The Odd Clauses (13 page)

The Tribe-Olson legal opinion advanced two main arguments for why McCain is a natural-born citizen. Both arguments are plausible, but they are by no means free from doubt. First, the memo argues that McCain is a natural-born citizen because the United States exercised sovereignty over the Panama Canal Zone, and therefore McCain was born within the United States for purposes of the natural-born citizen clause. The potential problem with this theory is a series of cases decided by the Supreme Court in the early twentieth century called the Insular Cases, in which the Court held that the Constitution does not apply in full to unincorporated territories (those not destined to become states) like the Panama Canal Zone or Guam or (at the time) the Philippines. The legal opinion doesn't address the Insular Cases, and as University of Arizona law professor and main McCain-isn't-a-natural-born-citizen-arguer Gabriel Chin suggests, if McCain is a natural-born citizen simply because the Panama Canal Zone was under the sovereignty of the United States in 1936, then millions of people born in the Philippines before 1946 and the Panama Canal Zone before 1979—as well as perhaps their children and grandchildren—would be US citizens, which is something nobody ever figured was the case.

Second, Tribe and Olson argue that the framers of the Constitution understood the phrase “natural born citizen”
to include children of US citizens born abroad. Because the framers didn't explicitly address the question anywhere in the document itself or in its drafting history, though, the argument is based on inferences about what the state of the law was in England and the Colonies in 1787 regarding English citizenship, how much the framers knew about this law, and whether the framers (if they did know about it) intended to incorporate that law in the Constitution. These issues, it turns out, are hairy indeed. Legal scholars who have dived into the historical materials have surfaced with very different answers. It is true that the phrase “natural born citizen” echoes the phrase “natural born subjects” in English law at the time and that some laws of Parliament had extended the traditional notion of English citizenship (those born within the king's geographical realm) to children born outside the king's realm to parents who were subjects. On the other hand, as some have argued, it is far from clear that the American legal thinkers, founders, and colonial leaders at the time intended to import into the new nation English law created by Parliament in addition to the law handed down by English courts. And while it is true that a 1790 US statute provided that children born abroad to US citizens would themselves be considered natural-born citizens, this law could just as easily have represented a conscious
change
in how these children would be treated as it could have represented a
confirmation
of contemporary understandings (which is what the Tribe-Olson memo suggests).

This 1790 statute provides a third independent argument in favor of McCain's natural-born citizenship. The law, as it was amended in 1795 and read in 1936, granted US citizenship to any child “hereafter born out of the limits and jurisdiction of the United States” if at least one of the child's parents was a US citizen. Assuming that a statute like this can suffice to make someone a natural-born citizen under the Constitution (not altogether clear), whether it covers McCain
turns on whether the Panama Canal Zone existed “out of the limits and jurisdiction of the United States” at the time of McCain's birth in 1936. Scholars disagree about this. In his article “Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship,” the aforementioned University of Arizona professor Gabriel Chin argues that the statute did not cover McCain because the Panama Canal Zone, while outside the
limits
of the United States, was not outside the
jurisdiction
of the United States. In response, a young scholar named Stephen Sachs has argued that the statute did cover McCain, suggesting among other things that the phrase “limits and jurisdiction” is a so-called legal “doublet,” two words linked together that are not intended to have independent meanings, like “cease and desist” or “aid and abet” or “fair and balanced.” In reply, Chin asks why, if people like McCain were covered by the 1795 law, Congress felt it necessary to pass a law in 1937 specifically providing that people born in the Panama Canal Zone to US citizen parents would thereafter be considered US citizens. It's a good question, particularly since it seems clear that members of Congress who advocated for the 1937 law believed that the Panama Canal Zone was, in the words of one member of the House of Representatives, “a no man's land”—not fully inside of the United States but not fully outside of it either.

So, is McCain a natural-born citizen, or not? If you ask me, I would say yes. That's because I believe that judges should interpret the Constitution pragmatically, looking to whether any particular interpretation makes sense in light of all the relevant circumstances, including not only the text of the document but also, in appropriate cases, to considerations of what is best for society. Because the language of the Constitution is ambiguous, and because it makes no sense to exclude people like McCain from the presidency, I would choose to interpret the natural-born citizen clause in
a way that allows more people to become president rather than fewer people. Then again, however, McCain repeatedly stressed during the 2008 campaign that he prefers judges, like Justices Scalia and Thomas, who “strictly construe” the Constitution. So if McCain had won the election, and the Supreme Court had subsequently happened to use McCain's own preferred method of constitutional interpretation to bar him from the presidency, I wouldn't have shed any tears about it.

Could someone who is clearly not a natural-born citizen ever carry out the duties of the president under our current Constitution? Surprisingly, perhaps, the answer may be yes, although getting there is a bit of a puzzle and would require Congress to pass one small statutory amendment, which it should proceed to do immediately. To figure this puzzle out, we have to look closely at the parts of the Constitution dealing with presidential succession.

Article II, Section 1, of the Constitution says that if the president dies, resigns, or becomes incapacitated, then the “Powers and Duties” of the presidency “shall devolve on the Vice President.” This language was modified in 1967 by the Twenty-fifth Amendment, which says that, “In case of the removal of the President from Office or his death or resignation, the Vice President shall become President.” Put these two provisions together, and you'll see that if the president dies or resigns, the vice president
becomes
the president, but if the president is merely incapacitated, the president remains the president, and his
duties devolve
on the vice president. In the language of other parts of the Constitution (the Twentieth, Twenty-second, and later sections of the Twenty-fifth amendments, for instance), this means that if the president is incapacitated, the vice president becomes the “acting”
president rather than the actual president. Incidentally, one of the Constitution's super-odd provisions—Section 4 of the Twenty-fifth Amendment—provides that if the president and vice president disagree about whether the president is incapacitated, Congress gets to decide who will run the country (seriously, check it out).

