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Selective Constitutionalism

Published: Tuesday, December 9, 2008

Many conservatives are up in arms regarding the charge that President-elect Barack Obama may not have been born in the United States and is, therefore, not qualified under the U.S. Constitution to be President of the United States.

Article. II. Section. 1. of the U.S. Constitution states, "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 . . . ." Some accuse Mr. Obama of not being born in the State of Hawaii as claimed, but in Kenya, Africa. Several people have filed various lawsuits challenging Mr. Obama's U.S. citizenship.

Historically, "natural born Citizen" has always been understood to mean someone born in the United States of America. If Barack Obama was not born in the United States, he is absolutely unqualified to be President. Hawaii's secretary of state says Obama was indeed born in that state. However, to date, Obama's actual birth certificate has not been publicly released, which only serves to add fuel to the accusations that he was not born in Hawaii.

Many conservatives seem to be obsessed with this controversy, calling it a "constitutional crisis." The fact is, however, we have been in a "constitutional crisis" for years! The problem is, most conservatives only get worked up over a potential abridgement of constitutional government when it serves their partisan political purposes. In other words, when a Democrat appears guilty of constitutional conflict, conservatives "go ballistic," but when Republicans are equally culpable of constitutional conflict, they yawn with utter indifference.

For example, the one man who has the notoriety and political clout to actually bring about some meaningful investigation and resolution to the Obama citizenship brouhaha is none other than Senator John McCain. After all, he was Obama's principal opponent in the race for the White House. Plus, as the standard-bearer for the only other major political party, he has the attention of the national media, as well as the national legislative and judicial branches of government. So, why is John McCain not at all interested in the Obama citizenship issue?

Perhaps one reason that John McCain is so uninterested in where Barack Obama was born is because he, John McCain, was not born in the United States. He was born in the country of Panama. So, let me ask readers a question: Does anyone believe if John McCain had been elected President instead of Barack Obama that any notable conservative would have been distressed about a "constitutional crisis"? Get real!

Yes, I know McCain was born to a naval officer serving in Panama at the time. That fact changes nothing. John McCain was still born in a foreign country, and under a strict interpretation of the U.S. Constitution, is not qualified to be President of the United States. Even our current State Department policy (7 FAM 1100) reads: "Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth."

Does anyone not remember the controversy surrounding the potential Presidential campaign of California Governor Arnold Schwarzenegger? Born in Austria, Schwarzenegger is a naturalized citizen of the United States and is now Governor of California. However, since Schwarzenegger is a naturalized citizen, but not a natural born citizen, he is considered unqualified to run for President.

But, again, most conservatives care little about the Constitution's requirement that a President be a "natural born Citizen." Like liberals, most conservatives are afflicted with a very debilitating disease that I call Selective Constitutionalism. They only want to apply constitutional government when it helps Republicans or hurts Democrats. Most of them really could not care less about adherence to the Constitution. If they did, they would have been up in arms for the last eight years as President George W. Bush repeatedly ignored--and even trampled--the U.S. Constitution.

Where were these "constitutional" conservatives when George W. Bush was assuming dictatorial-style powers and contravening Fourth Amendment prohibitions against warrantless searches and seizures? Where were they when Bush was ordering our emails, letters, and phone calls to be intercepted by federal police agencies without court oversight? Where were they when Bush was obliterating the Fifth and Eighth Amendments? Where were they when Bush overturned Posse Comitatus by Executive Order? Where were they when Bush dismantled the constitutional right of Habeas Corpus? Where were they when Bush lied to the American people about the invasion of Iraq and took the United States to war without a Declaration of War from Congress? Where were conservatives when Bush turned nine U.S. military installations over to the United Arab Emirates? Where were they when Bush ordered his Department of Transportation to open up America's airlines to foreign ownership? Where were they when President Bush nullified (using "signing statements") over 1,100 statutes he did not like? Where were they as President Bush and his fellow Republicans reauthorized one of the most egregiously unconstitutional pieces of legislation in modern memory: the USA Patriot Act? Where were they when Bush signed the blatantly unconstitutional McCain/Feingold Act? I could go on and on.

Ladies and gentlemen, the Republican Party has been just as culpable in violating constitutional government as the Democrat Party has--maybe more so! If the Republican and Democrat parties had any allegiance to the U.S. Constitution, neither John McCain nor Barack Obama would have been chosen as their respective Presidential nominees.

While we are on the subject, if anyone cared about constitutional government, Hillary Clinton (or any other U.S. Senator or House Member) would obviously be determined as ineligible to be given any appointment in the Obama administration under Article. I. Section. 6. of the U.S. Constitution. Why? Because the Constitution prohibits House or Senate members taking Presidential posts if the salary of the job they would take was raised while they were in Congress.

However, several past Presidents have skirted this constitutional prohibition (including Presidents Taft, Nixon, and Carter) by lowering the salary of the job back to what it was so the nominee could accept the job without receiving the pay increase that was approved while the appointee was in Congress. In fact, this sleight of hand actually has a political name. It is called "the Saxbe fix," after Nixon's appointment of Senator William Saxbe to be attorney general.

Do we have a "constitutional crisis"? You bet we do; but it is not limited to Barack Obama or the Democrat Party. The real constitutional crisis is the manner in which the American people have, for years, allowed civil magistrates from both major parties to routinely violate their oaths to preserve, protect, and defend the Constitution of the United States. God help us!

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