March 16, 2011

©2011 jbjd

The Supreme Court has the final authority to interpret the Constitution.  It can set aside any law – federal, state, or local – that a majority of the justices believes conflicts with any part of the Constitution.

(For a more legalistic discussion of the authority of Article III courts, see

No matter how many times or how strenuously people repeat the absurd claim that the definition of NBC in the U.S. Constitution is fixed by reference to any other written work, nothing fixes a definition of NBC until the ‘fat lady holding the scales of justice sings.’

In other words, until justices on the federal appellate court weigh in with a definition in a holding in a case specifically on point.  All else is cacophony.

Lie number 1. We know what NBC means because this term is defined in Vattel’s Law of Nations.

Just for the sake of argument, let’s say, this man Vattel wrote a book entitled Law of Nations in which he pontificated as to which of the laws of various nations he would incorporate into his Utopian country, and that the term NBC is unambiguously defined within this text.  Let us further assume that before deliberating on their own treatise, better known as the U.S. Constitution, the original drafters had access to Vattel’s tome, considering such variables including the date and place of publication, language, and availability; and that they did, indeed, read his definition of NBC before drafting our Constitution.

Assuming all that, it is nonetheless absurd to make the leap of logic that says with certainty, the Drafters, having read Vattel’s definition of NBC and understood his meaning, thereby adopted his definition into their text.  Because based on this logic that insists, any subject mentioned in the Constitution evidences a  concurrence with its counterpart in Vattel’s Law of Nations; we would also have state sponsored mandatory public worship of God and banishment of minority practitioners, instead of “Congress shall make no law respecting an establishment of religion…”

Lie number 2. We know the Drafters meant for us to follow Vattel’s definition of NBC in Article II, section 1 because they specifically referenced “Law of Nations” in Article I, section 8 (“To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations”)

Setting aside the colonial custom of capitalizing nouns, let’s assume, again, this reference in Article I, section 8 adopts Vattel’s treatment of piracy exactly as laid out in his book (as opposed to a generic standard of responding to piracy on the high seas, according to laws of various nations sailing the seas).  According to the rules of statutory interpretation, this would not only not mean,  the Drafters intended the definition of NBC to echo Vattel’s definition; but it would mean precisely the opposite!  That is, by using the reference to Law of Nations in one place in the document but not the other, the court would find the Drafters intended not to mean the definition proffered by Vattel.

“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted).

That is, given that the Drafters obviously knew how to reference Vattel in one part of the Constitution, this means, if they had wanted to reference his work in another part of this legal document, they likely would have.  Yet, they failed to repeat the phrase either in Article II or anywhere else in the document.

But definitively attributing the phrase “Law of Nations” in Article I to Vattel’s text and not to a general world standard of laws, is absurd on its face.

John Jay, Alexander Hamilton, and James Madison wrote the Federalist Papers so as to persuade the special Constitutional panels in the 13 states to ratify the newly drafted U.S. Constitution to replace the inadequate Articles of Confederation.  In Paper 83, Mr. Hamilton addresses the construction of Article III, the federal judiciary, arguing for a right to trial by jury in all criminal cases but not in civil cases.  (All emphasis added.)

But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable.

Or, just scroll back to Vattel’s own text, in which the phrase “law of nations” and permutations appear generously.

Lie number 3. We know what NBC means because this term is defined in a law review article; and the Boston Globe°; and dicta in several Supreme Court cases not directly on point.

See lie number 1.

° This lie is especially pernicious, for 2 (two) reasons.  First, it falsely implies the theories of the speaker are supported by the imprimatur of the editors of the Boston Globe! In truth, an advice column appearing in the newspaper more than 100 years ago,contained what the writer stated was his personal opinion, namely, the words “native born” and “natural born” appearing in the Constitution in relation to the word “citizen” mean two different things.  Second, it disingenuously sustains a fabricated claim that the words “native born” and “natural born” can honestly be conflated to mean the same thing and then uses the personal off-the-cuff opinion of the columnist to hyperbolically deflate such contention.  Ha, the ‘legal’ pundit pedaling this tripe calls the Globe piece a “crucially relevant article.”  Straw dogs.  As I indicated in the beginning of the present post, following  the basic rules of statutory interpretation necessarily leads to the conclusion that, because the Drafters used “native born” in one section of the document and “natural born” in another section; the courts would assume they intended “native born” and “natural born” to mean two different things!


