Simply because I ran away to law school after college because the circus wasn’t in town, it does not follow that I’m not a lawyer.

“Nobody knows more about Constitution law than JT. So, don’t come in here and behave like you own the place-you don’t.”

Gee, you don’t suppose my visits here and citing of Prof. Turley’s work has anything to do with me holding his keen juristic acumen in such high esteem; do ya?

And the only thing I claim to own, inalienably, out here on the perimeter of cyberspace, is myself: “Though the earth, and all inferior creatures, be common to all …, yet every [one] has a property in his own person: this no body has any right to but himself.” — J. Locke

Look ma; no penumbras!

“You have to come through me, DW, and a few others here first.
So there’s that…”

Sounds like a ‘feudal’ effort to me.

“If you have something to say, say it. Ask your question – IF you are unsure.”

So, when I refer to Antonin Scalia as “Lord Scalia” or “His Lordship,” you’d know that I was being sarcastic rather than including him within your feudal system; right?

Hey, I had to ask.

Regards,

Bob

You will receive visits from three spectres of blogs past, present, and future tonight. Good luck and God’s speed.

Uh-oh. Now I’m wondering what eligibility requirements I might have missed, which assignments I inadvertently failed to complete. JT, can you or one of the Council members let me know what, if anything, I neglected? Many thanks.

http://jonathanturley.org/2008/02/26/chumming-for-torts-tourist-killed-by-sharks-after-company-chums-water-with-fish-parts/#more-1163

You have to come through me, DW, and a few others here first.
So there’s that…

If you have something to say, say it. Ask your question – IF you are unsure.

Otherwise, I’m not interested.

1. Bush v. Gore was not justiciable (See Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 NOTRE DAME L. REV. 1093 (2001)

2. Justiciability issues are [subject matter] jurisdictional in nature and must be raised by the court even if the parties do not. (See Warth v. Seldin)

3. ***Objections for lack of subject matter jurisdiction are NEVER waived.

4. Axiom: No branch of the Federal Government, individually or jointly, has the power to amend the constitution; since ““In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.” See REID v. COVERT, 354 U.S. 1 (1957)

Perhaps before analyzing the subtleties of John McCain’s citizenship we should take a close look at Amendments 12, 20, 22 & 25 and ask what happened on March 4, 2001.

Hint: As of 12:01 pm, January 20, 2001, Clinton lacked the ‘capacity’ to remain in office as President of the United States.

Regards,

Bob

On the plus side, though, if SCOTUS does indeed set the precedent of a liberal interpretation of the “natural-born” clause to favor McCain, then at least we’ll have a clear precedent on the subject. And I think it’s unlikely that the Court would so eagerly interject itself into a disputed election again (I’m starting to get the feeling that Roberts is actually interested in preserving the Court’s reputation and that Kennedy wouldn’t want to handle this hot potato again, so perhaps only Thomas, Scalia and Alito would grant cert), so if McCain unquestioningly wins the vote and a challenge is raised, and it reaches SCOTUS, the Justices will likely defer to the electorate and/or the legislature on the matter.

Or I could be completely wrong, and we’d have the Court, for the first time, invalidating the results of an election wholesale and ruling a victorious nominee is ineligible to serve–but I just don’t see that happening.

I offer some additional views on the territorial verses parentage distinctions in today’s blog entry on the McCain issue.

As you note, the purpose of the Clause as seen by John Jay was “to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”

So, they did not want foreign generals, no matter how gifted, to be in charge of American forces. Nor did they want foreign princes or politicians named to high offices in the government. Would allowing infants born abroad to grow up to be President foil either of these aims? Clearly not.

The original understanding can be found by looking at what we now call legislative history. The Constitution Annotated reports that “Congress, in which a number of Framers sat, provided in the Naturalization act of 1790 that ‘the children of citizens of the United States, that may be born beyond the sea, . . . shall be considered as natural born citizens. . . .’ This phrasing followed the literal terms of British statutes, beginning in 1350, under which persons born abroad, whose parents were both British subjects, would enjoy the same rights of inheritance as those born in England; beginning with laws in 1709 and 1731, these statutes expressly provided that such persons were natural-born subjects of the crown. There is reason to believe, therefore, that the phrase includes persons who become citizens at birth by statute because of their status in being born abroad of American citizens.”

The clause and the 1790 act were apparently drawn from familiar British laws, which treated infants born abroad as natural born subjects. Absent evidence to the contrary, we may reasonably assume that the framers had a like intent. Moreover, it is very unlikely that the Members of the First Congress, sitting at a time when the Constitutional Convention was a living memory, would have got this one wrong.

Finally, constitutional research, scholarship, and learned debate on this issue would probably be a complete and total waste of time and effort. A page of history will outweigh them all.

I hereby predict that, when and if the case gets to the Court, Justices Roberts, Alito, Thomas, Scalia and Kennedy will vote to seat McCain simply because he is a Republican, just as Rehnquist and his henchmen did for Bush in 2000.

Mark
Arlington, VA