NationStates Jolt Archive


Clinton and McCain both constitutionally barred from being president?

NERVUN
25-02-2008, 11:58
Already dealt with the Hilary part in another thread, as for McCain, see the 14th Amendment and how it grants US citizenship to "All persons born or naturalized in the United States, and subject to the jurisdiction thereof" the PCZ was US territory at the time, granting McCain citizenship.

Edit: Your thread is MINE! There can be only one! BWAHAHAHAHAHAHA!
The Archregimancy
25-02-2008, 11:58
I've shamelessy plagiarised the following, but it's been pointed out to me that...

If Hillary Clinton wins ... we will have a constitutional crisis because she is not eligible to be President. Problem? She's a woman. Article II, Section 1 of the constituion starts:

The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows: ..."

Notice the word "He." Nothing about "He or she." But what about the 19th amendmnent, you ask? It reads in full:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation.

Not a word about holding public office. Just voting. Thus the "He" in Article II, Section 1 is still operative. It hasn't been overridden.

As it happens, John McCain is also arguably ineligible to be president, and on potentially far sounder grounds than nitpicking over the intent of a gender-based pronoun.

Article II, section 1 of the US Constitution also states that:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Except that McCain was born in the Panama Canal Zone (http://en.wikipedia.org/wiki/John_mccain#Early_life_and_military_career), which was a territory of the USA rather than part of the USA, and is no longer controlled by the USA at all.

Fortunately, Barack Obama was born in Hawaii two years after it became a state; Obama therefore seems to be eligible to be president. McCain and Clinton are not.

Amuse yourselves, and me, by discussing.


Note: None of the arguments above are mine, and I'm certainly not personally arguing in favour of the inherently sexist Clinton disqualification. The McCain one intrigues me more. Either way, I thought it worth raising the issues here to see what arguments people can come up with.
Lunatic Goofballs
25-02-2008, 12:04
Whether these prohibit them from holding the office of President(which is ludicrous) or not, Nothing here prohibits them from running for the office. :)
The Archregimancy
25-02-2008, 12:10
Already dealt with the Hilary part in another thread, as for McCain, see the 14th Amendment and how it grants US citizenship to "All persons born or naturalized in the United States, and subject to the jurisdiction thereof" the PCZ was US territory at the time, granting McCain citizenship.

Edit: Your thread is MINE! There can be only one! BWAHAHAHAHAHAHA!

I obviously missed the Hillary argument, so apologies for bringing up an old debate there.

But in terms of McCain, has the applicability of the 14th Amendment been legally tested in terms of presidential eligibility?

And what about the recent legal decisions that Guantanamo Bay isn't necessarily subject to US law? Would someone born in the US base at Guantanamo be a 'native-born US Citizen' in terms of their eligibility to become US president even while Guantanamo isn't fully subject to US civilian legal jurisdiction? Could an anti-McCain challenge potentially be raised on that basis, I wonder?

Again, this is purely hypothetical rather than raising an actual opinion of my own.
The Archregimancy
25-02-2008, 12:15
Whether these prohibit them from holding the office of President(which is ludicrous) or not, Nothing here prohibits them from running for the office. :)

That's true.

In fact, I've had one friend argue that the way around the Clinton crisis is for Hilary to nominate Bill as her VP and then immediately resign. There's nothing constitutionally barring Bill from becoming president through this mechanism, only from him being elected president again.


And I agree that the arguments against both Clinton and McCain are inherently ludicrous, but I bet you someone, somewhere is getting themselves all hot and bothered by the constitutional ramifications.

I have heard someone argue that Obama is also ineligible under a strict interpretation of the Constitution's original intent, which makes it clear that only white property owning males could hold the office. Which would sound equally ridiculous except that Justice Scalia has built an entire legal career around intepreting the Constitution based on the intent of the framers.
NERVUN
25-02-2008, 12:21
But in terms of McCain, has the applicability of the 14th Amendment been legally tested in terms of presidential eligibility?
In a round about way, yes. One of the arguments that anti-tax people use is that the 16th Amendment is not legal due to Ohio never being a state until 1953 and President Taft therefore not a legal citizen and unable to serve as president. SCOTUS has ruled such as more than laughable.

And what about the recent legal decisions that Guantanamo Bay isn't necessarily subject to US law? Would someone born in the US base at Guantanamo be a 'native-born US Citizen' in terms of their eligibility to become US president even while Guantanamo isn't fully subject to US civilian legal jurisdiction? Could an anti-McCain challenge potentially be raised on that basis, I wonder?
The 14th Amendment states that "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." In the United States does not distinguish between territory or US state, the key phrase is subject to the jurisdiction of, if such a territory is under US jurisdiction, that person is an American citizen. I don't see how GITMO's status can be considered a legal challenge to McCain's election as president.

Furthermore, since Sen. McCain was born to US citizens, he is considered a naturally born citizen, regardless of where he was born. My son was born in Japan and is half Japanese, nevertheless, in the eyes of US law, he is a natural born citizen of the US (Or will be as soon as I file the paperwork) and could run for president himself one day (God I hope not).

Now, if he had been born to, say, Panamanians in the PCZ, there might be a challenge there, but other than that...
The Archregimancy
25-02-2008, 12:39
Furthermore, since Sen. McCain was born to US citizens, he is considered a naturally born citizen, regardless of where he was born. My son was born in Japan and is half Japanese, nevertheless, in the eyes of US law, he is a natural born citizen of the US (Or will be as soon as I file the paperwork) and could run for president himself one day (God I hope not).

Now, if he had been born to, say, Panamanians in the PCZ, there might be a challenge there, but other than that...

I'm not so sure that this bit is true. I freely concede that I'm not enough of a constitutional lawyer to give anything resembling a firm opinion on this, but I was under the strong impression that Article II, section 1 has always been interpreted as meaning that a Presidential candidate had to be a US citizen born in US territory, and that the nationality of the parents is irrelevant if a child is born outside US territory, even where those parents are US citizens.

I distinctly remember reading, for example, that the parents of Paul Linebarger, author of the still classic Psychological Warfare, intentionally sailed his pregnant mother from China back to the USA in 1913 (his father was a leading US liaison to the Chinese Revolution of 1911) to guarantee that their son would be eligible to be US President in the future.

This is, of course, quite distinct from the discussion over McCain, which is whether the 14th Amendment would grant native born status to those born in US territories. That no one has seriously raised this as a campaign issue strongly suggests that your interpretation of the 14th is widely accepted as binding, but I'd still be interested to see some rabid anti-McCain conservative make the attempt to claim the opposite.
NERVUN
25-02-2008, 12:44
I'm not so sure that this bit is true. I freely concede that I'm not enough of a constitutional lawyer to give anything resembling a firm opinion on this, but I was under the strong impression that Article II, section 1 has always been interpreted as meaning that a Presidential candidate had to be a US citizen born in US territory, and that the nationality of the parents is irrelevant if a child is born outside US territory, even where those parents are US citizens.
http://en.wikipedia.org/wiki/Natural-born_citizen notes that it is a legal gray area, but it would seem that case law and previous acts of Congress are on my side however.
St Edmund
25-02-2008, 12:46
Isn't there a legal distinction between 'internal' territories (such as Washington DC), which are integral parts of the USA, and 'external' ones (such as American Samoa) that are simply under US control but not counted as being within the actual USA itself? I strongly suspect that the Panama Canal Zone fell into the latter category, in which case the argument about McCain's eligibility looks decidely interesting...

I distinctly remember reading, for example, that the parents of Paul Linebarger, author of the still classic Psychological Warfare,

= SF author 'Cordwainer Smith', no?
Dododecapod
25-02-2008, 13:07
Isn't there a legal distinction between 'internal' territories (such as Washington DC), which are integral parts of the USA, and 'external' ones (such as American Samoa) that are simply under US control but not counted as being within the actual USA itself? I strongly suspect that the Panama Canal Zone fell into the latter category, in which case the argument about McCain's eligibility looks decidely interesting...



= SF author 'Cordwainer Smith', no?

The legal distictions (there are a few) do not impinge on citizenship. Citizens of American Samoa are citizens of the United States under US Law.

Oh, and good spot about Linebarger. He was indeed Cordwainer Smith.
New Granada
25-02-2008, 13:08
1) It is ordinary normal correct English to use "his" "he" or "him" rather than "his or her" "he or she" and "him or her" without any implication that females are excluded. Much more so then than now, and hardly grounds for a "constitutional crisis."

2) People born to US-citizen parents are natural born US citizens.

You shouldn't believe everything stupid you read on the internet, OP.
St Edmund
25-02-2008, 13:09
The legal distictions (there are a few) do not impinge on citizenship. Citizens of American Samoa are citizens of the United States under US Law.
Are you absolutely sure about that? I've seen references (in 'Statesman's Yearbook'-type textbooks) which said that they're 'US Nationals' but not actually 'US Citizens'... or, at least (as I remember the latest such book in which I noticed anything on the subject), that that was the case until very recently and that it's only those people who were born there after the rules were changed who automatically become citizens.

