February 29, 2008

The crafty Obama finds a way to look magnanimous while actually casting aspersions on McCain.

Noam Scheiber falls for an Obaman rhetorical trick. In a post titled, "Obama to McCain: You're Presidential Material in My Book," Scheiber notes what he calls "a very shrewd response by the Obama campaign to questions about McCain's 'natural-born' status." He links to this:
Missouri Sen. Claire McCaskill, a prominent backer of Democratic candidate Sen. Barack Obama, introduced legislation Thursday that would define a "natural-born citizen" as anyone born to any U.S. citizen while serving in the active or reserve components of the U.S. armed forces. Obama's campaign announced late Thursday that he will co-sponsor the bill.

"Those who serve and sacrifice for their country, like John McCain and his father deserve every honor and privilege that our nation can possibly provide, and that includes the ability to run for the highest office in the land," Obama said in a statement.
Here's Scheiber's comment:
There was just no way McCain was going to be denied the presidency on the grounds that he was born in the Panama Canal Zone while his father was stationed there for the military. You might as well take the high ground here, and Obama's done so pretty gracefully (and with some political savvy).
Actually, Obama found the only possible low ground and made it look like high ground.

The argument that McCain isn't a natural born citizen within the meaning of Article II of the Constitution is an obvious loser, both as a matter of constitutional interpretation and as something that an opposing candidate would want to say. But Obama, co-sponsoring the bill, is acting generous, as though he is forbearing making an attack. But since there is no attack to make, he's not actually being magnanimous. He's only putting on a show.

What is more, offering a statutory solution sends the message that there is a problem to be fixed. So in fact, it's a crafty way of saying that McCain is not now currently qualified!

Finally, if one believed the statute were needed to solve a problem of disqualification, there would be 2 reasons why it would not be effective:

1. A statute can't change the meaning of a constitutional term. Congress can no more re-define who is a "natural born citizen" than it can deem persons younger than 35 to be qualified for the presidency.

2. Even if a statute could successfully re-define who is a citizen at birth, McCain was born 71 years ago. Anyone who believed that this new statute conferred status as a natural-born citizen would be plunged into confusing questions about whether it could have a retroactive effect as it related to the constitutional clause.

Thus, fooling with this bill now is a way of creating phony doubts about McCain's qualification. That Obama can also receive plaudits for magnanimity should startle us awake. This is a man with amazing rhetorical skills, so we need to raise our game. I'm not saying Obama shouldn't be President. Indeed, I'd like to see skills like this wielded in our favor on the world stage. But pay attention and sharpen up so you can see what he's saying!

ADDED: In the email:
Are you sure you're not misoverestimating him? I think Bush played the lowered expectations games brilliantly [his strategery was to be misunderestimated] and the Bush/Rove jujitsu is legendary. Obama might be too smart by half.

UPDATE: The Washington Post joins the gullibility club.


Craig Nolen said...

This is obviously a political move for Obama to seem very diplomatic in extending a helping hand to his opponent to settle what was already a resolved question via any true interpretation of the constitution. All it does is pats Barack Obama on the back and says good boy, you sure are nice to Johnny Mac. Obviously the bill will pass, but like you said, it really wasn't necessary.

Craig Nolen said...

Now it just seems that the NYT can spur any legislation it wants at will as well.

The Drill SGT said...

Today there are only 2 types of citizens. Naturalized and Natural-born.

This law would appear to create more uncertainity than it resolves. McCain and thousands of others born overseas were never "Naturalized". If they weren't natural-born citizens, then they were never citizens at all. And of course if the place they were born didn't offer citizenship to all borths, then they are stateless persons.

Now This transparent gimmic fixes McCain's non-problem, but by elimination it makes aliens of all other children born of citizens overseas whose parents were NOT connected to a serviceperson.

a Great opportunity for some of us to talk about "Those Bastards at the State Department" with something to back it up now :)

TWM said...

Oh yes, please tell all those military members and vets, and the kids of military members and vets, who have had kids born overseas that they just need Obama's helping hand to make them US citizens. That will work wonders for him.

I know my son, who was born in Germany while I was stationed there and who is a new 18 year old voter was really interested when he learned he might not be a US citizen. While I think he would vote for McCain regardless, I feel certain Obama's helping McCain would send him firmly in that direction.

Chip Ahoy said...

That does it!

