Akhil Reed Amar

Akhil Reed Amar:

The Explicit Written U. S. Constitution Has An Implicit Unwritten U. S. Constitution

See also Prof. Amar’s other books:

1787 Founders: The Preamble of the U. S. Constitution…2
2012 Akhil Reed Amar: America’s Unwritten Constitution (Chapter 1, page 5)…2

My comment about Akhil Reed Amar transcripts…2

Introduction to “On Topic” with President Ken Starr and Akhil Reed Amar [text + url]…3

“On Topic” with President Ken Starr and Akhil Reed Amar On YouTube [text + url]…3

My comment about “terse text” and “what Washington did”…4

My comment about “gift of birthright citizenship”, “dark side of democracy”, “ducking the question”…5

My comment about Prof. Amar’s “I ducked the question a little bit”…6

Here is an Amazon.com excerpt from “Unwritten Constitution” (chapter one, page 5) [text + url]…6

My comment about Prof. Amar’s understanding of ‘born’ and “read between the lines”…7

My comment about what I call Prof. Amar’s references to Explicit Posterity, Implicit Posterity…7

#1 My ‘hypothetical’: ‘Prof. Amar’ Promoting Living Originalism for Explicit Posterity…8
#2 My ‘hypothetical’: ‘Prof. Amar’ Promoting Living Constitutionism for Implicit Posterity…8
#1 Eligibility: Living Originalism = Explicit and Implicit Intent For ‘Posterity’…9
#2 Eligibility: Living Constitutionism = Only Implicit Intent for ‘Posterity’…9
The ‘ism suffix’ from American Heritage College Dictionary…13

My comment about Prof. Amar’s “prism ... general purposes ... had in mind”…13

On September 13, 2012 Prof. Amar spoke with Diane Rehm…14

My comment about Prof. Amar’s statement: “... this Constitution made ... citizen …”…15

Professor Amar: “… we’re all created born equal”…15

My comment: A quote by Justice Neil Gorsuch about “living constitutionalists”…16

The State of the Constitution: Is the Constitution Still Working for America…16
Professor Amar’s Three Rules For an Amendment that “fits our tradition”…16

My comment about Prof. Amar’s “…no discrimination on the grounds of sex ... implicitly ... giving”…17

Yale Law Professor. Amar Reed Amar’s Three Rules for Constitutional Amendments…19

My comment about Prof. Amar’s idea that “states ... test ... ideas”…20

Direct Election of the President…20
Foreign Born Presidential Eligibility…20
Homosexual Marriage ‘Implicitly’ in the Constitution…20

My comment about Prof. Amar’s “liberty and equality” reason to promote the “three principles”…21

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1787 Founders: The Preamble of the U. S. Constitution

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”.

2012 Akhil Reed Amar: “America’s Unwritten Constitution” (Chapter 1, page 5):

“For starters, we must learn to read between the lines—to discern America’s implicit constitution nestled behind the explicit clauses. In short, we must come to understand the difference between reading the Constitution literally and reading the document faithfully”.

“For starters, we must learn to read between the lines —
to discern America’s implicit constitution
nestled behind the explicit clauses.
In short, we must come to understand the difference between
reading the Constitution literally and
reading the document faithfully”.

[My comment about the Akhil Reed Amar transcripts]

Next are comments by Yale Law Professor Akhil Reed Amar from two YouTube videos from two different venues, Baylor University and the US National Archives. Although not his purpose, his conclusions are, in a sense, tacit stipulations to the primacy of originalism, original genesis and original intent, while also suggesting, as his answer to a question by a bright 9 year old girl shows, living constitutionism is the wave of the future that will require amending the Constitution to be in agreement with a changing society.

In the first video transcript excerpt below, Baylor University President Ken Starr asks Professor Amar why the language in Article II is “terse” as it relates to the creation of the presidency and the vesting of authority and executive power in the president. In his answer Prof. Amar says that President Washington is the reason for the “terse” language in Article II. His conclusion is that the people trusted Washington so the Constitution was ratified by the states, and, because of Washington’s reputation as a citizen and General of the army during the revolutionary war, the Constitution and the Union was not “toast”.

In the second video transcript excerpt, Baylor Provost Elizabeth Davis reads an audience question about the extent to which the phrase “we the people” applies to “undocumented residents” of many years in America. In his answer Prof. Amar concludes by saying that he is “ducking the question a little bit” after he explains (1) who the phrase “we the people” was referring to in the past at the founding of the Union when the Constitution was written, (2) how the phrase “we the people” has “grown over time” (it has “changed” and it is “broader”), (3) who the phrase “we the people” has referred to since the reconstruction amendments (specifically the 1868 Fourteenth Amendment; Prof. Amar applies “birthright citizenship” to himself because he was born on U. S. soil to ‘legal’ aliens who had not naturalized before he was born), and (4) who the phrase “we the people” might include in the future if [‘when’???] “we the people” choose to be more inclusive (‘more’???).

The Editorial Reviews about Prof. Amar’s book at Amazon.com praise the scholarship of Prof. Amar. The first chapter titled Reading Between the Lines: America’s Implicit Constitution on Amazon

→ http://www.amazon.com/Americas-Unwritten-Constitution-Precedents-Principles/dp/0465064906/ref=sr_1_1?s=books&ie=UTF8&qid=1434807403&sr=1-1&keywords=America%27s+Unwritten+Constitution ← [End of comment]

The quotes referenced below are from the Baylor University YouTube video published January 4, 2013.

On Topic with President Ken Starr and Akhil Reed Amar (© September 17, 2012 at Baylor University.

→ https://www.youtube.com/watch?v=pLsS5uFKbzM ←

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Introduction to “On Topic” with President Ken Starr and Akhil Reed Amar

→ https://www.coursera.org/course/auc

“Akhil Reed Amar is a renowned constitutional law and criminal procedure scholar, author and speaker. The U. S. Supreme Court has invoked his work in more than 20 cases and he has testified before Congress on a wide range of constitutional issues. Amar currently serves as the Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law at both Yale College and Yale Law School. America’s Unwritten Constitution is the name of a course offered by Prof. Akhil Reed Amar online by Yale University. It is an introduction to basic techniques of constitutional interpretation. About the Course: America’s Unwritten Constitution, (AUC) is the second of two new stand-alone courses, from Professor Akhil Amar. The first course is America’s Written Constitution, (AWC). These courses were offered together in January 2014 under the name Constitutional Law ….”

“On Topic” with President Ken Starr and Akhil Reed Amar On YouTube

→ https://www.youtube.com/watch?v=pLsS5uFKbzM [All emphases added here]

Pres. Ken Starr 00:51:54

One of the points that you make in the book is, much of the text of the Constitution is, and you use the term, terse. You read it, and it’s not particularly elaborate, at times it’s quite specific, but it’s not very elaborate. And one of the examples that you use of the lack of elaboration, the lack of specific detail, is Article II, the creation of the presidency and the vesting of the executive power in the president. Why is Article II so terse, as you see it?

Prof. Akhil Reed Amar 00:52:32

The presidency was a huge challenge ‘cause they wanted someone who would be less than a king and more than state governors. There’s a vast amount of difference between, more powerful than a governor, less powerful than a king. No model in history, actually, was very good. For a lot of stuff they could borrow from a state example, but none of the states had a strong enough governor and a king was too strong.

And here’s a second thing. Presidents do a whole bunch of stuff, and you can’t maybe itemize all the things. In a certain way, the nature of executive power is somewhat improvisational ‘cause stuff happens in the world. Good stuff and bad stuff, and only the president is there 24/7/365 to deal with all the bad stuff, Katrina and earth quakes and assaults on embassies. And the opportunity. Napoleon is willing to give up all of Louisiana, not just New Orleans, if we seize the day now.

The legislature goes in and out of session, the judiciary goes in and out of session, but the presidency revolves around one person 24/7/365, who often has to do what it takes. He does so many different things. He’s the lawmaker-in-chief. He’s the administrator-in-chief. He’s the prosecutor-in-chief. He’s the diplomat-in-chief. He’s the commander-in-chief. There are so many different things, you probably can’t specify them all. Some of what presidents do is whatever needs to be done that the other branches aren’t doing. And, there wasn’t a clear model you could say, just like the Massachusetts governorship.

And three, if they had been able to specify every thing, what matters more than the specification is, to them, was that George Washington would take the job, because if George Washington doesn’t take the job we’re toast. The entire constitution is basically adopted because people expect George Washington will be the first president. That’s why they trust the new central government, ‘cause he’ll run it, because they trust him. They trust him because he’s not going to try to make himself a king, because he had the only army on the continent during the American revolution and he gave it up.

Generals didn’t do that. Caesar makes himself a dictator, and Darius, Xerxes, Cromwell names himself Lord Protector. Napoleon, very soon after all this, will grab the crown from the Pope and put it on his own head.

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Generals had never given up power this way except the ancient Roman general Cincinnatus who went back to the plow. But Washington had his chance to be king and didn’t take it, he went back to his farm. And, he doesn’t want to make himself a king in part because who is he going to give the throne to? He doesn’t have any children of his own, and he says this. He becomes father of his own country because he’s not father of his own children, he has none. And so he says, you can trust me because I have no one to give this to. And they do trust him, and they would never have adopted the constitution if Washington hadn’t been there.

