Sunday, March 09, 2008

Was the Presidential Eligibility Clause of the Constitution of the United States Preempted by the Fifth & Fourteenth Amendments to that Constitution?

The Constitution of the United States, as the oldest Federal Constitution in existence, is one of the great documents of mankind, and its adoption as the foundation of American government is a significant landmark in the development of the law of nations, in the formulation of the extent of powers of just governments, and in the protection of the rights of citizens.

Page 1 of the U.S. Constitution (from The Charters of Freedom)

As stated by Albert P. Blaustein in The U.S. Constitution : America's Most Important Export, the U.S. Constitution has had a worldwide impact of immense scope and breadth:

"THE U.S. CONSTITUTION is America's most important export. From its very inception, its influence has been felt throughout the world. And even where that influence has not resulted in democracy and freedom, it has still brought hope—in President Abraham Lincoln's words—of government of, by, and for the people.

The story of that influence is a tale worth telling. America's Founding Fathers fashioned a constitution that was a unique breakthrough in the continuing struggle for human freedom. They believed in the principle of constitutional government, which they hoped might have relevance beyond America. Thomas Jefferson looked upon the Constitution as a standing monument and a permanent example for other peoples. "It is impossible," he wrote, "not to [sense] that we are acting for all mankind." President John Adams was convinced that American political ideas would profoundly affect other countries. Alexander Hamilton thought that it had been reserved to the American people to decide the question whether societies themselves are really capable of establishing good government. James Madison, president and contributor to the Federalist Papers, believed that posterity would be indebted to the Founding Fathers for their political achievement and for the sound governing principles provided for in the U.S. Constitution....

Since that seventeenth day of September 1787, a one-document constitution has been deemed an essential characteristic of nationhood. Today, of the 192 independent nations of the world, all but a very few have such a constitution or are committed to having one." [emphasis added]

The importance of the Constitution of the United States in American and world affairs can thus not be disputed, and yet, in spite of the fact that this remarkable document spans only four handwritten pages, there is still considerable division of opinion about just what some of its provisions actually mean.

Among Constitutional Law scholars, two primary competing schools of Constitutional interpretation have dominated the modern era:
on the one hand, those who think that Constitutional interpretation should be based on the original meaning of the document, a doctrine called Originalism; and,
on the other hand, those who think that the U.S. Constitution is a "Living Constitution" which evolves in a dynamic process in response to changing times, and which should be so interpreted.

Although such an artificial dichotomy of only two competing viewpoints is an oversimplification of the broader discussion on this issue, that dichotomy has been of assistance to legal scholars and laymen in the visualization and argumentation of the issues involved. Nevertheless, one would be hard pressed to find a pure adherent of either doctrine of interpretation, since neither is 100% supportable.

We do not intend here to repeat the many arguments raised on either side of the issue or in the terrain in between. Whoever is interested in that discussion can start with the links in our previous posting to the exchange of views between Jack M. Balkin and David A. Strauss.

What interests us to begin with here is the paramount fact that the original United States Constitution was written in only FOUR PAGES, and even with the amendments, runs only ca. EIGHTEEN PAGES. Compare that to The Lisbon Treaty of 13 December 2007 in the European Union which runs 287 pages and is intended to replace the ill-fated European Constitution of 349 pages which was not ratified as required by the EU Member States.

The difference in the length of these constitutions provides us with a great deal of information about how the Constitution of the United States should be interpreted, because there is a substantial difference in principle AND intent between fundamental, basic laws at a high level of generality and far more specific laws at a low level of generality.

General laws state and embody principles of law and permit a much wider range of interpretation, whereas specific laws apply those very same principles to a specific fact situation and permit a much narrower range of interpretation..

As opposed to the United Kingdom and Ireland, where the common law prevails - a system of law which served as the model for the legal system of the United States, the systems of law in continental Europe are based primarily on the statutory Justinian Code (Corpus Juris Civilis, The Body of Civil Law), which is a body of codified law or statutes, similar to the voluminous federal laws in the United States Code (50 volumes) or the voluminous State law in the statutory State codes in the United States. For example, West's® Annotated California Codes (Annotated Statute & Code Series) is comprised of more than 250 hardbound volumes.

Obviously, there is a clear, recognizable and understandable difference between such statutory codifications of law and the Constitution of the United States, not only as to the interpretation of the respective general or specific laws, but also as to their execution.

The founders of the United States could also have written a 300-page Constitution, full of specific provisions in great detail on the extent and limitation of the powers of the government that was being established, but the founders did not do so. Rather, they chose to create a minimalistic 4-page document setting out the grand plan that they envisioned for a great nation, with the details to be worked out over time by the people of that nation in the tradition of the common law to which they were accustomed.

As far as trying to use divination to go beyond that general purpose and to try to assign specific "original" meanings to the clauses of the Constitution, we have great doubt.

In our opinion, a work worth reading on this topic is Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution by Calvin H. Johnson, Professor of Law at the University of Texas Law School. Cal and I were classmates at Stanford Law School, so that I was particularly interested to see what he had to say on this topic.

