John McCain Can Be President. Can We Let That Story Go?

h/t to Goldfarb. I’ve been looking for the most condescending and thorough assault on the foolish idea that the “natural born citizen” clause in the Constitution would prevent McCain from running for president. I think I’ve found it. Yale professor Akhil Reed Amar demolished the argument earlier this month:

The Constitution’s rule that the president be “a natural born citizen” focuses not on where a person became a citizen, but when. To be eligible, one must be born a citizen rather than naturalized at some later date. At the founding, a special constitutional clause provided that even those who had not been citizens at birth could nevertheless become president, if they were citizens circa 1787. Thus, Alexander Hamilton, born in the West Indies, was clearly eligible. All those already in America in 1787 could be trusted; but the framers fretted that an Old World earl or duke might someday sail across the Atlantic with a boatload of gold and bribe his way into the presidency. (Rumor had it that George III’s second son, the Bishop of Osnaburgh, would soon head this way.) Thus, the “natural-born” clause’s main target of concern was not immigrants generally, but wealthy European aristocrats who might wreak havoc in an America lacking strong campaign finance laws.

I think no one at all actually believes this is a controversy, but people are willing to tout it for one of two political reasons. Conservatives worry about this because some of the strict constructionists view the above arguments as somehow flawed (or as too broad a definition of natural that would somehow implicate the illegal immigrant debate). Others on both sides of the debate (but predominantly liberals) tout it as evidence of the flawed nature of the requirement in the first place.

Christopher Beam also wondered who had standing to sue besides (maybe) the Democratic nominee. Although I could add that anyone on enough state ballots to conceivably win the nomination might have standing as well. So, yes, Ralph Nader I think should be in the discussion from that point. But I really believe this will go nowhere; there’s no way a federal court could reasonably hear this case anyways before the election.

I also think the court would say that even if EVERYTHING above is incorrect that a gray area like this could qualify as a political question for the voters. Not everything unconstitutional has a court appointed remedy.

And also, the argument that this would be unfair to members of the military clearly has weight. In fact, in civil law situations, members serviing in the military are technically regarded as still living in their home state:

The Soldiers’ and Sailors’ Civil Relief Act addresses the issue of state citizenship/domicile relating to military members and their families. As I understand it, a military member is permitted to maintain “legal residence/domicile” in the state in which he/she was a citizen at the time of joining the military. This means that military members can potentially maintain the same domicile throughout a 20+ year military career (often with multiple duty assignments in other states and countries) completed entirely outside their state of citizenship.

This again only applies in civil cases so it is useless here, but there exists an analogous expectation of protection at the very least.

In short, let him run. And shut up about it. I know there’s nothing else to talk about, but give me a break. If there’s no news worth reporting, don’t write about whatever trifles you come across on the internet that day.

(Note: clearly this post does not do service to many of the excellent law review topics on this matter; but since I can’t do that anyways in this format, I’m not even going to try.)

Although if I am wrong, there obviously is only one recourse for McCain: declare his intention to run for President of Panama.