But then, you don’t want to be to textually specific because you want Washington to have a little bit of flexibility to make the system work. So, in effect, the text was terse, I say, because it was a delegation to Washington to work out the details. So, on issue after issue after issue, what matters for presidential power is not what the text says but what Washington did. And the same way that Christians ask ourselves what would Jesus do, presidents ask themselves what would George do, what did George do.

So, can presidents negotiate treaties without preclearance from the Senate? The Senate is going to have to agree to them, but can they negotiate without telling the Senate? Yes, because George Washington did.

Can presidents recognize new regimes? The Libyan rebels or the Syrian rebels, the People’s Republic of China? Yes, they can, because Washington recognized the French revolutionaries as the legitimate successors to King Louis who had been decapitated.

Can presidents fire cabinet officers at will? Yes. Not because the text says so, it’s not very clear at all on this, but because Washington asserted the power to do so, to get rid of Edmund Randolph, in whom he had lost confidence.

On issue, after issue, after issue, who defines American foreign policy and speaks for America in the foreign policy domain? The president, because George Washington issued a famous neutrality proclamation.

On issue, after issue, after issue, basically, our presidency is modeled after what George Washington did, at least as much as what the text says.

So, Washington’s model is a huge part of an unwritten constitution, I think, authorized by the people in 1787. They expected Washington to do just what he did. But, we read the terse text of Article II, the presidential text, through, and this is my language in the chapter, the spectacles of George Washington. We read them through a very particular lens.

[My comment about “terse text” and “what Washington did”]

The “terse text of Article II” in Section 1 clause 5 about eligibility to be president was adopted and ratified before President Washington “did” what Prof. Amar says the people expected Washington to do.

What was that? Well, in essence, all Prof. Amar says is that Washington did what was right for the people.

So, is Prof. Amar’s non-answer an example of “ducking” a question about eligibility to be president during Barack Obama’s presidency and if he, alleged to have been born on U. S. soil (Hawaii) to only one U. S. citizen parent, was or was NOT a “natural born Citizen” by birth alone and if he was or was NOT eligible to be president? Hmmm. That’s a good question, right? [End of comment]

[Next are excerpts of audience questions for Prof. Amar read by Elizabeth Davis, Executive Vice-President and Provost at Baylor University.]

Elizabeth Davis 01:00:00

To what extent does the phrase We the People apply to undocumented residents who have spent much of their lives in the United States?

Prof. Amar

The phrase We the People has grown over time. At the founding, there was largely, as a practical matter, we the men, and today women, may very well decide the course of the presidential election.

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Prof. Amar 01:01:44

We the People has changed when it comes to women, and it’s broader. We the People originally did not mean slaves. They were kind of aliens among us. Free blacks yes. Free blacks voted and some of them were at Bunker’s Hill, and were part of the We due process, the We the People do ordain and establish a constitution, and voted in many states. But slaves, no. So, and after Emancipation Proclamation, the people came to include former slaves.

01:03:27

So, America’s constitution two hundred years ago was about the Americans, and it wasn’t about other peoples. It wasn’t for the benefit of the British, we were about kicking them out. The Monroe Doctrine, absolutely right, it was central. So, here’s the Federalist Papers vision, originally. We will kick the Brits out, and we’ll kick the Spanish out, and we’ll kick the French out eventually, and we’ll kick the Indians out — Sam Huston, Andy Jackson, you know, sea to shining sea. We will be hegemons in our hemisphere, and that’s because the rest of the world is anti-democratic and we need to protect ourselves against them. So, that’s the founding vision for the benefit of Americans, it’s a national security document. But now, our world is different .... But now, we’re one world. We’re all God’s children. We have one world challenges and opportunities, the internet and supersonic transport, but also pandemic viruses and international terrorism. So, and the rest of the world is democratic in a way that it wasn’t before, so we’re going to need to rethink.

I don’t have the answer. I’m ducking the question a little bit because I want you to see why it’s a difficult question, because America’s constitution, originally We the People is us against them because they’re not democratic societies the way we are. But, increasingly. Now, if you ask me, I would say, folks who are here illegally are not at the core of We the People. It might make sense for Us the People to bring them into the system in a whole bunch of ways because they’ve been living here for a long time, as a matter of humanity and fairness and practicality.

01:05:32

All my cards on the table. I’m born in Ann Arbor, Michigan, and when I’m born, my parents aren’t U. S. citizens. Now, they weren’t here illegally, but they were just here as students. But this country gave me the great gift of birthright citizenship. On the day that I was born in Ann Arbor, Michigan, the Fourteenth Amendment made me a U. S. citizen just like everyone else born in that hospital, and they didn’t ask whether my parents were citizens or not, or here legally or not. I’ve been trying to repay that great gift that this country gave me ever since the day I was born. So, I actually believe very much in birthright citizenship for those who were born here. It is more complicated for people who are not here legally. It is [‘complicated’], and that’s because We the People, there’s a dark side of democracy. As good as democracy can be, what about minorities. That’s one issue, and what about other peoples? People outside the demos. They’re God’s children too. So, I’m ducking the question a little bit, because ultimately, We the People today, you all, we all are going to have to decide who else should be part of the process in the same way that Lincoln’s generation took people who were slaves and made them citizens.

[My comment about “gift of birthright citizenship”, “dark side of democracy”, “ducking the question”]

Prof. Amar: The “gift of birthright citizenship” ... “more complicated for people who are not here legally” … “I’m ducking the question a little bit”.

Huh, ‘ducking the question’? Really?

More complicated than what? The “gift” of “birthright citizenship” is ‘illegal’ for aliens who are ‘illegal’. Right?

More complicated than eliminating birthright citizenship, the silly idea of acquiring U. S. citizenship at birth on U. S. soil to two parents who are not U. S. citizens? The alien parents who have not naturalized before a child

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is born cannot vote or be elected to public office but the children can? Really? That is the logical reason why the 1898 United States v Wong Kim Ark ‘birthright citizenship’ fiat (‘because we said so’) ‘opinion’ must be repealed with an amendment by the bicameral federal Legislature, Congress, and ratified by the “several states”, or repealed with an amendment by the Legislatures of the “several states”, and ratified by the states.

More complicated than the Supreme Court revisiting and overturning the error of the 1898 United States v. Wong Kim Ark fiat (‘because we said so’) ‘opinion’ about the “... born or naturalized … are citizens...” language of the 1868 Fourteenth Amendment which is used by 2000s neobirthers (Democrats, Republicans, Independents, Libertarians, etc.) who promote the idiocy of ‘birthright citizenship’ to justify asserting (for eligibility to be president) that Senator Marco Rubio, Governor Nikki Haley, Governor Bobby Jindal, Senator Kamala Harris (and others) were automatic U. S. citizens because they were born on U. S. soil, even though both of their parents were not U. S. citizens?

Neither the Article I Congress by statute nor the Article III Supreme Court by fiat (‘because we said so’) opinion has constitutional authority to naturalize into eligibility to be president a citizen who is not a “natural born Citizen” only by birth alone on U. S. soil only to two U. S. citizens only married only to each other only before a child is born. Right?

Without intending to do so, Professor Amar is tacitly implying that the original genesis implicit meaning for eligibility to be president (only singular U. S. citizenship by birth alone) of the Article II word ‘born’ in “natural born Citizen”; a meaning which was accepted by two prominent founders and original genesis birthers, John Jay and George Washington; a meaning which was accepted by the 1787 constitution convention delegates who adopted the Constitution; a meaning which was accepted by the nine states which ratified the constitution in 1788; a meaning which was accepted by the 1868 U. S. Congress which adopted the language in the Fourteenth Amendment (“... born or naturalized ... are citizens ...”); a meaning which was ratified by the ‘several States’ in 1787 and 1868; a meaning of ‘born’ which Prof. Amar is implying resulted in producing a document that would maintain “... a dark side of democracy ...”. Really “a dark side”?

It looks like what Prof. Amar is calling dark democracy is really light identifying free citizens.

The ‘gift’ of ‘light’ of the We the People introduction of the preamble and the original genesis word ‘Posterity’, which was not intended to implicitly include a ‘gift’ to people of other nations to enter the country legally or illegally to receive what the Article III Supreme Court gave to Wong Kim Ark, a legal alien, in 1898, a ‘gift’ of U. S. citizenship given by their fiat (‘because we said so’) ‘opinion’. [End of comment]

Prof. Amar

And some of them were here illegally, you see. … So, it’s complicated. Our generation is going to have to decide how much broader We the People need to be today. We the People have gotten broader. But, I ducked the question a little bit, and I admit it. [snip]

[My comment about Prof. Amar’s “I ducked the question a little bit”]

Prof. Amar saying “I ducked the question…” leads me to ask if Prof. Amar knows what the original genesis implicit intent of ‘born’ in “natural born Citizen” meant to John Jay in 1787 when he wrote his short note to his friend George Washington?

