Time to Put Differences of Principle Aside and Unite Behind Donald Trump

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After doing some reflecting, I’ve come to the conclusion I have been wrong about Donald Trump. Yes, he’s a loud mouth and he insults people but maybe that’s what we need in a POTUS. And even though he’s against everything conservatives claim to stand for (i.e. property rights, free trade, limited government, free market healthcare etc.) maybe it’s time conservatives changed to suit him.

None of these things are important anymore. He’s taking a hard line against the M&Ms (Mexicans & Muslims) and all freedom loving American need to be united against Hillary Clinton in the fall.

And what if Trump doesn’t have the 1,237 delegates by the time the convention comes around? Let’s forget about the whole idea of requiring a majority to win the nomination, a plurality is good enough. Yeah, yeah, I know I’ve pointed out that this is against the rules that have been established since the very beginning of the GOP but screw tradition! We need a leader like Trump to “Make America Great Again” nobody’s got time for these antiquated rules!

Let all Conservatives and Libertarians join hands and back Trump no matter what our differences on principle. This whole time I’ve been saying #NeverTrump but my priorities were all wrong: #NeverHillary.

Oh, yeah one more thing…

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Quote of the Day: 10th Anniversary of the Duke Lacrosse Case Edition

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“This entire experience has opened my eyes to a tragic world of injustice I never knew existed. If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they’d do to people who do not have the resources to defend themselves.”

Reade Seligmann, one of three Duke Lacrosse players falsely accused of raping Crystal Mangum commenting on the state of the so-called criminal justice system in the U.S

Hat Tip: Fantastic Lies: 10 Appalling Moments From The Duke Lacrosse Case by Mary K. Ham at The Federalist

Related:
The Scales of Justice Need Rebalancing
25 More Reasons for Criminal Justice Reform
Arrest this Woman!
Crystal Mangum Strikes Again
Duke Accuser Crystal Mangum Charged with Stabbing Boyfriend

A Lesser of Evils: Why Ted Cruz Cannot Be My Anti-Trump

Senator Ted Cruz

I’ve never been a lesser-of-evils sort of voter. It’s too cynical and depressing an approach to life. Anyway I rarely think one of the major party candidates is “better” in some meaningful sense than the other.

This election is different. I cannot shake a nagging unease that one candidate must be avoided, perhaps with a vote for any marginally lesser evil capable of stopping him, however distasteful.

That candidate is Ted Cruz.

I’m not joking. There’s no punch line coming. I don’t think Ted Cruz believes in fundamental, unenumerated rights, constitutionally protected from political majorities at the state and local levels.

Probably many or even most of the other candidates share this shortcoming. What sets Cruz apart is his more sophisticated ability to appoint Supreme Court justices who share his views, as he has vowed to do.

Under that specter, liberty-leaning voters should ask for clarity and reassurance from the Cruz campaign on the following issues before casting a vote in his support.

Does Ted Cruz Want to Limit the Power of Judicial Review? In 1803, the Supreme Court decided Marbury v. Madison. Since that time, the Court has exercised three powers:

  1. It can refuse to enforce acts of the other branches if five or more of its nine justices believe such act was in excess of constitutional powers.
  2. It can enforce acts of the other branches of government, if five or more of the justices believe such act was constitutional.
  3. It can require otherwise constitutional acts of the other branches to be exercised in accordance with the Equal Protection Clause.

That’s it. Under the first, the Court delineates areas of individual liberty into which no political majority may intrude. Under the second and third, it enforces the acts of other branches of government. Under none of the three does the Court “make law.”

Liberty voters should therefore ask what Ted Cruz is gunning for when he says things like:

I don’t think we should entrust governing our society to 5 unelected lawyers in Washington. Why would ya possibly hand over the rights of 320 million Americans to 5 lawyers in Washington to say, “We’re gonna decide the rules that govern ya?” If ya wanna win an issue, go to the ballot box and win at the ballot box. That’s the way the Constitution was designed.

