Literally. I thought this was old news. But the Constitution is forever young.
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53 comments
July 11, 2008 at 8:17 am
eric
Oh the Constitution. That old thing.
July 11, 2008 at 8:18 am
ari
Dusty and a bit tattered, isn’t it? Just toss it in the trash as you walk by.
July 11, 2008 at 8:19 am
eric
That’s precious. What, exactly, do you think the framers would have made of us having colonies with standing armies stationed in them?
July 11, 2008 at 8:20 am
ari
Not so much with the strict constructionism, I guess.
July 11, 2008 at 8:24 am
ari
Also, I hope you don’t mind that I borrowed your title. I assumed it was open source.
July 11, 2008 at 8:25 am
Vance Maverick
As the offspring of American citizens living out of the country, I resent the emphasis on “military personnel” in that quote. Seriously, is there anyone, even purblind partisans such as ourselves, who thinks this should matter? (Let alone “strict constructionists”.)
July 11, 2008 at 8:26 am
eric
I agree with both your points, Vance.
July 11, 2008 at 8:27 am
eric
I hope you don’t mind that I borrowed your title
No, by all means. We should set up a category for it.
July 11, 2008 at 8:29 am
Neddy Merrill
This is sort of hilarious, though, in a Pirates of Penzance kind of way.
July 11, 2008 at 8:39 am
ari
Oh, I totally agree with you, Vance. Sorry, I should have made that clear in the post. That said, the story should grow long legs and stroll onto an op-ed page near you and me every other eligible voter in the United States. And it should prompt a serious discussion about whether or not such a Constitutional provision makes any sense. And also a serious discussion about whether or not Senator McCain is actually eligible to serve as president. Because that would be edifying.
July 11, 2008 at 9:13 am
jw
Neddy: blast you. I will now be humming, “a paradox, a paradox, a most ingenious paradox…” for the rest of the day. And thinking of John McCain as an erstwhile pirate, and trying to figure out if he could have beaten the old man trap by being born on Feb 29. Would he even be old enough yet?
July 11, 2008 at 9:28 am
Giblets
Giblets has always had a soft spot for those parts of the Constitution devoted to hating on foreigners, women and colored folk.
July 11, 2008 at 10:17 am
Rich Puchalsky
If they’re going to let McCain through, they have to let the Governator run as well. Surely it’s the intent of Congess that Arnold is naturally born kewl, and therefore American. I mean, who cares about military personnel. We’re talking about an action movie hero here.
July 11, 2008 at 10:34 am
washerdreyer
This theory has always been weaker than the one that Texas’s electoral votes for Cheney (or Bush, they had to choose one) should not have counted, and that got no traction (and I’m not sure it’s correct), so this is hopeless.
July 11, 2008 at 10:35 am
grackle
Ari’s linked constitution site sort of glides over the natural-born part of the discussion in favor of the citizen part, leaving the issue refreshingly unclear. So, hypothetically, if I were the child of two American missionaries who were attempting to correct the heathen beliefs of the Pirahã, say, by giving them more American sense of number cognition, and while so engaged they thoughtlessly had me, i.e. bore the infant me there deep in the jungle, am I then (along with perhaps expatriate born Vance) not natural born? Oh the great delight.
July 11, 2008 at 10:43 am
JP Stormcrow
Doesn’t the “riding in a fighter plane and getting shot down” clause overrode all of that crap?
July 11, 2008 at 10:43 am
Vance Maverick
Grackle, when growing up, I always understood that I couldn’t be president, precisely because my parents, though American (indeed themselves American-born), happened to be living abroad that year. Unfortunately, they weren’t missionaries, or military personnel — my dad was doing research.
July 11, 2008 at 10:52 am
JP Stormcrow
It is a trivial thing, of course, but Tribe and Olsen can both suck my cock. To me these statements are in the Scalia range of inanity:
In an interview on Thursday, Mr. Olson, whose firm represents Mr. McCain in the New Hampshire lawsuit, said Congress could not have intended to leave the gap described by Professor Chin. The 1937 law, Mr. Olson said, was not a fix but a way to clarify what Congress had meant all along.
Professor Tribe agreed. Reading the “limits and jurisdiction” clause as Professor Chin does, Professor Tribe said, “is to attribute a crazy design to Congress” that “would create an irrational gap.”
So now the Entrenched Elite Rule of Retroactive Self-serving Panglossian Original Intent has been extended from Constitutional interpretation to Congressional laws.