Does Prof. Amar think that what Jay meant in 1787 has the same meaning today in the 2000s?

Does Prof. Amar think that he knows but he doesn’t want to talk about it because he is not really sure because the three word phrase was not defined in the text of the Constitution?

Does Prof. Amar really not know what the original genesis implicit meaning of the “terse” language is in Article II and he doesn’t want to talk about it so he “ducked” the question?

Prof. Amar’s book, America’s Unwritten Constitution: The Precedents and Principles We Live By, was published six days before this Baylor University conversation with Baylor President Ken Starr on September 17, 2012, 225 years after September 17, 1787, the day the Constitution was adopted. [End of comment]

Here is an Amazon.com excerpt from “Unwritten Constitution” (chapter one, page five).

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Prof. Amar

Clause-bound literalism cannot provide the infallible constitutional compass we crave. Yet surely faithful interpreters should not simply toss the written Constitution aside or treat it as an infinitely malleable play-thing. How, then, should we proceed? For starters, we must learn to read between the lines—to discern America’s implicit constitution nestled behind the explicit clauses. In short, we must come to understand the difference between reading the Constitution literally and reading the document faithfully. The best way for us to get a feel for this difference is through a series of detailed historical case studies and hypotheticals. ….

[My comment about Prof. Amar’s understanding of ‘born’ and “read between the lines”]

Prof. Amar answered an Article II question from President Starr about the vesting of executive power and authority on a president and touches various presidential authority issues, but he does not touch the eligibility issue because Starr never asked him about the original genesis implicit meaning of ‘born’ in “natural born Citizen”: “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...”.

After four years of national discussion (2008-2012) both Baylor President Starr and Yale law professor Amar totally ignore the hottest constitutional issue concerning the “terse” language of Article II during the 2012 presidential election cycle at the time of this conversation at Baylor University, about two months before ‘citizen’ Barack Hussein Obama was reelected with a dark and dingy and legally expensive eligibility cloud hovering over his head. From 2008 to 2012 around $3 million had already been spent on legal fees to get dubious court decisions favoring Mr. Obama’s eligibility assertions by his lawyers.

Both law ‘scholars’ ignore the “natural born Citizen” presidential eligibility language in Article II. Baylor President Starr does not ask and Professor Amar does not mention the issue or the original genesis implicit meaning of the ‘terse’ language which Prof. Amar tacitly suggests did not define the implicit meaning of ‘born’ and implicit intent of ‘Citizen’ in “natural born Citizen”.

This public discussion would have been an excellent opportunity for Mr. Starr and Mr. Amar to educate the audience that day about John Jay, the author of “natural born Citizen” in his July 25, 1787 note to his friend George Washington in which Jay underlined the word ‘born’, and to educate We the People in the audience about the original genesis meaning of ‘born’ in “natural born Citizen” as associated and clarified by the words ‘Union’ and ‘Posterity’ in the preamble, “We the People ... in Order to form a more perfect Union, … and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution ....”.

The words “more perfect” are words of anticipated future ‘light’ and suggest a ‘light side of democracy’ for U. S. ‘posterity’ citizens which is only possible by birth alone or by naturalization oath.

The words “more perfect” do not suggest a “dark side of democracy”, and do not suggest giving U. S. citizenship to legal or illegal aliens, an absurdity which the 1898 Supreme Court ended up doing with their erroneous fiat (‘because we said so’) ‘opinion’ which naturalized (an Article I activity) Wong Kim Ark. Naturalizing by Supreme Court fiat is a cancerous idea which is in metastatic growth phase in 2000s America.

A ‘living constitutionism’ fiat (‘because we said so’) opinion by the Article III Supreme Court which naturalized (an Article I activity) an alien is constitutionally unhealthy, a politically cancerous idea. Right?

A ‘living constitution’ opinion authorized by WE the People with the Article V amendment process is constitutional, healthy, and not politically cancerous. Right? [End of comment]

[My comment about what I call Prof. Amar’s references to Explicit Posterity, Implicit Posterity]

Using Prof. Amar’s “implicit constitution” method to clarify the original genesis explicit intent of the word ‘Posterity’ in the preamble and the word ‘born’ in Article II, and relating both words to presidential eligibility, we can look at the 1787 preamble words ‘Union’ and ‘Posterity’ and, with Amar “reading between the lines” vision 235 years after 1787, original genesis birthers with John Jay living originalism guidance can surmise, accurately, that the word ‘Posterity’ implies two things related to eligibility to be president: 1) The natural law (law of nature) physical act of congress which produces (‘creates’) children, and 2) the positive law (law of people) future constitutional Act of Congress immigration and naturalization statutes which will ‘create’ (produce with words) ‘citizen’ children who will be expected to derive their own U. S. citizenship for presidential eligibility by birth alone to two U. S. citizens married only to each other. The word ‘only’ means that a ‘union’

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of two people which would produce (‘create’) the ‘posterity’ by birth alone for presidential eligibility definitely did not imply in 1787 an act of congress which would increase the population of the new ‘Union’ by producing children born to persons who are not U. S. citizens, married or not married only to each other.

In my Prof. Amar’s hypothetical comment #1 below, ‘born’ in Article II means what delegates and ratifiers understood it to mean in 1787 for presidential eligibility, only singular U. S. citizenship was implied in clause 5 in 1787, not dual citizenship.

In my Prof. Amar’s hypothetical comment #2 below, Article II presidential eligibility means what 2000s neobirthers say it has implied since 1787, dual citizenship was implied in clause 5, and, that being so according to neobirthers, living originalism and only singular U. S. citizenship was not the only intent of clause 5.

Also, for eligibility to be president, neobirthers begin with the supposition that living constitutionism (the constitution means today what we need it to mean today) helps to clarify that dual citizenship was implied in the word ‘born’ in clause 5. Neobirthers assert dual citizenship although, since 1787, ‘born’ was not articulated as implying dual until 2008 when the need arose to articulate it that way because Illinois Senator Barack Hussein Obama was born with only one U. S. citizen parent.

#1 My ‘hypothetical’: ‘Prof. Amar’ Promoting Living Originalism for Explicit Posterity

The error of the 1898 Wong Kim Ark Supreme Court ‘citizen’ fiat [‘because we said so’) ‘opinion’ (naturalization by Article III Supreme Court ‘opinion’ – not ‘statute’) was in ignoring the living originalism of ‘Posterity’ in the preamble of the Constitution and of “… natural born Citizen, or a Citizen of...” in Article II, and using instead the 1868 Fourteenth Amendment “... born or naturalized ... are citizens ...” language in a living constitutionism way which made (naturalized by Article III ‘opinion’, not by Article I statute) persons like me [Prof. Amar] a birthright citizen simply by being born on U. S. soil even though both of my parents were not U. S. citizens and were still citizens of India in 1958 when I was born in Ann Arbor, Michigan,

#2 My ‘hypothetical’: ‘Prof. Amar’ Promoting Living Constitutionism for Implicit Posterity

The living originalism of the Article II “... natural born Citizen, or a Citizen of ...” words are relevant only for eligibility to be president. That’s why the 1898 Wong Kim Ark fiat ‘citizen’ opinion of the Supreme Court did not make an error by using the 1868 Fourteenth Amendment ‘citizen’ language in a living constitutionism way which made (i.e.,naturalized by Article III Supreme Court opinion, not Article I Congress statute) persons like me [Prof. Amar] a birthright citizen simply by being born on U. S. soil even though both of my parents were not U. S. citizens and were still citizens of India in 1958 when I was born in Michigan.

#1 – The ‘I’, ‘me’, and ‘my’ words in the #1 hypothetical comment are references to a hypothetical comment by Prof. Amar as if he were speaking to clarify to Baylor University President Ken Starr and the audience why only singular U. S. citizenship is the only living originalism intent of “natural born Citizen” in Article II for eligibility to be president, and rejecting the theory of living constitutionism as the wave of the future.

#2 – The ‘I’, ‘me’, and ‘my’ words in the #2 hypothetical comment are references to a hypothetical comment by Prof. Amar as if he were speaking to clarify to Baylor University President Ken Starr and the audience why only singular U. S. citizenship is not the only living originalism intent of “natural born Citizen” in Article II for eligibility to be president, and ‘born’ implicitly allows for living constitutionism (the constitution means today what we need it to mean today) as a way to find a living interpretation of the original text.

However, contrary to Prof. Amar’s implicit Constitution and so called ‘amending’ the Constitution with implicit living interpretation by Supreme Court fiat (‘because we said so’) ‘opinion’ if not with an Article V amendment, a Supreme Court ‘fiat opinion’ could allow for ‘born’ in Article II to be read as either singular or dual citizenship, a lawyer’s either/or weasel word method which would definitely not have been used by businessmen in 1787 to change the implicit or explicit intent and meaning of a 1787 business contract. Right? That common sense reason is why Prof. Amar’s implicit Constitution method (‘look at what we found just in

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time’, uh, yeah, whew, just in time, “nestled between the lines” of the Constitution) would not be used in a 2000s business contract. Right?