H'mm, when exactly was the 14th Amendment passed? It's a bit late now, in their case, but I'm wondering about the legal status of those people who were born in the CSA when that was de facto independent: Would they still have been counted as born "in the United States, and subject to the jurisdiction thereof"? I presume they were...
Corneliu 2
25-02-2008, 13:15
Are you absolutely sure about that? I've seen references (in 'Statesman's Yearbook'-type textbooks) which said that they're 'US Nationals' but not actually 'US Citizens'... or, at least (as I remember the latest such book in which I noticed anything on the subject), that that was the case until very recently and that it's only those people who were born there after the rules were changed who automatically become citizens.

People in the territories are U.S. Citizens and can run for president.
NERVUN
25-02-2008, 13:21
H'mm, when exactly was the 14th Amendment passed? It's a bit late now, in their case, but I'm wondering about the legal status of those people who were born in the CSA when that was de facto independent: Would they still have been counted as born "in the United States, and subject to the jurisdiction thereof"? I presume they were...
1868, and yes. While the CSA was de facto, the de jure opinion of the US was that the states were in rebellion and not independent. When the war was over and the former states allowed to re-seat their delegation in Congress, they were full Americans again.
St Edmund
25-02-2008, 13:23
People in the territories are U.S. Citizens and can run for president.
I've just checked. If this wikipedia article (http://en.wikipedia.org/wiki/United_States_nationality_law#Nationals_who_are_not_citizens) is correct then people from American Samoa, and anybody born on Swains Island, are still only U.S. Nationals rather than U.S. Citizens, and as the 14th Amendment defines people according to the legal status of their birthplace when they were born presumably those people who were born in the other external territories before the rules were changed for those -- although all granted full citizenship when the rules were changed -- would still be constitutionally ineligible for this one office.
Myrmidonisia
25-02-2008, 13:30
1) It is ordinary normal correct English to use "his" "he" or "him" rather than "his or her" "he or she" and "him or her" without any implication that females are excluded. Much more so then than now, and hardly grounds for a "constitutional crisis."

2) People born to US-citizen parents are natural born US citizens.

You shouldn't believe everything stupid you read on the internet, OP.
Only here, among those who will mince words until they are meaningless, could the question ever have been in doubt.
Corneliu 2
25-02-2008, 13:35
Children born in the United States (including not only the 50 states and the District of Columbia, but also, in most cases, U.S. Territories, such as Puerto Rico, Guam, the Northern Mariana Islands, the U.S. Virgin Islands, in addition to many current states which were territories at the time of the birth of some individuals now living, e.g. Alaska and Hawaii), are U.S. citizens at birth (unless born to foreign diplomatic staff), regardless of the citizenship or nationality of the parents (see Jus soli).

From the Wiki Article:

http://en.wikipedia.org/wiki/United_States_nationality_law#Possession_of_citizenship

And this from the Constitution:

The Citizenship Clause in the Fourteenth Amendment to the Constitution states that:

"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."

ANd I know this has already been noted.
St Edmund
25-02-2008, 13:40
Children born in the United States (including not only the 50 states and the District of Columbia, but also, in most cases, U.S. Territories, such as Puerto Rico, Guam, the Northern Mariana Islands, the U.S. Virgin Islands, in addition to many current states which were territories at the time of the birth of some individuals now living, e.g. Alaska and Hawaii), are U.S. citizens at birth (unless born to foreign diplomatic staff), regardless of the citizenship or nationality of the parents (see Jus soli). From the Wiki Article:

http://en.wikipedia.org/wiki/United_States_nationality_law#Possession_of_citizenship

Which clearly says "in most cases", rather than "in all cases": Those persons who were born in those external territories where citizenship wasn't automatic at the time would be the exceptions, no?

(By the way, in case anybody hadn't noticed, we're actually citing different sections of the same article.)
The Archregimancy
25-02-2008, 13:42
= SF author 'Cordwainer Smith', no?

Yes (as already noted by Dododecapod). But I thought I'd get more traction for the argument using his civilian name.

You shouldn't believe everything stupid you read on the internet, OP.

Who said I believed it? You obviously missed the bit where I specifically noted that I wasn't expressing my own opinion, and asked people to 'amuse yourselves - and me' by replying. Do please consider your balloon of sanctimonious smugness effectively punctured.
The Archregimancy
25-02-2008, 13:51
Children born in the United States (including not only the 50 states and the District of Columbia, but also, in most cases, U.S. Territories, such as Puerto Rico, Guam, the Northern Mariana Islands, the U.S. Virgin Islands, in addition to many current states which were territories at the time of the birth of some individuals now living, e.g. Alaska and Hawaii), are U.S. citizens at birth (unless born to foreign diplomatic staff), regardless of the citizenship or nationality of the parents (see Jus soli).

Yes, but... again just playing devil's advocate rather than making a case I necessarily personally believe it (just in case New Granada decides not to pay attention again), the question isn't whether the individuals concerned are US Citizens or not - which I don't think anyone here is seriously arguing against - but whether or not they count as natural born citizens under Article II, section 1.

Nervun's counter-argument regarding the 14th Amendment should be considered fairly effective, but I still wouldn't be surprised if a rabid anti-McCainite tried to raise the issue.
NERVUN
25-02-2008, 13:58
Yes, but... again just playing devil's advocate rather than making a case I necessarily personally believe it (just in case New Granada decides not to pay attention again), the question isn't whether the individuals concerned are US Citizens or not - which I don't think anyone here is seriously arguing against - but whether or not they count as natural born citizens under Article II, section 1.

Nervun's counter-argument regarding the 14th Amendment should be considered fairly effective, but I still wouldn't be surprised if a rabid anti-McCainite tried to raise the issue.
To add a bit more upon reflection, I think the 14 would also apply due to McCain's status as a child of a US service member. Since his father was stationed in the zone at the time, he most certainly could be said to be under the jurisdiction of the United States (I don't think it's really possible to be more under the jurisdiction of the US than in the military).

In any case, I think that some rabid Internet wing nuts will probably trot this one out, but as with the one for Hillary Clinton, I really don't see it sprouting any legal legs (Though Cat and Neo Art may correct me on this one).
Corneliu 2
25-02-2008, 14:10
but whether or not they count as natural born citizens under Article II, section 1.

Of course it does. Just like if someone was born via C-section is also allowed to run for President though they were not naturally born either.
St Edmund
25-02-2008, 14:25
On the same general topic, would I be right in presuming that the principle of extraterritoriality does enough to make the USA's embassies effectively part of the USA, and under US jurisidiction, for the 14th amendment to apply definitely to anybody who might be born within them?
Corneliu 2
25-02-2008, 14:28
On the same general topic, would I be right in presuming that the principle of extraterritoriality does enough to make the USA's embassies effectively part of the USA, and under US jurisidiction, for the 14th amendment to apply definitely to anybody who might be born within them?

Embasseys are indeed considered soveriegn territory of the nation they belong to, as do naval ships. If one wants to go by precedent, then what you say is true St. Edmund. And court cases seem to bear this out.
St Edmund
25-02-2008, 14:44
Embasseys are indeed considered soveriegn territory of the nation they belong to, as do naval ships. If one wants to go by precedent, then what you say is true St. Edmund. And court cases seem to bear this out.
Although, upon further research, it seems (http://en.wikipedia.org/wiki/Natural-born_citizen) that the US State Department thinks otherwise...

:confused:
Corneliu 2
25-02-2008, 15:01
Although, upon further research, it seems (http://en.wikipedia.org/wiki/Natural-born_citizen) that the US State Department thinks otherwise...

:confused:

True but then...I could probably argue:

United States v. Wong Kim Ark, 169 U.S. 649 (1898): A person born within the jurisdiction of the U.S. to non-citizens who "are not employed in any diplomatic or official capacity" is automatically a citizen. (http://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark)

I am not sure if this would be correct to invoke this though.
NERVUN
25-02-2008, 15:11
On the same general topic, would I be right in presuming that the principle of extraterritoriality does enough to make the USA's embassies effectively part of the USA, and under US jurisidiction, for the 14th amendment to apply definitely to anybody who might be born within them?
As you have noted, the State Dept says no. It should be noted that extraterritoriality as applied to embassies does not, exactly, make the embassy part of the home nation, but rather removes the embassy from the bounds of law from the host nation. Most embassies are, after all, rented or leased in perpetuity from the host nation for the embassy and the host nation assumes responsibility for its protection, they just cannot enter the embassy at will without permission from the ambassador.

Think of it as diplomatic immunity for a set of buildings. ;)
St Edmund
25-02-2008, 15:37
As you have noted, the State Dept says no. It should be noted that extraterritoriality as applied to embassies does not, exactly, make the embassy part of the home nation, but rather removes the embassy from the bounds of law from the host nation. Most embassies are, after all, rented or leased in perpetuity from the host nation for the embassy and the host nation assumes responsibility for its protection, they just cannot enter the embassy at will without permission from the ambassador.

Think of it as diplomatic immunity for a set of buildings. ;)
Okay.

