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

If John McCain lives through the first 4 years of office, he will not seek a second term.  His advanced age will become even more of an issue in 2012 than it is currently.  Imagine Sarah Palin running for office, with more unified Republican support, and 4 years of experience in the White House.  Part of the VP’s job is to meet with foreign leaders.  This would decimate the experience issue, which has been chief among the complaints of the more conservative Republicans who have reluctantly embraced Obama’s candidacy.

There are many reasons to vote:

And I’m not saying there’s a possibility we might not end up regretting Obama. But that’s a lot better than the 100% certainty I think we’d have of regretting Vice President Palin.

Palin shouldn’t be in office.  No matter who was running, I’d vote to keep her further than a heartbeat from the highest office in the country.

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Posted under Politics

Image this here (Associated Press):

NEW YORK, New York – Syrian military helicopters launched an extremely rare attack Sunday on United States territory close to the border with Canada, killing eight people in a strike the government in Washington condemned as “serious aggression.”

A Syrian military official said the raid by special forces targeted the network of al-Qaida-linked foreign fighters moving through America into Canada. The Sysrians have been unable to shut the network down in the area struck because the US was out of the military’s reach.

“We are taking matters into our own hands,” the official told The Associated Press in Damascus, speaking on condition of anonymity because of the political sensitivity of cross-border raids.

The attack came just days after the commander of Syrian forces stationed in the eastern states said Syrian troops were redoubling efforts to secure the United States border, which he called an “uncontrolled” gateway for fighters entering Canada.

A United States government statement said the helicopters attacked a small family run Farm near the town of Malone, fifteen miles inside the US border. Four helicopters attacked a civilian building under construction shortly before sundown and fired on workers inside, the statement said.

The government said civilians were among the dead, including four children.

We read about US attacks inside another country’s soil all the time.  We also hear the remarks from the country.  How would you feel if American civilians, including children, were killed when another country invaded our territory without our permission?  What if it was to fight a war much of the world (and much of that country’s citizenry) condemned as unjust and unlawful?  If the invading forces were widely seen as using their force to secure that country’s power?

Both candidates would support cross border raids.

Posted under 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

Revolutionary Act is proud to present our first guest post, from RickB of Ten Percent:

The level of discourse from McCain is truly awe inspiring, if by awe inspiring one means lower than whale shit.

Republican presidential candidate John McCain on Saturday accused Democratic rival Barack Obama of favoring a socialistic economic approach by supporting tax cuts and tax credits McCain says would merely shuffle wealth rather than creating it. “At least in Europe, the Socialist leaders who so admire my opponent are upfront about their objectives,” McCain said in a radio address. “They use real numbers and honest language. And we should demand equal candor from Sen. Obama. Raising taxes on some in order to give checks to others is not a tax cut; it’s just another government giveaway.”

Now I don’t want to worry the passport averse US populace but erm Europe is not um ‘socialist‘ neither are any of its ‘leaders‘. Jeebus knows that if it was we would be in a lot less shit over the Neoliberal created crisis in global capital. Certainly there are remnants of social democracy still persisting in Europe against the free market onslaught by and for the wealthy, but socialist? Not even fucking close. And that’s another thing, McCarthyism may have done its job in the US but socialist is not a dirty word.

So what might the American record on poverty be? Has the ‘wealth creation‘ and ‘trickle down‘ of the Neoliberal policies of Reagan, Bush, Clinton & Bush (W) meant an equal society? The simplest measure is the Gini coefficient-

Click to enlarge

Yes you’re the yellow line, notice how it meandered along until 1980 then it began climbing steadily through both Republican and Democrat administrations. That is because all of them adhered to Neoliberal economic policy. Look at the climbs for other countries and they also coincide with the introduction of Neoliberal dogma. Or how about pay disparity as a rough guide-

In 2004, the ratio of average CEO pay to the average pay of a production (i.e., non-management) worker was 431-to-1, up from 301-to-1 in 2003, according to “Executive Excess,” an annual report released Tuesday by the liberal research groups United for a Fair Economy and the Institute for Policy Studies. That’s not the highest ever. In 2001, the ratio of CEO-to-worker pay hit a peak of 525-to-1. Still, it’s quite a leap year over year, and it ranks on the high end historically. In 1990, for instance, CEOs made about 107 times more than the average worker, while in 1982, the average CEO made only 42 times more.