Depending on what Prof. Amar believes ‘Posterity’ meant in the preamble, and what he believes original genesis birther John Jay meant when he underlined the word ‘born’ in association with the word ‘Citizen’ in “natural born Citizen”, Prof. Amar could have used one of the two statements to educate the Baylor University audience about presidential eligibility. He could have asked the Baylor audience to choose with a loud voice vote which of the two comments they thought was ‘probably’ John Jay’s only original genesis reason for underlining the word ‘born’ in “natural born Citizen”.

What do you think? Which of the two Prof. Amar hypothetical ‘comments’ represents what John Jay definitely(?), probably(?), most likely(?), intended with ‘born’ and ‘Citizen’ in “natural born Citizen” for eligibility to be president?

#1) Did Jay intend only an implicit singular U. S. citizenship meaning of the two words, ‘born’ and ‘Citizen’?

#2) Did Jay intend also an implicit dual citizenship meaning of the two words for eligibility to be president?

Which do you think will protect presidential eligibility from parents to children, generation to generation, election to election, president to president?

Only Implicit “natural born Citizen” Living Originalism:

‘Posterity’ = Only Singular Citizenship for Eligibility to be President

Only Implicit “natural born Citizen” Living Constitutionism:

‘Posterity’ = Either Singular or Dual Citizenship for Eligibility to be President

#1 Eligibility: Living Originalism = Explicit and Implicit Intent For ‘Posterity’

Since 1787 the only ‘posterity’ eligible to be president are the children born with only singular U. S. citizenship because they are born on U. S. soil to two U. S. citizens married only to each other before a child is born, and it does not matter if one or both parents are born on U. S. soil or born on foreign soil and then naturalize before their children are born on U. S. soil.

For Article II presidential eligibility, the preamble words “... ourselves and our Posterity ...” refers only to children born on U. S. soil to only two born or naturalized, and, since 1787, only heterosexual U. S. citizens married only to each other. The ‘posterity’ who have been eligible to be president since 1787 have always been only U. S. citizens with singular U. S. citizenship by birth alone to U. S. citizens.

For eligibility to be president the 1787 word ‘posterity’ has always implied continuity of citizenship passed by birth alone from two U. S. citizens (‘ourselves’) to only their own children (‘our Posterity’). Since 1787 the word ‘posterity’ has always been applied only to children born to U. S. citizens, and has never implied birth on U. S. soil to alien parents who are not U. S. citizens. That makes perpetual, since 1787, ‘posterity’ common sense. Right?

#2 Eligibility: Living Constitutionism = Only Implicit Intent for ‘Posterity’

After reading the next ten ‘posterity’ assertions from the ‘living originalism’ perspective and either agreeing or not agreeing with them, read them again from the ‘living constitutionism’ perspective which asserts that the original genesis implicit intent of ‘born’ in “natural born Citizen” for eligibility to be president has included both singular or dual citizenship since 1787, and also that only singular U. S. citizenship was not the only original genesis implicit intent of "born’. Yep, not only ‘singular’ citizenship but either ‘singular or dual’.

1#a) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference only to children born on U. S. soil to two heterosexual U. S. citizens only married to each other. [ ] I agree [ ] I don’t agree

#1b) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference only to children born on U. S. soil to two heterosexual U. S. citizens only married to each other. [ ] I agree [ ] I don’t agree

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#1c) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on U. S. soil to two homosexual U. S. citizens only married to each other. [ ] I agree [ ] I don’t agree

#1d) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on U. S. soil to two homosexual U. S. citizens only married to each other. [ ] I agree [ ] I don’t agree

#2a) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on U. S. soil to heterosexual male U. S. citizens married to female aliens. [ ] I agree [ ] I don’t agree (Remember, naturalization by marriage was common law in the 1700s until the 1922 Cable Act which gave alien females who married a U. S. citizen male the right to naturalize by oath if they wanted to do so).

#2b) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on U. S. soil to heterosexual male U. S. citizens married to female aliens. [ ] I agree [ ] I don’t agree

#2c) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on U. S. soil to male homosexual U. S. citizens married to male aliens. [ ] I agree [ ] I don’t agree

#2d) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on U. S. soil to male homosexual U. S. citizens married to male aliens. [ ] I agree [ ] I don’t agree (Naturalization by homosexual marriage has never been common law, either before or after the 1922 Cable Act).

#3a) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on U. S. soil to heterosexual female aliens who naturalized as U. S. citizens by marriage to a heterosexual U. S. citizen male. [ ] I agree [ ] I don’t agree

#3b) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on U. S. soil to heterosexual female aliens who naturalized as U. S. citizens by marriage to a heterosexual U. S. citizen male. [ ] I agree [ ] I don’t agree

#3c) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on U. S. soil to heterosexual female aliens who married an alien male. [ ] I agree [ ] I don’t agree

#3d) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on U. S. soil to heterosexual female aliens who married an alien male. [ ] I agree [ ] I don’t agree

#4a) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was (‘could have been if not discovered’?) a reference to children born on U. S. soil to secretly homosexual female aliens who naturalized as U. S. citizens by marriage to a heterosexual U. S. citizen male. [ ] I agree [ ] I don’t agree

#4b) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not (‘could not have been’?) a reference to children born on U. S. soil to secretly homosexual female aliens who naturalized as U. S. citizens by marriage to a heterosexual U. S. citizen male. [ ] I agree [ ] I don’t agree

#4c) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on U. S. soil to an alien homosexual female who ‘married’ a U. S. citizen homosexual female. [ ] I agree [ ] I don’t agree

#4d) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on U. S. soil to an alien homosexual female who ‘married’ a U. S. citizen homosexual female. [ ] I agree [ ] I don’t agree

# 5a) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on U. S. soil to heterosexual female aliens who had not naturalized as U. S. citizens by marriage to a heterosexual U. S. citizen male. [ ] I agree [ ] I don’t agree

#5b) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on U. S. soil to heterosexual female aliens who had not naturalized as U. S. citizens by marriage to a heterosexual U. S. citizen male. [ ] I agree [ ] I don’t agree

#5c) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on U. S. soil to open or secret homosexual female aliens who had not naturalized as U. S. citizens by marriage to a heterosexual U. S. citizen male. [ ] I agree [ ] I don’t agree

#5d) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on U. S. soil to open or secret homosexual female aliens who had not naturalized as U. S. citizens by marriage to a heterosexual U. S. citizen male. [ ] I agree [ ] I don’t agree

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#6a) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on U. S. soil to two heterosexual U. S. citizens not married to each other. [ ] I agree [ ] I don’t agree

#6b) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on U. S. soil to two heterosexual U. S. citizens not married to each other. [ ] I agree [ ] I don’t agree

#6c) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on U. S. soil to two homosexual U. S. citizens not married to each other. [ ] I agree [ ] I don’t agree

#6d) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on U. S. soil to two homosexual U. S. citizens not married to each other. [ ] I agree [ ] I don’t agree

#7a) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on foreign soil to heterosexual U. S. citizens married to aliens. [ ] I agree [ ] I don’t agree

#7b) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on foreign soil to heterosexual U. S. citizens married to aliens. [ ] I agree [ ] I don’t agree

#7c) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on foreign soil to homosexual U. S. citizens married to aliens. [ ] I agree [ ] I don’t agree

#7d) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on foreign soil to homosexual U. S. citizens married to aliens. [ ] I agree [ ] I don’t agree

#8a) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on foreign soil to heterosexual U. S. citizens not married to aliens. [ ] I agree [ ] I don’t agree

#8b) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on foreign soil to heterosexual U. S. citizens not married to aliens. [ ] I agree [ ] I don’t agree

#8c) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was a reference to children born on foreign soil to homosexual U. S. citizens not married to aliens. [ ] I agree [ ] I don’t agree

#8d) In 1787 the preamble word ‘posterity’ (for eligibility to be president) was not a reference to children born on foreign soil to homosexual U. S. citizens not married to aliens. [ ] I agree [ ] I don’t agree

#9a) The 1787 preamble word ‘posterity’ (for eligibility to be president) was a reference to future Supreme Court ‘opinions’ such as the 1857 Dred Scott v. Sanford ‘slavery’ opinion, the 1898 United States v. Wong Kim Ark ‘citizen’ opinion, or amendments such as the 1868 Fourteenth Amendment “citizen” language. [ ] I agree [ ] I don’t agree

#9b) The 1787 preamble word ‘posterity’ (for eligibility to be president) was not a reference to future Supreme Court ‘opinions’ such as the 1857 Dred Scott v. Sanford ‘slavery’ opinion, the 1898 United States v. Wong Kim Ark “citizen” opinion, or amendments such as the 1868 Fourteenth Amendment “citizen” language. [ ] I agree [ ] I don’t agree

#10a) The 1787 preamble word ‘posterity’ (for eligibility to be president) was a reference to aliens arriving on U. S. soil who plop and drop their anchor babies with the expectation that alien babies would be automatically thought of as, ‘at birth’, having birthright citizenship and to be U. S. citizens who would eventually be eligible to vote in state and federal elections and also be eligible to be president at age 35. [ ] I agree [ ] I don’t agree