Of course it does. Just like if someone was born via C-section is also allowed to run for President though they were not naturally born either.
Isn't that choice of words "only" part of the original Constitution, rather than of the 14th Amendment, and therefore over-ridden by the latter measure's anti-discrimination rule?
Corneliu 2
25-02-2008, 15:49
Isn't that choice of words "only" part of the original Constitution, rather than of the 14th Amendment, and therefore over-ridden by the latter measure's anti-discrimination rule?

Article 2 section 1:

"No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."

Actually...I think this ends debate :D
St Edmund
25-02-2008, 16:14
Article 2 section 1:

"No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."

Actually...I think this ends debate :D

H'mm.

*checks the small print of both the original constitution and the 14th amendment, with which (being British) I'm less familiar than seems to be common for Americans*

Okay, the wording of the amendment apparently doesn't extend the definition of citizen to over-ride that point, so the question of whether somebody delivered by C-section counts as "natural born" for the purpose of eligibility for the office of President would still need to be determined if & when the situation arose.

*thinks further*

And of course there's one BIG loophole in the 14th Amendment: It says that the persons whom it describes do qualify as citizens for this purpose, but it doesn't actually insist that anybody else can't also do so...

As you have noted, the State Dept says no. It should be noted that extraterritoriality as applied to embassies does not, exactly, make the embassy part of the home nation, but rather removes the embassy from the bounds of law from the host nation. Most embassies are, after all, rented or leased in perpetuity from the host nation for the embassy and the host nation assumes responsibility for its protection, they just cannot enter the embassy at will without permission from the ambassador.

Think of it as diplomatic immunity for a set of buildings. ;)

Further to this point, was US jurisdiction within the Panama Canal Zone just a matter of extraterritoriality too or was that actually a case of full (albeit temporary) sovereignty?
The Archregimancy
25-02-2008, 16:21
In any case, I think that some rabid Internet wing nuts will probably trot this one out.

And, Ladies and Gentlemen, I've just found one - though one not entirely without some self interest in the matter:

Ron Paul, a strict constitionalist, states, "It is generally agreed that a natural born citizen of the United States is any person born in one of the 50 states or the District of Columbia."

I've also, however, after doing a bit more burrowing around, found an additional story that potentially ends debate even more securely than Corneliu 2's last post.

George Romney, Mitt's father, unsuccessfully ran for the Republican nomination against Nixon in 1968, and was born to US citizen parents in a Mormon 'colony' on Mexican territory. The issue of his eligibility was raised at the time, but never seriously tested.

For a full scholarly discussion of the issue from 1968, which seems to conclude that the issue remains a grey area, but that a candidate born overseas to US Citizen parents who was therefore themselves a US citizen - even if born outside a US territory - would be unlikely to be disqualified, go to:

http://lawprofessors.typepad.com/immigration/files/gordon_article

Edit - if you can't get that link to open, a link to the same article (which does work) is available here (http://lawprofessors.typepad.com/immigration/2008/02/is-john-mccain.html), where it says 'download Gordon article'.
Neo Art
25-02-2008, 17:03
oy, all this debate. the 14th amendment says all persons born in the United States are american citizens, not all persons born in one of the several states. This thus includes all territory of the united states.

Panama was at the time McCain was born, sovereign US soil, no different than guam, puerto rico or the US virgin islands are now. Legally speaking, no less part of the US than michigan.
Knights of Liberty
25-02-2008, 17:13
Anyone who seriously makes the arguement that Hillary cant be pres because shes a woman and the constitution says "He" is just a sexist who doesnt want "dem uppity womenz" to be put in charge.


I garuntee you that if she somehow were to get the nomination (marical at this point) youd have Christian fundies saying how its blasphemy to have a woman in charg of a country, their churches preaching against voting for her, and their crazy right wing nut Evangelical leaders a'la Pat Robertson saying it in public. Hell, maybe we'd even start to hear more from the Muslim fundies in America saying the same thing.
Knights of Liberty
25-02-2008, 17:14
Did you miss the post about the legal difference between 'internal' territories and 'external' ones, and the fact that citizenship hasn't always been granted automatically to people born in the latter?

Citizenship hasnt always been granted to blacks either. What matters is whats done now. And now, if your born in US territory, you are a citizen.
St Edmund
25-02-2008, 17:19
oy, all this debate. the 14th amendment says all persons born in the United States are american citizens, not all persons born in one of the several states. This thus includes all territory of the united states.

Panama was at the time McCain was born, sovereign US soil, no different than guam, puerto rico or the US virgin islands are now. Legally speaking, no less part of the US than michigan.
Did you miss the post about the legal difference between 'internal' territories and 'external' ones, and the fact that citizenship hasn't always been granted automatically to people born in the latter?
Guam, for example, isn't "no less part of the US than Michigan": People born there were only granted US citizenship by the pssage of a law in 1950, rather than recognised as holding it by virtue of the 14th Amendment right from the original date of annexation during the Spanish-American War...
Neo Art
25-02-2008, 17:33
Did you miss the post about the legal difference between 'internal' territories and 'external' ones, and the fact that citizenship hasn't always been granted automatically to people born in the latter?
Guam, for example, isn't "no less part of the US than Michigan": People born there were only granted US citizenship by the pssage of a law in 1950, rather than recognised as holding it by virtue of the 14th Amendment right from the original date of annexation during the Spanish-American War...

*sigh* no. That's...not at all right. Mainly because the act you are refering to, the Guam Organic Act of 1950 did not "give" citizenship to people of Guam.

Rather, prior to the passage of that act, Guam was not considered "sovereign US territory". Rather it was "Non US land occupied by the US military". It's not that the 1950 act gave citizenship to people of Guam in and of itself. The distinction is until 1950 guam was not sovereign territory, is land under a US military occupation. Panama on the other hand was sovereign US territory when McCain was born.

Guam in 1949 was "territory occupied by the US military". Guam in 1951 was "sovereign US territory". Big freaking difference. If you are refering to the Immigration and Nationality Act of 1952 that granted citizenship to all people born in Guam after April 11, 1899.
Neo Art
25-02-2008, 17:48
H'mm. Doesn't an "Organic Act" turn an 'unorganised' territory into an 'organised' one, by giving it a constitution of its own, rather than turn an 'external' territory into an 'internal' one?

That's a fair way of putting it, however, from all relevant caselaw, there is no indication that an "organized" territory outside the US is any less a sovereign territory for the purposes of establishing citizenship.
St Edmund
25-02-2008, 17:48
*sigh* no. That's...not at all right. Mainly because the act you are refering to, the Guam Organic Act of 1950 did not "give" citizenship to people of Guam.

Rather, prior to the passage of that act, Guam was not considered "sovereign US territory". Rather it was "Non US land occupied by the US military". It's not that the 1950 act gave citizenship to people of Guam in and of itself. The distinction is until 1950 guam was not sovereign territory, is land under a US military occupation. Panama on the other hand was sovereign US territory when McCain was born.

Guam in 1949 was "territory occupied by the US military". Guam in 1951 was "sovereign US territory". Big freaking difference. If you are refering to the Immigration and Nationality Act of 1952 that granted citizenship to all people born in Guam after April 11, 1899.
H'mm. Doesn't an "Organic Act" turn an 'unorganised' territory into an 'organised' one, by giving it a constitution of its own, rather than turn an 'unincorporated' (or 'external') territory into an 'incorporated' (or 'internal') one? Maybe redefining Guam as "sovereign US territory" was a necessary prerequisite for the 'Immigration and Nationality Act' that you mention, but did that actually make it an integral part of the USA itself? All of the sources that I've seen say that it's still an 'unincorporated' (i.e. 'external') territory, just as American Samoa -- where US citizenship is still not the normal situation -- still is...
What about the Philippines: Can you tell me how they were defined during the period of US control? Were they just "territory occupied by the US military", all the way from the Spanish-American War until independence?

I refer you to this wikipedia page (http://en.wikipedia.org/wiki/Territories_of_the_United_States)...
St Edmund
25-02-2008, 18:01
Drop the bullshit about Guam and American Samoa, will you? No one cares.
One suspects that the Guamians and American Samoans care: Can you be sure that there are none of them on this forum? ;)

The fact of the matter is, McCain's parents were citizens, so he could have been born on the Moon and still be considered a "natural born citizen." Parentage supersedes territorial jurisdiction.
If that's the case then why are people born within the USA of non-American parentage considered to be US citizens? That seems to be a case of territorial jurisidiction superceding parentage...
St Edmund
25-02-2008, 18:09
That's a fair way of putting it, however, from all relevant caselaw, there is no indication that an "organized" territory outside the US is any less a sovereign territory for the purposes of establishing citizenship.
Don't the rules say that the US constitution (and its amendments) don't apply in 'unincorporated' territories, except to the extent that any of its terms are included in their Organic Acts or other specifically-relevant legislation by Congress? That would seem to indicate that the extent to which citizenship can be established by being born there is a matter for those laws, rather than simply guaranted outright under the constitution & 14th amendment as is the case in all 'incorporated' territories. I admit to being unfamiliar with the caselaw involved, though.
Corneliu 2
25-02-2008, 18:36
That's a fair way of putting it, however, from all relevant caselaw, there is no indication that an "organized" territory outside the US is any less a sovereign territory for the purposes of establishing citizenship.

