I completely missed this legal theory, pointed out by Douglas Valentine in Counterpunch, but it looks sound. I had previously pointed out that under Article II of the Constitution McCain cannot be President because he is not a natural born U.S. citizen. I discussed the legal issue here, and the correct course of action for challenging his candidacy here.

Valentine points out that McCain is ineligible for office under Section 3 of the Fourteenth Amendment, which reads:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Valentine argues that McCain took an oath as a Navy officer to support the Constitution of the United States, which would meet the requirements of the Section under the “officer of the United States” prong. He afterwards gave military secrets to the Vietnamese enemy, meeting the “aid and comfort” prong. The facts are easy to establish, as he has publicly admitted to them. According to the Amendment, he is therefore unqualified to be President, and for that matter Senator.

Unlike his Article II problem, however, this is not a total bar to him becoming President. He could become qualified if Congress decided by a 2/3 majority vote to remove his disqualification. Still, if one is already filing a Constitutional claim in state court, as I have suggested, there appears to be no harm in throwing this extra cause of action in.

Posted under History, People, Politics

A couple of weeks ago I posted about McCain’s possible ineligibility for the office of President, based on his being born in the Panama Canal Zone.

But having a good legal argument is just step 1 for successful litigation when a Constitutional matter is at stake. You also need to clear the various hurdles set up by the judicial system to get the courts to hear your case, particularly the hurdles of ripeness, political question, and standing. So far, three legal challenges to the eligibility of Obama and McCain have been dismissed for lack of standing. See here, here, and here. (Richard Winger says – see the first link of the three – that there’s another McCain challenge that was dismissed for lack of standing. But I don’t know anything about it.)

Basically, the doctrine of standing dictates that only certain individuals are able to take certain controversies to court. Typically, you have to be a party that was harmed. If I steal money from Jeff, he can sue me for restitution, but his neighbor can’t. In other cases, a law might specifically say who can bring a legal action. An example is the recent ruling by the Supreme Court that the Ohio Republican Party doesn’t have standing to challenge Ohio’s Democratic Secretary of State, Jennifer Brunner, for alleged violations of the so-called Help America Vote Act. Even though the state Republican Party could be injured by illegal election-related acts committed by a Democratic official, the Court found that under HAVA only the Federal Department of Justice can bring such actions.

For the last three months I have been advocating an alternative approach that has been picked up, or perhaps independently arrived at, by election law scholar Daniel Tokaji. This approach calls for challenging McCain’s eligibility in state courts.

Many states have provisions for challenging elections based on a candidate’s eligibility. These include states which McCain has a good-to-excellent shot of winning, such as Florida, Georgia, North Carolina, Virginia, and Indiana. These five states have 81 electoral college votes among them. The provisions tend to be narrow, and do not allow ordinary voters to contest presidential election results, but losing candidates are allowed to contest, and Indiana’s law allows county-level party officials of losing parties to contest. Subject to how the state courts interpret these laws, this may resolve the issue of standing. A party official who might be denied standing in federal court, as in Robinson v. Bowen, would have standing in state court if the state’s statute says she does.

It might seem odd for a state court to make a decision about a federal constitutional issue. But I don’t think there’s anything judicially improper in this. What the state level court would be doing is making a factual determination regarding whether the candidate is eligible under the federal constitution. It would not be contradicting federal judicial precedent, since the federal courts have never ruled on the issue (the district courts keep dismissing it on standing grounds). It might be thought improper because the state court might harm McCain by wrongly deciding a federal issue. But McCain would not be harmed, because he would be able to appeal this decision up to the U. S. Supreme Court.

It would therefore seem appropriate for those seeking to challenge McCain’s candidacy to do it through the state courts.

Posted under Politics, Uncategorized

According to Wikipedia, the following organizations have endorsed McCain for president:

* National Rifle Association
* Republicans for Environmental Protection
* Reform Party of the United States of America
* Al-Qaeda

Al-Qaeda is in some sketchy company here…

Posted under Culture, Politics

Apparently both Ralph Nader and Cynthia McKinney will be participating in today’s the Oct. 23 Third Party Debate (7 pm, broadcast by C-SPAN). Last week they appeared on Democracy Now, where hosts Amy Goodman and Juan Gonzalez gave them the opportunity to respond to some of the same questions that McBama was asked at the Hofstra debate last week.

What can I say, except these guys seem to be closer on the issues than McBama is. Maybe we should start calling them “McNader.” Not only do they seem to agree on almost everything, they seem to agree with the American majority about everything, too.

Nader even made a pitch for contributions to McKinney’s campaign, and the Green Party. And the support is not just one way. When I saw McKinney speak in Miami this past summer, I asked her to name some people she would consider nominating to the Supreme Court, and she mentioned Ralph Nader as one of her top choices. [BTW if Democrats feel electorally threatened by Nader, shouldn't they appoint him to the Court so he stops running for President?]