#10b) The 1787 preamble word ‘posterity’ (for eligibility to be president) was not a reference to aliens arriving on U. S. soil who plop and drop their anchor babies with the expectation that alien babies would be automatically thought of as, ‘at birth’, having birthright citizenship and to be U. S. citizens who would eventually be eligible to vote in state and federal elections and also be eligible to be president at age 35. [ ] I agree [ ] I don’t agree

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→ To living constitutionism neobirthers today in 2000s America ‘posterity’ (for eligibility to be president) is a reference to ‘citizens’ with singular or dual citizenship. [ ] I agree [ ] I don’t agree

→ To living constitutionism neobirthers today in 2000s America, ‘posterity’ (for eligibility to be president) is a reference to children born on U. S. soil or foreign soil to two U. S. citizens or one U. S. citizen and one alien citizen. [ ] I agree [ ] I don’t agree

→ To living constitutionism neobirthers today in 2000s America ‘posterity’ (for eligibility to be president) is a reference to children born on U. S. soil to married or unmarried U. S. citizens, or on foreign soil to U. S. citizens married or unmarried to alien citizens. [ ] I agree [ ] I don’t agree

→ To living constitutionism neobirthers today in 2000s America ‘posterity’ (for eligibility to be president) is a reference to children born on U. S. soil to alien citizens who have not naturalized as U. S. citizens by oath before their children are born. [ ] I agree [ ] I don’t agree

→ To living constitutionism neobirthers today in 2000s America the 1787 word ‘posterity’ was an implicit reference to Supreme Court ‘opinions’ such as the 1857 Dred Scott v. Sanford ‘slavery’ opinion, the 1898 United States v. Wong Kim Ark ‘citizen’ opinion, the 1868 Fourteenth Amendment ‘citizen’ language. [ ] I agree [ ] I don’t agree

→ To living constitutionism neobirthers today in 2000s America (for eligibility to be president) the word ‘posterity’, since the 1898 Supreme Court fiat (‘because we said so’) ‘opinion’, is also an implicit reference to aliens arriving on U. S. soil who plop and drop their anchor babies with the expectation that alien babies would be considered (a law of people word, not a law of nature word) to be U. S. citizens who would be eligible to be president at age 35. [ ] I agree [ ] I don’t agree

Answering any of the ‘posterity’ possibilities mentioned previously for presidential eligibility would have been a very easy slam-dunk for a Sterling Professor of Law and Political Science at Yale University who teaches constitutional law.

In conclusion, here are four questions which can only be answered by Mr. Starr and Mr. Amar.

1) Why do both President Starr and Professor Amar duck the issue of the presidential eligibility requirement in Article II in the first quote in the September 2012 Baylor University conversation, an excellent time that eligibility could have been discussed before BHObama’s second election in November 2012?

2) Why does Prof. Amar, in the second quote, duck the audience question read by Provost Elizabeth Davis about the phrase We the People and its application to ‘undocumented residents’?

3) If the audience had been asked to give a voice vote, which eligibility comment (only singular citizenship or dual citizenship) would the Baylor University audience have chosen as the original genesis implicit intent of John Jay’s “natural born Citizen” language in his July 25, 1787 note to George Washington in which he underlined the word ‘born’ in “natural born Citizen”?

4) Would the Baylor audience have chosen the explicit and implicit living originalism or the implicit living constitutionism? In 1787, which “ism” did John Jay most likely intend was the eligibility to be president meaning of the word ‘born’ in “natural born Citizen” in Article II?

Which ‘ism’ will be chosen if (when?) Prof. Amar gives the students in his classroom or the people in his audience a chance to express their common sense informed opinion about who is eligible to be president, a person with only singular U. S. citizenship or a person with dual citizenship?

#1 ‘ism’

1a) Singular citizenship?

1b) Birth on U. S. soil?

1c) Birth to two U. S. citizens married only to each other before a child is born?

#2 ‘ism’

2a) Dual citizenship?

2b) Birth on either U. S. soil or foreign soil?

2c) Birth on U. S. soil to one or zero U. S. citizen parents?

2d) Birth on foreign soil to two or one U. S. citizen parent?

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The ‘ism suffix’ from American Heritage College Dictionary

ism n. Informal A distinctive doctrine, system, or theory.

-ism suff. 1. Action; process; practice: terrorism. 2. Characteristic behavior or quality: heroism. 3a. State; condition; quality; pauperism. b. State or condition due to an excess of something specified: strychninism. 4. Distinctive or characteristic trait: Latinism. 5a. Doctrine; theory; system of principles: pacifism. b. An attitude of prejudice against a given group: racism.

In -ism suffix #1, ‘action’ and ‘practice’ = activity. The words are not references to ‘being’ male or female, designations which are not chosen, either in heaven before conception on earth (which is not biblical) or after physical conception and birth on earth. Both sex (what is practiced) and self-identity are references to ‘choice’, not to ‘being’.

The word sex refers to activity with either an animal or a human child or a human adult who is, by choice, either bi- (sex with both) or homo (sex with only same) or hetero (sex with only other).

The word self-identity (choice) refers to a non-binary (choice) transgender (choice) human being (nature). Whatever ‘non-binary’ means to a heterosexual or a homosexual, the term of art refers to a male or female who says that is who?, what? they are, and who also say that their chosen pronoun is ‘They’ because it best expresses their self at the moment, or for the day, or for whenever ‘They’ decides to change his or her, uh, I mean, change ‘They’ mind about which pronoun ‘They’ is at the moment they decide who ‘They’ is. The word ‘practice’ only has a reference to ‘choice’ to be active and to do something, not to ‘being’ something without choice such as becoming and being either a male or a female by birth alone. [End of comment]

Prof. Amar Chapter One Page 26

“… read through the prism of the general purposes that the American people had in mind when they framed and ratified the document”.

[My comment about Prof. Amar’s “prism ... general purposes ... had in mind”]

Here is an observation about what Prof. Amar says that We the People are to do.

Using Prof. Amar’s “... reading between the lines ...” method to understand the “general purposes” of the Constitution and relating the implicit general purposes to Article II and the word ‘born’ in “natural born Citizen” for eligibility to be president, my observation is that the word “implicit” in the title of Chapter One, “The Implicit Constitution ...” must be used in the sense of the Ninth and Tenth Amendments of the 1791 Bill of Rights, and, to further clarify this point, specifically the Ninth Amendment and the “enumeration ... retained” words: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”.

It is obvious that the rights “retained” includes the “implicit constitution” rights that are common law rights but which are not explicit in the text of the constitution. One example of common law which was not in the U. S. Constitution is the 1700s era common law which recognized naturalization by marriage of a female to a male who was a U. S. citizen. This was common law until the 1922 Cable Act which gave females the right to retain their original citizenship or to naturalize by oath. The text of the explicit constitution does not deny the implicit intent of ‘born’ in “natural born Citizen”. The explicit text of the constitution is the initial authority which informs implicit intent, so the explicit text absolutely must be construed in a way that maintains, for eligibility to be president, the 1787 common law which informed the positive law (law of people) which is inherent in both the 1787 explicit text of the constitution and the 1787 implicit intent of the constitution.

Relative to Article II and presidential eligibility, one of the implicit 1787 rights retained by the people for their posterity who will populate the Union is to definitively determine if the candidate for president is a “natural born Citizen” or not, and to expect that the 1787 original genesis implicit intent of “natural born Citizen” is retained by their posterity as John Jay identified them when he underlined the word ‘born’ in “natural born Citizen” in his note to George Washington: 1) only singular U. S. citizenship which is possible 2) only by birth alone 3) only on U. S. soil 4) only to two U. S. citizens 5) only married 6) only to each other 7) only before a child is born. It was expected by the 1787 framers of Article II that this original genesis implicit meaning was to

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be perpetual, retained by their posterity from parents to children, generation to generation, election to election, president to president.

And, if only singular U. S. citizenship which is only possible by birth alone on U. S. soil only to two married U. S. citizens was not the 1787 originalism, the original genesis implicit intent for presidential eligibility, well, what other originalism, what other original genesis implicit intent was there in 1787 to consider for Article II presidential eligibility only four years after the 1783 Treaty of Paris finalized the end of the war of independence from England, a foreign power?

In 1787 did ‘born’ in “natural born Citizen” mean no to only birth on U. S. soil but yes it is a-ok for presidential eligibility to be born on foreign soil (England, France, Canada, Mexico, etc.)? Really? No, right?

In 1787 did ‘born’ in “natural born Citizen” mean no to only birth to only two U. S. citizens married only to each other because only one U. S. citizen parent, married or not married, is a-ok for presidential eligibility for a child? Really? Obviously no, right?

In 1787 did ‘born’ in “natural born Citizen” mean no to birth to only two U. S. citizens married only to each other because a U. S. citizen male impregnating his U. S. citizen female or alien female unmarried ‘partner’ and who give birth on U. S. soil is a-ok for presidential eligibility for a child? Really? Obviously no, right?

In 1787 did ‘born’ in “natural born Citizen” mean no to birth to only two U. S. citizens married only to each other because an unmarried U. S. citizen female being impregnated by an alien male and giving birth on U. S. soil is a-ok for presidential eligibility for her child? Really? Obviously no, right?