Obama’s plans are better than McCain’s who is using a straw man argument of an imaginary pinko Europe and thinks society is best served by growing inequality as the rich become richer than they have ever been. His preferred newspeak for this is ‘wealth creation‘ and his demonisation of even modest stabilising measures becomes ‘government giveaway‘ which tells you his attitude to democracy. Government is the one powerful institution the people have some control over, thus he wants to weaken that tiny speck of power redistribution, also perversely as the government is only spending the people’s money it is not a giveaway, it is returning capital to the populace. That it might in some small fashion do this in a way that does not amplify the growing inequality is what he objects to.

Much has been made of the racism, belligerence and ignorance of McCain supporters at rallies but this is only to be expected for a party that governs in the interests of a tiny elite of the very wealthy. They cannot rule on the votes of 1% of the nation so they very deliberately target the least informed, worst educated who will not be aware they are voting against their own best interests. Of course their polices, in a feedback loop, further create uninformed poorly educated people who cannot share in the wealth of the nation but have been convinced that government is bad and rich people are accorded godlike status. People are encouraged to look upon a billionaire’s wealth not as a theft from the public commons but a sign of achievement and probable moral superiority to the ‘undeserving poor’. It is also not unexpected that conservative religious charlatans have invented the ‘prosperity doctrine‘ which assigns divine right to the pursuit of riches in a remarkable reading of the bible that is akin to walking out of Star Wars with the impression the Empire is the good guy.

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Posted under Politics

One of the most appealing qualities of being American is the role of the individual. Our culture glorifies liberty and with great reason. Coming from the state that hosts Walden Pond, I’ve always felt a strong connection to the tradition of writers and activists that continues to pour out of Massachusetts.

Massachusetts is also a state where Gay Marriage has been legal for quite some time. Looking over at the fight brewing in California makes me a little nostalgic. MA has its fair share of theocrats too.

This is something we need to be clear about. Anyone opposing the freedom of consenting adults to enter into the bonds of marriage with each other is doing so to impose their religious views on the entire country.  This line from the Wall Street Journal caught my eye:

Mormon leaders, on the church’s official Web site, ask their followers to support the California ballot measure to reinforce church teachings that “marriage between a man and a woman is ordained of God.”

There is just no justification on this green Earth for using a ballot measure – an instrument of state – to enforce church teachings.  None.  This shit burns me up.  Sarah Palin, the Republican VP candidate is eating it up:

The issue has come up in the presidential campaign, with Republican Sen. John McCain’s running mate, Alaska Gov. Sarah Palin, suggesting this week that she would support a constitutional amendment to ban gay marriage nationwide.

She’s signaling just as clearly as she can that if elected, she’ll use her power as Queen of the U.S. Senate to begin pushing her Bible on our laws.

Its getting to a point where its just too much to take.  Check out this video of a McCain/Palin supporter (via an especially pertinent and brilliant post at Pandagon):

Its marked the first time I’ve felt strongly “This person shouldn’t have the right to vote”.  This thought startled and upset me as soon as I had it, since I strongly believe everyone has the right to vote (and ought to be encourage to).  Faith in this sense is not a virtue.  It is a liability.  It is a knife through the heart of reasoned discourse.  Watching that video, do you think it remotely possible to discuss positions and substance with that woman and get anywhere at all?  Everything comes down to this black and white binary of whether it fits into her personal religious view, and there is no room for anything other than the comfortable dogma she knows by rote.

What it comes down to is this rage and this conviction I have.  That however I feel about the election, I want with every ounce of me to resist a small but vocal segment of this country dragging us all deeper into their theocratic pit.

to the theocrat:

this is the land of the free

you won’t tread on me

Posted under Politics, Religion, Sexuality

The Weekly Standard is claiming no one ever said “Kill Him” in reference to Barack Obama.

If in point of fact that comment was directed at Ayers (tell me again whether McCain and Palin’s more ignorant supporters hold any difference between Ayers, Obama, liberals in general, or Democrats), it doesn’t explain this second remark (Times Tribune via Justice League):

There were no incendiary outbursts from the crowd about Mr. Obama during Mrs. Palin’s speech, as there have been during other recent McCain-Palin rallies.

However, someone did shout out, “Kill him!” during Republican congressional candidate Chris Hackett’s remarks before Mrs. Palin took the stage.

