Thursday, May 15, 2008

Why John McCain Needs The Living Constitution

Guest Blogger

J. Rebekka Bonner
Yale Information Society Project

While delivering a graduation speech last week, John McCain stated that "the proper role of the judiciary has become one of the defining issues of this presidential election. The next president will nominate hundreds of qualified men and women to the federal courts, and the impact of these choices will reach far into the future." Contrasting his vision for America’s judiciary from that of Senators Clinton and Obama, McCain argued that he would nominate judicial candidates whose judicial philosophy and temperament are in the mold of Chief Justice Roberts and Justice Samuel Alito.

Elsewhere, McCain has argued for a "strict constructionist" philosophy of constitutional interpretation. What McCain means by "strict constructionism" is not entirely clear. A strong possibility, however, is that he is taking sides in the familiar debate between originalism and living constitutionalism; that is, he is arguing that judges should try to determine the original meaning of the constitutional text and then apply it strictly as it would have been applied at the time that it was written. This would make sense of his arguments that judges have arrogated too much power to themselves to decide what the Constitution means.

McCain’s choice of constitutional theories is particularly important because of the recurring debate about his own eligibility to serve as President. McCain was born in the Panama Canal Zone, then an unincorporated territory, to American citizens. Ironically, if we apply a "strict constructionist" philosophy of interpretation like that described above, it is likely that he would not be eligible to serve as our country’s President. Only if McCain embraces some form of Living Constitutionalism can he establish his right to run for the nation’s highest office.

The Meaning of "Natural-Born" Citizen: A Strict Constructionist Approach

The text of Article II of the Constitution states that only "natural born" citizens are eligible to serve as president. But to what concept does the phrase "natural born" refer? Taken by itself, the meaning of "natural born" is ambiguous.
Suppose we decided to be strict constructionists and sought to apply the words strictly as they would have been applied at the time of the ratification of the Constitution. How did the Founding Fathers understand the concept of "natural born"? While one letter from John Jay to George Washington dated July 25, 1787 described the clause as "a strong check to the admission of Foreigners into the administration of our national Government," the Founders failed to provide an independent definition of "natural born" at the time that they wrote the Constitution. The most straightforward argument is that "natural born" was a well recognized term of art, based upon the most commonly applied principle of traditional British common law dating from the 16th century. These distinguished between citizenship by birth and being "natural born" for purposes of such questions as the right to inherit and the right to hold certain offices. Under those common law rules children of British citizens born anywhere other than on English soil generally were eligible for birthright citizenship; however, they didn’t generally inherit their English parents’ own "natural-born" status. Because of these disabilities, Parliament made occasional exceptions, granting some (but not all) of the rights of "natural born" citizens to persons born overseas.

If we applied the common law rules in force at the time of the Founding, McCain fails to meet the "natural born" requirement for the Presidency. John McCain was not born on American soil; rather, he was born at a U.S. military base in the Panama Canal Zone. State Department policy states that "[d]espite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth." Moreover, all current U.S. territories (and Panama as a formal matter) are unincorporated, which means that they are not fully part of the United States and not all aspects of the U.S. Constitution apply automatically to them. Unincorporated territories (including Guam, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands) are treated as external possessions that, under the Supremacy Clause, receive only those powers that may be extended to them by the U.S. Congress.

Strictly construing the constitutional text, and applying it the way the Framers would have applied it, we would have to conclude that McCain is constitutionally ineligible to be president. But is this the right interpretive philosophy we should use to decide this question, or for John McCain to use when selecting federal judges?

McCain’s Presidential Eligibility Saved by Living Constitutionalism

On May 1, the U.S. Senate approved an unopposed nonbinding resolution reflecting its judgment that McCain should be considered a "natural-born" citizen for purposes of presidential eligibility. Legislation introduced earlier this year by Missouri Sen. Claire McCaskill and supported by Democratic candidate Sen. Barack Obama seeks to define a "natural-born" citizen as any person born to a U.S. citizen while serving in the active or reserve components of the U.S. armed forces. This would seem to indicate that a significant political consensus exists that under the correct interpretive approach to the Constitution John McCain is eligible to be president.

