Law Professor Akhil Reed Amar: His "Implicit Constitution" ("I Ducked...")

Yale Law Professor Akhil Reed Amar:
His “Implicit Constitution”

("I ducked the question...")

This post is modified with corrections from a similar post on Mario Apuzzo's blog on June 21, 2015 at 11:07 PM.

>> http://puzo1.blogspot.com/2015/05/senator-cruz-senator-rubio-and-governor.html

<<>>

Here are some interesting comments and conclusions by Yale Sterling Professor of Law Akhil Reed Amar. Although not his purpose, his conclusions, in a sense, can be construed as tacit "implicit" stipulations about original intent.

In the first quote Baylor University President Ken Starr asks Professor Amar about why the language in Article II is “terse” as it relates to the vesting of authority and executive power in the president. In his answer Prof. Amar explains how President Washington is the reason for the “terse” language in Article II. His conclusion is that because Washington was Washington and the people knew his character and trusted him, the Constitution was ratified by the states, and because of Washington, the Constitution and the We the People Union was not “toast.”

In the second quote 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 explains (1) who the phrase “We the People” was referring to in the past at the founding of the Union when the U.S. Constitution was written, (2) how the phrase “We the people” has “grown over time,” (it has “changed,” it is “broader”), (3) who the phrase “We the People” has referred to since the reconstruction amendments, specifically the 1865 Fourteenth Amendment as Prof. Amar applies “birthright citizenship” to himself and others, and (4) who the phrase “We the People” might include in the future if “We the People” of 2015 America choose to be more inclusive (“inclusive” is my word, not Prof. Amar's).

The quote in the next paragraph is from the Baylor University Youtube video* published Jan. 4, 2013 titled, “On Topic with President Ken Starr and Akhil Reed Amar” (September 17, 2012 at Baylor University).

* Baylor University - https://www.youtube.com/watch?v=pLsS5uFKbzM

“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.”

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

There is a course offered online by Yale University* America's Unwritten Constitution. 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, "America's Written Constitution," (AWC) was completed last month. These courses were offered together in January 2014 under the name "Constitutional Law" ….”

* America's Unwritten Constitution

- https://www.coursera.org/course/auc

The Editorial Reviews about Prof. Amar's book “America's Unwritten Constitution” at Amazon.com* praise the scholarship of Prof. Amar. The first chapter titled “Reading Between the Lines: America's Implicit Constitution” can be read at Amazon.com

* Chapter One

- 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

Also interesting is the 2014 review by John O. McGinnis at LibertyLawSite.org*. He is co-author with Mike Rappaport of Originalism and the Good Constitution.**

“America’s Unwritten Constitution sets forth a variety of ways that an interpreter of the Constitution can look beyond the text’s words to interpret and implement it today. Some are ways that are always compatible with originalism. As Mike Rappaport and I do in our own book, Amar shows that context and the methods of interpretation at the time of its enactment are indispensable to understanding the Constitution. ….”

* LibertyLawSite

- http://www.libertylawsite.org/2014/03/10/americas-unwritten-constitution/
** Originalism and the Good Constitution

- http://www.amazon.com/Originalism-Good-Constitution-John-McGinnis/dp/0674725077

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

President Ken Starr
@ 51m54s

"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?”

Professor Akhil Amar:

@52m32s (6 minutes)

"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 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. 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.

~ ~ ~ ~ ~ ~ ~ ~ ~

Here is the first audience question for Prof. Amar, read by Elizabeth Davis, Executive Vice-President and Provost at Baylor University.

@ 1h (7.5 minutes)
Question:

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

Answer:

"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 [2012] presidential election.”

@ 1h01m44s

"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 do 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.”

@ 1h3m27s

"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.

@ 1h5m32s

"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, 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.

“And some of them were here illegally, you see. Some of the people who were emancipated and who then became citizens were here illegally because they had been smuggled in in violation of prohibitions against the international slave trade. They had been smuggled in. They were illegal aliens and yet they were made citizens by the Fourteenth Amendment.

“So, remember, we meet on the hundredth and fiftieth anniversary of the battle of Antietam and the Emancipation Proclamation.

“So, it's complicated. Our generation is going to have to decide how much broader We the People needs to be today. We the People have gotten broader.

“But, I ducked the question a little bit, and I admit it.”

