I have several responses in this class so I am going to try to make it a little clearer for you.
I am a lawyer; I am admitted to practice before the US Supreme Court; I have argued Constitutional Law cases; I did get the highest grade in my Law School Con Law course; and I was on the Editorial Board of my Law Review. So no, I am not a locker room lawyer who just came in on the local turnip truck.
I know you don't like the message. One generally would not know for sure where the Supreme Court will come down at a given time on a given issue. But there are a number of good indications about where the Court will stand on these questions.
Historically, there may well have been some support for Vattel's description of the Common Law and the argument that the founder's intended those views to control interpretation of the Natural Born Citizen clause. That era is now far in the rear view mirror.
The Natural Born provision is in disfavor. There is a generally accepted view that the framer's intention has been overruled to the extent the clause implies some requirement other than birth in the US. You may not like it but that is where the Court will come down on the narrow issue of a person born in the US.
Have the literal words been removed? Probably not. If faced with the need to decide this question, the Court will hold that there is a requirement that to be eligible to hold the office of President, a person must be a citizen; and must have become a citizen by right of birth.
I also think that the Liberal attack on Goldwater as well as the professional commentary with respect to other's in the same position (Inoui and Gruening) leaves them stuck with the born within the geographical territory of the several states position. If the end of whatever legal process is undertaken leaves a finding that Obama was born in Mombasa in place, he's out; if it leaves him born in Hawaii, he wins; simple as that.
Obama and his troops have not in any way given up on reelection. His supporter's in DC look you in the eye and point out that FDR was down double digits and managed to get reelected. They are perfectly aware of the eligibility problem and have spent a lot of money laying the groundwork to deal with it. The are as aware as you are that many of the states are taking action to keep him off the ballot and they have a carefully thought out legal position to prevent that result.
With respect to McCain, it has always been clearly understood that he was not eligible. Had he received the most electoral votes, they would not have certified him.
With respect to all the other military children born all over the world, you think it is wrong to exclude them from the Presidency? You are in the same boat with the Liberals, you need to support a Constitutional Amendment to get there.
In fact, one of the best attacks that could be mounted on Obama is the point raised by John Dean that the Natural Born requirement is a potential future snare in a crisis--we might find that a person in the line of succession who needed to be serving was not eligible.
We ought to amend the Constitution to clearly specify what it takes to be Natural Born and the process of doing that might well focus on Obama's ineligibility.
The argument that the states would ultimately decide qualification is generally a good one as long as the Court has not already ruled that he is eligible. Under those circumstances, the equal protection argument would hold the citizens of the states that wanted to ignore the prior decision entitled to have their vote counted. The only available recourse would be a collateral attack to overturn the earlier decision--highly unlikely. Point of this analysis is again to suggest that there is real downside to a possible case founded on one of these outdated Vattel arguments that does not get a lower court finding that he was born in Mombasa.
One of the real problems with this entire process has been that we have failed to get real lawyers with realistic understanding of the legal and political context of this argument. Whatever his shortcomings as a lawyer might have been, Obama has had the best legal help and has won.
As I have pointed out for the last two years, in order to exclude Obama on ineligibility grounds, we need a well financed legal team; a plaintiff with clear standing; and a receptive forum. The fact that we all know he is not eligible is not enough.
Nice analysis for those of us schooled in law, but aren’t lawyers.
I am not a lawyer and believe any argument should be supported by reason and not a claimed resume.
“The Natural Born provision is in disfavor.” “...generally accepted view.” “framer's intention has been overruled...” “...far in the rear view mirror.” This is the flavor of David's arguments, and they generally reflect the wishful thinking of those whom I'll call progressives who have written dozens of papers over the past five or six years arguing for the amendment of the natural born citizen provision. Two of the briefs have come from law firms or professors actively and legally supporting Barack Obama.
“Historically, there may well have been some support...” Please! Thomas Jefferson initiated the course at William and Mary in 1779, eight years before ratification, based upon Vattel’s Law of Nations. Vattel remained the text until 1841. It was used throughout nation in law schools. Vattel was the most cited legal reference in U.S. jurisprudence between 1789 and 1821, by a factor of four, followed by Byndershoek, Pufendorf, and Grotius. James Wilson used Vattel in his course on the Constitution in 1790 at Philidelphia College. As Chief Justice Morrison Waite said in the decision of the court in Minor v. Happersett, “...it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were Natives, or natural born citizens...” Then Kent, Story, Hamilton, Madison, all discussed the issue.