So, even the words of Prof. Amar’s “implicit constitution” affirm that the explicit words “natural born” must be construed in a way that does not “deny or disparage” the implicit constitution and the original genesis implicit intent of the word ‘born’ in “natural born Citizen”. The explicit word ‘born’ must be construed with the same original genesis implicit intent of John Jay and George Washington and the constitution convention delegates. The original genesis implicit intent can not allow for “reading between the lines” or “grown over time”, or “changed”, or “broader” as Prof. Amar has said about the phrase “We the People” as applied to “undocumented residents” who are aliens in America.

The 1787 construction and application of the word ‘born’ only four years after the 1783 Treaty of Paris

was signed ending the war of independence with England means that ‘born’ must include the common sense implicit meaning of only singular U. S. citizenship which is only possible by birth alone on U. S. soil only to two U. S. citizens married only to each other before the child is born, and ‘born’ must include the common sense implicit conclusion that in 1787 John Jay, George Washington, and the delegates to the convention, and the ratifiers of the states, did not imply either birth on U. S. soil or birth on foreign soil (Canada or England, etc.), or birth on U. S. soil to only one U. S. citizen, married or not. Also, John Jay certainly did not imply nor would George Washington have concurred with the implication that Article II compliance for eligibility to be president allowed for being born to zero U. S. citizen parents as the 1898 U. S. v. Wong Kim Ark Court fiat (‘because we said so’) “opinion” has been construed by Democrat and Republican neobirthers. And certainly John Jay did not imply birth on foreign soil to either two or one U. S. citizen. That is obvious, right? [End of comment]

On September 13, 2012 Prof. Amar spoke with Diane Rehm (starting at 11:08:07)

→ https://dianerehm.org/shows/2012-09-13/akhil-reed-amar-americas-unwritten-constitution/transcript .

REHM: I’m so glad to see you again. You and I appeared on a panel together. I was moderating that panel for a very esteemed group here in Washington so it’s good to see you again. You write in your book that your fascination with the Constitution began the day you were born.

AMAR: That’s right. I was born in Ann Arbor, Mich. and at the time I was born, my parents were not United States citizens. Now it’s true they weren’t here illegally, they were here as students, as medical students at the University of Michigan. But on the day I was born, this country, this Constitution made me a citizen. The first sentence of the Fourteenth Amendment said, Akhil, you’re a citizen just like everyone else born in this hospital on this day, black or white, male or female, whether your parents are married or not, whether they’re citizens or not, you’re here, you’re an American. And I think I basically spent the rest of my life trying to repay that gift.

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[My comment about Prof. Amar’s statement: “... this Constitution made ... citizen ...”]

It was not the language of the 1787 Constitution which “made” anchor baby Amar a citizen, it was the language of the 1868 Fourteenth Amendment to the Constitution in Section 1 sentence one, “... born or naturalized ... are citizens ...”, which was misconstrued by the 1898 Supreme Court fiat (‘because we said so’) ‘opinion’ which ‘made’ Prof. Amar a ‘citizen’ of the United States ‘at birth’ (not ‘by birth’ alone). Both 1868 words, ‘born or naturalized’, imply only singular U. S. citizenship for a positive law (law of people) reason, but not eligibility to be president for a natural law (law of nature) reason – by birth alone. Since the authors of the 1868 Fourteenth Amendment associated ‘born’ with ‘naturalized’ in the same sentence, both words can only imply only singular U. S. citizenship for a U. S. ‘citizen’ but not “natural born Citizen” with eligibility to be president. The two words ‘naturalized’ and ‘citizen’ are law of people words, and ‘born’ is a law of nature word. If the amendment authors had intended for the word ‘born’ to imply only “natural born Citizen” with eligibility to be president they would have written that explicitly. They did not do that. If anything is implicit with the word ‘born’ in the Fourteenth Amendment in contrast to ‘born’ in Article II, it is being born a ‘citizen’ without eligibility to be president. Citizenship ‘at birth’ is implicit in the 1868 Fourteenth Amendment while citizenship by birth alone with eligibility to be president is implicit in Article II Section 1 clause 5.

The original Wikipedia page (https://en.wikipedia.org/wiki/Akhil_Reed_Amar) reports that Prof. Amar’s parents were citizens of India at his birth on U. S. soil. The foreign citizenship of his parents at his birth means that Prof. Amar is not an 1868 Fourteenth Amendment Section 1 sentence 1 “... born ...” citizen. The foreign citizenship of his parents means that Prof. Amar is an 1898 Supreme Court fiat (‘because we said so’) ‘opinion’ ‘citizen’ as identified in United States v. Wong Kim Ark. However, according to how the 1898 Court ‘opinion’ is interpreted by neobirthers today in the 2000s, the ‘birthright citizenship’ by fiat ('because we said so’) ‘opinion’ of the 1898 Supreme Court means that Prof. Amar is eligible to vote in state and federal election and eligible to be president of the republic / federation. (Wong Kim Ark was born on U. S. soil to legal alien Chinese parents who had not naturalized before he was born.)

The fiat (‘because we said so’) ‘opinion’ of the divided Court has been used since 1898 to identify children born on U. S. soil to parents who had not naturalized before the birth of a child. However, from the 2000s original genesis birther perspective concerning 1787 original genesis birther John Jay’s understanding of ‘born’ in “natural born Citizen” for eligibility to be president, if Prof. Amar had lived in America before the 1898 Supreme Court Wong Kim Ark ‘opinion’ and had aspired to be president of the United States he would not have been eligible because at birth he did not have only singular U. S. citizenship by birth alone on U. S.soil to two U. S. citizens married only to each other before a child is born. [End of comment]

Prof. Amar: “… we’re all created born equal”

REHM: Interesting, tell us about what you title the “Unwritten Constitution.” What do you mean by that?

AMAR: Well, in your intro, you actually, for example, mentioned the words rule of law and the Constitution is, of course, all about the rule of law, but one won’t find that phrase rule of law in the written document. One won’t find the words federalism, separation of powers, checks and balances, limited government. One won’t find the right of privacy in the document. You won’t even find a reference to the Bill of Rights, they are state constitutions that have a caption called the Bill of Rights, but the federal Constitution doesn’t. And yet all these things are obviously part of the Constitution. They’re in between the lines, so to speak. But that’s not the only thing that the “Unwritten Constitution” is about. Supreme Court cases interpreting the Constitution provide one way through which a lens – through which we read the text. There are important American traditions and customs that are part of our basic way of life and influence how we read the text. The Declaration of Independence, for example, it’s a central part of our tradition and it helps influence how we read. I talked about the day I was born so the sentence in the 14th Amendment says everyone born in the United States is a citizen of the United States. But you understand that in an even deeper way when you understand that everyone is born an equal citizen and that is a textualization of The Declaration of Independence that says we’re all created born equal.

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[My comment: A quote by Justice Neil Gorsuch about “living constitutionalists”]

This quote is by Justice Neil Gorsuch at the George W. Bush Presidential Center in his book interview.

“Why would it be different for a written constitution? Our framers knew what a living, unwritten constitution looked like. England had one. They rejected that. They said, we’re going to write some things down, and we’re going to write very few things. And, really, I think the living constitutionalists complaint is they [the 1787 writers of the constitution] didn’t write what they [the 2000s living constitutionists] wanted [would have liked for the framers] to write down. They [the 1787 framers] wrote down very few, but they’re all important things. Every one of them vital”. [End of comment]

The State of the Constitution: Is the Constitution Still Working for America?

→ https://www.youtube.com/watch?v=V3S1Vdeblvk

The State of the Constitution: Is the Constitution Still Working for America is the title of a panel discussion at the U. S. National Archives on September 17, 2014, the 227th anniversary of the adoption of the U. S. Constitution on September 17, 1787. The participants discussed exploring court cases and proposals to amend the Constitution. My impression after listening to the discussion was that if an amendment is not possible, well, inference works in the living constitution where nebulous implicit meaning can be found in the original text when a ‘new meaning’ is needed. The members of the panel discussion were Doug Smith from the Robert H. Smith Center for the Constitution, Robert Hurt, U. S. Representative from Virginia, Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale Law School, Ben Wittes from the Brookings Institution.

After watching the YouTube video about the 2012 Baylor University conversation between Kenneth Starr, President of Baylor University at the time of the conversation, and Yale Law Professor Akhil Reed Amar, I wondered why they did not talk about the “terse” language of the “natural born Citizen” eligibility requirement two months before dual citizenship President Obama was elected for his second term.

In this September 17, 2014 ‘State of the Constitution’ video discussion at the National Archives which includes Professor Amar, I think I have discovered at least one possible living constitutionism sentiment which may explain why Prof. Amar did not want to bring up the ‘terse’ language of “natural born Citizen” in Article II when he had the contextual opportunity even though Baylor President Starr did not ask him to clarify the original genesis implicit intent of the “terse” language of ‘born’ in “natural born Citizen” in clause 5. The possible reason is in Prof. Amar’s (1) “prescriptive and descriptive three rules” for amendments that Prof. Amar proposes in the 2014 National Archives panel discussion about the state of the U. S. Constitution and how it is still working for America, and (2) in the “regional and global systems of government” that the children of the United States will have to think about in the world government scenario he mentions because “problems and opportunities exist on a global scale”.

