McCain's Constitutional Eligibility to be President

[Lawrence Solum]

I certainly don't know enough about usage at the time, but "considered
as" is at least ambiguous in contemporary usage & to my ear suggests a
nondeclaratory sense.  Given the back ground rules of English law
concerning "natural born subjects," the question seems to me to be an
open one.

I certainly don't think any court will touch this.  There are
interesting questions about Congress's power to settle the
interpretation--even if wrongly--and to adopt an amending
construction.  There are also interesting questions about historical
practice.  But the question seems murky to me.

On Fri, Oct 31, 2008 at 6:13 AM, Steven Jamar <stevenjamar at gmail.com> wrote:
> Please note that the statute of 1790 does not say "shall have the same
> rights as natural born citizens" nor does it say "are the same as natural
> born citizens"  nor does it say "are defined as natural born citizens."  Any
> of these could be construed as meaning that such people as were included in
> the statute are naturalized citizens and not natural born.
>
> What the chosen language does show is that the founders considered (the very
> word used in the statute btw) such people as natural born citizens and so
> the provision is indeed declaratory.  Furthermore, citizens are more like
> the king's kids than they are like the king's subjects -- so the Blackstone
> rule with respect to the status of the kids of those who are sovereign (the
> people in the US, the monarch in England) should be the one that controls,
> not the Blackstone rule with respect to subjects.
>
> But, as fun as this sort of originalist exploration is, does anyone see even
> one vote on the Supreme Court for excluding either McCain or Obama from the
> Presidency on this basis ?    Even given Bush v Gore?  Is this not really a
> question resolved by the nominating process and general election and thus
> not even a question for the court except perhaps in the clearest of cases
> such as Schwartzenegger and for such a person, who would nominate him in
> light of the Constitutional bar?  He is not even arguably a natural born
> citizen.
>
> Then, of course, there is the standing issue under current court
> jurisprudence.  But I have to believe the court would make an adjustment to
> allow this issue to be able to reach the courts somehow.
>
> Steve
>
>
> On Fri, Oct 31, 2008 at 2:28 AM, Lawrence Solum <lsolum at gmail.com> wrote:
>>
>> I was one of the contributors to the Michigan symposium.
>>
>> One interpretation of the phrase "natural born citizen" requires
>> citizenship at birth.  There is some doubt about McCain's citizenship
>> at birth--Chin and Sachs explore this thoroughly.
>>
>> There is, however, some doubt about this interpretation of the phrase.
>>  I've read all the relevant literature--and in my opinion, the
>> necessary historical research is still to be done.  "Natural born
>> citizen" was derived from a term of art in English law, "natural born
>> subject."  Natural born subjects were those who citizenship was
>> automatic--no statute was required.  There were three classes of
>> natural born subjects: (1) persons born within the sovereign territory
>> of Great Britain, (2) children of the sovereign wherever born, (3)
>> children of the sovereign's ambassadors wherever born.  Others could
>> be made citizens at birth--BUT it required a statute.
>>
>> The Naturalization Act of 1790 declared, "And the children of citizens
>> of the United States that may be born beyond sea or out of the limits
>> of the United  States shall be considered as natural born citizens."
>> If this statute was declaratory, then it is evidence that "natural
>> born citizens" included children of citizens born abroad.  But if the
>> statute conferred the rights of natural born citizens on such persons,
>> then it is evidence that they are not natural born citizens, but have
>> all the rights of such citizens that Congress can confer.  Since
>> Congress cannot change the constitutional criteria for eligibility for
>> the Office of President, the statute could not confer such
>> eligibility.
>>
>> My contribution to the Michigan symposium is available with full
>> footnoting at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263885
>>
>
> --
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social Justice
> (IIPSJ) Inc.
>
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-- 
Lawrence Solum
Associate Dean for Faculty and Research, John E. Cribbet Professor of
Law, & Professor of Philosophy
Co-Director, Institute for Law and Philosophy
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