That interpretive philosophy is "Living Constitutionalism," which is premised upon the notion that the Constitution’s application to changing times and circumstances should be dynamic. A Living Constitution is a document that is flexible and was designed by the Founders to reflect the evolving realities of the society that lives under it and implements it.

To apply the Constitution properly to our current circumstances, we should try to examine and understand the larger principles behind the text. We must look to the entire history of our country and how circumstances have evolved since ratification of the Constitution. Requirements for U.S. citizenship (and even the definition of it) have changed markedly since the Constitution's ratification in 1789. In 1790, the Congress first recognized the citizenship of children born to U.S. parents overseas under the first naturalization law: "[C]hildren of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens." In the infamous Dred Scott case, the Court held that this act merely referred to a method of naturalization. Dred Scott, however, was overturned by the Fourteenth Amendment in 1868. The Fourteenth Amendment mentions two types of citizenship: citizenship by birth and citizenship by law (naturalized citizens): It says that "[a]ll 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." Since 1790, the Congress has continued to exercise its broad Article I discretion to confer citizenship through a series of bills. This legislation indicates Congress’s abiding belief in its power to denote who will be considered either birthright or "natural born" citizens. Existing citizenship case law illustrates the Court’s doctrinal acknowledgment of Congress’s ability to regulate conferral of citizenship beyond that birthright citizenship which is conferred by birth within the territory of the United States. Persons born in the United States, and persons born on foreign soil to two U.S. parents, are born American citizens and are classified as citizens at birth under 8 U.S.C. §1401. Current U.S. statutes define certain other individuals born overseas as "citizens at birth." Prudential arguments support the position that the best reading of the Constitutional text is one where the meaning of "natural born" is construed generously, and not strictly, to include foreign-born children of U.S. citizens. After all, John McCain’s example demonstrates that such citizens can be and are as much part of the American community as any other children born of American parents. It would not be faithful to the Constitution’s larger principles to exclude from the presidency children born abroad to U.S. military or diplomatic parents serving our country overseas while simultaneously holding that children born in the United States to alien parents would be eligible. Through a philosophy of Living Constitutionalism we can see that the best and most faithful interpretation of our Constitution is that John McCain is eligible to be President.

Conclusion: Fidelity and the Living Constitution

The irony of McCain’s defense of "strict constructionism" is that it leads to the conclusion that he isn’t eligible for the presidency. If that is the case, McCain will never have the opportunity to nominate any federal judges at all. But the strict constructionist model is the wrong one. We should decide this question, like other constitutional questions, according to the Living Constitution approach that reflects and is faithful to the document’s larger principles. McCain should keep these facts in mind when describing his vision of judges "with demonstrated fidelity to the Constitution."


8 USC 1401 wasn't passed until 1952. Was there a previous statute on which McCain could rely?

I have read the speech and all I can say is a more unpresidential document would be hard to produce.

The sitting Justice he swipes at is Stevens, hardly a flaming radical in constitutional interpretation. Stevens himself said he voted in Kelo the way he did because his reading of the law required it, not because he wanted to bow to popular sentiment.

McCain also takes a very, very, ill-considered swipe at the 9th Circuit, which has become a kick-ball of sorts for the legal retrenchment community.

Again he raises the golem of an out-of-control Article III judiciary. I hope he realizes that the vast preponderance of that same judiciary were nominated Republican presidents. Republican presidents whose company he wants to join.

You might take a look at Larry Solum's comments on the McCain matter, both on his blog and in his article "Semantic Originalism." They should be of interest.


Thanks, I shall.

This is all rather silly, as we know for a fact that McCain isn't going to nominate strict constructionists to the Supreme court: His signature cause, campaign censorship, is starkly unconstitutional by any but living constitution approach. It's absurd to believe that he's going to deliberately nominate justices to strike down his own policy initiatives.


Good points. But the 4th Circuit which McCain mentions in his speech just recently denied a First Amendment-based challenge to the NC election law on nonpartisan judicial contest funding:(North Carolina Right to Life v. Leake 07-1454 to distinguish it from the other same-named case 07-1438.) In other words, they upheld something I take you consider facially unconstitutional: state intervention on election spending.

The 4th is no hotbed of wild-eyed liberals! So maybe McCain is on to something...

But I doubt it.

