Best When Toe-Tagged

By Cyberquill 06/07/201019 Comments

Barack Obama’s presidency is unconstitutional. His place of birth has nothing to do with it. The “birthers” were correct in their conclusion but wrapped themselves around the wrong issue to get there.

Mr. Obama’s presidency is unconstitutional because, at age 47, he was simply too young to have been inaugurated. All his acts as “president” are therefore null and void. For all practical purposes, the nation has been a rudderless dreadnought for going on 18 months now.

Setting forth eligibility criteria for the office of president, Article II of the U.S. Constitution clearly states the following:

[…] neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years […]

There you have it. Attained to the age of thirty five Years.

The skeptical reader may now feel tempted to protest and point out that, in keeping with the universally accepted practice of counting linearly from zero towards infinity, 47 comes after 35, and hence the constitutionally mandated age requirement has been met by Mr. Obama.

Such reasoning, of course, merely shows that said skeptical reader’s mind is intractably mired in the past, reluctant to embrace the fact that the world has not been frozen in amber for two centuries and that society has moved on since the Constitution was drafted in 1787—welcome to the 21st century!

Forty is the new twenty. Not only do I subscribe to this modern adage for personal reasons, but the evidence supports it: life expectancy has increased in the past 200 years; people today spend more time on formal education prior to entering the work force; and they are in ever less of a rush to settle down and do the family thing; indeed, it has become quite common for a shoe addict (= a woman) to delay motherhood into her late thirties or early forties even.

While in the 18th century 35 would have been considered middle-aged, nowadays a person’s official youth extends well beyond that. Growing up happens in slow motion. Just look at Mick Jagger. By no measure does any particular calendar age of yore equal the numerically identical calendar age of today. In my estimation, age 35 in 1787 much more accurately translates to age 50 by modern standards. Surely I could conscript an expert panel of historians, sociologists, and statisticians to crunch the numbers and bear me out on this.

It follows that Mr. Change in the Oval Office has not yet attained to the constitutionally prescribed age of thirty five Years as properly adjusted for our times, which means we have no vice-president—will someone please call Joe Biden and inform him he’s been POTUS for more than a year?

Young Frankenstein


Preposterous as my little age bit may sound on its face, it is a perfectly valid demonstration of a so-called living constitution in action, i.e., a constitution whose liquid clauses undergo periodic permutations in meaning relative to what they meant when they were passed so as to properly reflect an evolving society.

If the U.S. Constitution is alive, as many folks insist it is and should be, then the argument that Mr. Obama is a bit too short in the tooth for the gig rings somewhat less guff-headed than it would if the darn thing were door as a deadnail (I prefer living clichés, so I can change them), which, I contend, it is supposed to be. Applying a the-world-keeps-turning-and-what-used-to-mean-this-now-means-that approach opens the floodgates for each of its clauses to potentially mean whatever happens to strike the fancy of a simple majority of the population, or, equally unfortunate or worse, a handful of judges on a court.

Yet the collective sentiments of fewer individuals than would comprise the super-majority required to pass an amendment is precisely what our constitution was designed to guard against; hence living is to a constitution what termites are to a wooden structure.

Enter Republican Arizona State Senator Russel Pearce, who the other day on The O’Reilly Factor, in a stunning display of breathing life into the 14th Amendment, emphatically argued that the practice of bestowing U.S. citizenship upon babies born in the U.S. to illegal immigrants (“anchor babies”) was an “unconstitutional declaration of citizenship”:

While to “bring a little common sense and integrity back” sounds commendable, the senator’s rationale puzzles the mind, as the 14th Amendment plainly reads thus:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Unless one is unsure as to the precise meaning of the phrase in the United States under rare and unusual circumstances—e.g., whether it applies to a baby born in a hot air balloon that accidentally drifts over Samoa air space as the head emerges from the womb but has drifted out again by the time the second shoulder comes out—, there doesn’t seem to be much wiggle room for interpretation with respect to all persons. Yet somehow the good senator manages to define it as some but not others, for, as he explains, illegal immigration didn’t exist when the 14th Amendment was passed in 1868, and the drafters of the clause “never anticipated the deluge.” Hence it is perfectly OK to retroactively modify the term all—it’s alive!—so as to exclude anchor babies whom Senator Pearce doesn’t want in his state.

(The phrase subject to the jurisdiction thereof applies to members of certain native American tribes and to foreign diplomats, i.e., those folks who don’t have to pay their parking tickets. At the time of their birth, children of illegal aliens are clearly neither. On second thought, under a living constitution, they might be. )

To back up his curious claim, he cites the Supreme Court case of United States v. Wong Kim Ark, 169 U.S. 649 (1898) and promptly confuses the ruling of the Court with the dissenting opinion. Despite his manifest confusion, Senator Pearce is correct in the sense that two members of the Court—Justice Fuller joined by Justice Harlan—had indeed argued in Wong that certain persons born in the United States were not entitled to U.S. citizenship, although Mr. Fuller’s wordy dissent reads pretty much like the Taney-esque Dred-Scott-type train wreck of an argument one would expect when a highly intelligent academic attempts to present a logical-sounding chain of reasoning to demonstrate that all doesn’t mean all, quite similar in style to the argument my aforementioned hypothetical expert panel would have to clobber together to show that 35 doesn’t mean 35 anymore.