Professor Amar’s Three Rules For an Amendment that “fits our tradition”

Prof. Amar’s “three rules” are for an amendment “... that fits our tradition” concerning “marriage”, “foreign born”, “homosexual marriage ... implicitly”, and it seems that they are all found in the emanations which form the penumbras, a metaphor for rights implied in the written text of the Constitution but are rights which are not known about until they are needed by the Court to opine about a societal issue.

Rule 1: Amendments must add to liberty and equality

_Flag burning

_Campaign finance reform

_Marriage and tradition

Rule 2: Both political parties must agree

Rule 3: States test ideas first

_Direct election of the President

_Presidential eligibility of foreign born

_Homosexual marriage ‘implicit’ in the Constitution

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Prof. Amar’s comments in the discussion reveal politically progressive new thought living constitution socialism with a new meaning to “liberty and equality”. As a law scholar and political scientist, Prof. Amar’s ideas reflect a social transformation intent similar to Senator Obama’s which he expressed a few days before his inauguration on January 20, 2009, “we are five days away from fundamentally transforming the United States of America”. As Prof. Amar identified himself in the panel discussion to be a registered Democrat, an appropriate question for Prof. Amar is if he agrees with how the Democratic Party is constituted since the takeover by the democratic socialism activists? Would democratic communism be a better handle? Which does he prefer?

Although Professor Amar does not reference Article II and “natural born Citizen” in this panel discussion, his “liberty and equality” focus, along with his “three rules, prescriptive and descriptive … for constitutional amendments”, indicates that the Constitution’s heterosexual preamble word ‘posterity’, as related to the three heterosexual related presidential eligibility requirement words, “natural born Citizen”, will require the exclusivity of “natural born Citizen” as a reference to only singular U. S. citizenship which is possible only by birth alone on U. S. soil only to two U. S. citizens married only to each other to be excised from Article II by removing the written words “natural born Citizen” from the Constitution. The excision of “natural born Citizen” from Article II by amendment will be necessary if Prof. Amar’s “liberty and equality” proposal to amend the written Constitution to include homosexuality is accepted as good for a union of ‘posterity’, because the “implicit constitution” of Prof. Amar requires accepting the implication of natural law (law of nature) physical activity of homosexualism to be of equal societal benefit with the natural law (law of nature) physical activity of procreative heterosexualism and perpetual ‘posterity’ to maintain the ‘Union’. The “equal societal benefit” which will probably be promoted in the near future will be the idea that, to decrease the population of earth to protect the children of the future, “procreative heterosexualism” must decrease.

Professor Amar’s 2012 book (→ http://www.americasunwrittenconstitution.com) America’s Unwritten Constitution: The Precedents and Principles We Live By, and the first chapter, Reading Between the Lines: America’s Implicit Constitution, indicate that as a progressive, Yale Law Prof. Amar can allow anything to be “implicit” in the written Constitution if it promotes the agenda to “transform the United States of America” by transforming the Constitution into a “liberty and equality” constitution” in which can be found anything, including promoting the homosexual agenda which represents less than 2% of the population. See below an “implicit” constitutional new meaning where Prof. Amar articulates “... no discrimination on the grounds of sex. I think it would be nice to have that in our federal constitution. It’s [homosexual sex is] already there implicitly”. That statement is followed in his original sentence with “states are giving us gay marriage”.

[My comment about Prof. Amar’s “… no discrimination on the grounds of sex ... implicitly ... giving”]

It looks to me that the “states are giving us gay marriage” can only be a reference to the citizens getting something only from their own states because in 1787 the “federal constitution” did not imply only heterosexuality and imply also homosexuality, because if it did the states would not have ratified the new constitution. Right? Also, the preamble says “our Posterity”, a perpetual explicit reference to only heterosexuality in the “federal constitution”. Right? An explicit reference to only heterosexuality (e.g., a “natural born Citizen” who is eligible to be president ‘by birth alone’) can not also refer implicitly to homosexuality. Right? If Prof. Amar wants “no discrimination on the grounds of sex … it would be nice to have that in our federal constitution”, he needs to promote an Article V amendment (proposed by either the bicameral federal Congress or by the Legislatures of the ‘several States”) to put explicit language into the Constitution because homosexuality is not implicitly in the “federal constitution”. Right?

Huh? No ‘discrimination’? Does Prof. Amar really believe that the original framers of the 1787 Constitution were discriminating against homosexualism in 1787 by not ‘giving’ We the People and “our Posterity” something they did not know that they wanted, and not including the “nice idea” language in 1787 in the written text? Prof. Amar’s statement, “I think it would be nice ...” means that in 1787 only heterosexualism, only heterosexual sex, was – and still is in 2000s America – implicit in the entire Constitution and specifically in Article II for eligibility to be president, and Prof. Amar’s statement also means that in 1787 homosexual sex, for any societal reason, was not either implicit or explicit, and also was not “nestled between the lines” of the “implicit constitution”. In other words, nothing was emanating in 1787, either explicitly or implicitly, because

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the original birthers understood the exclusivity of what “our Posterity” implies, heterosexualism alone. The only natural law (law of nature) way possible to create a ‘citizen’ is by being born or naturalized, and, for eligibility to be president, a “natural born Citizen” is possible only by birth alone. Right?.

Prof. Amar’s intent is to amend the U. S. Constitution with three amendments so that each “fits our tradition” as he defines tradition, specifically the tradition and exclusivity of heterosexualism, the original genesis ‘ism’ which is the foundation of the generation to generation ‘idea’ about heterosexual marriage and natural law (law of nature) posterity since the 1787 framers wrote the words “... to form a more perfect Union ...” for themselves and their own “Posterity” as the Union became populated. Concerning eligibility to be president, our purpose here in this tabletalk conversation, if Prof. Amar’s three amendments are adopted at least one amendment will be required for the excision of the law of nature related words ‘born’ in “natural born Citizen” from Article II to accommodate the inclusion of homosexualism, a law of people word, and the elevation of homosexualism and marriage to an equal status with heterosexualism and marriage and the law of nature reproduction of ‘posterity’ which is possible only with the creative activity of two heterosexuals. The ‘idea’ being promoted is that 1) homosexualism is a long term societal good, ‘generation’ to ‘generation’, and 2) it is an ‘idea’ whose time has come to fruition for it to be accepted as a long term societal good thing. A societal good even though it is a positive law (law of people) ‘idea’ which does not have it’s foundation in natural law (law of nature). Homosexualism thrives by recruiting, a positive law (law of people) word, not by birth alone, a natural law (law of nature) necessity for eligibility to be president.

Neither natural law bisexualism (only the sex activity, not the ‘bi-’ part which is an obvious reference to either / or = choice) nor natural law homosexualism (only the sex activity which is the result of choice), nor natural law heterosexualism (only the sex activity which is the result of choice). None of the three isms require a positive law (law of people) to be chosen to be actively practiced. The isms result from choice, not being; from law of people choice, not from law of nature being.

The ‘being’ parts of the three words, bi/two, hetero/other, homo/same, also do not require a positive law (law of people) to be recognized as a reference to ‘being’, to what ‘is’ – two or other or same, not to being a human male or a human female.

Sexuality refers to activity, to ‘doing’, not ‘being’ (sexual = choice, and so does abstinence).

Bisexualism refers to activity, ‘doing’, not ‘being’ male or female (bi- = two / choice).

Homosexualism refers to activity, ‘doing’, not ‘being’ male or female (homo = same/choice of same).

Heterosexualism refers to activity, doing, not being male or female (hetero = other/choice of other).

Both male and female refer to being, not doing, and refer to what ‘is’ by nature, not activity by choice.

Who or what is a ‘bi’? What either male or female can ‘do’.

Who or what is a ‘hetero’? What either male or female can ‘do’.

Who or what is a ‘homo’? What either male or female can ‘do’.

The three prefix words ‘bi’, ‘hetero’, ‘homo’ (‘bi = two’, ‘hetero = other’, ‘homo = same’) refer to ‘what’ (not who “is”, but “is” what) a human person ‘is’, a reference only to ‘being’ by ‘choice’, not a reference to ‘doing’. As bi-sexualism refers to ‘being’, ‘being the activity’ (choosing to be ‘bi-’ and choosing to ‘be’ what you ‘do’), not being something separate from the ‘activity’, so also hetero-sexualism and homo-sexualism refer to ‘being’, ‘being the activity’ (choosing to ‘be’ ‘homo-’ or to ‘be’ ‘hetero-’, choosing to ‘be’ what you ‘do’), not being something separate from the ‘activity’. The word ‘sexuality’ refers to ‘activity’, not ‘being’. If Prof. Amar’s “liberty and equality” amendments are ratified they will transform the original genesis implicit meaning of ‘born’ in “natural born Citizen” in Article II and the preamble word “posterity”.

