July 09, 2004

Wings&Vodka: The Ladies' Blogger

by Wings&Vodka

In these stressful times, lots of my friends are prone to saying things like “Bush is an illegitimate president!” and “Mike, you just hit on my mom!”, and it’s prompted me to do some research. When people question Bush’s legitimacy, I assume that they’re referring to the Florida debacle and the inability of retirees to understand voting machines that, to me, seem infinitely less complicated than playing 34 bingo cards simultaneously. But there is yet another reason to question Bush’s legitimacy, and it’s one that’s rarely discussed in the mainstream press. It seems that Bush’s presidency--and indeed, the presidencies of our last thirty-one Commanders-in-Chief--have all been unconstitutional.

As discussed by professors Levinson, Balkin, and Steiker in a Texas Law Review piece from 1995 (74 Tex. L. Rev. 237), there is a serious problem with the Eligibility Clause of Article II, section 1, which states that an individual is only eligible for the presidency if they are a "natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution." The problem is that second comma, which implies that the third clause is applicable to both the first and second clauses; if read strictly, this means that someone would have to be either a citizen of the US in 1788 or a natural born citizen in 1788 in order to be president. The argument to which this article is responding points out that only citizens of the first nine states to have ratified the Constitution would be qualified for the Post of Posts, but Levinson and friends point out a much worse problem: The last U.S. president who was also a natural born citizen of the U.S. in 1788 was…Zachary Taylor. (And you thought Taylor was only important because he invented adult incontinence undergarments. God, were you wrong...) The authors go on to suggest that the framers could reasonably have intended this restriction as a means by which future generations would be forced to reexamine the whole process, something that sounds pretty Jeffersonish once you think about it.

It becomes somewhat clear upon reading the whole article than Levinson, Balkin, and Steiker are pursuing this notion primarily as an exercise in sticking their tongues out at textualists. But the question is still a relevant one. If we’ve been making exceptions to this requirement for the last 150 years, then what’s to say that other requirements couldn’t be similarly bent? Looking out for the interests of Schwarzeneggers everywhere, Orrin Hatch has already championed a bill that would allow foreigners eligibility after living in the U.S. for at least twenty years. But I would argue that such an amendment is unnecessary. If we can ignore a logical reading of the Eligibility Clause in the name of “reasonability,” it should be easy enough for Arnold to persuade the Supremes that he fits under that umbrella as well. In fact, if you were to get the right advocate in there, they might even be able to persuade the Court that women should be allowed to run for president, too. Now that, my friends, would be truly awesome.

But let’s take one step at a time.

July 9, 2004 01:20 AM | TrackBack

Although I haven't read the Levinson article, I wonder if they address similar grammatical irregularities throughout the entire Constitution. On a number of occasions in my ConLaw class, students disagreed with the meaning of various clauses due to the inconsistent and sometimes creative use of commas, semicolons, and capital letters.

Witness the poorly-drafted "necessary and proper" clause in AI,s8, or the (so-called) "cases and controversies" requirement of AIII,s2: which of those things have to be "cases" and which can simply be "controversies"?

As for using these solecisms as a starting point for a new interpretation, I say Yes. Let's start easy though; to please the right-wingers, let's insert the words "right to bear arms" in the Second Amendment. To please the bleeding-hearts, maybe we could sprinkle a couple of "right to privacys" somewhere in there. And to please me, why not add some sort of intelligence and hygiene requirement to the voting restrictions.

Posted by: David at July 9, 2004 10:22 AM

Whatever, beotch, Arnold will be president soon.

Posted by: Verne at July 10, 2004 04:48 AM

In the summertime I wear short sleeve shirts because of my constitutional "right to bare arms".

By the way, the Second Amendment does not make reference to "guns" but to "arms". "Arms" are weapons, even as understood at the time the Bill of Rights was adopted. Consider what constituted "arms" at that time, such as pikes, maces, muzzle loading rifles. The Constitution recognizes advances of technology (e.g. patent clause). So today when the Second Amendment is construed, we should look at what constitute "arms" in this day and age.

The right in the Second Amendment is to "bear" arms which suggests perhaps some size limitations. With today's technology, a person "bearing arms" would have available all kinds of rapid firing guns, hand grenades, dirty bombs in a brief case or back pack, as well as myriad forms of chemical weapons in small but devastating containers.

Should a standard of reasonableness apply so that the U.S. and the states can regulate the "arms" that a person may "bear"? Or does the Second Amendment provide an absolute right of the individual to "bear arms" no matter how devastating they can be?

I do not believe that the Second Amendment provides an individual right separate and apart from the Militia connection referenced in the Amendment. But if that were the case, doesn't common sense dictate the need for reasonable "arms" control?

Posted by: Shag from Brookline at July 10, 2004 06:36 AM

Fellow sticklers for proper grammar unite! A call to arms has been issued. And, for those interested, Eats, Shoots, & Leaves by Lynne Truss is an hysterical book about misguided punctuation...

Posted by: dubitante at July 10, 2004 01:52 PM

Louis Menand rips the hell out of Eats, Shoots & Leaves in the June 28th issue of The New Yorker, in what is one of the best grammar & writing articles I've read in years. He starts out by cataloging Truss’s bucket of misused semi-colons, misplaced commas, and oddly placed parentheses and ellipses, along with a host of other misquotes and imprecisions:

I am not a grammarian,” Truss says. No quarrel there. Although she has dug up information about things like the history of the colon, Truss is so uninterested in the actual rules of punctuation that she even names the ones she flouts--for example, the rule that semicolons cannot be used to set off dependant clauses…That is the rule, she explains, but she violates it frequently. She thinks it makes her sound like Virginia Woolf.

From what I can tell, it’s not so much a book for grammar lovers who are pained by what they see in professional writing as it’s a book for the semi-literate who like to get mad about Goodwill clerks that use ‘s to pluralize words and cafeteria menus that use quotation marks for emphasis. Sure, these are things worth getting pissed about. But I don’t think they deserve a whole book.

Menand does cut her some slack, though, since she‘s British. He notes that the book is particularly odd because the English are a lot less strict about punctuation and bibliographic form than their American cousins. “An Englishwoman lecturing Americans on semicolons is a little like an American lecturing the French on sauces.” I’d have to agree.

But what do I know? I think “imprecisions” is a word.

Posted by: wingsandvodka at July 10, 2004 02:58 PM

Surely we can't leave out "Tense Present" by David Foster Wallace as one of the great articles on grammar out there.

Posted by: Nick Morgan at July 10, 2004 04:05 PM

Sweet Jesus. I forgot about that one. I think I ripped most of it off for a term paper once. I'm particularly fond of the bit about kilts.

Posted by: wingsandvodka at July 10, 2004 06:16 PM

and I'm particularly fond of anything Mr. wingsandvodka writes, be it post or comment. bravo.

Posted by: Verne at July 10, 2004 07:37 PM
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