Cal writes:

"All words are deeds, including the Constitution, and they are written to accomplish something. What they are trying to accomplish is the core meaning....

The ratification debates are ... inevitably cacophonous because of their structure. After Philadelphia, there was never again a single room in which every one had even to pretend to reach a single meaning for the Constitution. In Philadelphia, elected delegates argued from May to September to reach a single draft. They bickered over language, they delegated hard issues to one committee after another and at the end they signed a single draft. The single room, long discussions and single set of words may not mean that there was only a single understanding, common to all, but it does hedge in the understandings so they are collected around a single document with a shared meaning. By contrast, the ratification debate extended along the entire seaboard with a population of 3 million. There was, as Joseph Story said, “[n]o certainty either that different state conventions gave the same interpretation or that the same reasoning prevailed even within the majority of a single convention.”[1] The ratifiers who published their views had a slightly different understanding of the significance of the words, even when they debated the fixed language clause by clause. Readers in the debates commonly missed the point, or came up with interpretations that we do not find as matching the words, although that was what they understood to be the meaningful point. Once the document left Philadelphia, there was also no longer any mechanism to force a single understanding. It is not coherent to say that the Constitutional Federal Convention in Philadelphia misunderstood or made a mistake about the Constitution. What they understood is what the Constitution was. It is coherent to say that this or that ratifier, or even this or that state convention, made a mistake and misunderstood the Constitution

I do think the binding meaning is the Philadelphia meaning. I think Jefferson-Madison liked the ratifiers meaning because it allowed them to cherry pick, getting in some arguments about restrictions on the federal government that are definitely not text based. The Framers took out the old Articles of Confederation limitation that the Congress would have only the powers expressly delegated to it, because the limitation had proved to be disastrous to the Union and because they wanted the Federal passport although it was not enumerated. In the ratification debate they rewrote the text to put back in “expressly delegated.” If it is a written Constitution we are looking at, however, the non-Article V amendment should not stick. Whatever the binding meaning is, however, you need some language that keeps dictionary and binding meaning apart because the dictionary or abstract meaning does not always trump.
"

What that means in layman's language is that although you had one final document, the United States Constitution, you had as many "specific" meanings to that Constitution as the number of persons who participated in its creation.

There was some general agreement on general principles at a broad level of generality. But anyone trying to apply an "original" meaning to the specifics of the Constitution finds little support in fact, nor should this surprise us, for the purpose of the Constitution was not to pass on some binding specific meanings to us, more than two centuries later, but rather to define a general set of principles of government which were to withstand the march of time.

The Presidential Eligibility clause is one example of this. It was a specific clause needed at that time, but hardly an eternally binding pronouncement on who could be President in the future.

The Yale Law Journal has picked up on this issue at its online Pocket Part companion, citing to
Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988) writing:

"Last week, the usually obscure Natural-Born Citizen Clause of Article II of the Constitution became the subject of newfound media attention. As the New York Times reported, the candidacy of Sen. John McCain, born in the Panama Canal Zone, has revived a "musty debate": Is a person born abroad of American parents a "natural born Citizen" eligible to be president? As noted in the article, Jill Pryor, writing in the Yale Law Journal twenty years ago, examined this very issue."

What interests us there is her Footnote 11, where she writes:

"11. U.S. CONST. amend. XIV, § 1 ("All persons born or naturalized in the United States, and , subject to the jurisdiction thereof, are Citizens of the United States and of the State wherein they reside.")., .
The natural-born citizen clause and the naturalization powers clause come together in section one of the Fourteenth Amendment since the Amendment both distinguishes native-born and naturalized citizens ("born [in] or naturalized") and equalizes them (both are guaranteed the same rights under the Amendment). See infra Section II-B."[emphasis added]

Hence, no State should be able deny ANY citizen from running for the office of President of the United States, for all citizens have the same rights and there is no difference between them in the eyes of the law.

However, the 14th Amendment applies to the States and not to the Federal Government:

"The 14th amendment is not by its terms applicable to the federal government. Actions by the federal government, however, that classify individuals in a discriminatory manner will, under similar circumstances, violate the due process of the fifth amendment. See U.S. Const. amend. V ...."

In other words, the same rule applies to the Federal Government through the 5th Amendment:

"[I]n Bolling v. Sharpe 347 U.S. 497 (1954), the Supreme Court averred that it was absurd that the Constitution could deny the states the power to abridge equal protection of the laws, yet permit that power to the Congress. "[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive," reasoned Chief Justice Earl Warren. The Court thus interpreted the Fifth Amendment's due process clause to include an equal protection element but has continued to hold that there is a difference between due process and equal protection in its Fourteenth Amendment jurisprudence."

What this means in terms of the development of modern Constitutional Law and Human Rights is that the Presidential Eligibility requirements are no longer valid law. If "born citizens" and "naturalized citizens" are both guaranteed the same rights under the 5th and 14th Amendments to the Constitution of the United States, then it can not be that they have different rights as to their eligibility to be elected President of the United States, so that the original language of the Presidential Eligibility clause is clearly preempted by those same 5th and 14th Amendments to the U.S. Constitution.

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