I think we can rule out number two; he’s not complaining about acts of the political branches. His rhetoric, to the contrary, suggests that he wants political majorities unfettered by such inconveniences as meddling Supreme Court justices.

He could be taking aim at number three, in which case it is not the laws he dislikes, but the doctrine of Equal Protection. Either way, the Court is not responsible for having enacted the laws that are subject to that doctrine. The political branches are.

It sure sounds like it is the first option Cruz is targeting. He does not like the Court delineating areas of individual liberty beyond the reach of political majorities.

That is a deeply authoritarian approach to government. Unless and until Cruz repudiates it convincingly, he cannot be my “not-Trump.”

Does Ted Cruz Believe in Unenumerated Rights and Substantive Due Process? Under the view of many libertarians, the Constitution enumerates the powers of government, but not the rights of individuals. The former are few, narrow and circumscribed. The latter are many, broad and transcendent.

This is the view held by Rand Paul and other libertarian constitutionalists from organizations like Reason Magazine, the Cato Institute, the Foundation for Economic Education, and the Institute for Justice.

It is also my view.

One textual source for this approach is the Fourteenth Amendment to the Constitution, which prohibits political majorities at the state and local levels from depriving individuals of the privileges and immunities of citizenship, of equal protection of laws, or of liberty without due process.

The “liberty” thusly protected has been interpreted to include economic endeavors as well as other peaceful activities integral to enjoyment of life and the pursuit of happiness. The concept that such freedoms are Constitutionally protected, even though not expressly mentioned, is sometimes referred to as the doctrine of “substantive due process.”

There are competing schools of thought. One is that only individual rights expressly enumerated in the Constitution are beyond the reach of political majorities. Under this view, the Fourteenth Amendment was adopted to prohibit racial discrimination, not to proscribe state infringement of unenumerated rights.

That is the view expressed by Ted Cruz at a hearing he conducted before the Senate Judiciary Committee exploring ways to “rein in” the Supreme Court. Cruz’s comments at the hearing suggest, on deeply personal issues from marriage to economic rights, he prefers “the Supreme Court defer to state legislative decisions rather than uphold individual rights.”

This is as unlibertarian a position as a candidate could hold. Saving the GOP from a Trump loss to Hillary Clinton is not a reason to support a nominee committed to undermining individual liberty in favor of majority rule.

Is Cruz Committed to Individual Rights? Or States Rights? Ted Cruz’s passion is not the fundamental liberty of individuals, arguably enshrined in the Fourteenth Amendment. It is, rather, the power of state legislatures found in the Tenth.

He’s “a Tenth Amendment guy,” according to his wife. Indeed he once headed the Texas Public Policy Foundation’s Center for Tenth Amendment Studies. When Ted Cruz talks about limited government, he is talking about limiting federal government. His concern is federal versus state, not individual versus collective.

Then too, even on that more beloved Constitutional provision, Cruz is willing to stray if it means more power for the right kind of majorities. He was in favor of the federal government defining marriage before he was against it. He likes states’ rights when they ban same-sex marriage, but not as much when they decriminalize marijuana.

He might be a federalist, for those who don’t mind states’ rights served squishy. But he’s no libertarian.

How Far Will Ted Cruz Go to Bend the Judiciary to His Interpretation of the Constitution? Despite the “sour fruit” of John Roberts’ decisions in NFIB v. Sebelius and King v. Burwell, conservatives continue their misguided pursuit of a “deferential” judiciary. In their statist hearts, they would rather accept the big government of Obamacare than lose the power to regulate social order.

If NFIB v. Sebelius is the price of winning the next Obergefell v. Hodges, it is one they will pay.

This is not a trade-off liberty lovers should make.

Yet Ted Cruz wants to subject the Supreme Court to term limits and retention elections. As the Institute for Justice’s Evan Bernick wrote in the wake of Cruz’s SCOTUS hearing:

…[I]t is Cruz who strayed from the text and history of the Constitution, both in his histrionic criticism of Obergefell and his suggestion that the cure for America’s constitutional ills is an even more inert judiciary.