“I ducked the question a little bit”

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

By saying “I ducked the question...,” does that mean that Prof. Amar did NOT deal with it in his book? Next are a few quotes from the first chapter on Amazon.com. Also, since I have not read the book yet, I ordered it this week (June 20, 2015), I must ask if Prof. Amar discussed “natural born Citizen” in his book? Does Prof. Amar know what the original meaning of “natural born Citizen” was to John Jay and so it still is today in 2015, but he doesn't want to talk about it, or does he NOT know what the original meaning was and still is of the “terse” language of Sec. 1 Cl. 5 of Article II?

Six days before this Baylor University conversation between Baylor President Ken Starr and Yale Law Prof. Akhil Reed Amar on September 17, 2012 (225 years after September 17, 1787 when the Constitution was adopted), Prof. Amar's book was published on September 11, 1012, titled “America's Unwritten Constitution: The Precedents and Principles We Live By.”* The first chapter is titled, “Reading Between the Lines: America's Implicit Constitution.”

*Amazon.com - Chapter One

- 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#reader_0465064906

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Chapter One - Page 5

“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. ….”

Chapter One - Page 10

“As Blackstone had explained to his legions of readers on both sides of the Atlantic, unless the supreme legislature made crystal clear its specific intent to command an absurd or unjust result, the supreme law was to be interpreted so as to avoid patent absurdity or gross injustice.

“Ellsworth and Wilson understood that this well-settled English rule of legal interpretation properly applied to America as well, but with a twist. In England, the supreme legislature was Parliament, and the supreme law was the corpus of parliamentary statutes. In America, the supreme lawmaker would be the American people themselves, who were being asked by the Philadelphia framers to ordain and enact the supreme law of the Constitution. Unless that supreme law—the Constitution—specifically and pointedly authorized Congress to pass ex-post-facto criminal laws, the proper presumption would be that the document withheld this authority from Congress. Such unjust congressional enactments would simply fall outside the ambit of proper “legislative Power” vested in congress by the Constitution. ….

“As finally proposed by the Philadelphia framers and eventually enacted by the American people, the Constitution's opening sentence proclaimed that one of the document's paramount objects was “to establish Justice.” Here was additional textual support in the written Constitution itself for the Ellsworth-Wilson position, following Blackstone, that all the document's clauses had to be construed against the backdrop of the first principles of justice. Such principles could be contravened only by pointed textual language or undeniably clear enacting intent.”

Chapter One – Pages 12 and 13

“While expressly authorizing compensation for House and Senate members in Article I, for presidents in Article II, and for supreme Court (and other federal) judges in Article III, the document failed to even mention compensation for the vice president. Surely we should place no weight on this thoughtless omission; it would be silly to deny compensation to vice presidents on the theory that the document demands this odd result by negative implication. ….”

Chapter One – Page 19

“The Take-Home lesson of our story thus far is that sound constitutional interpretation involves a dialogue between America's written Constitution and America's unwritten Constitution. The latter, at a minimum, encompasses various principles implicit in the written document as a whole and/or present in the historical background, forming part of the context against which we must construe the entire text. …. “

Chapter One – Page 22

“To better understand the kind of interpretative approach needed when we seek to find the implicit constitution hiding behind the document's explicit words, let's now undertake a completely different case study. … [A] close look at the Court's landmark decision will make clear that the technique of reading between the lines has widespread application.”

Chapter One – Page 25

“Marshall in McCulloch was indeed a faithful interpreter, but he was not a clause-bound textualist. Rather, he elegantly blended a close reading of the written constitution with a sensitive understanding of America's unwritten Constitution.”

Chapter One – Page 26

“Marshall's constitutional genius was to grasp that Americans had not ratified the Constitution clause by clause, enumerated power by enumerated power. The people had ratified the Constitution as a whole, and thus the federal government’s powers needed to be read as a whole rather than as a jumble of discrete clauses. In Marshall's words, the question of federal power should “depend on a fair construction of the whole instrument” (emphasis added), read through the prism of the general purposes that the American people had in mind when they framed and ratified the document.”

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Before the first audience question by the Provost, Elizabeth Davis, Prof. Amar answered an Article II question from Prof. Starr about the vesting of executive power and authority on a president. Prof. Amar answers Starr's specific question about the vesting of executive power in the president, and touches various presidential authority issues, and does not touch the eligibility issue because Starr never asked him about Article II Section 1 clause 5.

