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.

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.

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.

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.

Arawak men and women, naked, tawny, and full of wonder, emerged from their villages onto the island’s beaches and swam out to get a closer look at the strange big boat. When Columbus and his sailors came ashore, carrying swords, speaking oddly, the Arawaks ran to greet them, brought them food, water, gifts.2 He later wrote of this in his log:

“They… brought us parrots and balls of cotton and spears and many other things, which they exchanged for the glass beads and hawks’ bells. They willingly traded everything they owned…. They were well-built, with good bodies and handsome features…. They do not bear arms, and do not know them, for I showed them a sword, they took it by the edge and cut themselves out of ignorance. They have no iron. Their spears are made of cane…. They would make fine servants…. With fifty men we could subjugate them all and make them do whatever we want.”

These Arawaks of the Bahama Islands were much like Indians on the mainland, who were remarkable (European observers were to say again and again) for their hospitality, their belief in sharing. These traits did not stand out in the Europe of the Renaissance, dominated as it was by the religion of popes, the government of kings, the frenzy for money that marked Western civilization and its first messenger to the Americas, Christopher Columbus.

Columbus wrote:

“As soon as I arrived in the Indies, on the first Island which I found, I took some of the natives by force in order that they might learn and might give me information of whatever there is in these parts.” The information that Columbus wanted most was: Where is the gold?

The Indians, Columbus reported, “are so naive and so free with their possessions that no one who has not witnessed them would believe it. When you ask for something they have, they never say no. To the contrary, they offer to share with anyone….” He concluded his report by asking for a little help from their Majesties, and in return he would bring them from his next voyage “as much gold as they need . . . and as many slaves as they ask.” He was full of religious talk: “Thus the eternal God, our Lord, gives victory to those who follow His way over apparent impossibilities.”

Because of Columbus’s exaggerated report and promises, his second expedition was given seventeen ships and more than twelve hundred men. The aim was clear: slaves and gold. They went from island to island in the Caribbean, taking Indians as captives. But as word spread of the Europeans’ intent they found more and more empty villages. On Haiti, they found that the sailors left behind at Fort Navidad had been killed in a battle with the Indians, after they had roamed the island in gangs looking for gold, taking women and children as slaves for sex and labor.

Now, from his base on Haiti, Columbus sent expedition after expedition into the interior. They found no gold fields, but had to fill up the ships returning to Spain with some kind of dividend. In the year 1495, they went on a great slave raid, rounded up fifteen hundred Arawak men, women, and children, put them in pens guarded by Spaniards and dogs, then picked the five hundred best specimens to load onto ships. Of those five hundred, two hundred died en route. The rest arrived alive in Spain and were put up for sale by the archdeacon of the town, who reported that, although the slaves were “naked as the day they were born,” they showed “no more embarrassment than animals.” Columbus later wrote: “Let us in the name of the Holy Trinity go on sending all the slaves that can be sold.”

But too many of the slaves died in captivity. And so Columbus, desperate to pay back dividends to those who had invested, had to make good his promise to fill the ships with gold. In the province of Cicao on Haiti, where he and his men imagined huge gold fields to exist, they ordered all persons fourteen years or older to collect a certain quantity of gold every three months. When they brought it, they were given copper tokens to hang around their necks. Indians found without a copper token had their hands cut off and bled to death.

The Indians had been given an impossible task. The only gold around was bits of dust garnered from the streams. So they fled, were hunted down with dogs, and were killed.

Trying to put together an army of resistance, the Arawaks faced Spaniards who had armor, muskets, swords, horses. When the Spaniards took prisoners they hanged them or burned them to death. Among the Arawaks, mass suicides began, with cassava poison. Infants were killed to save them from the Spaniards. In two years, through murder, mutilation, or suicide, half of the 250,000 Indians on Haiti were dead.

When it became clear that there was no gold left, the Indians were taken as slave labor on huge estates, known later as encomiendas. They were worked at a ferocious pace, and died by the thousands. By the year 1515, there were perhaps fifty thousand Indians left. By 1550, there were five hundred. A report of the year 1650 shows none of the original Arawaks or their descendants left on the island.

