So you think you know the U.S. Constitution?

There is little doubt any more that if Hillary Clinton were to be foolishly granted the Democratic Party nomination by her party members, she will surely pull Trick 17 out of her hat by having John McCain declared ineligible for the Presidency because of his birth in the Panama Canal Zone, little knowing that she too, is ineligible for the Presidency herself, by virtue of the U.S. Constitution.

To see the legal arguments relating to Presidential eligibility, you must read Jack M. Balkin’s brilliant piece at Balkinization. If you have ever wondered why one person rather than another is a Professor of Constitutional Law (the most demanding conceptually of all fields of law) at a top law school like Yale, this piece will give you a clue. Don’t miss it.

Update 1: As a service to our many international visitors, we decided that we better add this footnote to the above posting for purposes of clarity. Obviously, the article by Balkin is a parody which pokes good, but yet serious fun at people (some of whom are found on the United States Supreme Court) who argue that the Constitution should be interpreted in an originalistic way.
The intent of Balkin’s posting is to show just how frivolous originalism can be as an interpretative doctrine if it is not mixed with a good portion of common sense. That Jack Balkin’s parody strikes a nerve is clear when one considers that the discussion about this matter is in fact being seriously debated elsewhere (see Legal Theory Blog).

Update 2: Of course, in his own way, Balkin is also an originalist himself, although one who subscribes to a somewhat different doctrine. Here is an abstract of one of his recent articles, Originalism, Abortion and the Constitution of the United States (Balkin, Jack M., “Abortion and Original Meaning”. Constitutional Commentary, Vol. 24, No. 101, 2007, Available at SSRN: http://ssrn.com/abstract=925558):

“This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.

Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution’s words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution’s guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

The article applies this method to the most contentious constitutional issue of our generation – the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.

The article criticizes Roe v. Wade’s original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.

[This article will appear in 24 Constitutional Commentary (2007). A response to critics, expanding on some of the key ideas of the article, appears in Original Meaning and Constitutional Redemption, 24 Constitutional Commentary (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=987060]”

Here is the abstract cited in that last line above:

“This article responds to criticisms of my theory of constitutional interpretation offered in Abortion and Original Meaning, http://papers.ssrn.com/abstract=925558, and expands on various parts of the theory.

Fidelity to original meaning follows from our commitment to a written constitution that preserves enforceable legal meaning over time. Originalist lawyers and scholars shifted from original intention and original understanding theories to original meaning in the 1980s to answer important criticisms of originalism. They assumed that original meaning originalism would support most of the same criticisms of judicial activism and living constitutionalism that had motivated the turn to originalism. The distinction I emphasize between original meaning and original expected application was not salient in these debates. Nevertheless, once we recognize the full implications of this distinction, original meaning originalism is fully compatible with living constitutionalism.

Constitutional interpretation is premised on faith in the constitutional project. This is a faith that the constitutional system as a whole is worthy of legitimacy and respect or will come to be so over time, even if important aspects of the document and its associated institutions are imperfect and unjust. Interpretive fidelity thus requires faith in the redeemability of the Constitution over time; hence my theory of interpretation is a theory of redemptive constitutionalism.

The Constitution’s text and principles are central resources that make this redemption possible. Like many constitutions, the U.S. Constitution contains open ended clauses that delegate many questions to future generations and leave ample room for constitutional construction to flesh out and implement constitutional language. Constitution makers adopt these clauses – and many other features of constitutions besides – to channel and discipline future political judgment, not simply to forestall it.

A successful constitution like America’s must simultaneously serve three functions: It must be basic law a framework for governance that allocates powers and responsibilities. It must be higher law a source of aspiration and a reflection of values that stand above ordinary law and hold it to account. And it must be our law an object of attachment that we see as the product of our collective efforts as a people. Viewing the Constitution as our law involves a collective identification with those who came before us and those who will come after us. The Constitution as our law constitutes us as a people that extends over time. This collective identification is a constitutional story that allows us to regard the Constitution as our own even if we never officially consented to it.