Even the English, Calvin's Case in 1608, established jus soli and jus sanguinis requirements to be a natural born subject "...any person born within the king's dominion became the kings' subject at birth, provided that his parents were at the time under the actual obedience of the king". Calvin's Case common law was in force until 1914. Citizenship law is central to the definition of nations - law of nations.
David tells us the game is up. He knows how the court will decide. But he does suggest that maybe, if only we could find a birth certificate from Mombasa... He tells us Obama’s supporters are confident of his reelection in 2012. That too may as well be the mantra of those wishing to derail the inconvenient fact that Obama himself, in two autobiographies and on his web sites, told us he was born a subject of the British Commonwealth because of his British father. But David suggests we keep chasing birth certificates! The facts are in evidence. Only the law is at issue. 'Standing' is a political judgment call which popular support can sway. It is an excuse for judges to avoid a decision.
David does agree with the liberals, and many conservatives, that McCain was never eligible. He believes the children of military and diplomatic personnel born abroad should be considered natural born citizens. A naturalization act of 1790 made that assertion, but the legislature cannot pass a law which amends the constitution. The 1790 Act was repealed in parts, beginning with any mention of natural born citizens in 1795. (A cogent explanation was that this Act was to reward founders, all of whom had their eligibility for the presidency grandfathered in, and who may have had children born overseas.)
Twenty four attempts have been made to alter natural born citizenship, the latest by Hatch in 2003. Polls suggested that there was about 30% support. Think of what altering jus sanguinis, requiring that one need only be a native U.S. citizen, the term Obama used to define his own status, would permit. Bin Laden, or Castro, or Ahmedinajad, has a fling, or even a marriage, to an American women. The child is born in the U.S. but is taken by the father to be raised in wherever. When the child is 20, he or she returns to the U.S., a citizen because of his birthplace, to attend Columbia and Harvard Law, and never leaves the U.S. When the child is thirty five, he or she is eligible to become president. Can anyone be confident that the allegiance of this person is dedicated to the preservation of our constitutional rights and our free enterprise economy?
What about altering the jus soli requirement which makes McCain ineligible. A beautiful state department official who attended Harvard's Kennedy School (some of you may know who inspired my example) gives birth in Qatar. She divorces her husband and leaves her child to be raised by one of the royal families with whom she is already practically family. The boy returns to mom and Yale at 18 and decides to stay. After college he works for Van Jones, who has inherited John Podesta’s CEO position at the Center for American Progress. The boy follows Obama’s path to Harvard Law, and then works in the Chicago office of Dubai-based Fox News. He will be eligible for the presidency when he is thirty five. What are the bets he now believes in free speech, capitalism, and the separation of church and state?
David suggests that we look for guidance to that old sneak John Dean. Dean's article on modifying the natural born citizenship requirement is one of the usual error-filled missives created to provide the left with talking points. He cites cases which he must presume most will not check. Dean misstates as precedent the 1790 Naturalization Act provision including the children of military and diplomats as natural born citizens, not mentioning that it was completely expurgated in 1795, and was always illegal. That is the ploy used by Tribe and Olson in supporting the wish that McCain be considered a natural born citizen. That made me wonder if David might actually be Dean, since we presume a measure of anonymity at Free Republic, and David has been around as long as I have
In summary, I agree with David about McCain's eligibility, but certainly not his dismissal of the relevance of the natural born citizen provision. It is as important today as it was in 1787. We'll see how capable the attorneys are. Leo Donofrio has initiated a class of law suit which may become very popular in the future as more and more are injured by the application of the authority of a man who has failed to demonstrate his eligibility for that authority. Mario Apuzzo is not a silver spoon partner with Ivy League credentials, but has taught millions about the history of our Constitution, and time will tell if his approach will penetrate the walls the attorneys we paid for have erected. The supreme court has direct jurisdiction in this case, and is weakening our nation by avoiding it. Every bill, every act, every appointment associated with Obama is open to question. Money will attract clever and more expensive lawyers, if not the most patriotic. If these lawyers don't protect their country, they will lose principles upon which their careers are based - the Consitution and the rule of law.
“...would not have certified him.”???
Is this a typo?
Given that the Senate approved a unanimous non-binding resolution that McCain was NBC, that is a pretty clear indication to me that the Senate and House would have taken the liberty of certifying McCain without SCOTUS clarification of his NBC status, just as they took the liberty of certifying Obama without SCOTUS clarification of the issue of the children of his father “being governed by the BNA of 1948.”
Ok, then who has clear standing?