Cruz’s most fundamental error lay in the premise of the hearing itself: The most pressing threat to constitutionally limited government today is not “judicial activism” but reflexive judicial deference to the political branches.

We can have a judiciary that reflexively defers to the political branches or we can have constitutionally limited government — but we cannot have both.

Liberty voters must consider whether they want Supreme Court appointees to facilitate the powers of political majorities or to protect individual rights from the overreach of such exercise. Ted Cruz appears to be on the wrong side of that choice.

Until he convinces me otherwise, that puts him on the wrong side of mine.

Lessons From POTUS 2016: Around the Bonfire of the GOP

Trump mocking reporter

I hate POTUS 2016.

I hate all the candidates who aren’t libertarians.

I hate the voters continuing to lend their support to the authoritarian politics of the two major parties.

Most of all, I hate the endless raving about a possible Trump candidacy.

Trump Isn’t the Problem. His Supporters Are. An ocean of words has been written about Donald Trump’s detestable politics and undiagnosed personality disorders. Every one of those words is true. He is a sleazy multi-level marketer with a cheap spray tan and a bad comb-over; a low functioning bully with the attention span of a second-grader, whose first policy instinct will always be authoritarianism and who lacks even the most basic conceptions of constitutional governance, separation of powers and individual freedom.

If nominated, he will, without one shred of doubt, lose the general election to Hillary Clinton.

Nonetheless, anyone who thinks the GOP establishment can do much to stop this slow motion train wreck misunderstands the nature of government.

Government is not the party elite, big money donors, or the politicians in Washington. Government is us. We the people. The voters (and non-voters) who put and keep those politicians in office. Ourselves, our neighbors, our friends, family and co-workers.

The establishment cannot fight Trump because he is not the target. His supporters are.

How has endlessly pointing out how racist, xenophobic and stupid they are worked thus far?

Squeezing out other candidates won’t force any voters to shift their support to an establishment pick. As Trump himself discerns, with his trademark narcissistic clarity (but his detractors somehow miss), those supporters might just as well shift to Trump. And squeezing him out won’t force any of them to turn out for some other, better, more respectable, nominee in the general.

Therein lies the rub.

Trump’s candidacy reveals something ugly and festering on the American right, something with the potential to do nuclear-level damage to the GOP’s credibility with everyone from moderates, independents and swing voters to Christians and mainstream Republicans.

On the other hand, if the party squeezes him out—whether through an onslaught of establishment attacks or a brokered convention—it risks alienating his pissed off contingency of Republican voters.

At a time when voters are fleeing the major parties in droves, the GOP is between a rock and a hard place. A Trump candidacy might be fatal, but so might the loss of his fans. To move forward without them, the party would need to replace its Trump-wing with a new supply of liberty voters.

There’s a lesson in the numbers, for a party willing to make hard choices, and it’s not the only one of the 2016 cycle.

Identity Politics Has Failed, and Pandering Is an Antiquated Campaign Strategy. Women are not breaking for Clinton. Evangelicals are not breaking for Cruz. Hispanics are not breaking for Cruz/Rubio.

It turns out those demographics, like all the others, are not stereotypic representatives of monolithic groups, but individuals with political concerns that transcend gender, heritage and religion. Candidates who ignore this modern reality will continue to be confused about why Evangelicals and Hispanics are voting for Trump—and continue suffering backlashes for their insulting rhetorical devices (like the importance of beginning each day on one’s knees or special places in hell for free-thinking women).

Money Does Not Buy Elections. There’s some evidence money buys politicians and pundits. But Trump’s candidacy annihilates the myth that an entrenched two-party system, dripping in advertising wealth, subliminally messages clueless voters into supporting the status quo.

Neither establishment donors nor the politicians themselves are in control this election cycle. Jeb Bush, Chris Christie and their respective Super PACs paid through the nose to perform poorly in the early voting states. Trump, on the other hand, without the support of any Super PAC, is paying minimally to outperform expectations.