That's from my study.
St Edmund
25-02-2008, 19:49
I'll agree that all of the "organized unincorporated" territories that I actually know about have had US citizenship granted to their peoples, but is there actually a law anywhere that sets this out as a general rule? The sources that I've seen so far do say that the Constitution doesn't automatically apply to any 'unincorporated' territories, except in as far as Congress legislates specifically to that effect, and so presumably the 14th Amendment wouldn't apply automatically there either... and was the Panama Canal Zone actually "organized" in nature, rather than just "unorganized", anyway?


N.B. As I've already remarked, I don't see why McCain shouldn't count as enough of a US citizen to be eligible for the presidency anyway: The 14th Amendment's invocation of 'Jus solis', on which the argument against his eligibility has been based, doesn't say that there couldn't be any other grounds for citizenship too and so (it seems to me) there's probably no reason to rule out the 'Jus sanguinis' that would apply in his case. However the lack of a clear explanation about that factor in that amendment makes the situation vague enough that, purely for the sake of curiosity, I'd like to see a definitive ruling (presumably by the US Supreme Court?) one way or the other.
Cammomile
25-02-2008, 19:50
We're not lucky enough for this to work.
Nadkor
25-02-2008, 20:22
In any case, I think that some rabid Internet wing nuts will probably trot this one out, but as with the one for Hillary Clinton, I really don't see it sprouting any legal legs (Though Cat and Neo Art may correct me on this one).

In the UK we have the Interpretation Act 1978, which states quite clearly
6. Gender and number.

In any Act, unless the contrary intention appears,—

(a) words importing the masculine gender include the feminine;

(b) words importing the feminine gender include the masculine;

I don't know if the US has as similar statute, but I would be surprised if the same principle wasn't held.
Tmutarakhan
25-02-2008, 21:58
Further to this point, was US jurisdiction within the Panama Canal Zone just a matter of extraterritoriality too or was that actually a case of full (albeit temporary) sovereignty?
That is a bit problematic. Our possession of the Canal Zone was legally described as a "perpetual lease" (a leasehold which would automatically continue until an agreement to terminate it was reached) and not as a transfer of ownership (Panama remained the "landlord", so to speak).

George Romney, Mitt's father, unsuccessfully ran for the Republican nomination against Nixon in 1968, and was born to US citizen parents in a Mormon 'colony' on Mexican territory. The issue of his eligibility was raised at the time, but never seriously tested.

For a full scholarly discussion of the issue from 1968, which seems to conclude that the issue remains a grey area, but that a candidate born overseas to US Citizen parents who was therefore themselves a US citizen - even if born outside a US territory - would be unlikely to be disqualified
It was a very serious problem for Romney. If he had not dropped out early (he got on a local TV show and expressed doubts about the wisdom of the Vietnam war, saying that on a trip there he felt like the military was trying to "brainwash" him; this was seriously fatal for a Republican that year), I think the citizenship problem would have continued to dog him.

In fact, I've had one friend argue that the way around the Clinton crisis is for Hilary to nominate Bill as her VP and then immediately resign. There's nothing constitutionally barring Bill from becoming president through this mechanism, only from him being elected president again.
That's totally wrong. No-one may be Vice President who is not eligible to be President.
South Lorenya
25-02-2008, 22:09
Archregimancy, I've seen enough crap-filled chain mail in Eudora. Do us a favor and stop posting it here as well.
Myrmidonisia
25-02-2008, 22:18
Damn! Are we still ignoring public law on this question in favor of our own "logic"?

McCain is clearly a US citizen due to the definitions in US Code.
http://www.law.cornell.edu/uscode/8/1401.html
At least c), d), e), and g) seem to apply.

The argument against Clinton is even sillier.
NERVUN
25-02-2008, 22:21
If that's the case then why are people born within the USA of non-American parentage considered to be US citizens? That seems to be a case of territorial jurisidiction superceding parentage...
Because the 14th says so. The US acknowledges citizenship upon the basis of three things, either being born within the US or its territories, being born to US citizens, or through naturalization. You are correct in that territorial jurisdiction does have more clout than parentage, but that is because the 14th states that circumstance directly, the other two are left to Congress to regulate. Congress could, if it wanted to, pass a law making all children born to Americans abroad NOT be citizens as there is nothing in the Constitution saying otherwise, they could not do the same for children of illegals because of the 14th.

You have to remember that the Constitution isn't so much a set of rules as a list of what the government can't do. Beyond that, it is very much up to Congress to figure it out.
Tmutarakhan
25-02-2008, 22:36
Damn! Are we still ignoring public law on this question in favor of our own "logic"?

McCain is clearly a US citizen due to the definitions in US Code.
There is no question that he is a "citizen"; so is Arnold Schwarzenegger, but AAAAHnold is not eligible to be President because he is not a native-born citizen, and the question is whether McCain is.
Myrmidonisia
25-02-2008, 22:38
There is no question that he is a "citizen"; so is Arnold Schwarzenegger, but AAAAHnold is not eligible to be President because he is not a native-born citizen, and the question is whether McCain is.
Seems like that section of the US Code makes it clear he has birthright citizenship.
King Arthur the Great
25-02-2008, 22:40
Thank God, a flimsy excuse to keep either of these knuckleheads out of office. I wish there was a constitutional ban on people that are also classifiable as "evil." And the "dumb." Skippy McDubbya is the latter.
Fleckenstein
25-02-2008, 22:40
In fact, I've had one friend argue that the way around the Clinton crisis is for Hilary to nominate Bill as her VP and then immediately resign. There's nothing constitutionally barring Bill from becoming president through this mechanism, only from him being elected president again.

That's totally wrong. No-one may be Vice President who is not eligible to be President.

22nd and 12th amendments to the rescue.
Corneliu 2
25-02-2008, 23:08
That's totally wrong. No-one may be Vice President who is not eligible to be President.

Bill can actually be President for 2 years. The Constitution stipulates 2 terms but no more than 10 years.
DrVenkman
26-02-2008, 00:31
I have heard someone argue that Obama is also ineligible under a strict interpretation of the Constitution's original intent, which makes it clear that only white property owning males could hold the office. Which would sound equally ridiculous except that Justice Scalia has built an entire legal career around intepreting the Constitution based on the intent of the framers.


It wouldn't be based on the 'intentions' of the founders, since they never intended to remove slavery in the first place - that part of the declaration was removed to cozy up to the southern states such as South Carolina to gain support for the revolution.
Dododecapod
26-02-2008, 01:48
Are you absolutely sure about that? I've seen references (in 'Statesman's Yearbook'-type textbooks) which said that they're 'US Nationals' but not actually 'US Citizens'... or, at least (as I remember the latest such book in which I noticed anything on the subject), that that was the case until very recently and that it's only those people who were born there after the rules were changed who automatically become citizens.


I'm not a constitutional scholar, but I base my opinion on the interpretations of one. A friend of mine (who was Samoan by birth) while in the Marines sought to marry a New Zealand citizen, but before they went ahead they talked with a Judge in Washington (a member of the Washington State Supreme Court, in fact), regarding the citizenship aspects of both themselves and any children they had - particularly any children born overseas, to ensure they would automatically get US citizenship despite possibly not being born on US soil.

His reply was that, as long as she was registered as his wife under US law, any children of their union would be US citizens by birth, regardless of the location of their birth. He further opined that American Samoa, as a US territory, was as much US soil as any of the fifty states.
New Manvir
26-02-2008, 01:59
Don't places like military bases and embassies count as "X" country's soil?
Fleckenstein
26-02-2008, 02:02
Don't places like military bases and embassies count as "X" country's soil?

How do you think Hoover drank during Prohibition? He would mosey on down to the Belgian embassy after a hard day's work. Foreign soil, after all. :D
Sel Appa
26-02-2008, 02:45
The first time I saw that I neglected to notice the "He". Which is why it probably hasn't been fixed. It most likely won't be a problem since her campaign is collapsing. However, they probably didn't think of a woman running for president at the time and only thought men would. It might not have even been intentional. Also, it could technically be applied like "all men are created equal" which is now defined as all of mankind.

McCain is fine. He was born on US soil and his parents were citizens stationed there. If you're born to American citizens in a foreign country while traveling there, you are considered the same as US born.
The Archregimancy
26-02-2008, 13:16
Archregimancy, I've seen enough crap-filled chain mail in Eudora. Do us a favor and stop posting it here as well.

I'm sorry, but - hand on heart - I honestly have no idea what you're going on about. Maybe because it's I'm substantially older than the core demographic here?

1) While parts were quoted from a secondary source, nothing in the OP was 'chain mail' under any definition I know of. I haven't been able to check my e-mail for days as I'm hospitalised.

2) I don't even know what Eudora is.

3) The OP and my subsequent posts make it very clear that nothing in the OP was a serious argument that I was making personally; I simply wanted to see what reaction in NSG would be to arguments that I openly acknowledged from the beginning were tenuous given the extremely broad range of backgrounds here.

