The Odd Clauses (11 page)

In a crowded courtroom, while the nine justices look on, each with his or her own gavel, a lawyer examines a witness.

LAWYER:
So, why did the rich dead man whose property both states want spend his winters in Florida?

WITNESS:
Well, the cold weather exacerbated his temporomandibular joint discomfort.

OPPOSING LAWYER:
Objection, the witness is not an oral surgeon!

The bench erupts. Everyone yells at once, banging gavels.

JUSTICES ALITO, KENNEDY, ROBERTS, AND SCALIA:
Objection granted.

JUSTICES BREYER, GINSBURG, SOTOMAYOR, AND KAGAN:
Objection overruled.

JUSTICE SCALIA
[biting his gavel in half]
: Overruled? Are you kidding? Liberal fools.

JUSTICE BREYER:
As I see it, this objection raises a fascinating theoretical issue. Imagine, if you will, that . . .

Justice Breyer talks nonstop about various things nobody understands for about ten minutes.

JUSTICE KENNEDY:
This is hard, no doubt about it. Maybe the objection should be overruled after all. No, I guess it should be granted. No, overruled. No, granted. Definitely granted. Unless . . .

JUSTICE SOTOMAYOR:
As a Latina woman, I think I see this issue differently from the rest of you. I say overruled!

JUSTICE ROBERTS:
It looks like we're deadlocked. Justice Thomas, you are the deciding vote. What do you think?

Silence
.

JUSTICE ROBERTS:
Clarence? Hello.

Nothing
.

Okay, enough of this.

Remember all those millions of immigrants who entered the United States through Ellis Island? Well, it turns out they all landed in New Jersey. There is an ancient and universally followed legal rule called the rule of “avulsion,” which, when applied to a situation like this, says that when additional territory is added to an island by fill material, the added area belongs not to the party that owns the island but to the party that controls the water where the fill material was added. In other words, since the US government enlarged the island by adding dirt and rocks to the water around the original three-acre Ellis Island, and since the water around that original island was controlled by New Jersey under the 1834 compact, the twenty-four acres of land added to the island belonged to New Jersey and not New York.

Figuring that the avulsion rule would work to New Jersey's favor, New York had advanced a second argument in the case, which was that even if New Jersey originally owned the added twenty-four acres, New York nonetheless gained sovereignty over that land because it had
acted as though
it had sovereignty over it for a long period of time without any objection from New Jersey. Unfortunately for New York, however, the special master concluded—and the Court agreed—that New York's evidence on this score was paltry at best. The Court was not impressed, for example, that New York had recorded five birth certificates of babies born on Ellis Island during the sixty-four years between when the federal government started adding land to the island and
the time that New Jersey clearly started to assert that it had sovereignty over the filled portions. New York also tried to argue that over those sixty-four years, most people
thought
Ellis Island was in New York. This actually might have been relevant, said the Court, but it nonetheless found that New York had failed to put forth a strong enough showing. For example, the Court was not wowed by the testimony of “one William Hewitt, who lived in the officers' quarters on the Island with his family from July to September 1940 when he was one year old [and] testified that although he had ‘no personal recollection of living on the Island, he has always thought that at that time he was living in New York.' ” And although a dissenting Justice Stevens thought the “New York” labeled landing cards and the like were sufficient to show that most people thought the island was in New York, the majority was unconvinced, since the “New York” on those documents referred to the “New York Immigration District,” which at the time included northern New Jersey.

The framers sure knew what they were doing when they created the Constitution. One of the big risks of bringing together a bunch of strong, independent states in one unified country was that inevitably there would be times when the states would not get along. The framers knew that states would struggle and compete and disagree with each other over all sorts of things, and they tried to take steps to limit the chance that these disagreements would erupt into outright conflict and violence. A number of constitutional provisions serve this purpose. Article I, Section 8, gives the federal government the power to regulate interstate commerce; a corollary of this power, as the Supreme Court has long recognized, is that individual states themselves cannot regulate interstate commerce. The “dormant commerce
clause,” as it's known, prevents states from using their regulatory power to discriminate against goods from other states. A state, for example, that prohibited the sale of out-of-state oranges within its borders to protect its in-state citrus industry would soon find itself on the losing end of a constitutional controversy. Likewise, the so-called full faith and credit clause of Article IV provides that judicial judgments made in one state must be given full effect in other states. Someone who is found negligent by a jury in Arkansas, for instance, cannot move to Missouri and expect to find refuge.

The original-jurisdiction clause, then, is one of a number of crucial constitutional provisions meant to secure peace among the several states. Of course, the United States was almost torn apart irrevocably in the 1860s by the Civil War, and so we can't say that the original-jurisdiction clause has fully prevented interstate conflict. It is, however, hard to imagine that anything could have prevented the Civil War, and apart from that war, and putting aside the governor of New Hampshire's melodramatic proclamation about Maine's assault on his state's lobstermen, the United States has remained remarkably free from real interstate conflict. Part of the reason surely lies in the original-jurisdiction clause, which lets aggrieved states take their cases directly to the highest court in the land, an objective court with no direct connection to any particular state. Most people in the United States probably don't even know about the original-jurisdiction clause, but that doesn't mean it's not important. On the contrary, the clause's inconspicuousness is evidence of how well it works. The original-jurisdiction clause is one of those parts of the Constitution that goes about its business quietly—oddly and quietly—performing a critical function for our nation.

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.