July 11, 2008 at 11:22 am
washerdreyer
It is a trivial thing, of course, but Tribe and Olsen can both suck my cock.
Their memorandum isn’t on the web, so I don’t know what their reasoning is and don’t really trust the way the Times reported it, but since their conclusion is correct I’m not so sure what you’re upset about.
July 11, 2008 at 11:48 am
JP Stormcrow
I’m not so sure what you’re upset about.
The memorandum may be fine, what I was upset about was what I interpret as the utter fatuousness of the reasoning shown in their responses. “Attribute a crazy design to Congress”, “irrational gap”? My, my, what do we tell the children? Of course, as a professional dick and Harvard prof, respectively, each have a vested interest in mouthing BS in the Times to reinforce argument from authority as the best of all possible forms of persuasion.
I know I am overstating, but finishing up a grumpy, sick as a dog week here, and Olson in particular I could see coming up with a somesmug reverse argument to basic rights for some kid of a soldier who in fact was an illegal alien rather than the exalted right of the sons of admirals to get their precious chance at being President.
July 11, 2008 at 11:53 am
washerdreyer
Statutory interpretation by congressional purpose, of the kind seen in Holy Trinity Church v. U.S., has been largely but not entirely discredited as a methodology. But interpreting ambiguous phrases in statutes by Congressional intent surely has not been, though it is the subject of some debate.
July 11, 2008 at 1:13 pm
andrew
offspring of military personnel stationed out of the country
Could military personnel be considered to be like diplomatic personnel? I think the founders actually did mean for children of diplomats stationed abroad to be citizens, didn’t they? I’m not an immigration lawyer, so I can only ask questions.
July 11, 2008 at 1:18 pm
andrew
Here’s Chin’s paper. (via, which has links to more discussion)
July 11, 2008 at 1:25 pm
JP Stormcrow
Wd, no doubt you are right on the particulars. In part I am also redirecting my frustration that no matter how unethical and partisan and truly assholish a guy like like Olson has been, there is probably nothing than can keep him from his position of “authority”.
July 11, 2008 at 1:46 pm
JPool
Vance,
At what age did your parents break the news to you that your presidential ambitions would forever go unfulfilled?
I knew about the “none of those sneaky naturalizers clause” but hadn’t ever realized that it supposedly applied to citizen babies not born on American soil. This is part of why I always carry extra soil with me when I travel.
July 11, 2008 at 1:47 pm
Katherine
Tribe’s approach is the exact opposite of Scalia’s. Scalia supports a cramped, over-literal reading where you claim that the placement of this comma inexorably proves that the founders wanted some crazy nonsensical result that conflicts with the obvious purpose of the text. It would actually be nonsensical & serve no conceivable purpose for children born to U.S. citizens outside the U.S. to be natural born citizens, but not citizens born in the Canal Zone. Olson’s probably being a hypocrite about this, but his conclusion here isn’t wrong.
July 11, 2008 at 2:47 pm
Vance Maverick
I don’t remember when I learned I couldn’t be Commander-in-Chief. It must not have been too traumatic.
July 11, 2008 at 2:51 pm
JP Stormcrow
I yield to my betters on this. One thing this shows me is the extent to which my own current cynicism about the governmental institutions of our late great country (or the civic nationalist ideal of our late great country) has reached the point that “crazy designs” and “irrational gaps” are about all that I can imagine coming out of the US Congress. Sad. Probably I should just now go quietly and join mcmanus at the cyber-barricades of his mind.
July 11, 2008 at 2:55 pm
Ben Alpers
Dusty and a bit tattered, isn’t it?
I think the word you’re searching for is “quaint.”
July 11, 2008 at 3:19 pm
FBR
I think the word you’re searching for is “quaint.”
Do we really want to be comparing the natural-born citizenship requirement to habeas corpus and the Geneva Conventions?
July 11, 2008 at 3:40 pm
urbino
I don’t remember when I learned I couldn’t be Commander-in-Chief.
Probably when you were doing some practice commander-in-chief-ing around the house. I suspect your middle name may have been invoked.
July 11, 2008 at 3:41 pm
Ben Alpers
Do we really want to be comparing the natural-born citizenship requirement to habeas corpus and the Geneva Conventions?
Habeas corpus and the Geneva Convention are the law of the land in large part thanks to the U.S. Constitution (Article 1, Section 9 and Article 6, respectively), so in a way, yes we do (besides, ari was referring to the Constitution, not simply the natural-born citizenship requirement, as “dusty and a bit tattered”).