As I noted in another thread that I started a few days ago on the Prophet Ronald and the End Times (long story), I'm simply looking for people to entertain me while I'm bed-ridden and in pain.

Maybe you just woke up on the wrong side of bed today? Either that or you've had a sense of humour or irony bypass. Maybe both. If so, could you let us know if they hurt? Must be some fairly serious surgery....
Domici
26-02-2008, 13:27
I've shamelessy plagiarised the following, but it's been pointed out to me that...



As it happens, John McCain is also arguably ineligible to be president, and on potentially far sounder grounds than nitpicking over the intent of a gender-based pronoun.

Article II, section 1 of the US Constitution also states that:



Except that McCain was born in the Panama Canal Zone (http://en.wikipedia.org/wiki/John_mccain#Early_life_and_military_career), which was a territory of the USA rather than part of the USA, and is no longer controlled by the USA at all.

Fortunately, Barack Obama was born in Hawaii two years after it became a state; Obama therefore seems to be eligible to be president. McCain and Clinton are not.

Amuse yourselves, and me, by discussing.


Note: None of the arguments above are mine, and I'm certainly not personally arguing in favour of the inherently sexist Clinton disqualification. The McCain one intrigues me more. Either way, I thought it worth raising the issues here to see what arguments people can come up with.

At the time of the signing of the constitution "he" was used as a gender neutral pronoun. Hillary is eligible.

Regarding McCain, the phrase is "except a natural born citizen." Not "a citizen born on US soil." McCain was a citizen when he was born. It doesn't matter where.
Tmutarakhan
26-02-2008, 19:04
Bill can actually be President for 2 years. The Constitution stipulates 2 terms but no more than 10 years.
The wording is trickier than that. Bill COULD have been President for 2 years minus a day, earlier, and still been eligible for two terms. But now that he has served two terms, he is not eligible for even a single day.
Tmutarakhan
26-02-2008, 19:07
McCain is fine. He was born on US soil and his parents were citizens stationed there. If you're born to American citizens in a foreign country while traveling there, you are considered the same as US born.
I would expect that most people would view it that way, but it's not 100% clear that he's "fine"; the issue has never really been forced to a test before.
South Lorenya
26-02-2008, 19:32
I'm sorry, but - hand on heart - I honestly have no idea what you're going on about. Maybe because it's I'm substantially older than the core demographic here?

1) While parts were quoted from a secondary source, nothing in the OP was 'chain mail' under any definition I know of. I haven't been able to check my e-mail for days as I'm hospitalised.

2) I don't even know what Eudora is.

3) The OP and my subsequent posts make it very clear that nothing in the OP was a serious argument that I was making personally; I simply wanted to see what reaction in NSG would be to arguments that I openly acknowledged from the beginning were tenuous given the extremely broad range of backgrounds here.

As I noted in another thread that I started a few days ago on the Prophet Ronald and the End Times (long story), I'm simply looking for people to entertain me while I'm bed-ridden and in pain.

Maybe you just woke up on the wrong side of bed today? Either that or you've had a sense of humour or irony bypass. Maybe both. If so, could you let us know if they hurt? Must be some fairly serious surgery....

(1) No, it doesn't say "Pass this on to 666 people or Dubya will get a third term!", but it's full of the obviously false info that infests most chain mail.

(2) Eudora is one of the leading email programs -- or at least it was, until hotmail and then google became so popular.

(3) Sometimes I post responses to the first couple posts without reading the later ones, and your starting post doesn't look like a joke post.
Llewdor
26-02-2008, 20:18
If the law required that the President be born in the United States, you'd have a really solid argument for excluding anyone born anywhere that wasn't a state at the moment of birth, the District of Columbia included.

But the law doesn't require that. The law requires the President be a natural born citizen, and since the PCZ was US territory when McCain was born, McCain became a US citizen by virtue of his place of birth, and thus is a natural born citizen.

But, this is a fairly fine point, and I wouldn't be surprised to see someone try to make something of it during the election.
Tmutarakhan
26-02-2008, 20:29
since the PCZ was US territory when McCain was born, McCain became a US citizen by virtue of his place of birth
No, it wasn't a territory, it was a leasehold; and no, he did not become citizen by virtue of his place of birth, without more (Panamanians born in the Canal Zone did not become US citizens), so there is in fact some question here.
Tmutarakhan
26-02-2008, 20:32
I think they can, but they would be ineligible in the Presidental Succession.
No. The qualifications to be Vice President are, simply: you must be eligible to be President.
Tmutarakhan
26-02-2008, 20:35
but if One or Both of McCain's parents were US Citizens, then he is a US Citizen.
Nobody is denying that he is a citizen; nobody is denying that Schwarzenegger is a citizen either. Schwarzenegger was not a citizen by birth, however, so he is ineligible. Is McCain ineligible because he was not a citizen by virtue of place of birth? He was a citizen from birth, at least: should that count? Most people, I hope, would think so.
JuNii
26-02-2008, 20:36
That's totally wrong. No-one may be Vice President who is not eligible to be President.
I think they can, but they would be ineligible in the Presidental Succession. so if Bill becomes Vice President, and something happens to the President, the succession would skip him.

Bill can actually be President for 2 years. The Constitution stipulates 2 terms but no more than 10 years.
I think the stipulation covers if someone becomes president via the line of sucession. say if Bill became President because the President was assassinated in his third/fourth year, then Bill can still run for two terms because technically, he didn't do the majority of the former President's term.

If Bill became President during the former's first or second year, then he would've served as President for the majority of the year and thus would 'count' as a full term.
JuNii
26-02-2008, 20:39
No, it wasn't a territory, it was a leasehold; and no, he did not become citizen by virtue of his place of birth, without more (Panamanians born in the Canal Zone did not become US citizens), so there is in fact some question here.

but if One or Both of McCain's parents were US Citizens, then he is a US Citizen.
Llewdor
26-02-2008, 20:42
but if One or Both of McCain's parents were US Citizens, then he is a US Citizen.
But are all such people necessarily eligible to run for President?

Whether McCain is a citizen isn't in dispute. The question is is he a "natural born citizen"?
Neo Art
26-02-2008, 20:46
but if One or Both of McCain's parents were US Citizens, then he is a US Citizen.

that's not the question. It is undeniably indisputible that John McCain is a US citizen. Not one person here has tried to argue otherwise. It is absolutly clear McCain is a US citizen.

For that matter, Arnold Schwartzeneger (however we spell it) is also a US citizen. However the constitution requires one to be a naturally born US citizen in order to be president. Not merely just a US citizen. That's why Arnold can't be president.

So what makes a naturally born citizen different from a "non naturally born" citizen. Certainly any person who was born not a US citizen is not a naturally born US citizen, but the big question is, is a person who is born a US citizen by definition a natural born US citizen, or are there other qualifications to be "naturally born" US citizen beyond simply being a US citizen at birth?

Is a naturally born US citizen someone who is a citizen at birth, regardless of how they got citizenship? In which case it would include McCain.

Is a naturally born US citizen someone who is a citizen at birth, and born in US territory? This also includes McCain.

Is a naturally born US citizen someone who is a citizen at birth, and is born in a US territory the likes of which any person born in it would be a citizen at birth? This would probably include McCain. He gets his citizenship from his parents certainly, but even if his parents were not US citizens he'd probably have been a citizen at birth by being born in Panama.

Is a naturally born US citizen someone who is a US citizen at birth and was born in america? Then Mccain is not a "naturally born" US citizen, he wasn't born in the US.

It seems the answer is probably the first, anyone BORN a US citizen, but might go so far as to say someone born within US territories. But to extend it to only people born in the US would exclude thousands, if not millions, of people who were american citizens at birth.
Tmutarakhan
26-02-2008, 20:50
It's all moot anyway: McCain, it turns out, has already been chosen President by our Puppet Overlords.
Diebold Accidentally Leaks Results Of 2008 Election Early (http://www.theonion.com/content/video/diebold_accidentally_leaks)
Lunatic Goofballs
26-02-2008, 21:01
It's all moot anyway: McCain, it turns out, has already been chosen President by our Puppet Overlords.
Diebold Accidentally Leaks Results Of 2008 Election Early (http://www.theonion.com/content/video/diebold_accidentally_leaks)

What a relief. I hate surprises. :)
Tmutarakhan
26-02-2008, 21:03
you are a Naturally Born US Citizen (http://en.wikipedia.org/wiki/Natural-born_citizen) if, at least, one of the following is true.

1) Both parents are US Citizens.

2) the Child is BORN within the BORDERS of the United States of America.
Point 1) isn't necessarily true. If both parents are US citizens, but the birth is outside of US jurisdiction altogether, the statutes at various times have required that the child be resident in the US for some number of years before becoming a citizen, and so on. Now in this case, the statutes granted McCain citizenship from birth, but if that is just by statutory grant (that is, not by inherent right: the statute COULD have been different) then is that a kind of "naturalization"?
JuNii
26-02-2008, 21:06
Nobody is denying that he is a citizen; nobody is denying that Schwarzenegger is a citizen either. Schwarzenegger was not a citizen by birth, however, so he is ineligible. Is McCain ineligible because he was not a citizen by virtue of place of birth? He was a citizen from birth, at least: should that count? Most people, I hope, would think so.


that's not the question. It is undeniably indisputible that John McCain is a US citizen. Not one person here has tried to argue otherwise. It is absolutly clear McCain is a US citizen.

