The Discerning Texan

All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
Sunday, February 17, 2008

Always Looking for the Legal Angle

I can see it now; a triumphant John McCain, fresh off of his stunning landslide win over Barack Obama (despite the media's hearty support for the latter)...only to be sued by trial lawyers representing the DNC, suggesting that John McCain is not qualified to be President. Why? because some people think his being born in the Panama Canal Zone (at the time, US territory), disqualifies him:

John McCain isn’t a popular guy in some circles, but now some of those who are opposed to him think they’ve found a silver bullet: a claim that McCain isn’t eligible to the Presidency because (they argue) he isn’t a natural-born citizen. Typical of the type is this post; Kevin Johnson has a useful comment here.

As I understand it, the rhetorical strategy is to note that McCain was born in the Panama Canal Zone (“PCZ”), and citing 7 FAM 1116.1-4(c), argue that McCain isn’t a natural-born citizen because children born to U.S. citizen parents at overseas military bases and diplomatic installations aren't subject to the jurisdiction of the United States, as the Fourteenth Amendment requires, so don’t attain citizenship as a birthright. Ordinarily this isn’t a big deal, because acting pursuant to its Art. I § 8 authority to legislate rules for naturalization, Congress has provided that such persons become naturalized citizens at birth, see 8 U.S.C. § 1401(c). However, the distinction might become a big deal in the one, unique, context where it’s not good enough to be a naturalized citizen rather than a natural-born one: candidacy for the Presidency.

The defects in the argument are pretty obvious. First, the citation to the Foreign Affairs Manual isn’t helpful; its discussion explicitly relates to the Fourteenth Amendment, but the relevant provision of the Constitution is Article II § 1. The Fourteenth Amendment only establishes that you can be a citizen by way of natural-born status or naturalization; it doesn't textually answer the instant question of what constitutes being “born ... in the United States.” Second, to connect 1116.1-4(c) to McCain, we’d have to assume that the PCZ was “abroad,” which is to say, “not part of the United States.” Even if McCain was born on a military base in the PCZ, 1116.1-4(c)'s whole point is that it's not the base that you look to, but the soil the base sits on. So 1116.1-4(c) is useless without the antecedent argument that the PCZ was a foreign sovereign and thus wasn't part of the United States. The problem with that argument, though, is that the PCZ has been thought of as a U.S. territory, certainly in the era in which McCain was born.1 If it is such, 1116.1-4(c) doesn’t apply. Still, these points deserve some elaboration, and the core point of the argument deserves consideration, because “[w]e deal here not with an ordinary election, but with an election for the President of the United States.” Bush v. Gore, 531 U.S. 98, 112 (2000) (Rehnquist, C.J., concurring).

Behind the hokey conspiracy theorizing, the real point is that Article II § 1 requires that the President be a natural born citizen. It doesn’t say that the President must be being born on American soil, and even if it did, it doesn't say what counts as “American soil.” When a legal text doesn’t define its terms, you have to figure out what a term means. Those of us who are adherents of textualism do this using text, structure, and an inquiry into the original public meaning of the text. ...

You will want to read the rest. Very interesting in illustrating how English Common law, and precedent is (and should be) used to determine the intent of the founders.

So are we headed to another rehash of Florida, 2000? If McCain does win, it is hard to believe that the people who tried to steal the election for Al Gore would stop short this time around from trying to steal another one for whoever the DNC Superdelegates appoint as their "nominee". Still, based on the above linked excellent analysis by Simon over at Stubborn Facts, it is hard to see where the Supremes (at least the current makeup of the court) would rule against McCain. However a challenge like this could facilitate a genuine Constitutional crisis, pitting the Judicial branch against an elected (or lame duck) Executive. And even if the court were to rule against McCain, my own reading of the Constitution would then suggest that the VP would become President rather than the opposing party. Hopefully this would mean a President Thompson or Romney--and not a President Huckster.

The irony here is that this is precisely why we need to elect Republican President: so that he can appoint judges that will make the very notion of taking Presidential elections to court much more unlikely by strengthening our adherence to our Constitution instead of to the "mood" of the moment.
DiscerningTexan, 2/17/2008 03:14:00 PM |