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View Diary: Justice Scalia says that McCain can't be the Prez! (53 comments)

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  •  I'm sure someone else has pointed (2+ / 0-)
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    mapantsula, True North

    this out in a comment, but a "natural born" citizen is a citizen who did not have to go through the naturalization process.  Regardless of where McCain was born, he was born to 2 US citizens, and thus was born a US citizen.

    •  Born, Naturalized, and Natural Born (0+ / 0-)

      This discourse on eligibility to serve arises because of the different language used in Article II of the Constitution, and the language used later in the Fourteenth Amendment and in legislation.

      Article II, section 1, clause 5:
      No Person except a natural born Citizen,,,,shall be eligible to the Office of President

      Where did it come from? John Dean suggests this source:

      However, the "natural born" Clause's origins have been traced to a July 25, 1787 letter from John Jay to the presiding officer of the Constitutional Convention, George Washington. Jay wrote, "Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen."

      Then you have the Fourteenth Amendment, adopted in 1868:

      Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

      John Dean points out that "natural born" and "born or naturalized in the U.S." are not identical. He says that Congress more or less gave up on the "natural born" language after 1795. So what does that mean to the interpretation of Article II?

      Dean refers extensively to an article by Sarah Helene Duggin and Mary Beth Collins, "Natural Born In The USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution's Presidential Qualifications Clause and Why We Need To Fix It," in the Boston University Law Review.

      He said that they assessed eligibility to serve as President thus:

      1. Barry Goldwater, born in the Arizona Territory before statehood; and anyone born in Hawaii or Alaska before statehood was/is probably safe in seeking the presidency.
      1. He says that Duggin and Collins concluded that those born in unincorporated territories of the U.S.--Puerto Rico, Guam, the Virgin Islands, the Northern Marana Islands, American Samoa, and the Swains Islands--would likely NOT be considered "natural born citizens";
      1. He says Duggin and Collins think that someone born in the District of Columbia is probably a natural born citizen, but that "a modicum of uncertainty remains."

      What John Dean, Duggin, anbd Collins advise is a constitutional amendment to clear all of this up and make it plain that any U.S.  citizen is eligible to serve as president.

      Dean notes that his concern is not limited to those who run for President and Vice President, but also the issue of whether all those in the line of succession must be eligible to serve as president. He gives a couple of examples: Kissinger and Albright, who are not "natural born" citizens, and yet were in the line of succession when they served as Secretary of State.

      John Dean  likes the Hatch proposal:

      SECTION 1. A person who is a citizen of the United States, who has been for 20 years a citizen of the United States, and who is otherwise eligible to the Office of President, is not ineligible to that Office by reason of not being a native born citizen of the United States.

      SECTION 2. This article shall not take effect unless it has been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States not later than 7 years from the date of its submission to the States by the Congress.

      Sorry to ramble on so long. I think that the lack of clear jurisprudence in this area is a problem. And it isn't just a problem because of one candidate in this election being born in the Panama Canal Zone. I've come to believe that a constitutional amendment, making it very clear what the rules are for eligibility to serve as president are, would make a lot of sense.

      •  The citizenship of DC residents (0+ / 0-)

        at least prior to the 14th Amendent, as problematic, is always interesting to ponder, since US citizenship prior to the 14th was considered predicated on being a citizen of a state.

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