I believe I might start skipping all Obama and Clinton related posts. Nothing new or interesting ever arises, just new versions of the same old. It would have been better had they not been so eager to start off early. I, for one, am already fully over dosed. That goes for McCain too. They're managing collectively to put me off politics altogether. All I want is to hire a CEO to do their freak'n job and STFU while doing it.

Plus, all my friends are stupid. I need new ones. We've all quite had it with each other.

Go on then everybody, elect whomever you wish. I don't care.

MadisonMan said...

Please spare me the phony outrage. As if anyone (seriously) believes McCain's birthplace would preclude him from assuming the Presidency, should he be elected.

Paddy O said...

Republicans should work to vote it down and make a big issue out of how it wasn't needed Constitutionally, thus undermining one of Obama's experiences.

Synova said...

Yah, know... wielding those skills on our behalf on the world stage might mean something if we only saw through the clever manipulations because we're really so very much smarter than anyone else.

We're not.

I also have a child born overseas while I was active duty.

I am not amused.

Nor am I alone.

Nor am I ignorant of the many other Americans born overseas to missionaries or simply citizens working or traveling outside of this country. (At least military have a support structure and help... try being a missionary and having a kid in some gawd awful place.)

What I've seen Obama do on the *world* stage is offend nations from either ignorance or indifference. Either talking "tough" about Pakistan without a care that they need, at the very least, a sop for national pride, or else this recent thing about NAFTA and honoring our treaty obligations.

Cedarford said...

It's pandering crap on another level. It says that only "Armed Forces brats" born overseas to our exhalted hero base drivers & dental techs at Landsruhe and Yokosuka and other fine locales merit being "natural-born citizens", but others born to Americans overseas working for companies, for NGOs, or lesser unheroic government duties like medical epidemiology teams don't?

1st class pandering, saying troop-born babies are of higher merit.

More Democrat bullshit. If they could have fitted more pander in, they would have. Like trying to add to their Bill that all gay adoptee kids are "natural-born" whereas mere hetero adoptees wouldn't be.

As Drill SGT notes, it makes aliens of all other Americans born to one or more American parents occupying inferior positions in society to the riflemen, cooks, power plant operators, etc. of our "heroes, all" military.

Unknown said...

McCain might have been born a citizen, but that doesn't make him a "natural born citizen".

Natural born might mean within the borders of the United States.

If you go by original intent, this is not crystal clear at all. And judges should not be making law. Legislatures should, right?

If Obama were born to US parents in, oh, let's say Indonesia, you don't think Republicans would be trying to disqualify him? Get real.

Simon said...

McCaskill's bill terrifies me. The idea that there's someone that uncomprehending of such basic questions of Congress' powers as to think a statute can "resolve" this question honestly astonishes me. On the other hand, I've been genuinely astonished about how many people have posted 8 USC 1401 and declared that it ends the debate - here's a perfect exemplar of the type. These are the intellectual kin of the woman Leno asked to describe the 5th amendment (she replied that she wasn't certain but thought that was the one that said you had to be 21 to drink).

MM, I disagree. Suppose it wasn't McCain running, but was the Governator, someone where there the case for ineligibility was airtight. Or for that matter, better yet, suppose it was me: foreign-born and under 35. So the candidate runs, and they win the popular vote, and they putatively have a majority in the electoral college. Well, under the 12th Amendment, Congress is charged with (in essence) certifying the result of the electoral college vote. And every member of Congress is charged - hard to believe sometimes, I know - to support and defend the Constitution of the United States. Every member of Congress is therefore bound by oath to reject any votes cast for someone ineligible to the Presidency. That's a really easy question for me. The more interesting question is whether "eligible to" means "eligible to be elected" or "eligible to serve" - if it means the latter, it seems obvious to me that even if Congress flouted its duties and certified the Governator's election, no order made by what I suppose we'd have to call the Presiderator would be valid and binding, along a similar theory to Ex Parte Young.

MadisonMan said...

Suppose it wasn't McCain running, but was the Governator, someone where there the case for ineligibility was airtight. Or for that matter, better yet, suppose it was me: foreign-born and under 35.

But that's not the case, is it? Hypotheticals like this are used so the base of either party can get all riled up in umbrage. And for what reason? Other than pandering and upping sales of Mylanta, I'm not sure.

Simon said...

downtownlad said...
"McCain might have been born a citizen, but that doesn't make him a 'natural born citizen.' Natural born might mean within the borders of the United States. If you go by original intent, this is not crystal clear at all."

