Former Solicitor General Ted Olson, a Republican backing McCain, and Harvard Law Professor Laurence H. Tribe, a Democrat backing Barack Obama, have issued a paper finding that John McCain is “natural born” under the Constitution.
As this column discusses, there is a serious question over whether McCain truly qualifies as “natural born.” I am still trying to locate a copy of that report. Clearly, there is support for each side in such a debate. If it is treated as a territorial (rather than a parentage) question (as suggested by McCain himself), the question is a close one. There is not a great deal of historical material to clearly establish the answer and academics have debated the question for decades without resolution.
For the full story, click here.
…and she has a column on the web today:
http://www.dailyreportonline.com/Editorial/News/singleEdit.asp?individual_SQL=4%2F8%2F2008%4022524.
For the folks who can get to a law library, here is a citation: The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, by Jill A. Pryor, Yale Law Journal, Vol. 97, No. 5 (Apr., 1988), pp. 881-899, 19 pages.
To bring it up to date (April 8), the Olson-Tribe opinion has been given to McCain, and Professor Tribe has asked them to post it, but nothing seems to have happened yet. That is perfectly ok, since any legal opinion is the property of the client, and is his to disclose or withhold.
The McCain forces probably do not want to rekindle the issue unnecessarily at this time. Some might say that it is a lot better to get it out of the way sooner rather than later, but it is their campaign to run.
The cases filed so far seem unlikely to get far. One failed for timeliness. The other courts could rule that the issue cannot be ruled on until after the election, or that a challenge on the floor when the Electoral College votes are counted by VP Cheney must first be exhausted. None of the plaintiffs msy have any standing to raise the issue.
A case is only likely to go forward if the McCain forces and their Democratic allies should agree to waive all the defenses they can, and to seek an early decision.
Meanwhile, the Paulistas are both appalled and appalling. They are arguing vociferously that McCain is unqualified, apparently hoping to open the way for their boy to get the nomination. Also, some of the postings by “Tannin” on that website dailypauldotcom noted above are despicable, and the moderator is unconcerned. They would seem to be a good bunch for anyone to steer clear of.
Article published Mar 19, 2008
Nashuan questions McCain’s eligibility
By ANDREW WOLFE
Telegraph Staff
CONCORD – Weeks after a similar case was filed in California, a Nashua man has asked the federal court to rule that Sen. John McCain can’t be president because he was born out of bounds.
Fred Hollander, of 56 Dorchester Way, filed suit against the Arizona senator and the Republican National Committee, arguing he and other Republican voters would be “disenfranchised” if McCain becomes the party’s nominee for president.
Hollander could not be reached for comment Tuesday afternoon. His suit, filed Friday in U.S. District Court, asks a judge to order McCain to withdraw, and the GOP to nominate someone else.A lawyer in Riverside, Calif., filed a similar suit in California’s Central District U.S. District Court on March 6, court records show. That case asks only for a “declaratory judgment” on whether McCain would be eligible to serve as president if elected.
Notice of Hollander’s suit was mailed out Monday to McCain and the Republican National Committee, court records show.
Pa. top court ruling keeps McCain’s slot
By Mike Wereschagin
TRIBUNE-REVIEW
Friday, April 4, 2008
John McCain’s place on the Pennsylvania primary ballot is safe, thanks to the state Supreme Court.
A mental health counselor from Ingram had tried to have McCain banned from the race by alleging the two-term U.S. representative, four-term senator, 23-year Navy veteran and 66-month prisoner of war isn’t a U.S. citizen.
Carmon Elliott’s beef isn’t with McCain’s service to his country — it’s where he was born.
Echoing a complaint raised in late February and dismissed immediately by McCain’s campaign, Elliott says McCain’s birth at a naval air station near the Panama Canal — where his father was stationed in 1936 — disqualifies the Arizona senator for the highest office in the land.
A bipartisan pair of lawyers said in late March that McCain qualifies as a U.S. citizen “based on the original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent,” according to The Associated Press.
Here’s what the U.S. Constitution says:
“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; Neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.”
Still maintaining that McCain was born under Panamanian sovereignty, Elliott filed a petition in Commonwealth Court saying so. His petition didn’t meet legal language standards, Elliott said, so he spent a few days in the Duquesne Law School library schooling himself on legalese. He had until Feb. 21 to re-file.
He re-filed the petition March 13. The court ruled that Elliott was 21 days too late. The state Supreme Court Thursday upheld the ruling.
“The U.S. Constitution never did apply unconditionally in the Canal Zone,” where McCain was born, Elliott said.
A registered Democrat, Elliott said he isn’t motivated by politics.
“If he was born under Panamanian sovereignty, he wasn’t born under U.S. sovereignty,” Elliott said.
A series of laws and court cases in the past century or so make it clear that McCain qualifies, according to the lawyers quoted by The Associated Press.
Mike Wereschagin can be reached at mwereschagin@tribweb.com or 412-320-7900.
Good one!
If it ever goes to the top, the Supremes will rule that he qualifies on Citizenship. Other then that he has the same qualifications as myself to be President. None.
You will find a lot of discussion of this issue, and of Jon Turley, at a Ron Paul website:
http://www.dailypaul.com/node/44411
Are America and the truth suddenly on different sides, Nibbles?
Lets talk some more about how the Government brought the WTC towers down. That really brings out the lunatics.
Why, just last night Keith Olbermann was almost ecstatic over reporting over MSNBC Al Jazeera news reports on how Maliki’s troops were running from their mechanized armaments and abandoning them to the militias.
Keith Olbermann was almost having an orgasm on the air as he spewed Al Jazeera propaganda. Of course, MSNBC has picked sides in the fight, anyway, and that side is not with America.