The outburst came during a round of booing from the crowd after Mr. Hackett said Mr. Obama should come to Pennsylvania and learn what the state’s values are.

The right is in full spin control mode on this.  Nothing upsets the right wing like being justifiably accused of terrorism (Orcinus).  John Leo writes:

A Huffington Post piece by one Jeffrey Feldman asked, “Is Palin Trying to Incite Violence against Obama?” ‘Two subheads in this piece were worse: “McCain Camps Talk ‘Character Assassination,’Supporters shout for real assassination” and “McCain Campaign Amplifies Violent Rhetoric. GOP Crowd Threaten Obama’s life.” Nothing like this happened. No crowd threatened Obama, or called for his assassination. Millbank’s article, the only primary source for “ugliness” at Palin’s speech did not report this, probably because these incendiary events occurred only in the minds of some liberal writers, not in the real world.

He uses the tried and true right wing method of tactical right wing bullshit: projection.  Thus far we have the Scranton threat, the Ayers-aimed threat, and the plot to assasinate Obama.  In the right wing world “Documented by the press” constitutes the imaginary.  Facts and Rationality fly out the window in the effort to make a point, which the Weekly Standard is only too happy to demonstrate with its attempt at balance:

The only nastiness I heard during the day was an outburst, apparently provoked by Obama supporters who wandered into the crowd outside just as I had to leave. I was too far away to hear the exact exchange, so I couldn’t write it up—although clearly such limitations don’t limit the MSMers who repeat the “kill him” myth—but others were closer and able to report on the friendly, tolerant rhetoric of the Left, whose members were calling McCain a “murderer.”

Obviously one can point out that in addition to calling Obama a murderer, the right has aggressively and falsely called him a baby killer.  But I don’t understand how calling a man a murderer, presumably for his role as a warmonger, is in any way equivalent to calling for a man’s assasination.

Its bullshit like this that feeds the fire of the violent right wing and seeks to muffle media coverage.

The question reporters ought to be asking to the campaign is why haven’t McCain and Palin made forceful statements against both the explicit violence and its implicit sources?  The Republicans should answer for relying on veiled nativist attacks and exploitation of eliminationist sentiment.

Posted under Politics

Barring another stolen election (ironic given the white noise being made about acorn), Barack Obama is heading towards a decisive victory in November.  The stakes are as high as the passion and personal investment being poured into both sides of this campaign.

While there has been much focus on both candidate’s pledges to fight foreign terrorism, right-wing domestic terrorism has remained off the campaign radar.  This is deeply problematic given the anticipated likelihood of an increase in anti-liberal, anti-gay, anti-women and anti-minority violence come November 5th.

The source of that violence comes from the level of legitimacy we afford the ignorant and hateful dehuminization of target groups.  The Republican party has straight up embraced the crazier elements in their ranks for fear of losing their last vital reserves of faithful supporters.  Faithful being an apt word to describe the sheer lack of knowledge or reason informing their tenous grasp of reality.

The following video comes by way of Majikthise and Dana Blankenhorn:

I think its safe to say this is not a group of voters the Obama campaign will win over.  It is however a group of people who should not be left to their insane notion that their ideas are even valid.  Leaving these views alone to fester leads to closed door decisions like the one to install a nativist on the Prince William County, Virginia Board of County Supervisors (Hatewatch).

The outpouring of hate is not hard to understand given the games the McCain campaign is playing (The Guardian):

The Republicans have played on those fears and prejudices extremely well over the past week or so, but with the escalating hatred and disturbing language that has been espoused by some of their supporters at recent Republican rallies it seems that even McCain – forced this weekend to backtrack and start telling people what a “decent, family man” Obama is – now realizes that they may have gone a step too far.

At the most recent rallies, Republican supporters have cried out “kill him!”, “bomb Obama!” and “terrorist” in reference to Obama. Shouts of “treason” and other racial epithets have also been hurled.

I don’t think there is any solid indication McCain’s campaign realizes they’ve gone to far.  I think they’ve simply locked up a section of the vote at the cost of future political stability, a price they are all too willing to pay.  So much so their slogan “Country First” takes on a whole new meaning.

What we need to do is smash the lies and reason-like-substitutes being pushed around as firmly as we can.  This level of willful ignorance and anger will only be exacerbated by a Democratic win.

Posted under 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