That's exactly the right question, but the wrong answer. From an originalist perspective, it is pellucidly clear that McCain is a natural born citizen. And there are two independently-sufficient reasons for that.

First, it has to be understood that "natural born citizen" was not new coinage but had meaning at common law. Originalism is very clear that when the text uses a common-law term, the text bears that meaning - which is why the knock and announce rule is part of the Fourth Amendment even though the text doesn't mention it (see Wilson v. Arkansas). So the question is what the common law understood the term to mean, and for that, we turn first to Blackstone. In my original post, I relied heavily on Blackstone to point out that McCain is a natural-born citizen because the common law recognized that all persons born within the dominion - that is, under the sovereignty - of the king are the king's natural born subjects, and thus the most sensible reading of natural born citizen is "a citizen born on soil over which the U.S. is soveereign," which included the canal zone at the relevant time. Furthermore, as Pat has persuasively argued (so persuasively that Jim Lindgren copied it all-but verbatim today), the common law also recognized that children of ambassadors were natural born citizens of the sovereignty of the parents. Either of these would independently support McCain's eligibility, but taken in sum, the case becomes a slam-dunk.

paul a'barge said...

Anyone still seriously thinking of voting for Obama should read this piece and the links inside it. Click here

Anonymous said...

Have you been following Obama's Canadian mess?

Shorthand CTV said that the Obama campaign contacted the Canadian Embassy- to essentially say- don't listen to anything Barack says while campaigning about NAFTA-he doesn't really mean it.
There's a good rule in life-

try not to bluff

Not only will someone call you on it eventually but also in the future it's going to be hard for people to take you seriously.

How many mistakes did Obama's team make?

First more of the story-the Canadian Embassy denied it-but then CTV said "Oh ya-here are the NAMES of our sources."

So now the Embassy is no longer denying the story. That's in their interest. Who does Obama's team consider the "friendlies" in the Canadian Embassy? In case anyone forgot-the Conservatives won the last election in Canada. Second- Just because you are talking to some French guy at the Embassy-that does not mean that his first priorities won't be to Canada. He is more likely a member of the Liberal party but guess what? They liked Clinton-did Clinton call in a favor? He probably didn't have to.

Now if you know are care about the military you have caught Obama bluffing or fudging his knowledge.Here he is caught playing ignorant of the Constitution. I thought Obama was a Constitutional law professor.

Barack is fumbling Canada badly- say what you will about Canada but their pretty friendly as neighbors go-kind of forgiving.

I cringe at the idea of Obama handling -say-China.

Maybe he would go in there with that ad of his where he says he's going to not put money into unproven missile defense systems, he doesn't want to arm space-and he wants to slow the development of future combat systems, and also detrigger our ICBMs.How do you say Go Obama Go! in Chinese?

Also there is the presumptiveness of Obama being so worried about defeating both Hillary and McCain that he calls Canada to say nevermind! behind the scenes.

Ancient Chinese proverb;don't count your chickens before they hatch-and never tell a French guy.

Original Mike said...

Ann's right. This is a cynical ploy on Obama's part. His supporters claim he's different. He isn't.

D.E. Cloutier said...

"He's only putting on a show."

Yes, politics is theater. So is business. And, often, so is criminal law (O.J. Simpson case).

Simon said...

(BTW, I should point out that my tongue's very much in my cheek in suggesting that Jim copied Pat's post - I have no reason to think he didn't independently arrive at the same conclusion, but was quite struck and amused at how similar his post was to Pat's.)

MM, hypotheticals are used to probe the extent and limits of an argument free of the context and biases of an immediate case. Is your position that, if a sufficiently popular candidate is elected, Congress should simply ignore defects in their qualifications? Or is your position that if it's an arguable proposition as to whether a candidate may or may not be eligible, Congress should defer to the electorate? If it's the latter, how clear does it have to be? Is there wiggle room - suppose a less clear case, for example. What if you had a candidate who would turn 35 on January 19, 2009: that is, they were ineligible on the day they were elected but would be eligible when they would be inaugurated. Assume no one litigates the question - what should Congress do? (There was a fascinating case in Indiana about a century ago, Hoy v. State ex rel. Buchanan, that dealt with a very similar issue, IIRC).

Anonymous said...

*they're* pretty forgiving.

Anonymous said...

I forgot that Claire is a Democrat.
So it is probably to keep the story alive-one that was hashed out in Republican circles in 2000.