“…Why would the question not be “ripe” now? The time to challenge an unqualified candidate is before the ballot is printed…”
Here here, VT – even though I, also, am of the opinion he qualifies as natural-born.
neblet:
I would normally tell you that, as usual, you missed the point which is that serving in the military as a General or Flag officer is not a good predictor of success as President and that I made no assertion concerning the inverse, but why bother. It’s like arguing politics with a third grader, so let’s just concede you’re correct in every way, and send you off to bed with your cookies and milk. I will not waste one more keystroke on your inanity.
“”Interesting how you blather on about the “failures” of ex-military Presidents without once mentioning the far more serious and far more vast failures of those President that never served.””
Let me guess – this is the intro to trying to argue that Shrub is a better president than Clinton was, am I right?
This little ditty from high school English makes ya wonder how many C-Section Presidents there have been:
In Shakespeare’s Macbeth the Witches’ prophecy was that “…none of woman born/ Shall harm Macbeth” (IV.i). Unfortunately for Macbeth, the Scottish nobleman Macduff was “from his mother’s womb/ Untimely ripped,” and thus not naturally “born of woman” (V.vii). Macduff was the only agent capable of destroying Macbeth. He killed Macbeth in battle.
http://www.medterms.com/script/main/art.asp?articlekey=5435
Interesting how you blather on about the “failures” of ex-military Presidents without once mentioning the far more serious and far more vast failures of those President that never served.
It would appear to even someone without a grudge against the military like you, that there is no comparison of the abject failures of those Presidents that never had a clue about “rigid hierarchy and a disdain for dissent”.
niblet:
All this talk about military prowess giving rise to some sort of qualification for civilian office leaves me puzzled. I wonder why anyone would contend that a credential as a professional military person (with its rigid hierarchy and disdain for dissent) is the sine qua non for holding the office of President. In view of the history of failures like U.S. Grant (Gen. USA) Andrew Johnson (Brigadier general of volunteers) and to some extent, Dwight Eisenhower (Gen.of the Army USA), this seems a classic non-sequitur. While there are some notable successes like George Washington (truly an extraordinary “man for all seasons”)and T.R. Roosevelt (and Madison & Jefferson if you want to count state militias), the record of success for General or Flag Officers as President is not very impressive. Most fall into the Rutherford B. Hayes and Zachary Taylor grade of President. The point is simply that there is scant evidence that a professional military background makes one more or less qualified to lead a democracy, or as you neo-cons like to say to be able to answer that call at 3:00 a.m. in the White House.
It would certainly help if Olson and Tribe would post their memo on the web.
Since a lawsuit has been filed, now would be an opportune time to chime in with an amicus brief. If the question is that important, these arguments should be raised in the court of first impression so that the issue can be focused and sharpened.
Why would the question not be “ripe” now? The time to challenge an unqualified candidate is before the ballot is printed. A foreign born citizen is no more entitled to a ballot spot than 25-year-old. The appeal could certainly be expedited through the 9th Circuit, and the Supreme Court would be inclined to grant cert if the Solicitor General weighed in on the importance of the issue.
I have posted before that I think McCain was born of US citizens, and is thus natural born, but you are correct that the question has never been finally resolved by the Supreme Court. But the drafters of the Constitution did sit in the First Congress, and did say that sons born beyond the seas were natural born, in a law signed by Washington himself. It is very unlikely that they got it wrong.
As noted earlier, the perceived evil was the danger of foreign princes or tin-pot Napoleons waltzing in and offering themselves to America as saviors. This evil is not present when infants born of US citizens overseas are allowed to grow up to be President.
Howard Dean 2004: The Medals Matter
March 28, 2008 9:32 PM
Sen. John McCain, R-Ariz., launches a biography tour next week, which looks to tell the American people about his days as a POW in Vietnam, at least based on his new TV ad (watch HERE) introduced today in New Mexico.
In response, Democratic National Committee chairman Howard Dean issued a statement, saying, “John McCain can try to reintroduce himself to the country, but he can’t change the fact that he cast aside his principles to stand shoulder-to-shoulder with President Bush the last seven years. While we honor McCain’s military service, the fact is Americans want a real leader who offers real solutions, not a blatant opportunist who doesn’t understand the economy and is promising to keep our troops in Iraq for 100 years.”
The Republican Party has seized upon the term “blatant opportunist” to suggest that Dean is implying McCain is an opportunist for including his POW information in his TV ad.
RNC Deputy Chairman Frank Donatelli said, “Howard Dean owes John McCain an immediate apology and both Sens. Clinton and Obama should unequivocally denounce this disgraceful attack.”
That’s all noise. What’s more interesting are the Dean quotes from 2004 that may come back to haunt him this year.
“The real issue is this,” Dean said in March 2004, when endorsing formal rival Sen. John Kerry, D-Mass., “Who would you rather have in charge of the defense of the United States of America, a group of people who never served a day overseas in their life, or a guy who served his country honorably and has three Purple Hearts and a Silver Star on the battlefields of Vietnam?”
McCain, by the way, has been awarded the Silver Star, the Legion of Merit, two Bronze Star Medals, a Purple Heart and the Distinguished Flying Cross.
It is an interesting question. Tribe is a brilliant constitutional scholar (I still think he was dead right about Bush v. Gore). I have never looked into the question of territories, but since the Constitution allows for their creation, and federal law governed, it makes sense that one born there should be considered “natural born.” I realize once legal scholars get involved, it gets more complicated. And with a clearly partisan court (not that it acts in partisan ways all the time), it could prove an interesting case. It would be a shame to have a presidential nominee disqualified at this point, although I am a believer in the non-foreign born principle. Many dictatorships in modern history have occurred in which the leader was foreign-born: Napoleon, Hitler, Stalin. I don’t think McCain fits that at all.