I’d seriously like to see the names of professors of Constitutional Law who are truly asserting that John McCain (or someone else like him) is not qualified under the Constitution to be President. I have no doubt someone has offered up some speculation for the purpose of having a discussion, but are they seriously standing by their interpretation? Have they published their assertions? Are they relying upon some other such publication?
Put up some indication that this is a truly serious argument, and not the subject of backroom bullshitting sessions by law school faculty, please.
As for “definitely settled,” what constitutional law point ever is? :dubious:
Which is not to belittle the discussion here, just to suggest that, while someone might proffer up an idea for discussion, they really aren’t being serious, given that it’s pretty clear that the current definition of “natural born citizen” we work under is assumed to include someone like John McCain.
The Canal Zone was never, properly speaking, US territory. The US had the right to jurisdiction over the Zone, and the right to act as if it were sovereign, but the Zone technically remained Panamanian territory. You did not gain citizenship from simply being born in the Zone unless at least one of your parents was a US citizen.
As far as I know, Coco Solo itself was a housing area, and actually not one of the military bases. If McCain was born in Coco Solo hospital, that was definitely off-base.
McCain’s citizenship is based on that of his parents, not on some special status of the Canal Zone.
The lack of legal challenges, or even the lack of judicial power over these legal challenges, does not meet McCain meets the requirements. It just means that if he doesn’t, it doesn’t matter. Which is true, in terms of what will happen in politics. But it is still an interesting (to me) academic question.
And I wouldn’t be 100% sure that this will never see a court. Nine out of ten scholars said the same thing about Bush v. Gore.
Two things: First, the law hasn’t been consistent for 215 years. Our citizenship laws have shifted with the rest of our immigration law. Witness, for example, the Fourteenth Amendment. Second, Congress gets to determine what the Constitution means right up until the point that they are challenged in court. Congress gets no special deference on Constitutional meaning even if they get extreme deference on the rational basis of their policies, etc.
If by “standing by their interpretation” you mean seriously contending that this isn’t an open-and-shut issue, they are doing exactly that. Again, most think the political question aspect is an open-and-shut case. But the actual merits is grayer.
I’m reluctant to name which professors of mine are discussing this in and out of class. I’m not sure they intended the conversations to be public, and I’d rather not give out that much information about myself anyway. You’ll just have to take my word that these people are at the top of their field and take the issue seriously.
Outside of the specific fact-pattern of John McCain’s birth, there’s no doubt that the wider issue of the meaning of Article II’s phrase “natural-born” citizen is the subject of widespread debate. Here’s some citations to law review articles discussing the issue:
Jill A. Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988).
Christina S. Lohman, Presidential Eligibility: the Meaning of the Natural-Born Citizen Clause, 36 Gonz. L. Rev. 349 (2001).
Sarah Helene Duggin, Natural Born’ In the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause and Why We Need To Fix It, 85 B. U. L. Rev. 53 (2003).
Lawrence Friedman, An Idea Whose Time Has Come - The Curious History, Uncertain Effect, And Need For Amendment Of The “Natural Born Citizen” Requirement For The Presidency, 52 St. Louis L.J. 137 (2007).
Definitely settled was poor wording on my point. As we all know, no precedent is immutable. But it is not settled in the same way that strict scrutiny for racial discrimination is settled, or judicial review is settled, or the federal power to control immigration is settled.
It is a mistake to confuse assumed with proven. Plenty of long-standing laws, which are never challenged in court like this one, get overturned once judicial scrutiny focuses on them.
It would’ve been considered part of the base, though, even if it was just housing. I’ve lived in such places. Shore Patrol, not cops. Gated entry. It’s just an annex to the base. And here are some pictures, including the Naval Hospital.
Interesting. That’s what I had heard as well. That suggests that his citizenship could be purely statutory, and not Constitutional, depending on your view of what the Framers thought of citizenship by blood.
John Mace, is it the case that every base is considered US soil? It seems like there are areas of ambiguity, but maybe I’m just thinking of Gitmo and the administration’s argument in Rasul may well have been specious.
I didn’t mean to imply that they were considered US soil-- I don’t know if they are. That’s why I said earlier that they weren’t like an embassy. But it would certainly be property owned or leased by the US government, and we would have some degree of jurisdiction over the actions taking place on the base (MPs acting as cops, for example).
Nope. United States military bases overseas are not American soil. They are still the territory of the host nation. Embassy ground are considered US territory by diplomatic treaty, IIRC.
If McCain wins and the birth issue goes to court, it will be only because a bunch of lawyers see a chance to make a lot of money. They’ll stretch it out forever, but I bet I can predict the final finding.
Pretty much everyone thinks no court would hear it based on political question doctrine. But, again, people are not so certain in the wake of Bush v. Gore.
Dang! You have skillfully uncovered the fact that I am not a lawyer.
Still, someone pays the lawyers’ fees, don’t they? Maybe some private-interest group intent on removing McCain would pay a lot of bucks to keep it in court? Perhaps I’m wrong, but I was under the impression that anything that gets dragged out in court means a lot of money for someone. Or am I just too cynical?
Sorry, I was just bristling at the stereotype of the greedy lawyers.
Yeah, I think you’re being too cynical. There are a lot of lawyers that aren’t in it for the money. With a case like this, if it wasn’t taken for free, it would still most likely be taken by an academic; Bush v. Gore was argued for Gore, initially, by Prof. Tribe of Harvard. My guess is that it would be someone like that. He might make some money from it, but he’s not in it for the money. Academics do well, but not that well.
While it’s no longer a relevant issue, many people incorrectly assume this to mean people who were born in the thirteen colonies. In reality, it says that anyone who was an American citizen in 1787 was eligible to be President. Albert Gallatin, who was born in Switzerland and immigrated to the United States in 1780, ran as William Crawford’s Vice-Presidential candidate in the 1824 election. As it turned out Gallatin withdrew his candidacy before the election and Crawford, who had been the leading candidate, suffered a stroke during the campaign and lost. But if Gallatin had stayed on and Crawford’s stroke had been delayed a few months, the United States might have had a foreign-born President.
Possible Scenario. The 20th amendment states if the president-elect shall not qualify for the office, the vice president elect becomes president. Now the president elect is not officially the president elect until Congress on January 6 2009 opens and counts the electoral college ballots. At that point a member of congress can contest the electors saying votes for McCain should not be counted. Congress then debates the whole can of worms and decides what to do. Making Mccain inelligble promotes the Veep elect. I do not see any incentive for Congress to do this.
A slight but important correction here: you are a natural born US citizen if born on “foreign soil” provided that at least one of your parents is an American citizen and meets the requirements.
My sons are US citizens by birth, even though they were born in Norway, because I was born an American citizen and lived in the US until the age of 21. However, unless they choose to live in the US at some time in the future, they will not automatically be able to pass that citizenship on to their children.
If you’re Joe Schmoe Citizen who files a lawsuit, I wonder if the courts would consider that you have standing. I suppose that we are all affected to some degree by whoever sits in the WH, so maybe they would.
It’s an interesting question, actually. Generally, if you are affected by the Constitutional violation in the same way every other American is, you don’t have standing–your injury must be particularized. It’s not open-and-shut, but this Supreme Court has been pretty eager to reduce the scope of standing whenever they can. So it would probably have to be the DNC or RNC or a candidate that sues.
