Technical legal questions

[nancylebov]

I just can't get emotionally involved with whether McCain and/or Obama are technically the right kind of American citizens to be qualified to be president. I don't know whether I'm a barbarian or the people who care are out of their minds.

I'm not sure enough of what the issues are to present this as a poll, but how much do you care, and why? If possible, separate this issue from how you feel about Obama, McCain, and Schwarzenegger.

I can see the value of a rule of law, but I think the rule of law is blurrier than it sounds. There are laws that get ignored because people just stop bothering with them.

If you want to require "Americanness" of American presidents, it would seem more reasonable to require candidates to have spent some largish percentage of their lives (both childhood and adult) in the US, but if we can't even tell what "natural born citizen" means (no Caesarians?),
then an "enough time for the culture to rub off on a person" standard is impossible.

Comments

[twistedchick]

As you know, I tend toward the pragmatic: they're what we've got to work with this time. However, I am leery to the max of someone deciding "the right kind of American citizen" definitions, because every time I see one of those it is set up purposely to exclude someone. The Right Kind in the 19th century would have been male only, not Irish, not an immigrant, probably English ancestry. The Right Kind in the 20th century started there and opened up to include Catholics and people who weren't hereditary landowners (Truman, for one; Hoover for another.)

Definitions like that are all about the current fashion in exclusivity -- who those with power want to keep away from the power.

[sethg]

The people who care are out of their minds. I wouldn't say they're as crazy as the ones who claim the Constitution distinguishes between "citizens" and "Citizens" and make pseudolegal hay out of it. But it's the same kind of obsession--arguments based on some vision of "The Law" that has little resemblence with how real lawyers and judges interpret real laws.

I'm not in favor of ignoring the law--if, say, someone passed a private bill that made Arnold Schwartzenegger retroactively a citizen from birth so he could run for President, I hope that the courts would consider such a law unconstitutional. But any ambiguities in a constitutional provision like this should be construed to favor the voters, not construed to disqualify the candidate that the voters have chosen.

[osewalrus.livejournal.com]

But it's the same kind of obsession--arguments based on some vision of "The Law" that has little resemblence with how real lawyers and judges interpret real laws.

Exactly so. The legal question presented is trivial and resolved by long-standing precedent and, were that not enough, resolution of Congress.

[fidelioscabinet.livejournal.com]

Sometimes I think the term "original intent of the Framers" is just a BS line intended to keep useful changes from happening. In this case, I think it's worth looking at, not to stand in the way of useful change, but to just see what worried them, and if we should worry about the same thing. In 1781-1789, it wasn't inconceivable that a foreigner could come to the US, work his (and I use that pronoun intentionally) was up through the power structure, and then subvert the new Republic (capitalization also intentional) or a single state thereof, into his own personal state--there wasn't an entire set of traditions, customs, and sentiments (laws are easier to change, after all) that would stand in his own way. It was only about a hundred years before that William of Orange (of William and Mary) had tossed his father-in-law James II off the thrones of England and Scotland, and the English Civil War had taken place 40 years before that, and Guy Fawkes less than 40 years before that, with the Jacobite Rebellions taking place in 1715 and 1745. So the Framers were aware that the governing power of a country was not necessarily unchanging and immutable, and that there were enough inside threats as well as outside ones that stacking the deck against outsiders looked like a good idea.

By now, I think that the foreign adventurer is a lot less probable a threat than some others; McCain may have been born, technically, outside the actual US, Obama may have been raised all over the planet, and Schwarzenegger may have some here as a young man, but I think casting any of them as the sort of foreign adventurer the Framers worried about is a big stretch (that last man in the list was on an adventure, all right--but his goal was "rich and famous"; he wasn't some sort of Austrian William Walker setting out to fillibuster his way to power when he left home.) I can see letting this provision of the Constitution slide, simply because by now, those customs, traditions, and sentiments are pretty strong and well-developed, and most of us know what we think of when we say "a real American", even if we don't agree with other about what that is.
For my own part, I can say that I feel all three men are real Americans--their values and ideas about power, and who should have it, and why, may not overlap, but that's entirely American as well. I feel that their hearts are here, and I'm more worried about McCain's health, age, and general hammerheadedness, the risk of Obama succumbing to Smartest Guy in the Room syndrome, or Schwarzenegger hearing the siren call of money, than I am about whether they're the real thing.