What happens if both the president and the vice president die, resign, or become incapacitated? Anyone who is old enough to remember the 1981 assassination attempt on President Reagan will likely recall how Secretary of State Al Haig crazily wrongly announced that he was “in control” of the government pending the vice president's return to the White House. In fact, Haig was fourth in the line of succession, behind not only Vice President George H. W. Bush but also Speaker of the House Tip O'Neill and the president pro tempore of the Senate, Strom Thurmond. That's because under Article II, Section 1, of the Constitution, Congress “may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President.” The statute passed by Congress under this section provides that if neither the president nor the vice president can discharge the president's duties, then the following officers, in this order, shall “act” as president:

Speaker of the House, President pro tempore of the Senate, Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, and Secretary of Homeland Security.

The natural-born citizen clause applies only to
becoming
the president, not to
acting
as president. The clause says that only a natural-born citizen is “eligible to the office” of president; presumably, then, someone who holds a different office (say, the secretary of state) while carrying out the duties of the president, does not have to be a natural-born citizen. Would it be okay for a vice president who is not a natural-born citizen to serve as an acting president in case the real president was incapacitated? Unfortunately, the Twelfth Amendment says that the vice president must also be a natural-born citizen (specifically, it says that “no person constitutionally ineligible to the office of President shall be eligible” to be the vice president), so this could never happen. But what about the other people on Congress's list? The Speaker of the House, for instance, or the secretary of veterans affairs?

Nothing in the Constitution prohibits any of these people from acting as president even if he or she is not a natural-born citizen. The problem, though, is that in the succession statute, Congress has provided that only officers who would be “eligible to the office of President under the Constitution” are authorized to act as president. In other words, if the president, vice president, Speaker of the House, president pro tempore of the Senate, and secretary of state were all dead, and the secretary of the treasury was not a natural-born citizen, then the secretary of defense would become the acting president rather than the secretary of the treasury. Here, it is
Congress,
rather than the
Constitution,
that has placed a disability on those citizens who were born outside the country.

In an ingenious article entitled “Unnatural Born Citizens and Acting Presidents” (to which I am much indebted for the above discussion), then law-firm lawyer and now (at this writing, anyway) the solicitor general of Texas, James C. Ho, argues that Congress should amend the succession statute to allow non-natural-born citizens to act as president in case both the president and vice president become unable to
carry out the president's duties. As Ho, who himself is not a natural-born citizen, writes:

Even such an incremental step . . . would at least allow the members of a previously excluded class of individuals some opportunity to prove that loyalty to the United States, the Constitution, and our founding principles of freedom and democracy is not the exclusive province of the native-born, by devolving presidential power to foreign-born citizens under relatively controlled conditions. . . .

Ho recognizes that this amendment would be a “very small step,” but he also realizes the symbolic importance of the step—a step, as he says, that “would extend to millions of current and future mothers and fathers the distinctively American dream that their children might someday grow up to be (acting) President.”

It's a brilliant suggestion. Congress should take Ho's advice, and pronto.

If the Fourteenth Amendment is a constitutional lion, and the incompatibility clause is a constitutional prairie dog, then the natural-born citizen clause is a constitutional Asian tiger mosquito, nutria rat, or zebra mussel. In other words, it is a pest. Pests need to be controlled. Ho's congressional solution is one small way to control it; judicial interpretation that limits the clause's scope is another way. But neither is sufficient. Even if judges limit the scope of what it means to be a “natural-born citizen” to those people clearly born outside US territory to parents who are not themselves US citizens, this still leaves many completely legitimate and highly qualified naturalized citizens forever excluded from seeking the
presidency, and it still sends a symbolic message to these citizens that they are somehow second-class members of society.

For real constitutional pests like the natural-born citizen clause, nothing short of extinction through constitutional amendment will suffice. But getting rid of the clause will be about as easy as ridding the Great Lakes of zebra mussels. The framers purposely made it very difficult to amend our founding document; Article V provides that, among other things, three-fourths of the states have to ratify an amendment before it becomes part of the Constitution. As a result of this high bar for amendment, the Constitution has been amended only twenty-seven times in US history and only seventeen times since 1791. Still, though, it's probably worth a try. If it's good enough for the Sylvester Stallone–Sandra Bullock futuristic movie
Demolition Man,
in which it's revealed that Arnold Schwarzenegger became president as a result of the no-more-natural-born-citizen-requirement Sixty-first Amendment, then it should be good enough for real life too.

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Amendment XXI, Section 2

This may come as a surprise, but in the late 1960s, the problem of “bottomless” dancing in California bars and nightclubs had spiraled out of control. Or at least that was the opinion of the state's Department of Alcoholic Beverage Control, which became so worried about the menace that it held a series of public hearings to figure out the extent of the peril and what to do about it. The testimony at these hearings revealed, in the words of one federal court, a “sordid” story, “primarily relating to sexual contact between dancers and customers.” Apparently, bottomless-dancing clubs were not nearly as wholesome as one might imagine. According to a different court: “Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer, or on
the bar in order that she might pick it up herself.” The State of California, in other words, had turned into a Bangkok red-light district.