I don't think it is a good move because this plays to McCain's strengths.

It reminds everyone that Obama is a lawyer and that McCain is a military soul.

Unknown said...

I wish somebody in the greater blogoshpere would find the answer to this question: what does it say in McCain's passport for "Place of Birth?"

Is it Panama?

Not that it has anything to do with his eligibility to become POTUS, but it would be nice to have that fact at hand.

D.E. Cloutier said...

Interesting question, Tomb1. My guess (and it's only a guess) is that it says "Panama Canal Zone."

From 1903 to 1979 the territory was controlled by the United States.

Cedarford said...

Drill SGT - by elimination it makes aliens of all other children born of citizens overseas whose parents were NOT connected to a serviceperson.

a Great opportunity for some of us to talk about "Those Bastards at the State Department" with something to back it up now :)

They'd still be bastards, but thanks to Obama and McCaskill, we could call any of their kids and any of them born overseas to non-military parents true Un-Americans.

DTL and a few others are fixed on the "right of soil" over the right of blood.
Perhaps from the emphasis on the magic by which an illegal Mexican or Arab plopping an anchor baby onto US soil, or better yet a full American-paid free delivery and post partum care package deal is rendered, creates instant full citizenship.
Simon began to clear up some of the damage done by the NY Times sophistry in explaining the concept of citizenship under English common law....but I don't think he was clear enough.

Higher than any circumstance of birth on British soil, "natural-born" applies to the right of the Crowns British subjects to perpetuate the citizenship of their line - By Right of Blood.

(Jus Sanguinus vs Jus Solis)

Even in the few countries left that retain jus solis, it always coexisted with the Higher Right of jus samguinus.

In Britain, before Our Constitution was created, they already had a substantial diaspora to nearby lands like Portugal, Italy, Greece, Russia, France. Plus ,more remote lands never part of the Empire like Argentina, the Chile nitrate region, Malacca. And the beginning of colonies that started outside the Empire and were later brought in. And countless British women gave birt on vessels on the high seas that in many cases were not even British registered.

In none of these cases was there any doubt that a child sired to British parents was a natural-born citizen and subject of the Crown, by right of blood.

That was English common law, that is where the US started in concept of "natural-born" and nothing in law or the Constitution took away the Higher Right of citizenship by right of blood.

Our bigger problem is being one of the last nations left, and basically the only one people want to emigrate to that gives instant citizenship to spawn of illegals or even spawn of a future invading force on our soil. That has to be fixed.

TRundgren said...

I love this stuff.

In any case, before you know it, the Democrats will wake up and discover they nominated an African-American George McGovern.

At least 30% of Democratic voters will pull the lever for McCain on that basis alone....that's before Mr. Obama's radical liberalism is exposed for the world to see.


a@b.com said...

Actually, there is an argument that "natural born" can be changed by statute. My journal has an forthcoming article on this topic; just a bit too slow to be relevant at this important time!

Ann Althouse said...

What is the argument? I'm guessing it's not a very good one.

Don M said...

Keep in mind that Obama, as son of a student from Kenya, is legally a citizen of Kenya.

He is a US citizen too, but by raising, then settling the non-issue of McCain's citizenship Obama's campaign, it removes the real issue of Obama's citizenship in another country.

Syl said...

Obama's handling of this is about the same as his handling of much else...


Simon said...

Titan- I echo Ann's question. What's the argument? What's the paper or journal? Is the paper on SSRN?

kimsch said...

Isn't the supposed "problem" that this McCaskey/Obama bill will "solve" already "solved" in McCain's case therefore by &sec;1403 that states all children born after 2/26/1904 in the PCZ of American citizen parents are citizens? So if a statute could amend the Constitution, it's already been done.

And what's with only children of military born overseas? What about Joe and Mary Smith? Joe's working at the Frankfurt offices of some large American corporation. He and Mary are citizens of the US. He pays US taxes on his US salary. Mary gets pregnant while he's still "stationed" at the Frankfurt office and Mary gives birth in the local Krankenhaus. Joe Jr. isn't a citizen?

Sloanasaurus said...

downtownlad said...
"McCain might have been born a citizen, but that doesn't make him a 'natural born citizen.'

I disagree. A more literal interpretation of "natural born citizen" would mean any citizen who was born vaginally without any form of medication such as pain killers.

Sloanasaurus said...

Have you been following Obama's Canadian mess?