I cannot say what the Founders intended by the term NBC.  But I am troubled by the willingness of so many purported “patriots” to supplant reason with their interpretation of the document those Founding Patriots created. Of course, I have studied history; of course, I have studied the law. Naturally, I have opinions. But I am not the arbiter of the Constitution’s truth; and neither are any of those internet pontificators, lawyer and layperson alike, who claim otherwise.

I could not care less as to the individual interpretations people ascribe to the original intent of the Drafters; or whether they adopt a Constitutional methodology of original intent or ‘living document,’ to reach their conclusions. But I am as fearful of becoming enslaved by zealots on one side as on the other.  Let me emphasize, just because a particular lay interpretation appears to make sense to lay people does not mean it could survive critical judicial scrutiny. (Keep in mind, many of the people involved with founding this government were trained as lawyers.) If I point to a flaw with the legal methodology, this does not mean, I am pointing to a flaw in the character. That people continue to label theories of statutory construction as ‘belonging’ to one person or another scares the hell out of me. Practically speaking, the meaning of the Constitution is only ascertained when the federal bench rules, this it what it means. This is why I seldom express my personal views as to what the document means; or engage in endless speculation as to what the Constitution means. I am too busy doing actual work aimed at changing the status quo.

While there are few absolutes in interpretation, certainly we can all concede that no interpretation is valid or invalid based only on who is espousing that view.  So, in conclusion, I want to repeat my strenuous objections that some people, expressing an opposing view to the positions discussed in this article, continue to direct such dissent to me and not to the work.  I suspect these bullies are intentionally misleading people by clinging to discredited theories of Constitutional interpretation in order to sidetrack attention and energies which could be better utilized to challenge the legality of those Certifications of Obama’s nomination submitted in several ballot eligibility states.

Because in the end, Obama will not be removed from office on the basis of a legal definition of NBC, anyway.  Even if  documents available in the public record could establish the facts of his birth, which facts could then be fit into such legal definition of NBC.   Because no law required the Electors to only elect a President who meets the Constitutional eligibility for office, anyway.  But we have no such facts of birth or legal definition of NBC.  However, we definitely know the definition of “C.”  Because the SCOTUS has previously ruled on this issue in several cases directly on point.  This means, we can confront anyone who Certified to state election officials in applicable states, candidate Obama was qualified for office, with this question: on what documentary basis did you ascertain beforehand he was a U.S. Citizen?


My mind is a terrible thing to waste.


June 30, 2010

© 2010 jbjd

Pundits weighing in on the scope of interrogation Elena Kagan, Barack Obama’s Supreme Court Justice nominee will endure by members of the Senate Judiciary Committee predict she will be asked questions intended to inform as to how a J. Kagan would tend to rule in cases involving issues like guns (how seriously does she take the 2nd Amendment right to bear arms); and judicial restraint (can she separate her progressive politics from her rulings from the bench).  Questions will also likely arise concerning her decision as Dean of the Harvard Law School to restrict military recruiting on campus (ban altogether or limit in scope).  But in all of my reading on the subject, one issue that has never come up is this.  Is Ms. Kagan’s tendency to become star struck into inertia in the presence of certain pre-eminent practitioners of law who, if she is confirmed, will no doubt appear before her; a fatal flaw that renders her lacking the judicial temperament expected of a member of the high court?

In other words, would a Justice Kagan set aside the fact that Professor Larry Tribe’s her ‘daddy‘?


On Monday, the Supreme Court issued its ruling in McDonald v. Chicago, reaffirming the individual right to own a gun enshrined in the 2nd Amendment, making clear the right has blanket application across the U.S. by virtue of the 14th Amendment.  For those focusing on the confirmation process of SCOTUS nominee Kagan, thoughts understandably turned to what appear in hindsight to be the less than candid answers provided by now  J. Sotomayor during her confirmation hearings, and made likely that questioners would want more of a guarantee that Ms. Kagan really means what she says.  Here are some excerpts from a great posted on the U.S. Senate Republican Policy Committee web site on Monday , entitled, “McDonald, Sotomayor, and Kagan.”