My observation of the original genesis and implicit intent of the word “posterity” in the preamble of the Constitution is that, for presidential eligibility purposes, as the Union grew from generation to generation, the original genesis explicit meaning of the natural law (law of nature) word “posterity” in 1787 was only a reference to a U. S. “natural born Citizen” child born with 1) only singular U. S. citizenship which is possible 2) only by birth alone 3) only on U. S. soil 4) only to two U. S. citizens 5) only married 6) only to each other 7) only before a child is born. Remember, this is for Article II eligibility to be president as a “natural born Citizen”, not simply a Fourteenth Amendment ‘born’ a citizen or ‘naturalized’ a citizen.

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For children born on U. S. soil to a U. S. citizen male who was not married to the U. S. citizen female or to the alien citizen female, a child was considered to be a positive law (law of people) U. S. ‘citizen’ but not a natural law (law of nature) “natural born Citizen” and so not eligible to be president since only one parent was a U. S. citizen. If the maternity of the child was of a U. S. citizen female and the paternity was known to be of an alien male, the child was considered to be a positive law alien and so not eligible to be president since both parents were considered by the common law and the unity and continuity of citizenship of that era to be aliens with foreign citizenship. If the female was a U. S. citizen and the citizenship status of the unknown male was not known, a child was considered to be a positive law U. S. citizen who was not eligible to be president since only one parent was known to be a U. S. citizen. [End of comment]

Next are a few of Professor Amar’s comments from The State of the Constitution: Is the Constitution Still Working for America panel discussion.

Prof. Amar 00:59:47

“Two hundred and twenty-seven years ago the framers created an audacious continental democracy, the likes of which had never been seen in world history. Democracy had existed only in tiny, little city-states. What was basically being proposed was nothing less than world government for a new world, for a continent separated by vast oceanic moats from the ... old world. If we take seriously, that, if we project things forward, you have to think, our children have to think, about regional and global systems of government. Because, actually, problems and opportunities exist on a global scale, whether we’re talking about pandemic viruses, or international terrorism, or nuclear proliferation, or climate change. And, thinking about these regional, intercontinental, even global systems of constitutionism. Remember I told you, we were the only democratic project going 227 years ago. Now half the planet is democratic on an American model. So, that’s what the next fifty years, that will be a serious conversation.”

Yale Law Professor Akhil Reed Amar’s Three Rules for Constitutional Amendments

Rule 1: Amendments must add to Liberty and Equality

“Domestically, here are the three rules, prescriptive and descriptive, that I put forth for constitutional amendments. They should add to liberty and equality, not detract from them. All the amendments thus far, except for prohibition, have done that. Prohibition was not a great success.”

→ Flag Burning

“So, flag burning amendments that make it a criminal thing, restricting first amendment freedoms, not a great idea.”

→ Campaign Finance Reform

“I don’t think, actually, restricting the first amendment in the name of “campaign finance reforms” [his finger “ ” air quote] is such a great idea either. So, amendments should add to liberty and equality.”

→ Marriage and Tradition

“One man, one woman, marriage, that restricts liberty and equality. I don’t think that’s such a great idea. I don’t think, actually, that fits our tradition. Amendments should add to liberty and equality, not take away. That’s what we’ve done thus far.”

Rule 2: Both Political Parties Must Agree

“Amendments are going to have to be supported by both parties, because you can’t get two-thirds of the House, two-thirds of the Senate, three-fourths of the states unless both parties are on board.”

Rule 3: States Test Ideas First

“States are going to have to road test all these ideas first. Every single thing in the Constitution, virtually, states did first.”

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“States had written constitutions first.

“Massachusetts put the Constitution to a vote first.

“States had three branches of government.

“States had bicameral legislatures; single member districts.

“States had bills of rights.

“States got rid of slavery first.

“States let women vote first.

“States let blacks vote first.

“So, states are going to road test the ideas. It’s a Brandeisian model. What would pass these descriptive and prescriptive tests?”

[My comment about Prof. Amar’s idea that “states ... test ... ideas”]

Notice that one idea which the states did not test in the 1700s, the 1800s, the 1900s, is what is implied in Prof. Amar’s Marriage and Tradition section referenced above. They did not “test” the alien idea that homosexualism is a societal good thing, and, specifically for the original genesis implicit intent of ‘born’ in “natural born Citizen” in Article II for eligibility to be president, they did not “test” the natural law (law of nature) common sense idea that the activity of homosexualism can not produce a ‘born’ child which can be eligible to be president. The idea that homosexualism is an idea which is a societal ‘good’, and the fact that the idea has never been ‘tested’ by the states, is significant because the idea relates to and negatively impacts Prof. Amar’s presupposition about “liberty and equality”. Right? Yes. [End of comment]

Prof. Amar

Direct Election of the President

“Well, we could imagine direct election of the presidency, ‘cause that’s actually an equality idea. All the states have little mini-presidents; we call them governors. In none of the states do we have a little electoral college; it’s one person, one vote. I could imagine both parties supporting this because, actually, the Republicans will increasingly come to understand that the Electoral College disfavors them going forward. And the Democrats like one person, one vote. They like the equality idea. So, that could happen.”

Foreign Born Presidential Eligibility

“People who were not born under the flag can be governors in the states; Arnold Schwarzenegger, Jennifer Granholm. I could imagine Republicans getting on board with their version of the Dream Act, ‘cause you come here, we want a fence, we want a big fence, we want an electrified fence. Did we say we want a big fence? OK, fine, but, now what else do you have to offer? They’re going to say, you come here and you play by the rules; you come here legally, you contribute for thirty years, you should [What, ‘should’???] be eligible to be president. Orin Hatch proposed that ten years ago. He still believes in it, I think, he just can’t say it yet, but eventually he will be able to say it because it will be in the Republican Party’s interest to have an alternative for that.”

Homosexual Marriage ‘Implicitly’ in the Constitution

“States have formal ERA’s, no discrimination on the grounds of sex. I think it would be nice to have that in our federal constitution. It’s already there implicitly, but, let’s say it again, this time with feeling. States are giving us gay marriage, and, sometimes in state constitutions, and I could imagine, actually, that being something because both parties eventually are going to find it in their interests to do it. It adds to liberty and equality. States are doing these things. These are the three principles, and those are both descriptive and prescriptive principles.”

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[My comment about Prof. Amar’s “liberty and equality” reason to promote the “three principles”]

What is the purpose, the implicit intent of the three ‘principles’? 1) ‘Direct Election of the President’, 2) ‘Foreign Born Presidential Eligibility’, 3) ‘Homosexual Marriage ‘Implicitly’ in the Constitution’. Huh, ‘implicitly’ in the Constitution? Really? Did anybody tell the 1787 framers of the explicit text of the Constitution that what they were proposing was deficient and not inclusive of homosexualism? They didn’t? Really? Why? Well, think about it. The answer to why is clarifying and illuminating about “Posterity” in the preamble and original genesis and implicit intent about, for example, eligibility to be president. Right? Do you see it now? [End of comment]

Two Audience Questions

The first audience question was from Ellie, a nine year old girl, who asked about the possible rewriting of the U. S. Constitution.

Ellie Pugh 01:04:25

“I’m Ellie Pugh, and, do you think that the Constitution will ever be completely rewritten, and how far in the future do you think it will happen?”

Prof. Amar

“Can I say something to Ellie? I met you, Ellie, at the reception, and you told me you’re nine and a half years old? Is that right? I think I came, for the very first time, before adulthood, to this building when I was nine and a half years old, and it changed my life; in this building, the National Archives.

“Ellie, you should have your parents give you a dollar bill. They should, I’ve met them. On the back, you see, there’s this pyramid, and it’s unfinished. I think that America’s constitutional project will keep going. When it says it’s a more perfect union, but I don’t think we’ll ever get there, we’re always building. I don’t know if we’re going to rewrite the whole thing. It’s interesting, we’ve added amendments to the end.

“James Madison called it a careless written letter; so many postscripts, post posts, pps’s. They didn’t rewrite the thing. Most state constitutions, actually, when there’s a new amendment, they kind of word process the thing. They rewrite the main text, but here, we just say, oh, another thing, and another thing, and we just kind of add them.

“So, I’m not sure we’re going to rewrite it. We haven’t done that since Philadelphia 227 years ago, but we’re going to add a bunch of amendments and the pyramid will keep growing and growing and growing, but I don’t think we’ll ever get there. I don’t think we’ll ever be perfect, but, I do think that your generation is going to have a lot to say. You have to figure out what you want to put on top, you know, as the next layer of that pyramid. Do you know, can you tell us what the preamble to the Constitution says?”

Ellie Pugh

“It says, We the People of the United States of America, um.”

Prof. Amar

“That’s a very good start. That’s like half of the Constitution, right there [much applause]. We the People of the United States, dot dot dot, we do ordain and establish the Constitution, and that’s what began 227 years ago, but here’s one little piece of it that was written, actually, just for you. It’s to secure the blessings of liberty to ourselves and our posterity. They were thinking about later generations. They thought about you, and you have obligations to them to try to make the Constitution even better for your children still unborn, and that’s actually the challenge of your generation.

“That’s what I believe.”

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Akhil Reed Amar

Thursday, November 7, 2024

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