Madawasken is right. The Canadian story if true is grusome news for Obama. It basically makes Obama a two faced liar. Where is the NY Times?

Val McMurdie said...

McCain's place of birth, "Panama Canal Zone"? "From 1903-1978 the territory was controlled by the United States." DEC has the right questions.

Has anyone actually researched this issue?

Simon said...

Kimsch - correct. We're left to conclude that McCaskill is either incompetent or sees some advantage in this for Obama (Don't comment above offers one theory why). Given the scrawled-on-the-back-of-a-napkin feel of the bill (so far as it's been reported, that is), the evidence suggests the former.

Balfegor said...

All I want is to hire a CEO to do their freak'n job and STFU while doing it.

A missed opportunity for Romney!

Madawasken is right. The Canadian story if true is grusome news for Obama. It basically makes Obama a two faced liar. Where is the NY Times?

I think it's significant that Austan Goolsbee, one of Obama's economic advisers, is supposed to be the one who assured the Canadians that Obama was lying when he talked about NAFTA. It's not that Obama or even an Obama spokesperson did so (contradicting the candidate's official message), but that one of his advisors did. I don't think the advisors necessarily speak for the campaign. In this case, I suspect that Prof. Goolsbee was making a prediction about what Obama would actually do in office (under, of course, the guidance of Prof. Goolsbee). And I suspect that Goolsbee is simply wrong about what kind of man he's hitched his star to.

In other words, while Obama is clearly misleading someone, it's not clear to me that it isn't his own advisers. Some of Obama's non-Leftist supporters urge people to ignore the drivel the candidate spouts, and look at the kinds of eminently sensible advisers he's gathered around him -- people like Goolsbee -- and predict what the candidate will do not on the basis of what he says, but on the basis of what those advisers say. And I think this is potty.

And this Canadian contretemps illustrates why.

This is also, I suspect, why Obama has avoided substantive appeals to voters like the plague. They lead to tensions like this, between the things his advisers are telling people behind his back, to appeal to moderates and conservatives, and his own rubbish perorations.

Simon said...

Val, which issue, specifically?

JM Hanes said...

Obama's problem is that he can't resist any opportunity to position himself to putative advantage, no matter how trivial. If the advantage is immediate, he'll take it. If he senses any conceivable future advantage, he will attempt to preserve it. He is gaming the system 24/7, even when he doesn't need to.

Unfortunately, such winning (but fundamentally defensive) tactics do not a winning strategy make. If you doubt it, just contemplate how refreshing it would have been to hear Obama just dismiss the citizenship issue outright as ridiculous. Obama will never be that straightforward, however, which could be a real problem.

1775OGG said...

dn37@gmail.commWell, Ann, are you saying that someone born in 1757 could be president, assuming he can still make up the stands to be sworn in? What about someone born in 1771, old enough to know about our country's founding but obviously too young to be a participating citizen in 1775? What about Goldwater, was he a natural born citizen?

Also, Obama, was he born in the State of Hawaii or the territory of Hawaii?

Maybe Mitt dropped out too soon and needs to come back into the campaign!

kimsch said...

Grouchy - the two year old State of Hawaii.

Simon said...

OldGrouchy said...
"Ann, are you saying that someone born in 1757 could be president, assuming he can still make up the stands to be sworn in? What about someone born in 1771, old enough to know about our country's founding but obviously too young to be a participating citizen in 1775?"

"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" (emphasis added). That persons who were natural born American citizens fell within this is confirmed by the long string of Presidents from the first one onwards who were born before 1776.

"What about Goldwater, was he a natural born citizen?"

Yes - see my 7:25 comment above and posts linked therein. He, like McCain, has a double claim, first and foremost that he was born on American soil (a territory under American sovereignty is still American soil, it doesn't have to be a state).

Simon said...

Oops! Left one off:

"Also, Obama, was he born in the State of Hawaii or the territory of Hawaii?"

Makes no difference, for the same reasons alluded to above and detailed here.

Vaelin said...

if it means the latter, it seems obvious to me that even if Congress flouted its duties and certified the Governator's election

Be careful here. The Governor of California is the Governor of a state, not a Governor of the United States of America. The states are legally allowed their sovereignty within certain limits. To have congress step in and impose its own requirements for how the states do their business is not unheard of, but I have a feeling no congress has the spine to stand up to states like CA or TX on an issue as weak as this. The members of congress know their job: to get reelected. Anyone going after the governator on these grounds would be committing political suicide.