That Trump is a phenomenon unto himself might explain why it costs him so little to win. It does not explain why Bush and Christie have paid so dearly to lose.

What does explain it is that rebellious primary voters are not beholden to any amount of campaign advertising, political spending, establishment credibility or ideological purity.

The GOP Might Not Survive the Trump Campaign, But the Country Undoubtedly Will. Trump is a monarchist who wants to use the office of President to crown himself king and savior, while cutting through the red tape for his next casino parking lot. Unfortunately, all too many people—including plenty of Republicans—are ready to go along with the cult of an imperial presidency.

Notwithstanding that problematic trend, we still have Congress, the Constitution, and the limits on presidential power set forth in Article II.

That might not be true if Ted Cruz got his way and turned SCOTUS into just another political branch of government. Party loyalists desperate to stop Trump may not understand how dangerous that is.

Scalia did.

As a libertarian, I have never enjoyed an election cycle in which the viable candidates were anything but clowns. For me, 2016 is just par for the course. The rest of the electorate is now feeling the way I always do.

Maybe now is a good time to ponder what they’re so desperately trying to save.

Unless It Can Reinvent Itself, the GOP May Not Be Worth Saving. I suspect my political aims are vastly different from those of most Trump supporters. I nevertheless also suspect we have similar reactions to the prediction that he is going to destroy the GOP and/or conservative movement:

Are we supposed to conclude that’s a bug…or a feature?

Amid all the handwringing about the wreckage that will be left in the wake of Trump’s candidacy, precious little is devoted to convincing voters there’s anything worth saving.

Remind me again, what is the point of the GOP?

muh roadsIt’s clearly not to restrain spending. Once they obtained control of both houses of Congress, Republicans drove a stake through the Budget Control Act, broke budget caps, suspended the debt ceiling and doc-fixed Medicare to the tune of $500 billion. Along the way, they extended No Child Left Behind, passed a $305 billion highway bill (muh roads!), and reauthorized Ex-Im.

They ended last year with a $1.8 trillion omnibus spending bill.

Senator Marco Rubio did not even show up to vote.

If they aren’t going to rein in the scope of government, cut spending, and balance the budget, what do we have Republicans for again, exactly?

I’ll grant them abortion. That’s one. What else? Carpet-bombing and traditional marriage?

This is me yawning.

If the GOP wants voters like me to come to its rescue, it’s going to have to start selling something we want to buy. It will need to cut lose the growing horde of populist authoritarians, the seedy underbelly of racists and xenophobes venturing from their closets, and the dying remnants of traditional marriage zealots. It will need to replenish its base instead with the growing numbers of liberty-minded voters currently spread out across the two major parties, a few third parties, and the sizable ranks of swing-voting independents.

It will need to unite its disparate factions around common principles of limited government and apply those principles consistently across social, economic and national security issues.

And it will need to convince us that this time it means it.

Sorry, Donald. Cruz and Rubio are BOTH Eligible for President

Republican presidential candidate, Sen. Marco Rubio, R-Fla. pauses while speaking during a technology roundtable at the Switch Innovation Center, Friday, May 29, 2015, in Las Vegas. (AP Photo/John Locher)

If I had a dollar for every time I heard someone say that Ted Cruz and Marco Rubio are ineligible to run for president because they are not “natural-born citizens,” I would have more money than the recent $1.5 Billion Powerball winners. Donald Trump is wrong. The Constitution and case law are clear. Both Ted Cruz and Marco Rubio are natural-born citizens, and therefore eligible to run for president.

Article II, Section 1 of the Constitution makes it clear that only a natural-born citizen, who is at least 35 years old, is eligible to be president:

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; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

So are Ted Cruz and Marco Rubio natural-born citizens under the Constitution? The answer is yes. While the Constitution does not define natural-born, statutes and the common law, dating back to pre-colonial English common law have addressed and settled this issue.