July 11, 2008 at 3:56 pm
FBR
Habeas corpus and the Geneva Convention are the law of the land in large part thanks to the U.S. Constitution (Article 1, Section 9 and Article 6, respectively), so in a way, yes we do
No, we really don’t. Habeas corpus, the Geneva Conventions, the Bill of Rights – these things represent freedom of the press, separation of church and state, right to a fair trial, freedom from arbitrary imprisonment, freedom from torture, etc. And the relevant common thread running between them is not that “things that are all in the Constitution,” but that they’re all vitally important basic rights fundamental to the health and welfare of a free and liberal democracy. “No foreigners running for president” isn’t quite up there with them. In fact, it’s pretty a pretty disgusting holdover from the days of our paranoid, xenophobic founding. Now that we’re no longer worried about the King of England running for president in order to take back the colonies, it seems a bit unsavory to hold up the “no foreigners allowed” part as if it were as important to a functioning democracy as the Bill of Rights just to score a couple points on John McCain.
July 11, 2008 at 4:05 pm
urbino
Habeas corpus, the Geneva Conventions, the Bill of Rights . . . And the relevant common thread running between them is not that “things that are all in the Constitution,” but that they’re all vitally important basic rights fundamental to the health and welfare of a free and liberal democracy.
I thought the common thread among them was that none of them exist in America anymore. Well, okay, the 2nd Amendment still exists.
July 11, 2008 at 4:10 pm
Ben Alpers
FBR,
If you mean to say that making treaties with foreign nations the “supreme Law of the Land” and incorporating habeas into the Constitution are good laws, while the “natural born citizen” requirement is a bad law, I totally agree with you.
But what makes these good laws the law, and thus actually enforceable, is that they are in the Constitution, not that they are morally sensible or necessary (in the abstract) for a democratic form of government. And when we start picking and choosing which bits of the Constitution to enforce we’re playing a potentially dangerous game.
Unfortunate sections of the Constitution (and there are quite a few) should be amended, not ignored. I’d be all in favor of dumping the natural born citizen requirement. I am actively in favor of abolishing the electoral college (though that actually wouldn’t take a constitutional amendment). But I’m not in favor of ignoring either one simply because both are irrational, bad law.
July 11, 2008 at 4:12 pm
Ben Alpers
I should add that I am entirely agnostic about whether McCain qualifies under the Constitution’s natural born citizen requirement.
But if he doesn’t, he should not be able to become president unless and until the Constitution is amended (which it should be).
July 11, 2008 at 4:13 pm
Cala
I think McCain would win the argument were it contested, because there’s a reasonably clear way to read ‘limit and jurisdiction’ that counts him.
Vance, depending on the details, I’m pretty sure a kid of two American citizen parents counts as a natural-born citizen. (You never had to naturalize, did you?) “Persons born in the United States, and persons born on foreign soil to two U.S. parents, are born American citizens and are classified as citizens at birth under 8 USC 1401.”
Diplomats’ kids don’t count, because they’re not subject to the jurisdiction of the U.S.
July 11, 2008 at 4:25 pm
FBR
Dude. I’m saying the Constitution isn’t something to be fetishized. Freedom of speech is good because it’s a basic right necessary for any liberal democracy, not because James Madison carved the first amendment into the living rock of Mt. Sinai and handed it down to you on a tablet – that’s the same idiotic founder-worship that’s kept dumb shit like the natural-born-citizenship requirement in the Constitution this long in the first place, to say nothing of stuff like the electoral college, the Senate, and lifetime terms for judges.
When I go to an ostensibly liberal blog and see a bunch of supposed liberals complaining that John McCain isn’t getting it hard enough for having been born outside the boundaries of the United States, that’s a problem. Liberalism isn’t supposed to be about restricting people’s rights, even if they’re nasty old men who belong to political parties you don’t like.
July 11, 2008 at 4:54 pm
andrew
Diplomats’ kids don’t count, because they’re not subject to the jurisdiction of the U.S.
Do you mean foreign diplomats’ kids in the U.S.? I meant U.S. (assuming they’re also U.S. citizens) diplomats’ kids overseas.
July 11, 2008 at 5:08 pm
eric
You never had to naturalize, did you?
Rem acu tetigisti, Cala. Run, Vance, Run!