For that matter, Arnold Schwartzeneger (however we spell it) is also a US citizen. However the constitution requires one to be a naturally born US citizen in order to be president. Not merely just a US citizen. That's why Arnold can't be president.
hence why I focused on his parantage.

So what makes a naturally born citizen different from a "non naturally born" citizen. Certainly any person who was born not a US citizen is not a naturally born US citizen, but the big question is, is a person who is born a US citizen by definition a natural born US citizen, or are there other qualifications to be "naturally born" US citizen beyond simply being a US citizen at birth? as far as I understood it, it's a mix of the two.

you are a Naturally Born US Citizen (http://en.wikipedia.org/wiki/Natural-born_citizen) if, at least, one of the following is true.

1) Both parents are US Citizens.

2) the Child is BORN within the BORDERS of the United States of America. (so a Swedish family visiting Hawaii gives birth to a daughter, then yes, that little girl is a US Citizen even tho the parents are not as long as the parents are not employed in any diplomatic or official capacity for their country.)

However, there are other conditions for point 2.

so if either of McCain's parents are US Citizens when he was born in Panama, then yes, he's a naturally born citizen. if neither of them were, then NO, he's not a natrually born citizen.


whether or not the territory would count depends (according to Wiki) if the US has jurisdiction. in the case of Panama, I believe the US did have direct jurisdiction over the area.
JuNii
26-02-2008, 21:26
Point 1) isn't necessarily true. If both parents are US citizens, but the birth is outside of US jurisdiction altogether, the statutes at various times have required that the child be resident in the US for some number of years before becoming a citizen, and so on. Now in this case, the statutes granted McCain citizenship from birth, but if that is just by statutory grant (that is, not by inherent right: the statute COULD have been different) then is that a kind of "naturalization"?

not if being born to two US citizens is still a condition for being a natrual born US Citizen.

and so far, there is no standing requirement for having to be a resident if BOTH parents are US citizens.

the only way McCain cannot be a Natrually born US citizen is if both his US citizen parents NEVER lived in the US prior to his birth.
Neo Art
26-02-2008, 21:30
the only way McCain cannot be a Natrually born US citizen is if both his US citizen parents NEVER lived in the US prior to his birth.

That...has nothing to do with it in any interpretation of the law as I understand it.
Tmutarakhan
26-02-2008, 21:32
so far, there is no standing requirement for having to be a resident if BOTH parents are US citizens.
Emphasis added. The statute could have said differently, and so, he is citizen by a kind of statutory naturalization? Rather than by birthright?
Corneliu 2
26-02-2008, 21:34
No, it wasn't a territory, it was a leasehold; and no, he did not become citizen by virtue of his place of birth, without more (Panamanians born in the Canal Zone did not become US citizens), so there is in fact some question here.

Right!

He became a citizen via his parents.

/end
Neo Art
26-02-2008, 21:38
Right!

He became a citizen via his parents.

/end

that's very nice, I see you can repeat irrelevant information that's been posted already. Does that make him a "naturally born" citizen however?
Corneliu 2
26-02-2008, 21:39
That...has nothing to do with it in any interpretation of the law as I understand it.

According to the Constitution, one must be a Naturally Born US citizen and resided in the United States for at least 14 years.

That's my take on it.
Neo Art
26-02-2008, 21:39
Emphasis added. The statute could have said differently, and so, he is citizen by a kind of statutory naturalization? Rather than by birthright?

and perhaps more importantly, does it matter?

The constitution says "naturally born" citizen without defining what a naturally born citizen is. Does the constitution have a specific idea of what a natural citizen is, or can the legislature define naturally born however it wants?
Neo Art
26-02-2008, 21:39
According to the Constitution, one must be a Naturally Born US citizen and resided in the United States for at least 14 years.

That's my take on it.

yes...we know. What's a "natural born" us citizen however?
Corneliu 2
26-02-2008, 21:41
that's very nice, I see you can repeat irrelevant information that's been posted already. Does that make him a "naturally born" citizen however?

From what I am reading, he was born to 2 US Citizens in the PCZ. As far as I know, he was not born via C-Section either so yes. It makes him a naturally born citizen of the United States.

*note c-section line is sarcasm ad not ment to be taken seriously.
Dempublicents1
26-02-2008, 21:42
yes...we know. What's a "natural born" us citizen however?

Is he considered a US citizen?

Has he ever gone through a naturalization process to become a US citizen?

If the answer to the first question is "yes" and the answer to the second question is "no", I would have to say he's a "natural born" citizen.

Of course, if they ever define "natural born" as "must be born on US soil", there are going to be a lot of angry army brats (my mother and best friend included).

Imagine how many people would no longer be considered "natural born" (and thus be ineligible for the presidency) simply because their parents happened to serve in the US military. What a wonderful reward for military service!
Corneliu 2
26-02-2008, 21:43
yes...we know. What's a "natural born" us citizen however?

According to the United States nationality law it does. Unless of course its been overriden.
Neo Art
26-02-2008, 21:45
According to the United States nationality law it does. Unless of course its been overriden.

under US statute perhaps, but is that how the constitution defines "natural born citizen"? Two different documents can use the same term in wildly different ways. Immigration law and tax law both, for example, use the term "US resident". however under immigration law a "US resident" is something ENTIRELY different than a US resident for tax purposes.
Dempublicents1
26-02-2008, 21:48
Nobody is denying that he is a citizen; nobody is denying that Schwarzenegger is a citizen either. Schwarzenegger was not a citizen by birth, however, so he is ineligible. Is McCain ineligible because he was not a citizen by virtue of place of birth? He was a citizen from birth, at least: should that count? Most people, I hope, would think so.

Schwarzenegger went through a naturalization process to become a citizen.

Did McCain?


I think they can, but they would be ineligible in the Presidental Succession. so if Bill becomes Vice President, and something happens to the President, the succession would skip him.

There is nothing in the law that states this. Actually, it would be a rather fun Constitutional argument. The amendment only states that one can be elected to no more than two terms, not that one cannot serve more than two terms.
Laerod
26-02-2008, 22:00
yes...we know. What's a "natural born" us citizen however?Someone born with, or eligible to, US citizenship from birth on.
Dempublicents1
26-02-2008, 22:01
"Ron Paul, a strict constitionalist, states, "It is generally agreed that a natural born citizen of the United States is any person born in one of the 50 states or the District of Columbia."


LOL. Considering that Ron Paul also wants to keep those born on US soil from having automatic citizenship, you have to wonder just what he thinks makes someone a "natural born citizen."
JuNii
26-02-2008, 22:04
Emphasis added. The statute could have said differently, and so, he is citizen by a kind of statutory naturalization? Rather than by birthright?

but was does the Statue say NOW reguarding natrually born citizens?
Llewdor
27-02-2008, 02:09
Ron Paul, a strict constitionalist, states, "It is generally agreed that a natural born citizen of the United States is any person born in one of the 50 states or the District of Columbia.
I don't think the District of Columbia should count. It doesn't fall within the United States.
Neo Art
27-02-2008, 02:17
I don't think the District of Columbia should count. It doesn't fall within the United States.

that's...complete nonsense.
Tmutarakhan
27-02-2008, 02:26
but was does the Statue say NOW reguarding natrually born citizens?

I am not communicating to you. What is created by the statute, ANY statute, is a "naturalized" citizenship. A "natural born" citizen is someone who is a citizen REGARDLESS of any statute.
Cryptic Nightmare
27-02-2008, 02:27
I find it funny some people are trying to claim that everybody is not legally able to run for president BUT Obama. Why not just say you are a obamahead and leave it at that?
Cryptic Nightmare
27-02-2008, 02:28
that's...complete nonsense.

Thats being WAY to nice for that guy.
JuNii
27-02-2008, 02:48
I am not communicating to you. What is created by the statute, ANY statute, is a "naturalized" citizenship. A "natural born" citizen is someone who is a citizen REGARDLESS of any statute.

and what I am telling you is that as long as McCain met any of the criteria for a NATRUAL born citizen, he is a Natrual Born Citizen.

so far, unless anyone can prove any of the following is true 1) either of his parents are not a US Citizen or 2) Both his parents did NOT reside in the USA or any territory where the USA has direct Jursidiction over before he was born

Then he is a NATRUAL born Citizen of the USA. He doesn't have to be Naturalized because he was a citizen from the day he drew his first breath.
Neo Art
27-02-2008, 04:10
and what I am telling you is that as long as McCain met any of the criteria for a NATRUAL born citizen, he is a Natrual Born Citizen.

so far, unless anyone can prove any of the following is true 1) either of his parents are not a US Citizen or 2) Both his parents did NOT reside in the USA or any territory where the USA has direct Jursidiction over before he was born

Then he is a NATRUAL born Citizen of the USA. He doesn't have to be Naturalized because he was a citizen from the day he drew his first breath.