It's just alot of political posturing. The undefined term in the constitution is 'natural born citizen'... which congress later defined and clarified. It's a non issue, and Ann is right about Obama playing it the best possible way here. It would be political suicide to openly question the right of a child born to American parents, actively serving in America's defense, to hold the office of President.

By putting focus on a non-issue, Obama both makes himself look good, and directs media focus away from real issues where he may possibly be seen as weak. It's just a solid move for him to make.

Broadsword said...

Shouldn't the question be asked, if Barak the Magnificent once taught constitutional law, how come he doesn't know MacCaskill the not so magnificent is up a dry creek, with neither paddle, water or canoe? Witty sarcasm deftly played ought to easily swamp the Obamarift-raft.

Ben (The Tiger in Exile) said...

Although I'm always happy to find a reason to sneer at Senator Obama, it is just possible that he felt like being magnanimous, while being a little sanctimonious about it...

As an American citizen at birth abroad, though, I'm concerned that this bill would create a distinction between army/navy/air force brats and me -- I always thought I was eligible for the presidency by virtue of never having been naturalized.

Unknown said...

Not really. This is one of those political steps that only pundits and Obama fans will notice or care about.

Barnabus said...

You think such "sliminess" is a good thing? Yikes.

RJ said...

This reminds me of "You're likeable enough, Hillary." Obama seems to have mastered the art of putting somebody down while at the same time appearing magnanimous.

Simon said...

Vaelin, I think you may misread me - probably my fault, I went with the cutesey nickname and it's muddied the waters! To clarify, I meant to invoke a scenario where Gov. Schwarzenegger ran for President, not withstanding his obvious ineligibility, and won. In that scenario, Congress would be in dereliction of its members' oaths of office if it certified the result of that election.

You also write that "[t]he undefined term in the constitution is 'natural born citizen'... which congress later defined and clarified." Early practices can help throw light on the meaning of ambiguous text, but they come somewhat lower down the totem ple than other evidence, prmarily because Congress has no authority to redefine a term used in the Constitution, and we should be wary that what looks like clarification may turn out to be redefinition. The Constitution doesn't define many of its terms, and intratextualism isn't always helpful (it isn't here). That's when you have to turn to the original meaning; the term "natural born subject" had a well-established meaning at common law, and "[s]o far as the constitution employs words whose meaning is ascertained by their previous use as terms of the common law, so far it may be said to adopt the common law in the legislation expressed by those terms." 1 John Hurd The Law of Freedom and Bondage in the United States 479 (1858) (internal quotation marks omitted). Primary evidence for the meaning of the clause, then, is the English law of citizenship, sovereignty, dominion known to and presupposed by the founders.

Anonymous said...

Maybe McCaskill's bill is the legislative equivalent of one of those scripted scenes on Law and Order where the DA during examination of a witness on the stand makes a dramatic but highly prejudicial statement, asks no question, and before the defense can object says, "Withdrawn." Or maybe Team Obama is just having fun at the discomfort of Republicans by challenging Republican senators to vote against her bill (if it ever gets that far, of course).

J Lee said...

So are they trying to say anyone over the age of 49 born in Alaska or Hawaii is also ineligible to serve as president?

From Inwood said...

I’m coming late to this thread & its short-shelf life has probably expired but I have a few thoughts which were not explicitly made in their otherwise brilliant analysis of this non issue, by Prof A & Simon.

(1) I know a “natural-born citizen” when I see one. (I’m channeling Potter Stewart re pornography).

(2) I don’t think that Dick Chaney’s claim of being a Wyoming resident rather than a Texas one as was his running mate, passed the Hee-Haw test, but, despite the XII Amendment, no one cared as is the case here, methinks, except for the execrable NYT.

(3) Some commentators at this & other threads are using this non-issue to settle old scores:

(a) Conservatives are hypocrites since we are using “foreign” law in referring to English Common law. (Um, depends on the meaning of “foreign”!For wiseacres, English “Common Law” is not "foreign law" under US Law. That is the basic legal system the founders built upon.)

(b) We’re not originalists if we have to go beyond the words in the Constitution to explain them. (They’re confusing “plain meaning” or strict constructionism with originalism.)

