This blog is shy about plunging into various methods of constitutional interpretation. In fact, we have done it only once, in the 2nd Amendment case currently before the Supreme Court. But we haven’t been bashful about discussing the profligate use that the Founding Fathers made of commas; sprinkling them here and there without the slightest concern for the vexation that would someday result.
Moreover, your loyal blogger was a practicing lawyer for most of his career at the bar and practicing lawyers hardly ever touch a question of constitutional interpretation. Busy making a living in the trenches, of necessity, we leave that to our judicial and academic colleagues. (You can tell in law school which legal career a student will end up in: “A” students become law professors, “B” students become judges, “C” students become practicing lawyers. I forget what “D” and “F” students become, but it isn’t good.)
But now that I have moved into the exalted realm of “Blogger” I can no longer avoid these troublesome constitutional questions that hardly ever matter to practicing lawyers. For instance, no lawyer I know has the time to worry about whether John McCain could legally be the President of the United States.
But now I have to. Otherwise my loyal reader will not be armed with the necessary knowledge when the question arises at a cocktail party.
(Editor’s Note: Does our loyal reader ever go to cocktail parties? That sounds kind of elitist.)
Here are the facts: John McCain was born in Panama, not the United States. His Navy father was stationed there at the time.
The Constitution says, in Article II, section 1, clause 4:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.
That is a single sentence, 61 words long and containing four commas and one semi-colon.
As we have noted before, two basic schools of thought exist as to how one interprets the language of the Constitution: Originalism and the Living Constitution. Myriads of sub-methods have been thought up by law professors and judges but time hurtles on and we are all mortal, so that will have to do for today. Republicans and conservatives tend to be originalists who believe that the text and the meaning of the words at the time of adoption control interpretation. Democrats and liberals tend to subscribe to the Living Constitution, a document susceptible to contemporary interpretations.
Our mission: To deliver a legal opinion about whether John McCain can be president. Be careful now. Are you an originalist? What work are the commas which set off the clause, “. . .at the time of the adoption of this Constitution” doing? Let me make it worse. The Founders actually play around with those commas. They were in the first draft, removed from the second, and then put back in. Even worse, they declined an invitation from Alexander Hamilton to write, “[n]o person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”
In other words, unlike two of the three commas in the Second Amendment, these commas were intentional and received conscious attention from the drafters. They have to mean something. They may not be ignored.
Finally, you must know that, under standard grammatical rules of the 18th Century, the phrase, “at the time of the adoption of this Constitution” refers to both preceding clauses, i.e., to “natural born Citizen” and to “Citizen of the United States.” Since that is the case, an originalist must decide that no person not alive at the time of the adoption of the Constitution could legally be president. Zachary Taylor was the last legal president. You can read much more about the commas, and from real law professors, here, especially footnote 46.
This interpretation, required by the commas, is not as far-fetched as it sounds. Many of the Founders, especially Thomas Jefferson, would be astounded to discover that the Constitution they wrote is still in effect. They assumed that every generation or so the people of the United States would come together in new constitutional conventions and write new constitutions. Jefferson even thought an occasional revolution would be a good thing.
If you are an originalist, all the presidents from John Adams to Zachary Taylor were legal but there is a question about George Washington. The Constitution was “adopted” after 9 states ratified it. Virginia, the legal residence of George Washington, was the tenth state to ratify; which means that Washington was not a citizen of the United States at the time of the adoption of the Constitution because Virginia was not yet a part of the United States. His presidency was illegal.
So John McCain can’t be president. We can expect the Supreme Court, with its five person majority of Republican originalists, will so hold by a 5-4 vote. Of course, the Court will also announce, in dicta, that no one else can be president either, since no one is left who was alive at the time of the Constitution’s adoption. What that will mean for the nation is unknown, but that is no new thing for the Court: It didn’t know what Bush v. Gore would mean for the nation either, but they decided the case anyway. And, to an originalist, it doesn’t matter what happens. The Constitution means what it said on the day it was adopted and that is the end of the matter.
Stay tuned for our next exciting episode of constitutional interpretation when we decide whether the United States Air Force is constitutional.
UPDATE MAY 2, 2008
The Washington Post, in its continual efforts to keep up with this blog, ran a story today about Senator McCain’s legal status and whether he can, under the Constitution, hold the office of the presidency.
UPDATE, MAY 6, 2008
I’ve just learned, from no less a source than Steven Colbert, that the photo above of President Bush and Senator McCain was taken in Arizona on McCain’s birthday, August 29, 2005 — while New Orleans was being destroyed by Hurricane Katrina.