July 11, 2008 at 5:10 pm
eric
When I go to an ostensibly liberal blog and see a bunch of supposed liberals complaining that John McCain isn’t getting it hard enough for having been born outside the boundaries of the United States, that’s a problem
ari and I both agreed with Vance’s point that this should not be taken seriously, FBR. So does w/d. So I don’t see a “bunch.”
Unless we’re not the “ostensibly liberal blog” you’re talking about. Which, come to think of it, we’re probably not.
July 11, 2008 at 5:50 pm
Katherine
The Geneva Conventions really can’t be said to be “in the Constitution,” either. I mean, there are clauses about signing & ratifying treaties & them being the law of the land, but the same applies to statutes; this does not mean that every federal statute ever passed is in the Constitution.
July 11, 2008 at 6:05 pm
Vance Maverick
No, I never had to naturalize. My parents filed a Consular Report of Birth Abroad and that was that. (Or the equivalent — that’s what I did for my daughter 39 years later.)
So wow, there’s hope! I should start preparing, by sowing a few youthful wild oats.
July 11, 2008 at 6:08 pm
eric
You have proven maverickitude. The press will love you, no matter what dumb thing you say.
July 11, 2008 at 6:19 pm
Cala
andrew, I meant foreign diplomats’ kids. U.S. diplomats’ kids are citizens.
July 11, 2008 at 6:30 pm
urbino
What if a U.S. diplomat has a child with a foreign diplomat? Can John McCain still be president?
July 11, 2008 at 6:50 pm
Cala
Depends on what the phase of the moon is when the child is conceived. duh.
July 11, 2008 at 7:23 pm
andrew
U.S. diplomats’ kids are citizens.
Right, and I assume the founders thought that should be the case. So if military personnel are like diplomats – and they might not be, but I don’t know – then McCain is covered even with reference to the founders (albeit by extension). This doesn’t make the whole “sponsors said [etc.]” statement Eric quoted less annoying, though.
July 11, 2008 at 8:14 pm
andrew
In other words, what I’m saying is that I don’t handle disappointment well, so I want to be sure McCain is on the ballot in the fall.
July 11, 2008 at 10:20 pm
Ben Alpers
Just to clarify my position in this thread…
I’m not in favor of “fetishizing” the Constitution.
I’m not in favor of going after McCain on this issue.
I’m only in favor of not ignoring clauses of the Constitution on account of the fact that they might seem silly or even objectionable. I’m against this in part because I suspect that some of the clauses of the Constitution that seem pretty damn sensible and important to me (e.g. the Fourth Amendment, Article 1, Section 8, Clause 11), clearly seem silly or objectionable to those who currently run this country…and I certainly don’t want to concede to them the right to ignore these clauses.
I’m in favor of following the Constitution not because it’s perfect by any stretch, but because: 1) it defines the rules of the game (including how to change those rules); 2) as rule sets go it isn’t bad; and 3) without rules you really have nothing to go on but raw power and I don’t have a whole lot of that.
So perhaps I’m fetishizing Locke and/or Hobbes ;-)
July 12, 2008 at 6:43 am
SomeCallMeTim
It doesn’t define how to interpret the rules, though, and that, I think, is what is at issue.
July 12, 2008 at 9:17 am
Cala
Right, all it says is ‘natural-born citizen’ (with a proviso for people alive at the time of the Revolution.) That’s a term that’s pretty straightforward if you’re born here.
It’s the borders (haha) that were the harder cases. There was a time in the past when an American woman who married a foreigner would lose her citizenship, so their kids would not be Americans through her (if they were born here, they would be, but if mom married a Frenchman and moved to Paris, the kids wouldn’t be American.) And there’s tons of laws that have to deal just with the consequence of that law changing.
There is a residency requirement for derived citizenship, too. If shivbunny and I have kids in Canada, our kids will be American citizens through me, even if they never visit the U.S. But unless they live in the U.S. for a certain period of time, their kids won’t be citizens.
July 13, 2008 at 12:24 pm
Ben Alpers
It doesn’t define how to interpret the rules, though, and that, I think, is what is at issue.
That is indeed what at issue in the debate about McCain’s eligibility. And as I said earlier I don’t have a strong feeling one way or another about the best way to interpret this rule.
However, many of the comments on this thread have suggested that since the rule in question is both stupid and nativist, we shouldn’t worry too much about enforcing it regardless of how it should be interpreted. I agree that the rule is stupid and nativist, but don’t think that should give us carte blanche to ignore it.