Burr-Hamilton 2012, and the Fallacy of Constitutional Orthodoxy

Chris Kelly, writing for the Huffington Post, scores some points in his satirical take on the “birther” controversy by noting that, given the comma placement in Article II, Section 1, any person not alive and naturalized during the actual framing of the Constitution is automatically disqualified from being president. To wit:

“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…”

This strategy should be familiar to anyone acquainted with the “subordinate clause” argument regarding the Second Amendment, which attempts to clarify just what, exactly, the Amendment is apparently designed to protect. While ordinarily the cleavages of history require that we make allowances for different grammars (it isn’t that Shakespeare doesn’t “make sense,” it’s only that he’s working from a different rule book than we are), I’ll admit that the comma placement here is rather off-putting. We should all think our lucky stars that our rule of law isn’t derived from something as gallingly awkward as the Magna Carta.

Unfortunately for we, the People, this distinction isn’t really what lies at the heart of the entire birther movement to begin with. Despite ample evidence to the contrary, the consensus of even many conservative politicians and journalists, and the fact that local papers carry a birth announcement for Barack Obama on the date he’s always claimed, those claiming that Barack Obama is ineligible to hold the presidency do so largely because the State of Hawaii won’t release the president’s full, long-form record, and thus put the entire issue to rest (Lord knows what would have happened if John Roberts hadn’t readministered the Oath of Office after the ceremony was flubbed the first time around). And yet for a movement with its eye fixed so unwaveringly on tradition and the letter of the law (specifically said comma-riddled document), it’s awfully curious that anyone would want to bypass the “full faith and credit” clause found in Article IV, Section 1. It’s as a result of this clause that a driver’s license from, say, Missouri, where the legal driving age is 16, is still valid in New Jersey, where kids are still hitching rides from their parents until 17; each state is compelled to respect the sovereign licensing capacity of every other, despite potential irregularities in procedure, implementation, and form. If the State of Hawaii certifies that Barack Obama is a legally-born Hawaiian citizen, then who is anyone else to argue? (What’s even more confusing is just what, provided Barack Obama wasn’t naturally born, we’re actually supposed to do about it in the first place. Call John McCain? Schedule a new election? Just turn the whole thing over to Joe Biden? – EDIT: And here‘s our answer. The winner, as suspected, is Option #3, which, judging by this TownHall poll, isn’t really what the birthers would be hoping for. 2nd EDIT: It’s come to my attention that the poll in question is likely fabricated, which isn’t so much shocking as it is just plain depressing.)

This is the problem with strict constitutional orthodoxy: like most fundamentalist ideologies, it places a primacy on the imprimatur of certain words and phrases while skirting around others. Despite the strictures of grammar, and the fact that their camp is by far the most likely to be letter-of-the-law adherents, no one in the gun lobby takes the subordinate clause argument seriously. Originalism, the position held by Justice Antonin Scalia, among others, is just a more ludicrous strain of this same philosophy, only with the added bonus of conducting arbitrary thought experiments to find out what the Framers may or may not have thought about any given issue. Sure, the Founding Fathers would have wanted the Florida recount called off in favor of George W. Bush due to voting irregularities between precincts, of course, despite the fact that “voting irregularities” would have invalidated each of their own eventual presidencies, and every presidency to come. For all the clamor surrounding supposedly “activist” judges, claims to originalist positions are just another way of calling it as you see it. To extend the analogy, modern legal scholarship becomes a lot like baseball. There’s a pretty definite strike zone, but the calls are left up to the individual umpires, in the heat of the action, and without the benefit of instant replay. Orthodoxy is just what happens when the umpire fails to account for things like the height of the batters. Or is already rooting for the home team.

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