…Consider the testimony of Justice Sonia Sotomayor at her hearing.  In a response to a question by Senator Leahy, she said: “I understand how important the right to bear arms is to many, many Americans.  In fact, one of my godchildren is a member of the NRA.  And I have friends who hunt.  I understand the individual right fully that the Supreme Court recognized in Heller.”  But today, she joined with Justice Breyer in saying “I can find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.”

Given that what the Senate heard from President Obama’s first nominee to the Supreme Court seems to have little bearing on her post-confirmation behavior, Senators may wish to approach Ms. Kagan’s testimony with a degree of skepticism.  The fact that Ms. Kagan has no judicial record to point to, and a record of liberal activism, only underscores this point.

Yet, according to this excerpt from an article entitled, “Kagan Sounds More and More like Safe Vote for Gun Rights,” which appeared  in Talking Points Memo, Tuesday’s testimony seems to have allayed concerns a J. Kagan would tamper with what she agrees, 1 (one) day post-MacDonald, is now “settled law.”

“Is there any doubt after the court’s decision in Heller and McDonald that the Second Amendment to the Constitution secures a fundamental right for an individual to own a firearm, use it for self- defense in their home?” Leahy asked.

“There is no doubt, Senator Leahy, that is binding precedent entitled to all the respect of binding precedent in — in — in any case. So that is settled law,” Kagan responded.

So, at least for now, it would seem gun ownership would remain safe if Ms. Kagan was confirmed to the Court.

What about her ability to stray from what is touted as a ‘leftist’ bent evidenced by her work as an adviser to President Clinton?   Well, after all, advising him how to accomplish his policy goals was her job.  And, evidently, she was good at it.  But she was also no shrinking violet when it came to making her voice heard, even when others on the same side of the aisle raised their voices against hers.  President Clinton describes a case in point.

Former President Bill Clinton vividly remembers the first presentation that his young legal adviser, Elena Kagan, made in the Oval Office.

Against the wishes of his high-powered economic team and top congressional Democrats, Clinton in late 1995 was considering vetoing new legislation that was framed as a way to halt frivolous lawsuits against the securities industry. At his direction, Kagan had analyzed the bill and determined that it would raise the bar so high for such suits that shareholders could be prevented from pursuing legitimate fraud claims.

“There she was, in her mid-30s starting out in her career, with the entire economic team, all of them against her position, and she knew it,” Clinton said in an interview, in his first extensive public comments about his onetime aide since her nomination to the Supreme Court.

“She stood there and defended her conclusion,” Clinton said.

The NYT article, “As Aide, Kagan battled Aide Over Policy,” tells of the clash between the adviser and Christopher Edley, Jr., a consultant to the Clinton Administration, now Dean of the law school at UC Berkeley.

At the heart of the dispute was a broader cleavage inside Mr. Clinton’s White House between two visions for Democratic politics, one that adhered to traditional liberal conceptions of social justice and aid to the disadvantaged and another that sought to nudge the party to the center after a generation of electoral losses.

Along that fault line, Ms. Kagan, now President Obama’s nominee to the Supreme Court, was situated squarely in the camp of the centrist New Democrats.

So, it would seem that, even factoring into consideration, working for a Democratic President was her job; Ms. Kagan still appears to be able to maintain an even-handed approach to policy-making within the law along with the fortitude to champion her position.

What about the meme that, as Dean of the Harvard Law School, Ms. Kagan banned military recruiters from campus?  Well, turns out, that statement is more fiction than fact.  Here is a good account in the Harvard Crimson of what went on during her tenure, from “Kagan’s Stance on Military Recruiting Under Scrutiny.”

…”I believe the military’s discriminatory employment policy is deeply wrong— both unwise and unjust,” Kagan wrote in a September 2005 letter to the Law School community, voicing her opposition to the policy. “And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.”

But a recently uncovered e-mail indicates that although recruiters were barred from OCS services and facilities, they were not prevented from independently recruiting on campus. The message detailed a number of campus recruitment opportunities, including the United States Army Judge Advocate General’s Corps interviews for summer internships and “full-time active duty positions.”