Ted Cruz is a Natural-Born U.S. Citizen

Ted Cruz was born December 22, 1970 in Calgary, Alberta, Canada. His father, Rafael Cruz, was born in Cuba and his mother, Eleanor Wilson, was born in Wilmington, Delaware. The family relocated to Texas in 1974.

Most legal scholars agree that a natural-born citizen is one who does not need to go through the naturalization process. The Naturalization Act of 1790 addresses the issue of children born outside our borders to American citizens:

[T]he children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:  Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:  Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

Many birthers, such as Ann Coulter, make the argument that at the time the Naturalization Act of 1790 was passed, citizenship only passed through the father, requiring that the father must be a U.S. Citizen. While this is true, they hold the false belief that the Constitution has not been amended to change this. At the time of the signing of the Act, women also could not own property without her husband. Since it is not mentioned or amended in the Constitution, I hope that Coulter is prepared to forfeit her property she owns on her own since that is her interpretation of the Constitution. But I digress. Furthermore, the definition of a natural-born citizen was later codified at 8 U.S.C. 1401(d). It reads in pertinent part:

The following shall be nationals and citizens of the United States at birth:

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

Since Ted Cruz’s mother is a natural-born citizen, Ted Cruz is also a natural born citizen. It does not matter that he was born in Canada. The Supreme Court has also answered this question. In Rogers v. Bellei, 401 U.S. 815 (1971), the Court held that the federal government may revoke the citizenship of a natural-born citizen if certain requirements were not met. In this case, Aldo Mario Bellei was born in Italy to an American mother and an Italian father. Mr. Bellei held both Italian and U.S. citizenship.

While the primary issue reviewed in Bellei was not on the definition of a natural-born citizen, the Court first had to determine that Mr. Bellei was a natural-born citizen. Upon determining that Mr. Bellei was a natural-born U.S. citizen, the Court held that the federal government may set a condition subsequent on citizenship for those born outside the United States. Specifically, the government may revoke the citizenship of natural-born citizens born outside the United States when citizens do not establish domicile within the United States by age 23 and remain for at least five (5) years. See Immigration and Naturalization Act of 1952 sec. 311.

In the case of Ted Cruz, he moved to the United States at the age of three (3) years old and has maintained domicile in the United States since then. Therefore, he is a natural-born citizen of the United States and eligible to run for and serve as President of the United States.

Marco Rubio is a Natural-Born U.S. Citizen

Presidential candidate, Donald Trump recently stated that he is unsure that Marco Rubio is eligible to run for president. The case for Rubio’s citizenship is more clear-cut than the case for Cruz. Marco Rubio was born on May 28, 1971 in Miami, FL. His parents came to the United States in 1956. At the time of Rubio’s birth, his parents were Permanent Residents of the United States. This means that his parents were here legally with their “green cards.” Federal law is clear that those born on U.S. soil and subject to the jurisdiction of the United States are natural-born citizens. 8 U.S.C. 1401(a) reads in pertinent part:

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof.
Of course, the 14th Amendment sec. 1 provides that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(emphasis added)
Since Marco Rubio was born on American soil (last time I checked, Miami is still American soil), and he is subject to the jurisdiction of the United States, he is clearly a natural-born citizen.
The Supreme Court has also ruled on this. In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the Court held that a child born on U.S. soil to permanent residents of the United States is a natural-born citizen by virtue of the 14th Amendment. Justice Horace Gray, citing to U.S. v. Rhodes (1866), stated in his majority opinion that:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . .
Wong Kim Ark, 169 U.S. at 662. (emphasis added)
Conclusion
The fact that Donald Trump and other birthers would raise questions as to the eligibility of either Ted Cruz or Marco Rubio to run for president is absolutely absurd. Any litigation of these issues is frivolous and a waste of taxpayer money. It is this lawyer’s belief that anyone who brings such a frivolous suit should be sanctioned and responsible for government attorney fees. Enough is enough. It is time to put the birther argument to rest.
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