Friday, April 11, 2008

Government 101

Upon hearing the news this morning that the Senate is passing a resolution to declare that John McCain does indeed have the legitimate prerequisite of native American citizenship to run for President, I was briefly inclined to wonder whether these Senators were sleeping during their high school government class.

The issue arose because Mr. McCain was born at an American military base in the Panama Canal, and the Twelfth Amendment to the Constitution requires that American Presidents must be native born. So is Mr. McCain disqualified or not? The matter isn't really a serious one in his case, because nobody will be able to raise any serious doubts about his legitimacy as a candidate. But now, lest anyone should even try, and as if to lay the matter legally to rest once and for all, the Senate, led by the Democrats, has passed a bill declaring that the Constitution does not preclude his candidacy.

But here's what has me scratching my head. Isn't it the business of the judicial branch to interpret the Constitution? How often we hear (rightly) of the impropriety of activist judges who seek to make laws rather than interpret them. Well, isn't it equally improper of Members of Congress to interpret laws rather than make them? It may be a small point, but maybe not. To be sure, this is likely some sort of publicity stunt on their part--some ostensible demonstration to the American people of how gregarious Democrats (who sponsored this bit of "legislation") toward the presumptive Republican nominee--but possibly there's a more serious matter to be pondered here.

To put it simply, it's a bit troubling to see our nation's most prominent politicians failing to understand the most basic principles of American politics.

But I digress . . .


Anastasia Theodoridis said...

Excellent point, IMO. It is troubling when Congress asserts powers it doesn't have and gives away powers the Constitution does give it, as with the war powers bill. It didn't just authorize Pres. Bush to declare war on Iraq at his discretion; it authorized any president to do the same at any time, with respect to any country.

Carl Vehse said...

The recent antics by democrat senator Claire McCaskill (MO) and the senate is, as the WaPost notes, "simply a 'sense of the Senate' resolution. Individuals only have five senses, but the Senate has many more -- and expresses them nearly every day, though none are legally binding."

Earlier this year, McCaskill did introduce a real bill, S.2678, on redefining citizenship. One can also use THOMAS to see the bill.

It was introduced by McCaskill and four other co-sponsors including Hillary Rodham Clinton and Barack Hussein Obama. (How did they ever find time to sponsor a bill during their busy primary campaigning?)

In any case, according to

This bill is in the first step in the legislative process. Introduced bills go first to committees that deliberate, investigate, and revise them before they go to general debate. The majority of bills never make it out of committee. Keep in mind that sometimes the text of one bill is incorporated into another bill, and in those cases the original bill, as it would appear here, would seem to be abandoned. [Last Updated: Feb 28, 2008] Last Action:
Feb 28, 2008: Read twice and referred to the Committee on the Judiciary

I suspect the bill will languish in committee... unless there is an advantage for stirring it up again as a political smokescreen or if McCain becomes president-elect.

Article II, Section 1, of the Constitution now limits presidential eligibility to, among other requirements, "a natural born Citizen". The 14th Amendment clearly establishes two categories of citizens, "born or naturalized in the United States". Thus a "natural born Citizen" would have to be either born in the United States or naturalized in the United States. It is difficult to see, without a specific Court ruling, how a natural born citizen could be the latter.

It is also difficult to see, again without a Court ruling, how S.2678's wording that "children born to United States citizens while serving overseas in the military are eligible to become President", could be compliant with both Article II, Section 1, and the 14th Amendment. And does this bill refer to both parents being in the military, or just one parent? The bill also says nothing about citizens serving in official other-than-military government positions (e.g., civilian federal or state employees) or U.S. citizens traveling or living outside the United States.

S.2678, if passed and signed into law, would be ripe for federal appeal if McCain were president or president-elect. (Maybe that's what the bill's sponsors would like to see; remember Pelosi's 2nd in line. Yikes!!!)

More information on the principles of Jus soli and Jus sanguinis and how citizenship may be acquired is at the State Department webpage 7 FAM 1111.2 Citizenship.

Carl Vehse said...

Phrases in the Constitution often have their meaning based on established legal understanding, which at that time was William Blackstone's Commentaries on the Laws of England (but widely referred to in America, before and after the Revolutionary War). Blackstone's Commentaries 1:354, 357--58, 361--62 (1765) has this understanding of "natural born citizen":

"To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain."

This might suggest that the framers of the Constitution understood and used the phrase, "natural born citizen" to include those born to American citizens abroad. Furthermore, the United States Naturalization Act of January 29, 1795 1 Stat. 414, Chap.XX, Section 3 states:

"the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States..."

Brian P Westgate said...

Now if only everyone had voted for Ron Paul, Congress wouldn't have wasted its time on such a bill. But I understand that I'm dreaming.

Father Eckardt said...

. . . and if pigs had wings . . .

Brian P Westgate said...

I was kinda hoping for a response like that, but you have to admit, it's true! Born in Pennsylvania and all that good stuff. And I still seen more signs for him than for anyone else. Which I suppose means nothing . . .
And a vote for him would be a vote for doing away with yesterday.