Constitutional scholars spend countless hours trying to decipher the meaning of a 221-year-old document written by men who, while demonstrably among the more advanced political thinkers of their day, could hardly have been prescient enough to anticipate an urban nation of huge ethnic diversity let alone a global social order.
The effort to preserve the illusion of a “living” outline can be exhausting, made more so by the ambiguities of language and punctuation. Rarely is the outcome of all the debate and study even close to finding a consensus. The Second Amendment protects the individual right to bear arms. Or is that a collective right simply aimed at forming militias for the defense of the nation? Even if the former were true, would any of these men have written that safeguard for individuals had they been able to see the future in firearms development and urban sprawl? Would any sane man?
The First Amendment protects members of the “press” from being forced to reveal sources by overzealous prosecutors even if they never wrote a story. Or does it actually limit that right particularly in criminal cases, permitting wide latitude for prosecutorial fishing expeditions? If the latter is the case, then is a law to shield reporters from this sort of harassment necessary and, for that matter, constitutional?
Finding an answers to these are questions is what most of us gladly leave up to the jurists, academics and lawyers who specialize in deciphering them. That is until we get a ruling we don’t like, which is more often than not, and are enraged over either the lack of common sense in the interpretation or in its impact on us. Then we all become legal experts, even pompous, intellectually limited — at least in constitutional matters — columnists. Then the law, as Mr. Bumble noted, is certainly an ass.
At the risk of leaving any doubt about my ignorance is it possible to have a sillier debate than the one brewing over whether Sen. John McCain’s birth outside the United States actually disqualifies him from being sworn in as president of the United States?
Here we are again faced with the ambiguities and lack of prescience of the Constitution’s authors, who probably didn’t anticipate that American soldiers and sailors would be housed with their wives in military complexes all over the world. In fact it seems doubtful they even had the slightest idea that someone ultimately might dig a ship channel across the Isthmus of Panama, producing a U.S.-controlled zone where McCain was born in a military hospital. That’s why they decided that one had to be a natural born citizen to be president, a prohibition that excludes all sorts of potential candidates like the current governor of California who is merely “naturalized.” Trouble is that they never defined “natural born,” leaving the door open for litigious crazies who make their living picking legal nits.
The U.S. Senate spoke to the issue last week, unanimously adopting a resolution that declares that the presumptive Republican nominee meets the requirements. Bully for the Senate. But that resolution has no force should, for instance, the Supreme Court decide otherwise. So the arcane debate can be expected to rage on given that there are three pending cases that challenge his eligibility despite the fact his parents were U. S. citizens assigned by their government to an area where that government held sovereignty.
Resolving this crucial issue short of rewriting the Constitution or the handing down of a Supreme Court decision certifying that children born of U. S parents serving their nation overseas are still natural, full blown Americans doesn’t seem likely anytime soon. Therefore, it is highly probable that McCain, should the voters give him the opportunity, will be sworn in without much of a hullabaloo other than from the Democrats as to whether he is otherwise qualified.
But there is a note of caution in all this for those couples employed by the U.S. government overseas and are expecting a birth and want the child to have the same opportunities for the highest public office in the land as any kid born in Oklahoma or Indiana. Until the issue is settled definitively, it might be wise to find a ticket home for the mother before the first labor pains. Otherwise this dumb debate will never end.
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)