Given their virtual indistinguishability on the issues, I can only imagine the negative campaign ads that they would have to rely on to distinguish themselves.

Posted under Politics, Uncategorized

The Facebook group Obama Out of Afghanistan came to my attention.

My first thought: Why not send Obama to Afghanistan? They’ll make quick work of the warrior-king.

My second thought: Wait. His replacement would be Joe Biden, a hawk who supported the Iraq Massacre.

My third thought: How far down the Presidential line of succession would we have to go to find a principled anti-war Presidential replacement?

The answer: assuming that Congress stays in Democratic hands, it would be to number four Robert Byrd.

I don’t see Nancy Pelosi as a serious opponent of war (and I hope Cindy Sheehan kicks her ass). Byrd, however, has been a leading voice in the Senate against the Iraq war, and he opposed funding for Afghanistan as well. He did support Clinton’s war against Serbia, and his overall record is not especially progressive, but he’s still pretty good for an Exalted Cyclops. Besides, if he’s not counted as an anti-war potential successor, you could go all the way down the list and reach (ugh) Michael Chertoff, without reaching anyone who is as anti-war as Byrd.

Posted under People, Politics

Rev. Arnold Conrad is very concerned that an Obama victory will cause members of other religions to think that their gods – Hindu, Buddha, Allah, etc. – are bigger than his god.

But it doesn’t matter how big the Christian god (what’s his name, anyway?) is. The Hindu gods can take him in a fight. Numbering 330,000, they would overwhelm him with their sheer numerosity.

Posted under Uncategorized

The title of this post is from Public Enemy, from their song from Hitler Day, from the way underrated album Muse Sick ‘n’ Our Mess Age.

Happy Canadian Thanksgiving. For those who are celebrating Columbus Day, here’s an extended excerpt from Howard Zinn’s A People’s History of the United States.

Read More…

Posted under Culture, History, People, Politics

John McCain is constitutionally incapable of being President of the United States. I am not referring to the fact that he is, as Alexander Cockburn indelicately puts it, “a half-mad former POW tormented with PTSD and dying of melanoma.” I am talking about his lack of fitness under the U.S. Constitution, which requires the President to be a “natural born citizen.” And his candidacy is challengeable in the courts.

Virtually all the Obama supporters I’ve mentioned this to either explode with rage at my suggestion that they take up the legal challenge, or roll their eyes and tell me that the issue has been settled. A minority – generally, those with legal training – agree that there’s a potential challenge, but they aren’t interested because they believe that it’s not ethical to limit voters’ choices like I’m suggesting. This post outlines the case that there is a compelling legal argument that McCain is not a natural born citizen; that it is possible to legally challenge his candidacy based on his ineligibility; that the issue has not been settled; and that a court challenge is not an unethical course of action.

McCain is not a natural born citizen

The argument for McCain’s lack of fitness was made by Gabriel “Jack” Chin, who argued that the Panama Canal Zone, the U.S.-occupied territory where McCain was born, was within U.S. jurisdiction, but outside of U.S. limits. This is significant because the 14th Amendment to the U.S. Constitution grants citizenship at birth to (almost) anyone born within U.S. limits, and the immigration laws at the time granted citizenship at birth to individuals born to U.S. citizens outside of U.S. limits and jurisdiction, as long as their parents met certain residency criteria. McCain’s parents met the criteria, but because he was born within U.S. jurisdiction, the law didn’t make him a citizen at birth. And because he was born outside of U.S. limits, the Constitution didn’t make him a citizen at birth. He became a citizen at age 11 months, when Congress amended the immigration law to grant citizenship to those who, like McCain, fell through the legislative crack.

While Chin’s case is quite good, a plausible argument to the contrary has recently been presented. According to this argument, the words “limits and jurisdiction” in the old legislation does not refer to two separate concepts, but is rather a stylistic repetition of a single concept, like “cease and desist” or “hue and cry,” and that in fact they refer just to limits, not jurisdiction.

If this is true, then the legislation makes anyone born to U.S. citizen parents who meet the residency requirements a U.S. citizen at birth, and this would include McCain. It’s possible that this argument would carry the day in a courtroom, but I think it more likely not, for a couple of reasons. First, unlike “cease”, “desist”, “hue” and “cry”, “limits” and “jurisdiction” are legal concepts. Moreover “jurisdiction” is a old concept, and the fact that it refers to the area under a country’s authority or control – that is, that it extends beyond the country’s limits – would have been known in 1795, when the statute was written. It is unlikely that the drafters of the statute would have used “jurisdiction” when they meant “limits”. Moreover, Chin shows that Congress was aware at least since 1932 that children born to U.S. citizen parents in unincorporated territories were not being born as citizens, and that they acted to correct the deficiency in 1937, after McCain was born.

