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

I have the great fortune to be living in a swing state during a historic election.  This is the first in a series of observations from Northern Virginia.

At about 30 strong, the crowd of children gathered outside the metro entrance in Arlington were an overcrowded-classroom full of energy and enthusiasm.  A few parents waded through the Obama/Biden signs, yet this was all the work of one 11 year old student: Mariah Brescia-Weller.

Mariah had put together an impressive show of force.  I talked briefly with her about the rally (note to self: should have brought a tape recorder!  I will paraphrase from my notes).  As we glossed over initial motivations (Excitement about the election, and wanting to channel that excitement and energy into persuading people to vote for Obama), issues came up.  Education, Health Care, Woman’s Right’s, Taxes, Immigration.  I found that last one rather interesting coming from an eleven year old.  So I inquired further.  Mariah had friends who were in various stages of immigration, and it was very important to her that the next president be someone who would help them.  The idea of the personal driving the political occured again when another Obama supporter, Jeremy, chimed in.  He knew a 5th grader who broke her arm, and had no health insurance.

I spoke with one of the mothers, Sandra, about where political beliefs come from at such a young age.  She acknowledged that some were sure to come from parents, but kids have their own ideas on things.  Pressed further she shared that she’d noticed with her son this year, when they watched the debates, he’d become incredibly animated and engaged around the issues that struck him.

Two elections from now these children will be voting, and they are a part of Northern Virginia’s continuing journey to blue state status.  Its easy during an election to focus purely on those eligible to vote.  But an election is an opportunity to invite people into the process of active citizenship.  All of the kids at that rally have taken a wonderful step into a life of civic engagement.  In particular Mariah, who at 11 was articulate, to the point, and organized a political event.  Her mother is a wonderful person for encouraging and nurturing her daughter’s political expression.  She’s also wise.  We can all use this election to meet future senators, community organizers, and activists.  In 7 years children like Mariah will be voting.  Imagine where they will be in 27.

Posted under News, People, Politics

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

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 saw an ad for the november 1st rally on facebook:

Six Virginia State Police Chaplains were just forced to resign by the Kaine Administration because they prayed publicly “in Jesus name.” In response, 86 Virginia Pastors have taken a pledge to mobilize their people to vote, and now we’re standing up for Jesus with these chaplains.

That caught my eye, so I decided to dig a bit deeper.  Turns out no one was forced to resign.  They chose to.  (Washington Times):

At least six of the Virginia State Police’s 17 chaplains have resigned following a request they offer only “nondenominational” prayers during department-sanctioned public events and ceremonies, police said Wednesday.

The request was made by state police Superintendent Col. W. Steven Flaherty earlier this month and has been decried by Virginia House Republicans as a violation of the First Amendment and an attack on Christianity. One Republican delegate said chaplains were told they could not invoke the name of Jesus, but a state police spokeswoman denied the assertion.

To “require those troopers to disregard their own faith while serving violates their First Amendment rights and prevents them from serving effectively as chaplains,” said House Majority Leader H. Morgan Griffith, Salem Republican. “These men had little choice but to resign.”

To better understand the dispute we ought to take a look at one of the men behind it:

However, Delegate Charles W. “Bill” Carrico Sr., a former state trooper, said he has spoken with some of the chaplains, who said the colonel’s request was not put in writing and was treated as an order.

The chaplains were told that “they cannot reference the name of Jesus Christ,” said Mr. Carrico, Grayson Republican. “That’s against their beliefs and against the dictates of their conscience.”

Bill Carrico is the owner of In Jesus Name I Pray.org (registered on the 22nd to his state email address: DelCCarrico@house.state.va.us).  He serves in the Virginia House.  He recently attempted to run for the US House, and held off an aggressive challenge (and a close vote) from a Democratic challenger.  He also put forth a bill (which passed the state house and failed in the state senate) to allow religious prayer on public property:

Amends the current religious freedom provisions of the Virginia Constitution to “secure further the people’s right to acknowledge God”; to permit prayer and the recognition of “religious beliefs, heritage, and traditions on public property, including public schools”; and to prohibit the Commonwealth and its political subdivisions, including public school divisions, from composing school prayers or requiring individuals to “join in prayer or other religious activity.”

