Eligibility, redux

The Senate's approval of a wholly nugatory statement affirming McCain's eligibility for the Presidency prompts a WaPo rehash. The question is not nearly so complicated as they imply.

Readers will recall that we evaluated the McCain question - both before and after it hit the headlines - and concluded that there are two independently sufficient reasons why McCain is eligible. In my original post, I argued that McCain is a natural-born citizen because the common law recognized that all persons born within the "dominion" - that is, under the sovereignty - of the king are the king's natural born subjects.1 In view of this, I thought the most sensible reading of natural born citizen is "a citizen born on soil over which the U.S. is sovereign," which I showed included the canal zone at the relevant time. Furthermore, as Pat subsequently and persuasively argued, English law at the time of the founding also recognized that children of ambassadors were natural born citizens of the sovereignty of the parents; the rule that the children of Englishmen sent abroad by the king were considered natural-born citizens was deeply enough embedded by 1788 that children of soldiers and diplomats would have been thought of as natural-born. Either of these would independently support McCain's eligibility, but taken in sum, the case becomes a slam-dunk.

Nor do I agree with Prof. Duggin, quoted in the article, that "if the courts were to overturn an election simply based on eligibility[, i]t would be a disaster. After what happened in 2000, people would completely lose faith in the electoral process." I would think just the opposite. If someone could establish that they had standing to challenge a candidate's eligibility, could prove that there was an inadequacy, and there were no complications (laches, for example) barring the suit, the courts would be in utter dereliction of duty to not enjoin a victorious but ineligible candidate from taking office. When someone cheats and wins, the supporters of the loser will feel far more aggrieved, I think, than the supporters of someone who cheated will feel if their candidate is caught and stripped of their victory. When was the last time you saw outcry because an athlete - even one we like - was stripped of their prize because they'd been found after the fact to have cheated? Our sense of fairness, I think, is offended no matter whether we discover the problem, after the fact or otherwise.

Added: sharp-eyed readers will spot that the URL for this post would seem to suggest that the post title was, at some point, "Serrano's eligibility." Funny story. Most of this post was written a couple of months ago; Justices Kennedy and Thomas had gone up to the hill to testify on the court's budget before Rep. Jose Serrano's subcommittee. The McCain eligibility kerfuffle had just happened, and the Puerto Rican-born Serrano light-heartedly asked the Justices if they could rule on whether he could run for President. I wrote a post suggesting that under the reasoning of my earlier post (linked above), the answer was probably yes. But the post wasn't gelling, and there was additional research to be done that I didn't have time for. So it sat in the unpublished queue for weeks until finally this story connected to it and provided an opportunity to make use of the earlier work. Sometimes blogging's like that! Anyway, I thought I'd changed everything, and I guess I forgot the URL!

1. 1. Although the WaPo is correct that "the Founding Fathers never defined exactly what they meant by 'natural born citizen,'" nor did they ever explicitly define what they meant by, say, "the legislative power" vested by them in Congress, or the "judicial power" they vested in federal courts. Terms that had an understood meaning at the time need not be explicitly defined to have definite content. Cf. Coleman v. Miller, 307 U.S. 433, 460 (1939) (opinion of Frankfurter, J.).
   Article II's use of the term "natural born" citizen wasn't new coinage; it drew on an established common law term, and "[s]o far as the constitution employs words whose meaning is ascertained by their previous use as terms of the common law, so far it may be said to adopt the common law in the legislation expressed by those terms." 1 John Hurd The Law of Freedom and Bondage in the United States 479 (1858) (internal quotation marks omitted). With certain caveats, the Constitution "must be read in the light of the common law," because that "'is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.'" Schick v. United States, 195 U.S. 65, 69 (1904) (quoting Moore v. United States, 91 U.S. 270, 274 (1875)). The Constitution's "'provisions are framed in the language of the English common law, and are to be read in the light of its history.'" Ibid. (quoting Smith v. Alabama, 124 U.S. 465, 478 (1888)). Originalism is very clear that when the text of the Constitution draws on the common law, the Constitution bears the common-law's meaning meaning; that's why, for example, Wilson v. Arkansas holds that the knock and announce rule is part of the Fourth Amendment even though the text doesn't mention it. So, the primary question is what the common law understood the term to mean.