What the hell does where his parents resides have anything to do with it? You keep talking about where his parents lived before he was born.

Why the hell does that matter?
NERVUN
27-02-2008, 04:17
What the hell does where his parents resides have anything to do with it? You keep talking about where his parents lived before he was born.

Why the hell does that matter?
US law regarding citizenship. If a citizen has not resided in the US for 5 years, two of which being after age 14, their children will NOT be considered US citizens upon being born.
http://tokyo.usembassy.gov/e/acs/tacs-7115b.html
Maineiacs
27-02-2008, 04:21
I think that as no one has filed a challenge to McCain's candidacy on these grounds, that there is no legal merit to the idea that since he wasn't technically born in the U.S. proper, but rather a territory that he is ineligble to be president. I think it's safe to asume that if this were potentially grounds for disqualification, one of his opponents would have tried it by now.
Knights of Liberty
27-02-2008, 04:40
LOL. Considering that Ron Paul also wants to keep those born on US soil from having automatic citizenship, you have to wonder just what he thinks makes someone a "natural born citizen."

Being white, straight, and not a woman. Preferablly not jewish either.
New Granada
27-02-2008, 04:41
I would expect that most people would view it that way, but it's not 100% clear that he's "fine"; the issue has never really been forced to a test before.

Yes it is, don't be stupid.
Atruria
27-02-2008, 04:42
Regarding McCain, there's already legal precedence for a citizen born of American parents being considered a natural born citizen, irevelant of whether they were born inside the US or not.
The Cat-Tribe
27-02-2008, 07:38
This thread fills me with giggles.

It is a classsic example of what happens when lay people seek to deal with consitutitional issue they do not understand, using sources like Wikipedia (not just as sources but as sourced used to rebut actual legal sources.)

Throw in some political axes to grind and we have ourselves a circus!!
NERVUN
27-02-2008, 07:49
This thread fills me with giggles.

It is a classsic example of what happens when lay people seek to deal with consitutitional issue they do not understand, using sources like Wikipedia (not just as sources but as sourced used to rebut actual legal sources.)

Throw in some political axes to grind and we have ourselves a circus!!
Then instead of giggling, throw in your legal opinion, since both you and Neo Art have been mentioned by name in this thread as our resident experts.
The Archregimancy
27-02-2008, 10:24
<wakes up>

This thread is still going?

What have I done? Created a monster?

People, come to your senses; I never intended so many people to take this so seriously; I was just looking for a bit of mild amusement while hospitalised with nothing to do*. As early as the very first post the small print notes I don't really believe in what I openly admit is a tenuous argument, and by the end of the first page NERVUN clearly states the legal case against McCain's disqualification.

Something's been revealed about the nature of NSG in all of this, but I can't be bothered summing it up in a pithy witty single phrase.

Anyway, just let it drop. McCain's eligible. I never really thought otherwise. Ditto Hillary. Honest.

And just for laughs, I'll now point out that I'm not a US citizen, so I can't even vote in a US election.


*edit: which I suppose makes me a mild troll of sorts; but perhaps a cuddly innocent one with lots of fur....
Llewdor
28-02-2008, 01:55
that's...complete nonsense.
How is that nonsense? There are 50 United States, and the District of Columbia is not one of them.

"The United States" is plural. It's referring to a group of things that are states. DC isn't.
Honsria
28-02-2008, 02:17
I don't think the District of Columbia should count. It doesn't fall within the United States.

Well, normally it is lumped in with the states as part of the official boundaries of the country. It federal land which obviously is in the control of the US gov't (directly by Congress) and has representation in Congress. Whatever, as soon as they start adding more states to the union (Puerto Rico, and other long standing territories) I'm sure it'll be lumped in.
Dyakovo
28-02-2008, 02:21
And what about the recent legal decisions that Guantanamo Bay isn't necessarily subject to US law? Would someone born in the US base at Guantanamo be a 'native-born US Citizen' in terms of their eligibility to become US president even while Guantanamo isn't fully subject to US civilian legal jurisdiction?

U.S. Military bases and U.S. Embassies are considered to be U.S. territory regardless of where they are located. As far as Guantanamo Bay not be subject to U.S. law, it isn't, and it is, the 'branch' of U.S. law which is applicable there is the UCMJ (Uniform Code of Military Justice).
Neo Art
28-02-2008, 02:35
How is that nonsense? There are 50 United States, and the District of Columbia is not one of them.


Because "the United States" isn't merely a reference to 50 states, "the United States of America" is the name of the country. A territory does not need to be a state to be part of a nation named "the United States of America"

"The United States" is plural. It's referring to a group of things that are states. DC isn't.

It's not "refering" to anything. It's simply the name of the country. By the same nonsensical "logic" the "United Kingdom" means a bunch of territories united under the rule of a king. yet the united kingdom has no king, and is therefore not a kingdom. Just as the "United Kingdom" can be called "the United Kingdom" yet it has no king, so to can land be considered part of "the United States" even though it's not a state.

Why? Because it's just a name. And to take such a thing literally is nonsensical. The nation has the name "the United States of America", that's what it's called. This does not require that all land within it be considered a state, any more so than someone named "Sandy" be made of sand, or someone with a surname "Smith" be a smith
Tmutarakhan
28-02-2008, 04:19
and what I am telling you is that as long as McCain met any of the criteria for a NATRUAL born citizen, he is a Natrual Born Citizen.

so far, unless anyone can prove any of the following is true 1) either of his parents are not a US Citizen or 2) Both his parents did NOT reside in the USA or any territory where the USA has direct Jursidiction over before he was born

Then he is a NATRUAL born Citizen of the USA. He doesn't have to be Naturalized because he was a citizen from the day he drew his first breath.
You're missing the point, still. One last time and then I will give up. Mind you, I don't accept this argument personally, and I do not believe that most people would; all I have been trying to do is express WHAT the argument IS:

The argument is, that regardless of how clearly he meets the STATUTE's criteria, anybody who is made a citizen BY STATUTE is "naturalized" (in the case of an immigrant, by jumping through whatever hoops it calls for; in the case of certain babies, without doing anything). By contrast, "natural born" means somebody who DOES NOT MEET ANY "CRITERIA" FROM ANY "STATUTE" because he doesn't have to, because the citizenship is automatic, without any statute. That's the argument. You can say it's a bad argument (I would say so, myself), but I wish you could at least get what the argument even consists of.
Llewdor
28-02-2008, 20:38
Because "the United States" isn't merely a reference to 50 states, "the United States of America" is the name of the country. A territory does not need to be a state to be part of a nation named "the United States of America"
The United States of America are 50 states that cooperate on issues of mutual interest.
It's not "refering" to anything. It's simply the name of the country. By the same nonsensical "logic" the "United Kingdom" means a bunch of territories united under the rule of a king. yet the united kingdom has no king, and is therefore not a kingdom. Just as the "United Kingdom" can be called "the United Kingdom" yet it has no king, so to can land be considered part of "the United States" even though it's not a state.
You would have had a better argument if you'd pointed out that most counties are not ruled by Counts. The United Kingdom at least as a monarch.
Why? Because it's just a name.
And we know that how? Don't the founding documents refer to "these united states"? That's plural.
And to take such a thing literally is nonsensical.
Literal interpretations can't be nonsensical. That's how words work.
Dempublicents1
28-02-2008, 20:57
What the hell does where his parents resides have anything to do with it? You keep talking about where his parents lived before he was born.

Why the hell does that matter?

Probably because he would be a natural-born citizen if neither of his parents were citizens, but he happened to be born on US soil.

(I'm guessing "when" he was born is really more what was meant here)
Bottle
28-02-2008, 20:59
If Hillary Clinton isn't a citizen because she's female, then I would assume she (and all other female Americans) will be receiving a full refund on all the taxes that have been paid. Yes?
The Resurgent Dream
28-02-2008, 21:07
According to the traditional rules of English grammar, a person of unspecified gender is referred to as he. The use of he or she or even of they is relatively recent. The use of the pronoun he is not generally understood to be legally meaningful absent a specific provision stating that an office is limited to men.
The Resurgent Dream
28-02-2008, 21:19
And we know that how? Don't the founding documents refer to "these united states"? That's plural.

They do but they don't in this instance. Article 2, Clause says "natural born Citizen" which refers to the someone born in the 50 States or in the territories or in the District of Columbia or anywhere which is sovereign U.S. soil.
The Cat-Tribe
28-02-2008, 21:24
The United States of America are 50 states that cooperate on issues of mutual interest.

You would have had a better argument if you'd pointed out that most counties are not ruled by Counts. The United Kingdom at least as a monarch.

And we know that how? Don't the founding documents refer to "these united states"? That's plural.

Literal interpretations can't be nonsensical. That's how words work.

You are being silly.

Preamble of the U.S. Constitution (emphasis added):

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

You may note that the document does not refer to "these" United States.