In fairness, the majority opinion in Wong squandered no fewer words in making the case that all does, in fact, mean all, although its author could have saved most of his ink and simply quoted the first line of the 14th Amendment, followed by a pithy res ipsa loquitur.

Of course, the fact that the U.S. Constitution unequivocally declares that all persons born in the United States and subject to its jurisdiction are U.S. citizens is an entirely separate issue from whether or not that’s a good thing. Senator Pearce—and many others on both sides of the aisle—seem to have trouble distinguishing the actual meaning of the words from their desired meaning. Perhaps it would indeed be better if not all persons born in the United States were automatically granted citizenship status. Luckily, Article V of the Constitution spells out the process for making alterations to the document or add to it as warranted by changing times. I may have an faulty version, but Article V in my personal copy does not say, “This Constitution is alive—to modify, either (a) pass an amendment or (b) simply reinterpret to suit your needs.”

Justice Bader-Ginsburg defends the living Constitution by reminding us that, for instance, in 1787 We the People failed to include blacks and women. That is correct, and these deliberate and unfortunate oversights were officially redressed via the 15th and 19th Amendments respectively. A living constitution, on the other hand, needs no such amendments appended to the back of the charter. A living constitution is amended via majority consensus through their elected legislature or via court rulings, to wit by redefining certain terms and by projecting new information into the spaces between the lines, a method of interpretation most aptly referred to as “making stuff up.”

Amendments are a pain in the neck to get passed. The latest amendment (#27) was ratified in 1992 after it had been proposed in 1789. One could say that relying on the amendment process to effect change renders the document a bit hidebound. Bingo. Relative—but not complete—inflexibility is the whole point of a constitution. A constitution that’s easy to change isn’t much of a constitution at all.

At 1,500 words shorter than Facebook’s privacy policy, the U.S. Constitution obviously doesn’t cover a lot of ground, thus leaving plenty of room for federal and state legislatures to make laws which reflect the mores and values of an evolving society. And if we stopped to constantly read new things into its “penumbras and emanations,” then there’d be even more room for the democratic process to accommodate the majority druthers du jour.

It is obvious that there can be no security to the people in any constitution of government if they are not to judge of it by the fair meaning of the words of the text. (Justice Joseph Story, Commentaries on the Constitution)

Determining what each clause meant when it was ratified in terms of the fair meaning of its words (“plain words approach”) is difficult enough, but looking for original meaning—which I shall boldly equate with actual meaning—towers over all other methods of interpretation in that at least we know exactly what we’re looking for, and we can narrow the results of our quest down to something infinitely more tangible than can be arrived at using any other method. Naturally, when the words themselves are ambiguous or overly expansive in scope, other narrowing techniques must be used, such as original intent, structuralism, precedent and the various “tests” judges habitually resort to in order to achieve better consistency in their rulings over time, such as the compelling state interest test and the infamous lemon test.

Add the concept of living to the interpretive mix, and you end up not with a constitution, but with a pile of shape-shifting and hence meaningless word goo. What could mean anything, effectively means nothing.

Justice Antonin Scalia, generally considered one of the most conservative members of the Supreme Court and the mention of whose name therefore frequently triggers a reaction akin to that of a vampire being hit by a ray of sunshine, is known as an avid traditionalist and original meaning proponent:

I like my Constitution dead.

Whether you like the man or not—and if you don’t, I would guess you’re going by reputation without ever having actually read any of his opinions, which are among the most eloquent, acutely reasoned (irrespective of whether one agrees with his conclusions), entertaining, and at times intentionally hilarious legal screeds you’ll ever get your hands on—, he articulated the haymaker argument that blows the concept of a living constitution right out of the water, namely by pointing out that supporters of a living constitution implicitly assume that societies always mature as opposed to rot.

Let’s say after another series of terrorist attacks on the United States, public animosity against Islam escalates to a point that several states enact laws mandating that Muslim shoplifters be punished by chopping off their right hand. While such punishment would be perfectly in accordance with the text of the Qur’an, it certainly wouldn’t fly under the cruel and unusual punishment clause of the U.S. Constitution, at least not the way the phrase was understood when the Bill of Rights was passed in 1789—physical mutilation as a punishment for anything would have been considered cruel and unusual even back then—nor under the Equal Protection clause of the 14th Amendment, at least not the way the term any person was understood in 1868 (although many people at the time certainly didn’t agree that any person should be eligible for equal protection; but that has nothing to do with what the words themselves were understood to mean).

So under a dead constitution, there’s no cutting off anybody’s limbs for any infraction of the law. Under a living constitution, well, perhaps it ain’t so cruel and unusual when applied to members of a religion whose Holy Book actually prescribes this particular form of punishment—what’s so cruel and unusual about respecting a person’s religion by treating him or her pursuant to one of its precepts?

