know whether to laugh or cry.

500wiHowever, I found something else in the debate to be far more significant. An initial topic was the Supreme Court. Hillary said forthrightly that she viewed the Court’s primary responsibility to be “to stand on the side of the American people, not corporations.” I take this to mean that she wants Justices who see their job as looking out for the welfare of the average person. Truthfully, my jaw dropped. Does she really mean that?

I do understand where she is coming from. Many people believe that this Court, marginally dominated by conservatives, has rendered decisions that go against “the little people”. Citizens United v. Federal Election Commission is a prime example. But to say that the Court must take the opposite tack is equally wrong. That simply is not the purpose or mandate of our highest court. It is not designed to be Big Mommy for us all. Rather it has a quite specific role in adjudicating the consistency of laws with our Constitution and in rendering judgments in certain special areas of the law. Of course it should try to do this fairly and, since the Justices have human frailty, they will not always succeed. But the Court having agendas is a mistake even if we applaud them.

Of course Presidents will nominate candidates for Court vacancies who are philosophically compatible with their own viewpoint. And no one can doubt that Justices bring biasing perspectives to their decisions. However this is a far cry from setting a specific agenda to be followed independent of the cases involved. This is one instance where literal interpretation of our Constitution is most compelling, even if you disagree with this as the proper approach in general. If the writers of this marvelous and enduring document had intended the primary role of the Court to be a bulwark against threats to the public welfare they would indubitably have said so. No one who has examined their other writings and statements could possibly believe that this was their unwritten intent.

It is the duty of Congress to serve this role. If it fails on occasion, having another of the coequal branches of government take up the slack is perhaps attractive if what it does meets with our approval. But we will inevitably regret it if that ever becomes the norm as it will destroy the true essence of our form of government.

Fixing the Electoral College

IMG_0551Our method for electing Presidents is a mess. The Electoral College and the rules pertaining to it arose from a somewhat sordid compromise by a handful of bewigged gentlemen centuries ago. One outcome is that the actual rules for selecting electors are essentially up to the individual states. In fact they can invent whatever rules they like subject only to meeting a few Constitutional standards for fairness. Presidents can and have been elected who don’t command the support of a majority of the voters. Voters in states with small populations have a vastly disproportionate influence on the result. This is just wrong!

So, here’s my idea. A group of states could get together and agree that all of their electors would be allocated to whomever wins the total popular vote within their states. Specifically, these could be CA, NY, FL, TX, PA, IL, NC, OH, MI, GA and NJ. Why them? Well, their total electoral allocation is 270, which happens to be precisely what is required to win the Presidency. In other words, these eleven states can just freeze out the remainder! All campaign spending would move to these states and they would gain power, prestige and money from their combination. In all likelihood, no candidate from another state would have any chance of gaining the nomination, and thus they can be confident of having a native son or daughter as President … forever! And where do you suppose each President would target most favorable attention? Other combinations of states would work too, but this is the minimal set.

Could Congress thwart this plan? No it couldn’t, provided the ruling combine stuck together in the House of Representatives. They have a comfortable majority there, so they could block any adverse actions.

It is essential that the Congressional delegations from these states be on-board and committed to the plan. This is because of the obscure rule that any state’s electors can be challenged when Congress meets to certify the election. Members can object to any state’s vote count. A written objection supported by just one senator and one representative will be followed by the suspension of the joint session. After both Houses separately deliberate on the objection, the joint session resumes. A state’s certificate of vote can be rejected only if both Houses of Congress vote to accept the objection. In that case, the votes from the state in question are simply ignored. The votes of Arkansas and Louisiana were rejected in the Presidential election of 1872. Assuming no more than a couple of dozen recalcitrant representatives, these eleven states have more than enough members of the House of Representatives to block any such challenge.

I think the likely consequence of even the threat of this subterfuge would incite a revolt among the other states leading to a Constitutional amendment abolishing the electoral college and moving to a true popular vote for President. And a good riddance too!

You might wonder how this could come about, given the power that this eleven-state monopoly would wield in Congress. Well, there is a special method for amending the Constitution that has never in fact been tried. All that is required is for two-thirds of the states to call for a National Convention, where any amendments can be offered, debated and passed. That means 34 states are needed, and recall that there would be 39 states that would be chomping at the bit to join the call.

Constitutional Revisionism


Article 6, Section 3 of our Constitution reads as follows:

Section 3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The meaning of this section is clear and has never been legally disputed. In summary …

All government officials, elected or appointed, must swear an oath to support the Constitution of the United States. However, that oath need not be religious in nature, and the government cannot require its officials to pass any test of religious affiliation to take office. The ban on religious tests was included to ensure that the U.S. government would remain secular.

Note that this has nothing whatsoever to do with what qualifications any individual or party feels are appropriate for any office. I can quite properly believe, for example, that no person who isn’t fluent in English should be President. I can say that I wouldn’t support anyone who isn’t a Christian, or anyone who is over 70 years of age, or any other rule that seems sensible to me. None of that violates the Constitution in any way. You may think that I am making a mistake, but you have absolutely no right to deny me my choice or my beliefs.

What Dr. Ben Carson said about not being willing to support a Muslim for President, or his clarification that he meant one who doesn’t renounce Sharia Law, may have been politically inept but it violates no law nor any principle of our Constitution. Calls for him to end his candidacy on this basis are entirely inappropriate. If you disagree with him, vote for someone else. In fact, even bringing up this clause of our Constitution in the context of his remarks, as have many commentators, demonstrates an abysmal understanding of its meaning and intent.

Actually, eight states have clauses in their Constitutions that either require state officeholders to profess particular religious beliefs or protect those who do. They are not enforced because they certainly couldn’t withstand a federal constitutional challenge.