The second half being a cover.  His real concern is in pushing Christianity further into the political mainstream.  Bill Carrico believes this is a Christian Nation (emphasis mine):

Patrick Henry once said “It cannot be emphasized too strongly or too often that this great nation was not founded by religionist, but by Christians; not on religions, but on the Gospel of Jesus Christ. For this very reason people of other faiths have been afforded asylum, prosperity and freedom to worship here.”

Bill has an unsurprisingly poor understanding of the consitution:

Other religions have the right to worship here, however just because they are offended by what we were founded upon doesn’t give them the right to take away our constitutional freedoms.

The separation of church and state is no where in the constitution and was a letter from Jefferson to the Danbury Baptist suggesting that the state should never be allowed to run the church.

The first ammendment to the constitution clearly reads:

Congress shall make no law respecting an establishment of religion

Arguing this is a Christian nation runs directly counter to the spirit and letter of the first ammendment.

The dispute on its surface is an argument over whether public officials can offer demoninational prayer in an official context.  Underneath is a strategy by Dominionist politicians to paint America as a Christian nation, which serves as a political foundation for easing more theocratic laws into the books.

(One wonders how would the same chaplains react if it had been a Hindu prayer in an official context?)

Posted under News, People, Politics, Religion

In a big surprise this afternoon, the Wall Street bail-out package that has been the subject of such scrutiny since originally introduced by the Bush administration (re: Secretary of the Treasury Paulson), has been shot down by the House of Representatives, in a narrow vote of 206-227 (Note: different reports have the vote at “207-226, 205-228“).  This has caused a shakeup within the ranks of the Republican party, and caused headlines like “U.S. stocks plunge as global credit crisis spreads” to start showing up on the news wire.

Now, the leadership who brought this bill are likely going to urge people that all is not lost – another bill can be reconsidered, and even this particular bill can be re-voted on.  But that’s not going to come for at least a couple of days, and we don’t know whether legislators are going to (1) succumb to their voters and further distance themselves away from a bailout or (2) come together after having made a poignant political point.

As just reported on CBS news (a special televised report), the bottom fell out when House Republicans, supposedly upset at being kept out of high-level negotiations (mostly done by the Senate) largely voted against the bill, with 67%  of those Republicans casting ballots opposed.  House Democrats, on the other hand, were recorded as voting only 40% opposed, with 60% of Democrat members of the House voting in favor of the plan.

Was this a political opportunity for House Republicans, in a very bad election environment for them, to strike a blow against Bush and the Democrats to distinguish themselves as being “for the average citizen”?  The financial crisis on Wall Street certainly presents an opportunity to take the populist road and, incidentally, the right thing in refusing to issue a blank check to Wall Street.  The question is: will Democrats follow suit and listen to their constituents, leading to a bail-out that nationalizes the banks or protects homeowners, or is this just a temporary ploy on party of the electorally-starved Republican party?

UPDATE (2:49pm EST): As news of the defeat of the bailout plan spreads, the stock market has begun to plummet, with the Dow falling 600 points in course of 30 minutes (including falling an additional 200 points when I began updating this post).  Stories such as “Stocks Tumble as Bailout Plan Fails in House” are beginning to crop up on major news outlets, and many more are likely to come. The question is: How low will it go?

Posted under Discussion Question, Economy, People, Politics

Hi all,

My first substantive post will be on Monday. In the meantime, here’s an unsubstantive post. Think of it as me testing the system while getting an exciting announcement out of the way.

The National Lawyers Guild has recently announced that Daniel Ellsberg, of Pentagon Papers fame, will be one of the keynote speakers at its convention. The Convention will be in Detroit at the Marriott (at the Renaissance Center), Oct. 15-19. The other keynote will be Grace Lee Boggs.

I plan to be at the Convention. I don’t know if any law types are reading this – if so, you too should come to the Convention and have a drink with me.

Posted under News, People, Politics