After four years of national discussion, 2008-2012, both Baylor President Starr and Yale Professor Amar totally ignore the hottest issue concerning the "terse" language of Article II during the 2012 general election cycle at the time of this conversation at Baylor University, about two months before Obama was reelected with a dark and dingy and expensive (in 2008 almost $3 million dollars) eligibility cloud over his head. Both law scholars ignore the Article II presidential eligibility requirement. Starr does not ask and Amar does not mention the issue of the "terse" language of of Article II, specifically the first half of Sec. 1 Cl. 5, "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...."

This would have been an excellent opportunity for Starr and Amar to educate their audience that day and forever educate the American people about John Jay, the author of "natural born Citizen" in his note to George Washington where Jay underlined the word "born," and to educate We the People of the Union about the original genesis original intent meaning in the Constitution of "born" in "natural born Citizen" as associated and clarified by the words "Union" and "posterity" in the preamble:

"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."

Using Prof. Amar's “implicit constitution” method of application, we can look at the 1787 Constitution's preamble words “Union” and “Posterity” and, with Amar common sense in 2015, 228 years after 1787, accurately surmise that “posterity” ONLY implies natural law reproduction and positive law “citizen” children who derive their own U.S. citizenship by being reproduced by U.S. citizen married parents. That “ONLY” word means that a “union” of two people and the resultant “posterity” definitely does NOT mean ALSO simply hot-to-trot buckle polishing sexual activity that increases the “Union” by producing children with persons who are either both U.S. citizens but are not married to each other, even though they may be married to other persons, or not married to anybody, or to persons who are of mixed citizenship, U.S. and foreign, married or not married to each other.

Prof. Amar could have used two scenarios to educate both the Baylor University audience and We the People of the Union at the same time. He also could have asked the Baylor audience to choose with a loud voice vote which of the two scenarios listed below was the original genesis original intent of “natural born Citizen” author John Jay, and which scenario was the original intent for incorporating “natural born Citizen” into the 1787 explicit constitution and also Prof. Amar's “implicit constitution”: 

Scenario #1: Singular Citizenship
The “natural born Citizen” of Original Birther John Jay
The “natural born Citizen” of Original Meaning Original Intent Original Birthers
The “natural born Citizen” of the 1787 Explicit Constitution
The “natural born Citizen” of the 2015 Implicit Constitution

Article II Section 1 Clause 5 Means:
ONLY Singular U.S. Citizenship
ONLY Born on U.S. Soil
ONLY Born to Two U.S. Citizen Married Parents

Prof. Amar could have said about scenario #1:

The "posterity" are the children born with singular U.S. citizenship because they are born to U.S. citizen married parents, whether born on U.S. soil or born on foreign soil. The We the People Union was a Union of American citizens, some single and some married, and the Union of their posterity was to be a Union of their own children born ONLY on U.S. soil ONLY to two U.S. citizen married parents, not simply children born on U.S. soil to unmarried U.S. citizens, or children born on U.S. soil or on foreign soil to U.S. citizens married—OR—unmarried to aliens, or children born on U.S. soil to aliens who had not naturalized as U.S. citizens before their children are born.

The 1787 word "posterity" was not a reference to a possible amendment in the future, such as the 1865 Fourteenth Amendment which, not according to the original intent of the Fourteenth Amendment but according to the error of the 1898 United States v. Wong Kim Ark Court decision, made persons like me [Prof. Amar] a birthright citizen simply by being born on U.S. soil even though my parents were not U.S. citizens because they were still citizens of India at the time of my birth in Ann Arbor, Michigan in 1958*. The word "posterity" was not a reference to aliens arriving on U.S. soil who plop-n-drop babies with the expectation that the babies would be considered to be U.S. citizens and at age 35 be eligible to be POTUS.

*Akhil Reed Amar ( https://en.wikipedia.org/wiki/Akhil_Reed_Amar )

Scenario #2: Dual Citizenship
The “natural born Citizen” of Original Birther John Jay
The “natural born Citizen” of New Meaning Neo-Intent Neo-Birthers
The “natural born Citizen” of the 1787 Explicit Constitution
The “natural born Citizen” of the 2015 Implicit Constitution

Article II Section 1 Clause 5 Means:
Dual U.S./Foreign Citizenship
Born on U.S. OR Foreign Soil
Born on U.S. Soil to Two OR One OR Zero U.S. Citizen Married OR not Married Parents
Born on Foreign Soil to Two OR One U.S. Citizen Parent Married OR not Married

Prof. Amar could have said about scenario #2:

The "posterity" are the citizen children born on U.S. or foreign soil to two U.S. citizens, or a mix of a U.S. citizen and an alien citizen, married or not married to each other before their child is born, or to two persons who are not U.S. citizen when their child is born on U.S. soil, or to one U.S. citizen parent when the child is born on foreign soil. The We the People Union is a Union of American citizens and aliens, some single and some married. The Union of their posterity, U.S. citizen or alien citizen, is a Union of children born on U.S. soil OR foreign soil to two U.S. citizen parents or one U.S. citizen and one alien citizen. The citizen children can be born on U.S. soil to married or unmarried U.S. citizens, or born on U.S. soil or on foreign soil to U.S. citizens married—OR—unmarried to alien citizens. The children can also be born on U.S. soil to alien citizens who have not become naturalized as U.S. citizens by oath before their children are born.

The 1787 word "posterity" was not a reference to a possible amendment in the future, such as the 1865 Fourteenth Amendment which, not according to the original intent of the Fourteenth Amendment but, since the 1898 U.S. v. Wong Kim Ark Court decision declared that persons like me [Prof. Amar] are birthright citizens simply by being born on U.S. soil even though my parents were not U.S. citizens because they were still citizens of India at the time of my birth in Ann Arbor, Michigan in 1958*. The word "posterity" since 1898 therefore is now a reference to aliens arriving on U.S. soil who plop-n-drop babies with the expectation that the babies will be considered to be U.S. citizens and at age 35 be eligible to be POTUS.

*Akhil Reed Amar ( https://en.wikipedia.org/wiki/Akhil_Reed_Amar )

Either “natural born Citizen” synopsis of the Article II presidential eligibility issue would have been a very easy slam-dunk explanation for a Sterling Professor of Law and Political Science at Yale University, who teaches constitutional law.

So, three questions.

1-Why do both Prof. Starr and Prof. 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-Which scenario would the Baylor University audience have chosen as the original genesis original intent of John Jay and the subsequent explicit constitution/"implicit constitution” after incorporation into Article II Section 1 Clause 5.

What will the people of the “UNION” choose 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?

Choice #1:
(1a) ONLY Singular U.S. citizenship?
(1b) ONLY birth on U.S. soil?
(1c) ONLY birth to two U.S. citizen married parents?

Choice #2:
(2a) ALSO Dual U.S./foreign citizenship?
(2b) ALSO birth on EITHER U.S. soil OR Foreign soil?
(2c) ALSO birth on U.S. soil to one OR zero U.S. citizen parents?
(2d) ALSO birth on foreign soil to two OR one U.S. citizen parent?

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

An observation about what Prof. Amar says that We the People are to do: 

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.”

Using Prof. Amar's method to understand the “general purposes” and relating to Article II and the word “born” in “natural born Citizen,” and relating to eligibility, my observation is that the word “implicit” in the Chapter One title is used in the sense of the 1791 Bill of Rights, specifically the Ninth Amendment and the “enumeration...retained” language:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others [“rights”] retained by the people.”

It is obvious that the rights “retained” includes the “implicit constitution” rights that are common law rights but are not in the explicit constitution text.

The literal text of the explicit constitution and Art. II Sec. 1 Cl. 5 does not deny the, to coin a phrase, the “implicit literal text” of the “implicit constitution” as it applies to “natural born Citizen” in Art. II Sec.1 Cl.5. The explicit constitution text is the initial authority, but the written text absolutely must be construed in a way that does not disregard the 1787 common law of the “implicit constitution” of the people. Relative to Art. II Sec. 1 Cl.5, one of the “implicit” rights retained by the people is to definitively determine if the candidate for President is a “natural born Citizen” or not, and to expect that the U.S. Constitution's 1787 original genesis original intent of “natural born Citizen” is retained generation to generation, election to election, POTUS to POTUS: the original meaning of "natural born Citizen" as ONLY singular U.S. citizenship ONLY by birth on U.S. soil ONLY by birth to two U.S. citizen married parents ONLY married to each other ONLY before the child is born,.

And, if ONLY singular U.S. citizenship was not the 1787 original intent for POTUS eligibility, well, what other "born" original intent was the original intent, dual U.S./foreign citizenship? Remember, for Article II POTUS eligibility, this was in 1787, only four years after the 1783 Treaty of Paris finalized the end of the war of independence from England, a foreign power, when single men returned to the home of their parents and eventually married their fellow U.S. citizen wives when the common law understanding of the unity of citizenship and allegiance was that, by marriage, the U.S. citizenship of the husband determined the U.S. citizenship of the wife, AND the singular U.S. citizenship of BOTH married parents determined the singular U.S. citizenship of the child, the ONLY U.S. "citizen" "by birth" who was "...eligible to the Office of President?"