So, thinking the ‘don’t ask, don’t tell’ policy conflicted with Harvard’s policy of non-discrimination, she barred military recruiting BUT ONLY FROM OFFICE OF CAREER SERVICES, SERVICES AND FACILITIES.  Individual recruiting was always allowed.

In addition, a spring 2005 letter penned by the Harvard Law School Veterans Association following Kagan’s ban on military recruiters’ access to OCS services stated that Kagan asked the association to “facilitate some measure of interested student access to military representatives” to compensate for any inconveniences caused by the policy decision. The HLSVA complied by setting up an e-mail address for interested students to send confidential inquiries.

Although Kagan did not ban military recruiters, her critics claim that she created inadequate access to recruiting services for students interested in joining the military. In the same letter sent in spring 2005, the HLSVA conceded that the e-mail address “falls short” of duplicating the services of OCS, suggesting that Kagan’s restrictions complicated military recruitment for interested students.

Despite her opposition to “Don’t Ask, Don’t Tell,” Kagan maintained an exception to the school’s non-discrimination policy that allowed the military to recruit through the OCS as they had done since 2002, before she assumed the deanship.


In other words, when Ms. Kagan received complaints from the HLSVA that, the alternative venues she had proposed in lieu of recruiting directly through OCS; she reinstated the exception to the school’s non-discrimination policy, allowing military recruiting to take place through OCS, an exception that had been in place during the tenure of the previous Dean.

But in spring 2005, Kagan eliminated that exception in response to a Third Circuit Court decision that ruled as unconstitutional the Solomon Amendment, which grants the military agency to cut funding to a university that “prohibits, or in effect prevents” military recruiting. Kagan reinstated the exception only a few months later under pressure from the Department of Defense, which threatened to cut funding to the University….


Thus when the federal court struck down the law allowing the military to cut funding to schools that prohibit military recruiting, Ms. Kagan revoked the exception (to the school’s non-discrimination policy).  A few months later, the DoD threatened to cut funding to the University; and she reinstated the exception, thus again allowing the military to recruit through the OCS.

Presumably, this in-depth explanation allays any animus against Ms. Kagan’s confirmation which might have been based on a false belief she banned military recruiting at Harvard Law School and, by extension, that such prohibition evidenced Ms. Kagan held an objectionable animus to the pursuit of military service.

But the chances are slim to none that anyone on the Committee will ask Ms. Kagan about whether her record of principled independence portends she will be equally impartial when it comes to hearing cases argued before the bench by Professor Tribe.  And they should, as this would be a likely scenario, given that Mr. Tribe is among the top 30 lawyers who have argued the most cases before the Supreme Court since the beginning of the 20th century. Yet, as you will see, when it comes to Larry Tribe, Ms. Kagan tends to act less like a seasoned legal professional and more like a deer caught in the headlights.

Larry Tribe is an admitted plagiarist and Dean Kagan knew this but chose to do nothing about it.

National Review Senior Editor Ramesh wrote this back in 2005.

In the spring of 2003, The Green Bag, a legal journal, published an essay by Tribe called “Public Rights, Private Rites: Reliving Richmond Newspapers For My Father.” It is a memoir of Tribe’s first argument before the Supreme Court, in 1980. The case grew out of a Virginia murder trial. The judge had closed the trial to the public, including both the victim’s family and reporters. Tribe represented the newspapers for which those reporters worked.

Tribe argued the case just two weeks after his father died. That fact, his essay explains, emboldened him to do something daring: to invoke the Ninth Amendment to the Constitution.

The Ninth Amendment is the one that reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words: Just because the Constitution lists a bunch of rights doesn’t mean that we don’t have other rights that aren’t listed. Even people who think that’s a fine principle have been a bit puzzled about how the amendment should affect government in practice, and in particular about what judges should do with it….

And if that story casts Tribe as a forgotten hero of the Ninth Amendment — and thus, to some people, as a hero of the story of American liberty . . . Well, the essay leaves the impression that Tribe doesn’t mind that too much. The Richmond Newspapers decision, he writes, was a “landmark.”

But the record in front of the Supreme Court does not corroborate important parts of Tribe’s story. He didn’t argue his case in Ninth Amendment terms. Other parties in the case did, but not Tribe.

