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Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later. |
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 its prompted me to do some research. When people question Bushs legitimacy, I assume that theyre 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 Bushs legitimacy, and its one thats rarely discussed in the mainstream press. It seems that Bushs 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 weve been making exceptions to this requirement for the last 150 years, then whats to say that other requirements couldnt 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 lets take one step at a time.
July 9, 2004 1:20 AM | TrackBack