The chief source-and, on many matters the only source of information about what happened on the islands after Columbus came is Bartolome de las Casas, who, as a young priest, participated in the conquest of Cuba. For a time he owned a plantation on which Indian slaves worked, but he gave that up and became a vehement critic of Spanish cruelty. In Book Two of his History of the Indies, Las Casas (who at first urged replacing Indians by black slaves, thinking they were stronger and would survive, but later relented when he saw the effects on blacks) tells about the treatment of the Indians by the Spaniards. It is a unique account and deserves to be quoted at length:

“Endless testimonies . . . prove the mild and pacific temperament of the natives…. But our work was to exasperate, ravage, kill, mangle and destroy; small wonder, then, if they tried to kill one of us now and then…. The admiral, it is true, was blind as those who came after him, and he was so anxious to please the King that he committed irreparable crimes against the Indians…”

Las Casas tells how the Spaniards “grew more conceited every day” and after a while refused to walk any distance. They “rode the backs of Indians if they were in a hurry” or were carried on hammocks by Indians running in relays. “In this case they also had Indians carry large leaves to shade them from the sun and others to fan them with goose wings.”

Total control led to total cruelty. The Spaniards “thought nothing of knifing Indians by tens and twenties and of cutting slices off them to test the sharpness of their blades.” Las Casas tells how “two of these so-called Christians met two Indian boys one day, each carrying a parrot; they took the parrots and for fun beheaded the boys.”

The Indians’ attempts to defend themselves failed. And when they ran off into the hills they were found and killed. So, Las Casas reports. “they suffered and died in the mines and other labors in desperate silence, knowing not a soul in the world to whom they could tun for help.” He describes their work in the mines:

“… mountains are stripped from top to bottom and bottom to top a thousand times; they dig, split rocks, move stones, and carry dirt on their backs to wash it in the rivers, while those who wash gold stay in the water all the time with their backs bent so constantly it breaks them; and when water invades the mines, the most arduous task of all is to dry the mines by scooping up pansful of water and throwing it up outside….

After each six or eight months’ work in the mines, which was the time required of each crew to dig enough gold for melting, up to a third of the men died. While the men were sent many miles away to the mines, the wives remained to work the soil, forced into the excruciating job of digging and making thousands of hills for cassava plants.

Thus husbands and wives were together only once every eight or ten months and when they met they were so exhausted and depressed on both sides . . . they ceased to procreate. As for the newly born, they died early because their mothers, overworked and famished, had no milk to nurse them, and for this reason, while I was in Cuba, 7000 children died in three months. Some mothers even drowned their babies from sheer desperation…. In this way, husbands died in the mines, wives died at work, and children died from lack of milk . . . and in a short time this land which was so great, so powerful and fertile … was depopulated…. My eyes have seen these acts so foreign to human nature, and now I tremble as I write….”

When he arrived on Hispaniola in 1508, Las Casas says, “there were 60,000 people living on this island, including the Indians; so that from 1494 to 1508, over three million people had perished from war, slavery, and the mines. Who in future generations will believe this? I myself writing it as a knowledgeable eyewitness can hardly believe it….”

Thus began the history, five hundred years ago, of the European invasion of the Indian settlements in the Americas. That beginning, when you read Las Casas–even if his figures are exaggerations (were there 3 million Indians to begin with, as he says, or less than a million, as some historians have calculated, or 8 million as others now believe?) is conquest, slavery, death. When we read the history books given to children in the United States, it all starts with heroic adventure–there is no bloodshed-and Columbus Day is a celebration.

The treatment of heroes (Columbus) and their victims (the Arawaks) the quiet acceptance of conquest and murder in the name of progress-is only one aspect of a certain approach to history, in which the past is told from the point of view of governments, conquerors, diplomats, leaders. It is as if they, like Columbus, deserve universal acceptance, as if they-the Founding Fathers, Jackson, Lincoln, Wilson, Roosevelt, Kennedy, the leading members of Congress, the famous Justices of the Supreme Court-represent the nation as a whole. The pretense is that there really is such a thing as “the United States,” subject to occasional conflicts and quarrels, but fundamentally a community of people with common interests. It is as if there really is a “national interest” represented in the Constitution, in territorial expansion, in the laws passed by Congress, the decisions of the courts, the development of capitalism, the culture of education and the mass media.

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.

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?)

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?

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.