To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Thursday, April 15, 2021

Observercast

Constitutional Conservatives?

on

BY DANNY M. ADKISON

Two conservative Republicans with national reputations were recently the focus of the news. One says our nation is at the end of its constitutional rope. The other hopes that we view the Constitution by squinting our eyes so he can run for president. I’ve got good news and bad news.

The good news is for Ted Cruz. Cruz is a Republican senator from Texas. He is what MSNBC analysts refer to as “wacko.” Be that as it may, there is talk that his wacko ways are making him a leading contender to be the Republican presidential nominee in 2016.

If Republicans thought Mitt Romney was a terrible candidate [and according to Dan Balz’s just published book on the campaign – Collision – a good deal of the money Republicans did think this], then Cruz is the near perfect anti-Romney candidate.

The question is, Is he constitutionally eligible to be president? Cruz was born in Canada. According to the Constitution, “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.”

No one knows exactly what a natural born citizen is. The Framers did not mention what these words meant at the Constitutional Convention, and they did not explain them in the usually revealing Federalist Papers.

Jay Wexler, in his relatively recent book on the Constitution, lumps it in as one of the 10 oddest clauses in the Constitution. Randall Kennedy, a Harvard political scientist, described it as one of the stupidest provisions in the Constitution.

This isn’t a “birther” position [like that taken by those who, for whatever reason, refused to believe that President Obama was born in the United States]. It is an undisputed fact that Ted Cruz was born in Canada, not the United States.

Wexler points out that the “natural born citizen” wording would have prevented all of the following from being president: Henry Kissinger, Madeleine Albright, Arnold Schwarzenegger, and Bob Hope.

There is even a great deal of doubt that John McCain fits the constitutional description. The U.S. Senate was so worried about this heading into the 2008 election that it passed a resolution stating it concurred with a report prepared by a Harvard professor who concluded he was a natural born citizen in spite of the fact he was born in the Panama Canal Zone.

It is time we did away with this phony issue [be it the legitimate version concerning Cruz or the pretend version concerning Obama]. The Framers may have had a good reason at the time for using such language, but those reasons no longer exist.

The best way to handle this would be a constitutional amendment that replaces “natural born citizen” with citizen [maybe with a 14-year requirement since the Constitution already requires that period of residency in the United States]. But even without such an amendment it is time to read the Constitution as if that change had already occurred [it wouldn’t be the first time we relied on an agreed upon interpretation to make the modification rather than going through the laborious amending process].

That’s the good news.

The bad news concerns Oklahoma Sen. Tom Coburn. He recently spoke to a group of his constituents in Muskogee and, since he opposed supporting defunding Obama’s Affordable Health Care law, he felt the need to throw the base some red meat.

How ironic since he tried his best to defeat the law with that inane “broccoli” analogy [which the equally inane Justice Scalia unsuccessfully tried to use in the final attempt to strike it down].

Coburn told the group he had heretofore opposed the idea of calling for a constitutional convention [for any reason], but that the Obama Administration was so [and I quote] “lawless” that he saw the need to call for such a Convention.

Not content to stop there, he also indicated it was time to mention the “i” word. That’s “i” as in impeachment, which rhymes [in his thinking] with Obama.

Although Coburn didn’t explain, there are two ways to propose amendments to the Constitution: by Congress and by a national constitutional convention. Since he expressed his previous fear of using a convention to change the Constitution, why wouldn’t he just propose having Congress propose such a change?

The answer is a book – the recently published Liberty Amendments which calls for several amendments to the Constitution. These changes are so numerous and so threatening to the fundamental structure of the Constitution, if they all were to be adopted it would literally amount to the Constitution being rewritten by a present-day constitutional convention.

That is why Sen. Coburn is suddenly being born again on his opposition to a constitutional convention. Mark Levin, a right-wing radio talk show host, wrote the book. It proposes 10 changes [amendments] to save the country from Obama.

In spite of the author, who is hawking the book mostly on Fox, saying these amendments are designed to get us back to the Framers intent, not one of the amendments actually conforms to the Framers thinking. Not one.

If Sen. Coburn wants to have a constitutional convention [after years of opposing the idea], fine. I’d concur, as long as Madison, Hamilton, Wilson, and Morris [along with a majority of the other leading delegates from the 1787 Convention] are resurrected and placed in charge of the proceedings.

Dr. Danny M. Adkison teaches constitutional law at Oklahoma State University and is a regular contributor to The Oklahoma Observer

 

Arnold Hamilton
Arnold Hamilton
Arnold Hamilton became editor of The Observer in September 2006. Previously, he served nearly two decades as the Dallas Morning News’ Oklahoma Bureau chief. He also covered government and politics for the San Jose Mercury News, the Dallas Times Herald, the Tulsa Tribune and the Oklahoma Journal.