Assuming that McCain was not a U.S. citizen at birth, then he is not a natural born citizen. The adjective “natural” corresponds to citizenship. One who is “naturalized” is one who has gone from being a non-citizen to being a citizen. Its counterpart is “natural-born”, meaning a citizen from birth. There is a bit of redundancy in saying that someone is a “natural-born citizen”, since the information that she is a citizen is contained both in the word “natural-born” and in the word “citizen”. But there’s nothing linguistically wrong with this kind of partial redundancy. The meaning of “naturalized citizen” is not disputed, and contains the same redundancy.

Thus, McCain is not a natural born citizen. The Constitution’s Article II requires the President to be either a natural born citizen or a citizen of the United States at the time of the adoption of the Constitution. Jokes about McCain’s age aside, he was not around at the time of the adoption of the Constitution. Therefore he is not eligible to be President.

Posted under History, News, People, Politics

I’m sick of Wall Street/Main Street. Never was a big fan of metonymy. The New Democratic Party in Canada has been using kitchen tables/boardroom tables instead. Much nicer.

Also, as the vote-down of the bailout has shown, the House of Representatives has some democratic accountability. The Senate, where the bailout vote was in the bag, does not. We should be calling them the House of Commons and House of Lords, respectively.

And the President? Please, our system has long accorded the President monarch-approximating levels of deference. We should be calling Bush the Queen instead.

Posted under Culture, Politics

Last Wednesday was my birthday. My roommate got me a bright yellow t-shirt with “VOTE FOR JESUS” in bright red “VOTE FOR PEDRO”-style lettering.

On Thursday. I wore it with pride. I was confronted by John, a white supremacist friend of mine. He told me he was offended by the shirt, because it mocked the majority Christian culture.

I told him, it’s not mockery. I genuinely support writing in Jesus for President as an alternative to the Democrats and Republicans.

As people who know me know, I never support Democrats or Republicans for the presidency, though I will often support Democrats for other positions. I am generally a Nader supporter.

This is not some form of anti-pragmatic political purism, as some have accused. Nader is not the candidate whose views I am most aligned with. If my support for a candidate had no pragmatic component, I would support Cynthia McKinney (of the Green Party) or Brian Moore (of the Socialist Party). In Canada, where I actually vote in elections, I vote for the New Democratic Party – the social democratic party that has traditionally been a third party, but is now poised to overtake the Liberal Party as one of the two frontrunning parties (the Liberals having abandoned liberal politics).

My support for Nader is based on the fact that his platform is much more popular than those of Obama, McCain, McKinney or Moore, and is progressive.

Friday night’s debate, which against my usual practice I watched, was a perfect illustration of just how indistinguishable Obama and McCain are, when viewed against a broader background. The candidates agreed on virtually everything.

Both of them thought the surge was a wild success, apparently based on the fact that there has been a lull in the level of violence since it started. As anyone with even limited analytic ability knows, this is poor reasoning. Those who are knowledgeable and thoughtful about the situation, like Juan Cole, are skeptical that the surge caused the lull in violence. Cole suggests in his debate debrief that the reduced levels of violence in Baghdad is the result of the successful cleansing of the cities of its Sunni residents, who have been either massacred or driven out of the city. In other words, it’s not the American surge but the Shia surge that’s responsible for the reduction in violence.

Both McCain and Obama appear to favor increasing the military budget.

Both candidates apparently buy into the lies that the right-wing Zionists concocted, and the Western media has repeated ad nauseam, about Ahmadinejad threatening to wipe Israel off the map. McCain repeated it several times, and Obama never disputed it.

Among the few differences of substance that the candidates emphasized concerned leaving Iraq. They tried to make it look like an big difference: McCain wants to stay in until victory, Obama wants a timetable for withdrawal. But if you look at Obama’s plan as he has consistently articulated it, he’s talking about redeployment rather than withdrawal. He basically favors pulling troops from Iraq and putting them in Afghanistan instead. Neither candidate favors doing what the law requires: ending the occupation of Iraq.

If I had to characterize the foreign policy differences between the two, I would do it this way: McCain prefers to focus on Iraq, while Obama prefers broader aggression including Afghanistan and possibly including Iran and Pakistan. It comes down not to any difference of principle, but to the tactical or strategic question of where the main battle against al-Qaeda is located. (After the debate, I don’t know what “tactics” or “strategy” mean anymore. Strategery, anyone?)

Both apparently support possibly bombing Pakistan, although McCain thinks it’s wrong to talk about it. I guess he thinks it’s better to sing about it.

Both support missile defense. Both support offshore drilling and nuclear power plants.

What are the real differences? Style. As Noam Chomsky says, the people marketing political campaigns are the same guys that market toothpaste. McCain was on the message that Obama isn’t ready to lead. Obama was trying to tie McCain to the Bush catastrophe.

Nader is highly distinguishable from BaJohn McBama/Jorack O’Cain. He favors a lawful foreign policy, including withdrawal from Iraq and refraining from acts of aggression against other countries. He’s against nuclear energy. For an overview on Nader on the issues, and a contrast with the Republicrats, see here: http://www.votenader.org/issues/

Posted under News, Politics