Regarding the 14th Amendment, we can always point to Justices Fuller and Harlan—and, of late, to the venerable AZ Senator Pearce—to back us up in our assertion that all persons doesn’t necessarily mean all persons. Besides, who ever said that every human being is a “person” anyway? After all, corporations are “persons” under the law even though they aren’t human beings, and this line of reasoning could conceivably be used as a kind of reverse precedent to argue that some human beings are not persons. Under a dead constitution, we’re pretty much stuck with having to define all human beings as persons, whether we like it or not, but under a living constitution, an individual considered a person yesterday need not necessarily be considered a person today. Times change, and a novel set of circumstances may call for some definitional narrowing.

Basically, all we have to do is jump through a few creative hoops in order to find a way to justify why the plain meaning of the words in the Constitution has undergone whatever mutation we desire, and with a simple majority of the population in lemming-like concurrence—abracadabra!—cutting off somebody’s hand for swiping a pack of gum may not be so unconstitutional anymore.

For those inclined to believe I may be overstating the potential of a civilized society to deteriorate to such an extent, may I point to Germany in the 1930s.

Of course, no parchment barrier—not even a dead constitution—provides much protection against near-unanimous sentiments in a population. But it does guard against the implementation of whatever nonsense a simple majority may deem appropriate enough to condone and vote for at a given moment. Therefore, a dead constitution provides at least some measure of protection against the moral regression of a population to a time before it was passed.

A living constitution, by virtue of its liquid nature, protects against nothing.

If the concept of a living constitution is so inherently counter-constitutional, why do so many people embrace it?

There exists one very compelling reason for individuals to defend their living constitution to the death and to start foaming at the mouth whenever confronted with the mere suggestion of a non-living one: because they want to see certain changes in society yet believe, perhaps rightfully so, that the presence of masses of “unenlightened” folks out there severely curtails their chances of ever achieving the super-majority necessary to implement those changes via the official amendment process.

A living constitution is the only way to bypass the unenlightened.

Trouble is, if it’s alive, then in light of the human mind’s virtually illimitable ingenuity when it comes to bending the meaning of the words on the page to reflect personal preferences and ideology, we might as well cut our vaunted Founding Document into little pieces and feed it to the pelicans or whatever winged and feathered vertebrates happen to be on hand.

Even better, we could collect all printed copies in circulation, shred them, and then toss the strips of paper into the Gulf of Mexico. Perhaps it would help soak up some of the oil.

For if it ain’t toe-tagged, it ain’t much use as a constitution.

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  • Thomas Stazyk

    I think the problem is that the Constitution, living or not, is like the Bible, Shakespeare and John Lennon’s ouvre. People like to pick out the parts they like and agree with and ignore or deny the parts they don’t like.

    • Richard

      Do you say that instead we should regard the Constitution, the Bible, Shakespeare and John Lennon’s ouvre as infallible, Thomas?

      • Thomas Stazyk

        No. What I was saying is that people use selective interpretation to satisfy their own purposes--like Peter says below.

    • Cyberquill

      Or reinterpret the parts they don’t like until they do like them. With regard to quite a few clauses, that’s even legitimate, for it is close to impossible to ascertain their sole and objective meaning.

      • Thomas Stazyk

        Exactly--who was Semolina Pilchard?

        • Cyberquill

          … and did he or she know what a library is?

      • Richard

        So we cannot be sure of a consensus as to meaning anyway. That leaves the whole thing wide open.

  • Richard

    Closely, profoundly, entertainingly and persuasively argued, “Peter”.

    I always thought you were really Justice Scalia. In England you would be called Mr Justice Scalia, or Lord Justice Scalia or even Lord Scalia, depending how high up the judicial ladder you were. Much more polite.

    • Cyberquill

      In England I’d be called Lord Peter without the r’s.

  • Andreas

    You’re branching out into constitutional law now. Wow.

    • Cyberquill

      What else am I supposed to do? I don’t have a job.

  • Andreas

    Several times now, my RSS Reader has shown me new posts from you, but when I click through I get an error page.
    Do you know what’s going on?

    • Cyberquill

      Yes, I zapped my last two posts ’cause I hated them. I just made a new error page with the picture of a nuclear explosion and the words This post has been removed by the author. If you get my generic error page with the crybaby, that’s the wrong one. I don’t know which one you got. Perhaps I’ll make a third error page This is the wrong error page, just in case.

      Unfortunately, what I can’t figure out is how to remove deleted posts from other people’s RSS readers.

  • Richard

    I’ve re-read this post, Peter. It is subtle, carefully honed and beautifully persuasive.

    • Cyberquill

      Thank you. Just promise me not to neglect attending to your pretty flower garden while you’re busy re-reading my posts, for unlike our constitution, plants are incontrovertibly alive and must be treated as such.

  • cheri

    I just settled in to read your poetry recitation. I see you’ve nuked it. Oh well.

    • Cyberquill

      The recitation was audio. Too amateurish for my taste. Perchance I shall repost should I manage to record a less pitiful version. Stay forked. Spooned. Tuned. Whatever the word is.

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