The theory of text and principle serves these three functions better than theories that tie constitutional principles closely to original expected application. A theory that rejects delegation to the future does not function well as basic law because it misunderstands why constitutional adopters adopt open-textured language; it cannot operate as higher law because it so distrusts aspirationalism. Finally, it fails as our law, because it does not allow us to see our present day values – for example, our commitment to sex equality as the application and fulfillment of past principles and commitments. It must treat these achievements as mistakes that we now maintain out of reliance on precedent or because they would now be too politically embarrassing to discard.

Social and political movements have repeatedly argued for change by calling on the Constitution’s text and its underlying principles. Constitutional change occurs because Americans persuade each other about the best meaning of constitutional text and principle in their own time. These debates and political struggles help generate Americans’ investment in the Constitution as their Constitution and they create a platform for the possibility – but not the certainty of its redemption in history.

Lawyers, judges and legal scholars have no normative obligation to listen to the claims of any particular political or social movement. However, as a descriptive matter they regularly translate claims of constitutional politics into claims about constitutional law. Constitutional theories offer a language for us to defend and criticize the Constitution-in-practice with the hope of moving it closer to our ideals of what the Constitution should be. They allow us to fight for the Constitution’s redemption over time. Struggles over constitutional interpretation are part of the process that makes the Constitution our law, that generates our attachment to it even in dark times when our views are not shared by the majority and that helps support its overall legitimacy.“

And then read:

David Strauss 1
Balkin’s Answer to Strauss 1
David Strauss 2
Balkin’s Answer to Strauss 2

Ah, yes, originalism. Where would we all be without our beginnings?

Our own view of the U.S. Constitution is a bit “organic”, like the spirit of the times. A foetus shortly after conception is different than that same foetus just prior to birth and the newly born infant is different than the infant at age five, just as the child at the age of puberty is different than the subsequent adult, and so on, yet it is the same person in every case, whose foundation can be traced back to one specific creative act, for which there was a definite intention (or maybe not) if not a plan, which in any case slowly unfolds in the course of life of the new organism, whose development never corresponds to the exact mens rea of its makers, whose original meaning and original expected application are always diverted by the organism’s own realities.

So it is with the Constitution of the United States, where the blueprint of its makers has long been surpassed by an edifice whose magnitude and scope defies any conception that its architects could possibly have entertained more than 200 years ago.

As regards the qualifications for President, and as regards the “intentions” of the grand document, here are some nice brain twisters concerning who can be President or not:

1) Is a test tube baby a natural born citizen if it is born on American soil in a surrogate mother who is a citizen of the United States if both of its donor parents are foreign non-citizens living overseas? what if the birth is not on American soil?

2) What if the surrogate mother is a non-citizen but the test tube donors are U.S. citizens domiciled in a foreign country? what if the birth is not on American soil?

3) What if all three are non-citizens, but the child is born suddenly in the last trimester in the White House on a diplomatic visit by the surrogate mother? what if the birth is on a plane over American soil? or on a boat illegally in waters claimed by the United States?

The way we see it, at the time that the U.S. Constitution was drawn up, the original intent of the Presidential eligibility provision was to make sure in the early years of the Republic that someone did not come over from England and govern the place, which, of course, at that time, was still a clear and present danger, so that a provision was adopted that would preclude that possibility in the foreseeable future. Today, in a world of modern globalization, that same provision of the Constitution is a nice anachronism, bearing almost no sensible relevance to the realities of our epoch, which will of course not prevent much of the world from arguing to the contrary.

Obviously, the ultimate solution to this legal issue is clear and found in a completely different line of analysis. The law of the land NOW, once we have left the founding era behind us, can not permit two different classes of U.S. citizens since this violates all of the basic principles for which the country was founded, principles which are embodied in the idea of equal protection of the laws and the due process clause, so that this provision of Presidential eligibility is in and of itself unconstitutional on its face under modern laws, as unlawful discrimination against U.S. citizens not born on American soil. There can not be two classes of citizens, so much is clear.

See laymen discussing the Presidential eligibility issue here.