I think federal regulation of election spending is facially unconstitutional, due to the lack of any enumerated powers basis, AND the First amendment. At the state level there's no enumerated powers issue, and the regulation can be constitutional, though I think it often isn't.

I don't see how federal election spending regulations are per se unconstitutional on Article I grounds, Brett. Certainly, for instance, limitations on money transfers that cross state lines and limitations on money for advertisements disseminated across state lines are within the commerce clause, aren't they?

Personally, I think the contribution/expenditure line in Buckley makes eminent sense (as long as the contribution limits are set high enough) and I think McCain-Feingold's restrictions on coordinated soft money are generally permissible under the First Amendment, while the ad bans are generally unconstitutional.

Dilan, it's true that Congress has the authority to regulate interstate commerce, but I hold a narrower view of what constitutes "commerce", and a wider view of the First amendment's protections, than you. Campaign 'reform' is a pretty clear example of regulating the money in order to regulate the speech. It's the speech that's being regulated,the money is just a handle to get at it. And Congress is specifically forbidden to regulate speech. I'd apply that bar regardless of how Congress attempts to dress up the effort.

You might, at the federal level, justify regulation of direct donations to candidates from people in different states. I can't see justifying anything that's not direct, or has no interstate element.

On a policy rather than constitutional level, campaign regulation strikes me as a conflict of interest of starkly enormous proportions. Giving incumbent pols the chance to regulate what's said and done in an effort to unseat them? Might as well give a klepto the keys to the bank, or a pyromaniac a flame thrower. Fighting the perception of the possibility of corruption is just a pretext, they're busy securing their seats by doing all they can to handicap challengers.

It's a conflict of interest so big, so irresistible, that there's nothing to be gained by the venture that's worth the certain abuses.

Congress has the enumerated power to regulate the "manner" of federal elections and if "interstate commerce" doesn't include the "regulation" (and money makes it irregular in various respects) of national airwaves and such, it is pretty narrow indeed.

This also factors in the regulation of union and corporate speech. Policy and First Amendment concerns are separate, as might be some regulation of local speech, particularly state/local offices.

Voluntary funding regimes also would be separate.

The continuation of the "natural born" citizen requirement for presidents illustrates the great difficulty of amending the constitution. I think that there has long been a consensus that this requirement should be abolished, yet the requirement is still with us.

Barack Obama, who was born in Hawaii, missed by just a few months being born in a US territory instead of a state.

>>>>> In the infamous Dred Scott case, the Court held that this act merely referred to a method of naturalization. <<<<<<

The Dred Scott decision was a joke. For example, it ruled that the Constitution's clause giving Congress jurisdiction over the territories was intended to apply only to territories that existed when the Constitution was first adopted. The Dred Scott decision was a phony piece of originalism and it should have done a lot to discredit originalism.

"Congress has the enumerated power to regulate the "manner" of federal elections"

And campaign 'reform' does not regulate the manner of federal elections, it regulates speech concerning federal elections.
The "manner" of those elections are things like poll location, ballot design, the mechanics of voting.

Hell, even if the commerce clause and "time place and manner" clause COULD be plausibly interpreted as extending to Congress the power to regulate speech and printed matter concerning elections, the First Amendment would have amended that power away.

With respect to comments from Mark, Michael and others on this short article, here's a link to the full-text research paper underlying this short article that may serve to answer your questions. This link will take you to a short overview & to a link for downloading the paper itself:

In the paper, I go into the details of the Founders' English common-law heritage under the "strict constructionist" approach, relevant U.S. statutes for the "living constitution" approach, in case you're curious. The paper also discusses previous presidential candidates who ran into the same problem as McCain is now & discusses the ambiguous status of Native Americans born on reservations under "strict constructionist" approaches, etc. Pretty interesting topic.

J. Rebekka Bonner (author)

Ms. Bonner,

A birther going by the name of Mikhail Godkin has written a fallacious screed in which he, in my opinion, dishonestly distorts what you've written here as well as making completely baseless accusations regarding your motives for writing this article and your job within the Obama administration. I have posted a comment detailing how he has defamed yourself and others here. His "study" is included in the article on this page as well as literally hundreds of comments which expose his reasoning and understanding as fatally flawed. If you read my comment, I hope you will correct me if I misrepresented you or your work in any way.

Thank you,

Kevin Kesseler

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