The anemic 10th amendment

Americans often engage in the conceit that we have the oldest written constitution in the world. But that's a false story, and a dangerous lie to boot.

Yes, a Constitution was written in 1789. And it fell apart in 1861 under the weight of its uncertainty on whether the United States was a collection of sovereign states or one nation -- and even more so based on its moral bankruptcy on the issue of slavery.

And so, beginning in 1865, a new Constitution was forged, both in the halls of Congress and, as importantly, on the battlefields of Antietam, Bull Run and Gettysburg.

For all that some conservative members of the Supreme Court talk about "original intent" in the words of the Constitution, remarkably little attention is paid to the intent of those who refounded this nation in the wake of the Civil War. This is not a nation where the intent of slaveholders in 1789 is the only intent that matters in understanding constitutional law.  Instead, the movie Lincoln reveals a far more diverse set of principal players in our constitutional dramas -- not just Lincoln himself, but House Speaker Schuyler Colfax, abolitionist firebrand Thaddeus Stevens of Pennsylvania, Secretary of State William Seward, Rep. James Ashley of Ohio and a wide range of others.

Lincoln is the key player -- at least for this opening act of the constitutional drama -- but the movie is masterful in showing that the real story is the national will that he helped midwife among fractious factions to remake the Constitution.

And while Lincoln would exit the drama at the hands of an assassin, the rest of the players would continue the constitutional drama in coming years in enacting the 14th and 15th Amendments. This new Constitution was clearly dedicated to ending the dogmas of "states rights" and giving Congress the power to enforce this new national consensus.

That "states rights" was the key issue in this Constitutional change is understood, if disputed by some, but the latter point of giving Congress, not the Supreme Court, the responsibility for enforcing equality is less recognized. With the current Supreme Court reviewing whether Congress exceeded its powers under the 15th Amendment in renewing the "preclearance provisions" of the 1965 Civil Rights Act, the film is a strong reminder that constitutional drafters like Thaddeus Stevens were determined to challenge the power of the Supreme Court, which had essentially launched the Civil War by overturning Congressional legislation in the Dred Scott decision.

All three post-Civil War amendments provided -- crucially, in the minds of Stevens -- that "Congress shall have power to enforce this article by appropriate legislation." Note that these were the first Amendments to the Constitution that specified not limits on Congressional power but instead its expansion -- with not a word about a judicial role in limiting that power.

http://www.huffingtonpost.com/nathan-newman/lincoln-and-the-founding_b_2277918.html

Natural born and the Harvard Law Review Forum

According to Lee, two legal theories of citizenship were popular at the time the Constitution was ratified: jus soli (Latin for "law of the land), which held that a child's citizenship flowed from the actual, physical place of his birth, and jus sanguinis ("law of the blood"), which held that parents passed their citizenship to their children. However, Lee argues, at the time the Constitution was ratified, jus sanguinis applied only to patrilineal descent.

"However odious it seems today, a child born of a woman whose citizenship was different from her husband's—much rarer then than today—could not be a 'natural born Citizen' of the mother's country. That idea wasn't even considered until 1844 in Victorian England."

Mary Brigid McManamon, a constitutional law professor at Widener University, made a similar argument in The Washington Post Tuesday. "In this election cycle, numerous pundits have declared that Cruz is eligible to be president," she writes. "They rely on a supposed consensus among legal experts. This notion appears to emanate largely from a recent comment in the Harvard Law Review Forum by former Solicitors General Neal Katyal and Paul Clement. In trying to put the question of who is a natural-born citizen to rest, however, the authors misunderstand, misapply and ignore the relevant law."

The law Katyal and Clement are ignoring, McManamon argues, is 18th-century English common law, which the Supreme Court has said is a necessary lens for understanding the founders' understanding of the Constitution—a fact that Katyal, Clement and McManamon agree on.

English common law was "unequivocal" on the subject, McManamon says: "Natural-born subjects had to be born in English territory." Katyal and Clement, rather than relying on common law, turn for their interpretation to a trio of 18th-century British statutes that were "a revolutionary departure" from the common law, McManamon argues.

http://www.newsweek.com/ted-cruz-canadian-citizen-415430

Zimmerman's provocation

http://www.talkleft.com/story/2012/5/16/12944/9520

The state seems poised to claim that Zimmerman's following of Trayvon, and his verbal demand Trayvon explain his presence in the neighborhood, based on his unfounded assumption Martin was a criminal, somehow provoked Martin into hitting Zimmerman and made him the aggressor.

For the reasons I explained in the above posts, the state is unlikely to prevail on such a theory. To be an aggressor, Zimmerman had to provoke the force used by Martin. Provoking a state of fear is not enough. Also, Zimmerman's provocation had to be contemporaneous with Martin's use of force against him. It can't be the result of something that happened earlier.

Profiling, following and pursuing someone is not provocation for a punch in the nose or banging someone's head into concrete.

If Zimmerman is not the aggressor, if he didn't provoke Martin's punch, he had no duty to retreat, and so long as his fear of serious bodily injury or death from Trayvon's punch and/or slamming his head onto cement was reasonable, his use of deadly force in response was justifiable. Zimmerman was not committing a crime by profiling or following Trayvon and Zimmerman had a right to be on the streets of his neighborhood.

Even if Zimmerman somehow was found to be the aggressor, all that does is trigger a duty to retreat, if possible (on Trayvon's part). If retreat isn't possible, and Zimmerman feared serious bodily injury or death from Trayvon's physical attack on him, Zimmerman can still use deadly force.