More importantly, the preamble (and the rest of the document) makes clear that the the Constitution emanated from the people and was NOT the act of sovereign and independent States. See, e.g., McCulloch v. Maryland (http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=17&invol=316#403), 17 U.S. (4 Wheat.) 316, 403 (1819) Chisholm v. Georgia (http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=2&invol=419#471), 2 U.S. (2 Dall.) 419, 471 (1793); Martin v. Hunter's Lessee (http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=14&invol=304#324), 14 U.S. (1 Wheat.) 304, 324 (1816),
Dempublicents1
28-02-2008, 21:32
They do but they don't in this instance. Article 2, Clause says "natural born Citizen" which refers to the someone born in the 50 States or in the territories or in the District of Columbia or anywhere which is sovereign U.S. soil.

Does it? How do you know? DC wasn't even around; there were only 13 states; and territories weren't recognized that way.

In fact, Goldwater was born in a territory and there was controversy over whether or not he was eligible.

No matter how we interpret "natural born Citizen", what we are doing is interpreting it. In my eyes, the only interpretation that makes sense is anyone who is a citizen from birth - someone who is a citizen but has gone through no naturalization process.
The Resurgent Dream
28-02-2008, 21:33
You may have a point

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=182&page=1
The Archregimancy
28-02-2008, 21:38
Please, kindly let this thread die.

No one, not even the thread's originator - which happens to be me - has seriously tried to argue in favour of the arguments put forth in the OP. As stated in my previous post, everyone accepts Hillary and McCain are both eligible. No one has seriously argued otherwise. The only points of discussion have been clarifying the specific legal points which cover McCain's eligibility.

If you're simply reduced to arguing over semantics about whether the District of Columbia is part of the United States or not because it isn't named a state, then, well, I regret that we've gone a long, long way off topic to the point that I'm tempted to enter the modcave and ask for this thread to be closed as serving no further use.

And while I freely concede that I should have known better, and that this phenomenon is by no means unique to this thread, I also find it mildly irritating that so many people are reading the OP, posting, and then ignoring all of the subsequent posts which make it clear that no one - least of all myself - seriously accepts the arguments posited in the OP. At least read the first and last page of a thread, people! It's a handy habit.

That we've made it 8 pages in solely by arguing over such extraordinarily petty semantics boggles the mind.
Mumakata dos
28-02-2008, 21:41
The debate is over, thank god for government intervention into this. :)


http://www.scrappleface.com/


Bush Orders 'Amnesty' for Foreign-Born McCain


(2008-02-28) — President George Bush today signed an executive order granting ‘amnesty’ to foreign-born Sen. John McCain, allowing the presumptive Republican nominee to bypass the Constitutional requirement that a president be a “natural born citizen.”

John Sidney McCain III was born in the Panama Canal zone when his Naval officer father was stationed there in 1936. The Supreme Court has never definitively interpreted the phrase “natural born”, but no person known to be born outside U.S. borders has ever been elected president.

Under President Bush’s order, Sen. McCain would be granted an immediate ‘P visa’ allowing him to remain in the U.S., with ‘guest candidate’ status, as he works toward full presidential eligibility.

“My compassion moves me to create a legal path to the presidency for my amigo, John McCain,” said Mr. Bush. “Of course, he’ll need to pay a $2,000 fine, but he already speaks English better than some recent presidents.”
JuNii
28-02-2008, 21:54
You're missing the point, still. One last time and then I will give up. Mind you, I don't accept this argument personally, and I do not believe that most people would; all I have been trying to do is express WHAT the argument IS:

The argument is, that regardless of how clearly he meets the STATUTE's criteria, anybody who is made a citizen BY STATUTE is "naturalized" (in the case of an immigrant, by jumping through whatever hoops it calls for; in the case of certain babies, without doing anything). By contrast, "natural born" means somebody who DOES NOT MEET ANY "CRITERIA" FROM ANY "STATUTE" because he doesn't have to, because the citizenship is automatic, without any statute. That's the argument. You can say it's a bad argument (I would say so, myself), but I wish you could at least get what the argument even consists of.

and what you are not seeing is that for a person to be a 'natrually born citizen' they have to meet conditions set down in both the law and the consitution. thus if you keep insisting that anyone that has to meet a 'critera' is not therefore a natrual born citizen, then there is NO natural born citizen in the argument you are presenting.

citizenship for those who meet the conditions for 'natrual born citizen' is automatic, but they have to meet the conditions to be called a natrual born citizen first.
Tmutarakhan
28-02-2008, 21:57
Does it? How do you know? DC wasn't even around; there were only 13 states; and territories weren't recognized that way.

In fact, Goldwater was born in a territory and there was controversy over whether or not he was eligible.
The Constitution does specifically provide that the federal government may control a district "not to exceed 10 miles square" as its seat, although it took a little while to agree where that district would be. It doesn't allow the federal government to control any other territories (except military bases, post offices, and "other needful buildings"). The constitutional government inherited the Northwest Territory, and the (unorganized) "territory south of the Ohio River" from the Articles of Confederation regime (more or less authorized by Article VI, which provides that the new regime would inherit all the properties and obligations of the old one), but at the time of the Louisiana Purchase, Aaron Burr argued that the federal government had no right to acquire the west as territories, only to give some kind of military protectorate to an independent Louisiana until such time as parts of it were ready to be organized as states (Texas more or less followed the plan Burr had in mind).
No matter how we interpret "natural born Citizen", what we are doing is interpreting it. In my eyes, the only interpretation that makes sense is anyone who is a citizen from birth - someone who is a citizen but has gone through no naturalization process.
I would agree that is most sensible. The original intent is to discriminate against foreign immigrants, and the 14th Amendment clause making citizenship automatic on the basis of birth-location was not in contemplation at that time. However, there is some case, however unpopular it might be, to be made for the proposition that any non-automatic, statutory grant of citizenship is a "naturalized", not a "natural" citizenship.
Tmutarakhan
28-02-2008, 21:58
and what you are not seeing is that for a person to be a 'natrually born citizen' they have to meet conditions set down in both the law and the consitution.
No. The Constitution is one thing. The statutes are another.
Llewdor
29-02-2008, 01:37
You are being silly.

Preamble of the U.S. Constitution (emphasis added):

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

You may note that the document does not refer to "these" United States.
The definite article "the" does not necessarily denote the singular.

The nations of Africa.
The Snows of Kilimanjaro

Are these each just one thing?
More importantly, the preamble (and the rest of the document) makes clear that the the Constitution emanated from the people and was NOT the act of sovereign and independent States. See, e.g., McCulloch v. Maryland (http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=17&invol=316#403), 17 U.S. (4 Wheat.) 316, 403 (1819) Chisholm v. Georgia (http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=2&invol=419#471), 2 U.S. (2 Dall.) 419, 471 (1793); Martin v. Hunter's Lessee (http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=14&invol=304#324), 14 U.S. (1 Wheat.) 304, 324 (1816),
The people in the states. Plural.
JuNii
29-02-2008, 01:47
No. The Constitution is one thing. The statutes are another.

and both are used in defining a natrual born citizen and a Natrualized citizen.
The Cat-Tribe
29-02-2008, 01:53
The definite article "the" does not necessarily denote the singular.

The nations of Africa.
The Snows of Kilimanjaro

Are these each just one thing?

Now you've gone from arguing that the Constitution said "these" and that was plural to arguing that "the" doesn't necessarily denote the singular. That's a fine bit of backtracking, but it doesn't really constitute a decent argument.

The people in the states. Plural.

The people of the United States collectively and not the individual states collectively. Feel free to actually look at the cited caselaw.

Nothing in the Constitution supports your argument that the United States is merely 50 individual states cooperating with each other on matters of mutual interest. Instead, the Constitution and caselaw directly contradict you.
NERVUN
29-02-2008, 02:32
That we've made it 8 pages in solely by arguing over such extraordinarily petty semantics boggles the mind.
Welcome to NationStates General where threads have been known to go into hundreds or thousands of posts just on the above, usually with just two or three people going at it. :p
NERVUN
29-02-2008, 02:35
No. The Constitution is one thing. The statutes are another.
The problem being that the Constitution does not define natural born citizen or naturalized citizen, both are left up to the Congress to flesh out.
UnitedStatesOfAmerica-
29-02-2008, 02:45
I obviously missed the Hillary argument, so apologies for bringing up an old debate there.

But in terms of McCain, has the applicability of the 14th Amendment been legally tested in terms of presidential eligibility?

And what about the recent legal decisions that Guantanamo Bay isn't necessarily subject to US law? Would someone born in the US base at Guantanamo be a 'native-born US Citizen' in terms of their eligibility to become US president even while Guantanamo isn't fully subject to US civilian legal jurisdiction? Could an anti-McCain challenge potentially be raised on that basis, I wonder?

Again, this is purely hypothetical rather than raising an actual opinion of my own.

Guantanamo is US territory hence anyone born there is a US citizen by birth. The same when a kid is born to a refugee mother in a US embassy in the Congo. The kid, when born in the embassy is born on US territory and is hence a citizen of the United States by birth.
For comparison, any one born inside a mexican embassy located in the US is, by birth, a citizen of Mexico and not of the United States thought I don't know how Mexico determines its citizenship.