The Ninth Amendment did not appear in the statement Tribe filed asking the Supreme Court to review the case. There, Tribe said that Virginia had violated the First, Sixth, and Fourteenth Amendments. At this stage of the litigation, it was the lawyers for the American Society of Newspaper Editors and the American Newspaper Publishers Association who made the Ninth Amendment argument, in their friend-of-the-court brief….

When he argued the case in front of the Supreme Court, Tribe didn’t mention the Ninth Amendment even once. (An audio transcript of the case is available online.) Fifteen minutes into it, a justice asked Tribe “just what provision of the Constitution [the Virginia statute] violates as applied in this case.” Tribe replied, “I think that it violates the Sixth Amendment, and the First, and the Fourteenth.” He spent the rest of his opening argument on the First and Sixth Amendments. Virginia’s lawyer, unsurprisingly, didn’t mention the Ninth either. Tribe got to make a rebuttal, in which the words “Ninth Amendment” again did not pass his lips.

More recently – June 28, 2010 – there is this:  “Pearls Richer than Tribe:  Plagiarism allegations dog a Harvard Professor.”

In 2004, The Weekly Standard broke the story that much of his 1985 book God Save This Honorable Court had been taken, in one case word-for-word but usually with small adjustments, from Judges and Presidents, a 1974 book by historian Henry J. Abraham. Then–Harvard president Lawrence Summers, along with then–Harvard Law dean Elena Kagan, strongly condemned Tribe’s actions, but administered no punishment. (Tribe, Summers, and Kagan all now have ties to the Obama administration: Tribe, on leave from Harvard, runs the Justice Department’s Access to Justice Initiative; Summers is director of the National Economic Council; and Kagan is solicitor general and has been nominated to the Supreme Court.)…

Last but by no means least, there is this scathing denouncement of the whole sordid plagiarism affair(s), by Massachusetts School of Law Dean Lawrence Velvel, posted on his blog, “Velvel on National Affairs,” in April 2005.  It deserves a full reading, not only because Dean Velvel painstakingly compares and contrasts the works in question but also because by doing so, he evidences the reasoned approach a legal scholar sans blinders might take when confronted with this same factual scenario.

Re: Larry Tribe, Larry Summers, And Elena Kagan: Because Of The Larry Tribe Affair, It Is Time For Larry Summers To Go …

… Finally, there is Elena Kagan, who has been Dean of the Harvard Law School since 2001. This relatively new Dean unfortunately got caught by a bad situation — by the Ogletree and Tribe matters, and by the Jack Goldsmith matter. But unhappily caught or not, she apparently has gone along with non-punishment of Tribe, and she joined Summers in his whitewashing statement about Tribe. She has also gone alone with what appears almost surely to be the defacto (and undisclosed) non-punishment of Ogletree. She has gone along with the hiring and retention of Jack Goldsmith, who apparently played a role and, after publication of The Torture Papers, more than ever seems to have played a role, in the American government’s abominable renditions to other countries for purposes of torture, and who refuses to talk about this matter. As discussed here in a December 15th posting, she was said by The Boston Globe to have defended Goldsmith’s presence at Harvard by telling it, and as far as I know she has never denied that she defended his presence in Cambridge by telling it, that he “‘puts issues on the table that everyone focuses on and debates’” (yeah — like renditions), that he is “‘a very agenda-setting scholar, and that’s exactly the kind of exciting scholarship that we want to have here’” (he certainly seems to have helped put renditions on the agenda), and that she is “‘as proud of his appointment as I could be.’” So Dean Kagan has gone along with Summers’ bad-results-producing actions regarding plagiarism, copycatting and ghostwriting, and, to boot, is very proud of hiring a teacher who seems to have played a fairly important role in the American government’s abominable and grossly illegal renditions. (Goldsmith’s role is described here pretty fully in the same December 15th post.) All of this seems no more praiseworthy than Summers’ actions, and perhaps, in some respects, worse, because torture is involved. So, in my view, Kagan too should go, just like Summers.


It is unlikely that members of the Senate Judiciary Committee will question Supreme Court nominee Kagan as to whether she can be an effective jurist when ‘tossed into the arena” with Larry Tribe.  But perhaps they ought to.

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