[NOTE: It’s an election year, and we are witnessing a more charged atmosphere this quadrennial cycle as we go through the process of selecting a new president. In the meantime, amidst inflammatory charges by the presidential candidates about terrorism, Planned Parenthood, immigration and Islam, our country has even more pressing issues to deal with that undermine our system of self-government. Sadly, our venerable Constitution, the basis for our republic, is in need of major repair. In that spirit, this five-part series is written in order to provide a wake-up call about some dangers to our democratic system and some ways to fix it. As you read through these examples of problems in our system and several proposed constitutional amendments, you might agree that some of these sample amendments need to be advanced in order to form a more perfect union.]
How many times have we heard right-wing politicians preface their views on global climate change by first saying “I’m not a scientist, but …” In that vein, what if progressives, still remembering Bush v. Gore in 2000, got upset at some point in this election year about arcane or unclear constitutional provisions and went around mumbling something like “I’m not a constitutional lawyer, but…”
Well I’m not a scientist either, nor am I a constitutional lawyer or political scientist. Or a right-wing politician. Or a candidate this year for any office. But… two thought provoking occurrences happened within the space of three hours last week that got this non-scientist, non-lawyer thinking about our 18th century Constitution and, lest I offend both scientists and constitutional lawyers, its increasingly obvious flaws as we navigate the complex and challenging 21st century.
The first instance occurred at a progressives club meeting in Westerville, when one of our members shared a pamphlet listing the months and dates for upcoming presidential primaries. Listed in the pamphlet were all of the usual caucus and primary locations starting in February with Iowa, New Hampshire, Nevada, and South Carolina listed prominently. But when you look at the March schedule, one unfamiliar place appeared: Samoa. And in May and June, the place names got even more exotic and interesting: Guam, the Virgin Islands, and Puerto Rico, along with the Northern Marianas, whose primary date is yet to be announced.
Put the pina colada down and hold that thought for a moment.
After I was home for about an hour from my meeting, the second thought provoking occurrence happened when I turned on the telly to receive some informed commentary from Lawrence O’Donnell. To my great surprise, the show’s very first segment featured an interesting discussion on the ambiguous constitutional term “natural born citizen.” The discussants were two constitutional law professors, including the renowned Laurence Tribe of Harvard Law School. Interestingly, even the right-wing Beitbart website saw fit to carry an article a few days ago about the native born issue.
Tribe, who in the past has been considered as a potential Supreme Court nominee, also happens to have taught such prominent law students as President Barack Obama, Chief Justice John Roberts, and a certain Canadian-born Texas Senator, Rafael Edward (aka Ted) Cruz. While Tribe agrees that the meaning of natural born citizen should be considered in a broad sense, he takes issue with his former student Cruz that inasmuch as the Supreme Court has never directly addressed the issue of what is a natural born citizen, the issue cannot be described as settled law.
And to add insult to ambiguity, part of the discussion last week about the meaning of natural born citizen dealt with another what-if – the status of two former Secretaries of State in the presidential succession. According to the Presidential Act of 1947, which complements the provisions of the 20th and 25th Amendments, the Secretary of State is fourth in line to the presidency. However, both Henry Kissinger and Madeleine Albright were born in Europe and neither of their parents held American citizenship. Due to the fact that these distinguished patriots are naturalized citizens, their eligibility to be in the line of presidential succession could have been questioned if the political atmosphere and anti-immigrant mood were as volatile during their tenures as it is now.
Hold that thought now on the topic of natural born citizen – and perhaps presidential succession – as you go back to savoring that pina colada.
Yes, we’re back to the matter of the Virgin Islands, Guam, Samoa, Puerto Rico and the Northern Marianas. If the people who live in these beautiful islands are American citizens and can vote in the upcoming primaries, how is it that they aren’t allowed to vote for president in the election that is held every four years on the first Tuesday after the first Monday in November? Doesn’t citizenship determine the right to vote, or do we in fact have a second-class citizen category? We’ll look at that issue later in this series.
Details, details. Yet we’ve only begun to look at some of the contradictions and ambiguities in our Constitution and the need to start a conversation about major reform. But in order to form a more perfect union, it might be best in this discussion to take a limited approach rather than wholesale constitutional reform, and in the next four installments, we’ll look at some proposed amendments that might simplify how we choose our president and thus greatly improve our democratic system. And with due respect to those who have their own customized amendments drafted, we need a consensus on the principle that how we vote and choose our president is where we must start on any constitutional journey.
One more thing: My thinking on constitutional reform was assisted earlier by a half-day visit in July to the National Constitution Center in Philadelphia. The learning that arose from that wonderful experience was reignited by the Westerville club meeting, the discussion of presidential qualifications by Professor Tribe, and the writing of Widener University constitutional scholar Mary Brigid McManamon. I hope that the next few installments will help to generate additional thought on where we need to go in future conversations about constitutional reform and the work to be done that will ensure a more perfect union.
Denis Smith is a retired school administrator, Fulbright Fellow, and a former graduate and undergraduate history student. He was born in Philadelphia, birthplace of the United States Constitution, and maintains a strong interest in ensuring a healthy democratic system of government.
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