I don’t know who you may think is advocating an extra-constitutional standard.
If the case presented meets the Court’s requirements for action, I am confident they will take action appropriately.
True, there is not a word in the Constitution about how to “prove” eligibility. So what? There is a constitutional standard for eligibility and, if that standard is not clear, it is perfectly legitimate and not activist for the Court to explain the standard or explain that the Congress needs to explain it-—and implement procedures for vouchsafing it, including procedures for challenging eligibility, appealing decisions on eligibility, and providing a remedy should a President-select be ineligible to serve.
If there is a question of whether the SOS in NJ fufilled a statutory duty to ensure only those eligible “by law” were on the presidential ballot, it is not activism for the Court to remand or return the case to NJ for the courts there to explain the statutory duty and make findings of fact as to whether that duty was satisfied.
And so on.
Do you know who now is in charge of vouchsafing the constitutional standard that a President be a natural born citizen? The POLITICAL PARTY OF THAT CANDIDATE. Do you not find that constitutionally abhorrent and just plain gross?
Gross and ripe for abuse as that is, that informal procedure may still work reasonably well in most cases. However, what about the case in which, as here, there are all kinds of factual and legal permutations that, really, no one knows the answer to.
I really am not skeptical at all that Obama has a Hawaiian BC and was born in Hawaii (although, of course, it’s possible he wasn’t; the facts surrounding his birth and early life are not usual in the least).
However, you should be aware that that is not, conclusively, the end of this discussion. For one thing, we have never in history had a President-select who had a foreign father—and who, therefore, was himself also a British subject at birth. (Arthur had a naturalized father, although there is some controversy there as well.) In fact, this was exactly who the framers didn’t want to take the job as Commander in Chief-—those born with “natural” and “perpetual” (under British law) “allegience” to England.
You know, just saying, that might make a difference in the “natural born citizen” status. Wouldn’t it be best for the nation and for Obama to find out, regardless if Obama ends up qualified?
In sum: it’s simply not clear that being a citizen by reason of birth in the U.S. in all cases and circumstances makes one *eligible to be president.*
If this is one of those few and far between exceptional cases, we should know that. Moreover, it’d be very helpful for the Supreme Court to clear this up for the future, again, regardless of how Obama’s situation plays out.
“Do you know who now is in charge of vouchsafing the constitutional standard that a President be a natural born citizen? The POLITICAL PARTY OF THAT CANDIDATE. Do you not find that constitutionally abhorrent and just plain gross?”
Not to mention they seem to have no obligation to any citizen to publicly produce evidence of eligibility. Just take our word for it. Yeah, right.
From a practical standpoint, I think the court is loathe to define the term; they've avoided explicitly doing so at every previous occasion, and I don't see them wanting to do so now.
From a legal standpoint, based on Jay's letter to Washington, the lack of debate about the phrase being included in the constitution, and the common law usage of the word at the time, I believe the phrase's meaning was clearly understood at the time -- natural born citizen meant all those born in the United States other than children of diplomats or hostile occupying forces. If they'd wanted to refuse American-born children of foreigners, the constitution would have said natural-born citizens of OTHER COUNTRIES were ineligible. Instead, it said the opposite -- that natural born citizens of this country were.