Article II, Section 1

In the mid-1990s, a couple of hot-shot legal academics were walking back to their hotel after taking part in a constitutional law conference at Tulane University when they started talking about what they thought was the “stupidest” part of the Constitution. Since these guys are law professors, it should be no surprise that they quickly decided to turn their “joking conversation” into an eighty-five-page academic symposium. They called up a bunch of their top-notch law professor friends around the country and asked them what they thought was the stupidest part of the Constitution. By “stupidest,” the study's designers meant (we learn in the symposium's first footnote) “a provision that strikes one as wrongheaded under
today's
circumstances, and harmful to the polity as well.” In other words, to be stupid, a provision had to cause problems in 1995, regardless of what it
might have done back in 1787 or 1791 or whenever it was first ratified. As one symposium participant put it, the chosen phrase or clause or section “should be something you think has significance for current governance; you get no points by condemning the fugitive slave clause.” Contributors were encouraged not to talk to other participants about their choices, so that each could select his or her favorite “constitutional stupidity” without being subject to undue influence from external forces.

Although some of the participants responded with typical academic tomfoolery like refusing to answer the question directly or attacking the question itself (note, e.g., the response of one professor, who called the enterprise “the most vapid essay contest to come along since MTV listeners were asked to suggest names for a new litter of puppies owned by a heavy metal performer”), for the most part the study turned out to be enlightening. Which parts of the Constitution were the biggest losers? One was the provision in Article III that gives federal judges life tenure. As one critic observed: “Life tenure . . . creates the real possibility of imitating a society like China, where power is wielded by the oldest among it.” The electoral college earned a couple of votes for making it possible for someone like George W. Bush to become president despite getting five hundred thousand fewer popular votes than his opponent. And lots of scorn was heaped atop the provision in Article I that gives each state two votes in the Senate, regardless of whether the state has the eighth-largest economy in the world (like California) or can fit in the palm of a toddler's hand (like Rhode Island).

Getting at least as many votes as any other clause was the clause in Article II that prohibits anyone who is not a “natural born citizen” from becoming the president. In this chapter, I will talk about where this clause came from, what it means, and why one participant in the stupidity symposium called it “a vestigial excrescence on the face of our Constitution.”

As I mentioned in chapter 3, the Constitution sets out detailed rules about how officers of the United States are to be appointed to their positions. The Constitution, however, generally does not create these offices itself; most offices are created by statute. In a few important cases, though, the Constitution does actually create offices. For these offices—the president, the vice president, senators, and members of the House of Representatives—the Constitution not only establishes the position and provides the method for filling it (by election), but it also sets forth specific qualifications that anyone occupying the position has to have.

What is most notable about these prerequisites is just how few of them there actually are. They are also pretty minor. Most are simple age and residency requirements: you need to be at least thirty-five years old and have lived in the country for fourteen years to be president or vice president, thirty years old with nine years in the country to be a senator, and only twenty-five with seven years of residency to be in the House. The Constitution does not require that officers have to come from a certain lineage or have achieved a certain level of education or belong to any particular religious faith. Indeed, the “religious test clause” of Article VI flatly prohibits the government from requiring any religious test for any “Office or public Trust under the United States.”

It was no accident that the framers insisted on only the most minimal qualifications for high public office. Keeping these prerequisites to a minimum furthered two values that the framers believed were vitally important. The first was equality—the notion that anyone (well, any white man, that is) could aspire to elected office, even someone with no land, the measliest education, and the weirdest religious views. As James Madison said in
The Federalist Papers,
No. 52: “The door of this part of the federal government is open to merit
of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.” The second value was representativeness—the idea that when people go to the polls, they should be able to elect whomever they want to represent them. These two values were so strongly championed by the nation's founders that when the Supreme Court in 1995 considered the constitutionality of state-imposed term limits for US representatives, the Court pointed to them when finding that the short list of qualifications contained in the Constitution were intended to be exclusive. Since that list contains no limits on the amount of time a Representative can serve, the Court struck down an Arkansas law banning ballot access to anyone who had previously served three terms in the House.

What about the qualifications that
are
constitutionally required? The age requirements seem very straightforward. Justice Felix Frankfurter once called the thirty-five-year minimum age requirement for president one of the most “explicit and specific” provisions in the whole document, astutely observing that it “draws on arithmetic.” The supposed clarity of these provisions, however, has made them a favorite topic among people who like to argue about how the Constitution ought to be interpreted. One of the big issues in constitutional interpretation is whether the words of the text have a clear and fixed meaning that judges should mechanically apply or whether at least some parts of the document are ultimately indeterminate and therefore require judicial creativity (i.e., judgment) to apply. Most of this indeterminacy debate centers around the at least relatively loosey-goosey language of the Constitution's lions, tigers, and bears—the First Amendment, for example, which prohibits laws “respecting an establishment of religion,” or the Eighth Amendment, which bars the infliction of “cruel and unusual punishments.”

In these debates over interpretation, the age provisions are often held up as examples that, at least some of the time, the framers knew how to create very clear rules. How much clearer can it get, it's suggested, than saying that the president has to be at least thirty-five years old? For some of your more ardent supporters of constitutional indeterminacy, though, the age provisions have simply provided a spirited challenge. After all, if it is possible to show that even the “you have to be thirty-five to be president” clause is not entirely clear, then it is a good bet that phrases like “establishment of religion” or “cruel and unusual punishments” are clam chowdery as well. If that's true, then judges might be more comfortable applying these phrases to stop the government, for instance, from leading Christian prayers or electrocuting prisoners or engaging in other nauseating practices that the Constitution does not expressly prohibit.