(c) Conservatives are hypocrites when we say that no judge would decide against McCain, the War Hero, under these circumstances, especially when we proclaim as citizens babies who are born within 15 minutes of crossing the border. Hypocritical because we are on record as saying that we don’t want judges considering the equities when poor defendants have been accused of crimes. (Poverty causes crime.) But we never said that this should be the reason for the decision, just that it probably would.

(3) Some are channeling the ACLU in its “void for vagueness” arguments in pornography & religion-from-the-public-square cases. (Or a brouhaha I once got involved in about the vagueness of Article 133 of the UCMJ re “conduct unbecoming an officer and a gentleman”.) I do know that it’s axiomatic that the Constitution cannot be “void for vagueness”; I’m making an analogy in that these people are arguing that the phrase “natural-born” is vague & thus has to be interpreted by a court.

Funny, but no amount of logic will reach these people since they are illogical to begin with.

(4) Some resent lawyers’ use of analogies.

This reminds me of people who see law school as a disputatious place where people are taught to argue over everything; and to argue over things which have no relevance in real life. (No reply such as “But of course….”, please.)

This no longer hypothetical situation would be a perfectly valid example for a line of questioning by a law prof in class (whether it is a proper use of time a la, “what if the guy was born on Feb 29?”, is another point) or for a Moot Court case. It’s just an obvious time-waster in the real world. Or something for the NYT to show its stuff to its uninformed readers (a redundant phrase).

(5) Some insecure lawyers, and I find this true in statutes & in contracts, seem to feel that everything has to be defined & thus include useless definitions which recite the obvious. (“As used herein a form shall mean….”) Obviously the framers of the U. S. Constitution knew that educated people at the time understood the meaning of the term “natural-born” and thus did not see a need to define it further. Furthermore, if the framers meant to require that a President actually be “Born in The USA”, they would’ve said so. An analogy: Hoover & Ike had not been “fourteen years a resident within the United States” in the years preceding their respective elections, yet no one saw fit to argue that this Constituional requirement meant the consecutive 14 years prior to the election/inauguration date or that one had to be a “legal resident”, “inhabitant”, etc. during the 14 years. In this regard, some wonder why Obama lectures about corruption in Washington and Iraq without noting the obvious corruption in Illinois where he has apparently been resident for the past 14 consecutive years. He’s channeling Adlai!

(6) Some people apparently think that the meaning of a phrase in the Constitution can be changed by legislation, and, here, ex-post-facto legislation. (This assumes that The Hon McCaskill is acting honestly & is not the prima facie fool she seems to be.) Unfortunately, the meaning of Constitutional words & phrases can be changed only by Justices deemed Supreme!

(7) According to Simon there are some who would think Leno’s actually found a dullard in the street who’d think that the “Fifth” Amendment referred to drinking age. (Drum Roll) They don’t sell booze in “fifths” anymore. It’s 750ml!

Just Say Nobama said...

o.comAnd then again, this could be jsut their way of letting everyon eknow that McCain was not born on the mainland. I for one, didn't know (nor do I now care).

Of course, were anyone to point out that Obama's father was not a citizen, they would be immediately branded a racist, fear-monger, anti-Muslim, etc.

libhom said...

Under a strict interpretation of the Constitution, "Keating Five" McCain is ineligible to be president or vice president. However, the Republican majority on the Supreme Court wouldn't enforce the constitution in this regard. Remember Bush v Gore?

From Inwood said...


You obviously haven't understood read what Prof A & Simon have said,
exhaustively, perhaps.

Let me give you the Cliffs Notes/Reader's Digest version by quoting Prof A:

"The argument that McCain isn't a natural born citizen within the meaning of Article II of the Constitution is an obvious loser, both as a matter of constitutional interpretation and as something that an opposing candidate would want to say."

No need for Republican judges, just judges who interpret law, not make it.

Just as what happened in 2000. Apparently you do not comprehend, or care about, what would’ve been the result if seven SCOTUS Supremes hadn’t spoken: The Supremes of SCOFLAW (the FL Supreme Court to you) would’ve decided who was the President of The U.S. But like some Russian émigrés in the last century hoping for the restoration, you still don't believe that Bush was the rightful president. Borrrring.

And you apparently do not understand the meaning of "strict constructionalism" of the Constitution. It means simply that the document is to be read according to the common understanding of its wording, as the wording was used by those for whom it was intended. Thus, it is not a contract drawn by a hack lawyer where every common term has to be defined in the document (as used in this Constitution, "death" means....") And it is not an empty vessel into which one's hopes can be poured.