I just received this e-mail from Fred:
>I was reading your blog, "Why Was Sarah Herilihy Worrying About Article II?" and I would like to add a dot that you might find interesting.
I think it might shed some light on what we see going on with the court cases that have reached the SC.
Justice Scalia made a talk followed by a Q&A session to The Federalist Society on November 20, 2008 so it is very current.
Here is the link:
http://www.fed-soc.org/publications/pubid.1193/pub_detail.asp
The talk is available at that site in video or audio only. I have a fast server, but the video kept stopping to catch up so I recommend listening to the audio as it is continuous.
I think that Justice Scalia defines himself as an "originalist".
During the Q&A time, Justice Scalia commented on what to do about laws that were on the books at the time the Constitution was written but would not be acceptable today. He referenced "notching the ears" of felons as a means to identify them (I never knew we did that). He spent time discussing that "good" Judges would uphold laws that were constitutional even though they did not agree with them.
He specifically stated that "good Judges" should have a rubber stamp to handle those cases.
The stamp would read, "STUPID, BUT CONSTITUTIONAL".
When he made that statement, I believe he was thinking of Article II, Section I, Clause 5. Perhaps he doesn't agree with it , but it is not open to interpretation. Justice Alito had a conversation with Schumer during his confirmation hearing and said that an Amendment was required, but would not discuss whether a child born on U.S. soil of parents that were illegals was entitled to citizenship.
Of the cases that have reached the SC, Berg's was denied based on "Standing", Donofrio's on Jurisdiction, and Cort's was denied without comment.
Is it possible that the SCOTUS is dodging the issue?
I believe that they all, if they are "good" Justices would, since the wording is not ambiguous and the nature and reason for the clause is clearly defined by Justice John Jay, the first Chief Justice of the Supreme Court, have to rule that the only thing that could alter the "natural born" statement in the Constitution is an Amendment to the Constitution.
The significant problem with Obama's eligibility is that most Senators and Representatives, the voters on January 8 to certify him to be President of the United States, believe that being born on U.S. soil entitles Obama to be proclaimed "Natural Born". It does not! And Obama does not qualify since his father was a British subject "at birth" of Obama (it is on his website) and the very thing that John Jay worried about that motivated him to suggest the wording in Article II, Section I has come upon us! And for good reason!
Fred
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4 comments:
"And Obama does not qualify since his father was a British subject "at birth" of Obama (it is on his website)"
That's not very originalist to infer that on natural born. Many early Presidents had British fathers and, since excepted from natural born status, sons of British men did in fact command our army with nobody even commenting.
There was nothing said about the birth country of prior Presidents parents. It is a fact that there have been no Presidents whose parents were not citizens at his time of birth excluding those exempted in Clause 5.
Fred
"It is a fact that there have been no Presidents whose parents were not citizens at his time of birth excluding those exempted in Clause 5."
So an originalist can see that lineage did not matter as it was specifically excluded for a generation. Yet once they die out you have to infer lineage though it's not specified?
For example; every President born post Constiutional adoption, they checked their parents to make sure they were citizens when he was born? Or did they check just the father? Or neither because this is a new invention?
Chester Arthur was suspected born in Canada or Ireland yet only the soil of his birth was an issue not that his father was Irish or Canadian at his birth and a Canadian resident for sure at that time.
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