_Not born ONLY on U.S. soil?

Foreign/English soil is a-ok for POTUS eligibility?

Born on foreign soil—in England or Canada or France or Spain or Mexico?

Nope!

_Not born ONLY to two U.S. citizens?

ONLY one U.S. citizen parent, married or not married is a-ok for POTUS eligibility?

Nope!

_Not born ONLY to U.S. citizen married parents?

A U.S. male impregnating an alien female is a-ok for POTUS eligibility?

Nope!

_Not born ONLY to U.S. citizen married parents?

A U.S. female impregnated by an alien male is a-ok for POTUS eligibility?

Nope!

So, the common sense “implicit words” of the “implicit constitution” affirm that the explicit words “natural born” MUST be construed in a way that does not “deny or disparage” the “implicit constitution's” original genesis original intent of the common law of the unity of citizenship and allegiance as understood by John Jay, and Jay's explicit and literal word “born” that he underlined in “natural born Citizen” in his short note to his friend George Washington, the presiding officer at the Constitutional Convention in 1787. The explicit word “born” MUST be construed with the “implicit constitution” of Prof. Amar in mind, and with the same “original genesis original intent” of John Jay, and, having been incorporated into Article II of the Constitution, the “original genesis original intent” can NOT allow for having “grown over time,” or being “changed,” or becoming “broader” as Prof. Amar has said about the phrase “We the People” as applied to “undocumented residents” who are aliens in America for many years.

The 1787 construction and application of “born,” only four years after the 1787 Treaty of Paris was signed ending the war of independence with England, “born” MUST include the implicit and common sense literal meaning of ONLY singular U.S. citizenship ONLY by birth on U.S. soil ONLY to two U.S. citizen married parents who are married BEFORE the child is born, with the common sense implicit understanding that John Jay in 1787, as well as George Washington, did NOT imply birth on U.S. OR birth on foreign (Canada or English) soil, and in 1787 Jay did NOT imply birth on U.S. soil to ONLY ONE U.S. citizen parent, married or not, and John Jay certainly did NOT imply, nor would George Washington have concurred with the implication that Article II compliance for POTUS eligibility allowed for being born to ZERO U.S. citizen parents as the 1898 U.S. v. Wong Kim Ark Court opined, and certainly John Jay did NOT imply birth on foreign soil to two OR one OR zero (by adoption) U.S. citizen parents.

What do you think?

What do you think about why Yale Sterling Professor Akhil Reed Amar “ducked” the Provost's audience question about the phrase “We the People” and its application to “undocumented residents?”

Also, what do you think about both Starr and Amar ignoring the Article II eligibility issue in September of 2012, the fire on the back burner so to speak, when they had a chance to educate the people of the Union in the Baylor audience and on Youtube about two months before Obama's November of 2012 second election?

What do you think about why Starr did not ask Amar to clarify only one of two possible scenarios: (1) BHObama WAS born a “natural born Citizen” because he was born on U.S. soil to at least one U.S. citizen parent, or (2) BHObama was NOT a “natural born Citizen” because he WAS born to ONLY one U.S. citizen parent and was NOT born on U.S. to two U.S. citizen married parents.

Either scenario would have been a slam-dunk for Ken Starr, Baylor University President, and for Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University, who teaches constitutional law at both Yale College and Yale Law School.

However, both Starr and Amar did not touch either scenario for the benefit of their Baylor University audience and Youtube community.

I wonder why?

Maybe Prof. Amar can clarify in future speeches, plural, why ONLY one scenario is constitutional, explicit AND implicit, and the other is not either “explicit” OR “implicit.” Which scenario does Prof. Amar support? ONLY singular U.S. citizenship or ONLY dual U.S./foreign citizenship? One speech and then silence will not be sufficient for an experienced extemporaneous talker.

So, I wonder to which scenario Prof. Amar subscribes? That should be easy to explain in six minutes. Six minutes is how long Prof. Amar took to explain the “terse” language of Article II in quote # 1 above.

Art
U.S. Constitution: The Original Birther Document of the Union
( http://originalbirtherdocument26.blogspot.com/ )