I seem to have run all over the map with this. I hope the whirlwind tour makes sense; it did inside my head, I promise.

[dcseain.livejournal.com]

Well said; i agree with you here. Schwarzenegger was born in Austria, but he is an American now in my eyes, even though i know he and i may not see eye-to-eye on what 'American' means. I agree that he believes in the same law, such as it is, that i do, etc. McCain's birth in the CZ is a moot point, and from my point of view, totally irrelevant.

As i pointed out elsewhere in a comment thread, i believe the only time that a US birth certificate is issued for a foreign birth is in the case of adoption. The amendment to Obama's birth cert i saw eluded to elsewhere is a total none-of-our-business issue in my opinion. Sigh.

[madfilkentist]

The main reason for the Constitutional provision, I think, was to keep any influential person from England from coming over and getting elected president. On the other hand, the provision clearly isn't intended to restrict the presidency to people who were born citizens of the United States; since the president has to be at least 35, there would have been literally no qualified candidates if that interpretation applied. Washington, Adams, and Jefferson were all born in the colonies; now I'm curious about who the first president was who actually was born in "the United States."

With those issues long out of the way, what's left is the game of legalistic nitpicking which some people always enjoy, and desperate attempts to push a candidate out of the running on a technicality. Neither is worth much of anything to me.

But I am amused by the idea that Macduff couldn't be president. (OK, he was from Scotland, but you know what I mean.)

[stevemb.livejournal.com]

"On the other hand, the provision clearly isn't intended to restrict the presidency to people who were born citizens of the United States; since the president has to be at least 35, there would have been literally no qualified candidates if that interpretation applied."

The relevant clause is: "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). Note that this would not only cover someone born before the new governent existed, but also someone who had immigrated before the new governent existed (e.g. Alexander Hamilton).

"Washington, Adams, and Jefferson were all born in the colonies; now I'm curious about who the first president was who actually was born in 'the United States.'"

Martin van Buren (http://en.wikipedia.org/wiki/Martin_Van_Buren)

[avram]

So McCain qualifies anyway!

[osewalrus.livejournal.com]

I'm willing to defend the rule about being born in the U.S. I think there is value in having a person born here be President in that it creates understandings and sympathies not replicated by someone who is not born here. Yes, this will produce the occasional odd case such as McCain's, and one can find examples of native born Americans who qualify under the constitution who have loyalties to other countries and of non-native borns raised here almost from birth or who love the country all the more because they fled oppression. But as a rule relying on general percentages, it seems rational to me.

Mind, I wouldn't get too emotional if it were eliminated, but I find it reasonable in the same way the a minimum age of 35 is reasonable.

[zenlizard]

>There are laws that get ignored because people just stop bothering with them.


See, there's you've really hit the nail on the head: it is frequently the appliction of law the breeds general contempt of the law.

[osewalrus.livejournal.com]

As for McCain, Obama and Schwartzeneger -- Obama clearly qualifies under the constitution, as he was born in Hawaii after it became a state. Schwartzeneger clearly does not qualify as he was born in Austria.

McCain is the only one that presents a legal question, but it is trivial and resolved by Congress by resolution previously.

[avram]

The two are actually slightly different questions.

In McCain's case, there's no argument over the facts, just an argument over the law. The legal consensus is that, yes, he qualifies as a "natural born citizen". The people arguing otherwise are cranks.

In Obama's case, there's no argument over the law, just an argument over facts. The people who have a bug up their butts about the issue have been presented with the evidence, but refuse to accept it. They're like creationists, always asking for yet another example of transitional fossils.

In both cases, the people making noise are doing you the favor of revealing to you that they are crazy.