Sound like a good strategy for McCain. After all, he has to stretch the definition of "natural born citizen" to be in the race in the first place.

See also, link (SSRN).

TL;DR. Mildly amusing point segues directly into McCain attack ad.

As another commenter stated, what began as something mildly amusing became the same jumble of mud-flinging garbage and exaggerations you can read on far-right blogs. I haven't ready anything else by Calabresi other than this article, but from this one the only thing I can conclude is that he's a dumb hack.

A better question is whether the man is even a natural citizen.

If your thesaurus lists "raving wingnut" as a synonym for "better," I think someone might have pulled a bit of a gag gift on you.

My third cousin's father-in-law's roommate at Yale says that not only are McCain and Obama ineligible to hold the office of President of the United States, but that they have supplied twenty-thousand black helicopters to the 200,000 Chinese police in Mexico, who are preparing to conduct door-to-door gun confiscations in order to further the Illuminati plot for one world government.

Stephen Calabesi is better than this. This op-ed, which was an attempt at snark, is just pathetic.

EVERY advocate of a "living Constitution" draws a distinction between broad, sweeping guarantees in the Constitution (e.g., "freedom of speech") and narrow, procedural ones (35 years old to be President).

The XI amendment (after all, a pretty straightforward &basic procedural statement) begs to differ.

Utterly Sophomoric

It's a joke. Chill.

Calabresi's a very good guy, but when he writes for conservative media outlets he seems to turn into a partisan hack. I really don't get it.

A better question is whether the man is even a natural citizen. The birth certificate he supports appears to be a brazen forgery. What is he hiding? Does he think if he's elected unConstitutionally, that the Supreme Court won't dare to remove him from office after his true birth status becomes known?

http://web.israelinsider.com/Articles/Politics/12993.htm

If Techdude291 said it, who amongst us could dissent?*?

He makes an amusing point about textualism and lack thereof. It probably would have been best to stop at the third paragraph, at the latest.

If he had stopped at the first few paragraphs, it would have made a nice ironic critique of how some people interprete the constitution. But then it just fell into a parady of itself. He should have quit while ahead.

Sheesh -- it seems every conservative thinks the way to win the younger generation is to be the next Stephen Colbert, but they don't have enough of a sense of humor to pull it off.

With these two losers, I only WISH both candidates are ineligible.

On this logic, McCain can't be president either; he's passed away already.

Can a Puertorican run for POTUS?

Calabresi's argument fails, in my mind, because it is based on the argument that a 35 year old in 1789 is the "equivalent" of a 50 year old today due to the fact that life expectancies have improved. He surmises that the constitution was constructed to make sure that inexperienced people don't become president. Fine. But he offers no explanation for why it is that a 35 year old in 1789 has any more meaningful "experience" than a 50 year old, or 46 year old, today.

Still, I took the argument as a tongue in cheek way of demonstrating to the general public the difference between originalism/textualism and liberal interpretive techniques. Beneath Calabresi, to be sure, but it is what it is.

EVERY advocate of a "living Constitution" draws a distinction between broad, sweeping guarantees in the Constitution (e.g., "freedom of speech") and narrow, procedural ones (35 years old to be President).

Of course, what Dilan conveniently neglects to mention is that the living constitutionalists constistently fail to produce any principled definition of what constitutes a "broad, sweeping guarantee" deserving of generious and flexible construction, versus what constitutes a "narrow, procedural one" deserving of textualist rigor. Thus are provisions which are self-evidently broad and sweeping -- say, the Second Freaking Amendment -- read to be narrow and precedural (e.g., Justice Breyer's shameful dissent in Heller), while provisions which are self-evidently narrow and procedural read to be broad and sweeping. All dependent on the preferred policy outcomes of the particular living constitutionalist.

I'll be happy to believe that judicial interpretation isn't actually a contest between people who hew strictly to the text and people who ignore it when that's not actually the case.

Hmm, which is more dangerous? The guy who is a similar age as Teddy Roosevelt or the guy who wants to be Teddy Roosevelt.

At least McCain's gunboat diplomacy won't be a youthful mistake, it'll be deliberate idiocy.

Before Lenin was a communist, he was SARCASTIC! Eliminate sarcasm, the gateway to COMMUNISM!

BAN SARCASTRO BEFORE IT'S TOO LATE!

Roosevelt engaged in gunboat diplomacy with Latin American countries such as Panama that tarred America's reputation in that part of the world for the next 100 years. We are still living with the legacy of T.R.'s youthful foreign policy excesses.

Maybe, but TR wasn't the first to use force, or the threat of force, to enforce U.S. prerogatives in Latin America. I doubt if TR's willingness to follow the precedent of McKinley (Sp.-Am War, Platt Amendment) and Cleveland (Olney's "United States' fiat is law" doctrine arising out of the first Venezuelan crisis) was due to his youth.

Then again, the article was written as a joke, so as a joke may I take it.

"I've never seen the "original" of my birth certificate, nor have my parents to the best of their knowledge. Whenever I've needed a "birth certificate" for something I've always received a printout similar to the one Obama posted on his website, albeit from another state."

Oh Angus. Don't you realize that even if Obama were to release his original birth certificate, he would have to kill the doctor who signed it, and then kill all the people in the office who may have seen it so that his fake certificate won't be challenged by anyone?

Of course, he can count on the liberal media to not report on all those murders.

What I found most interesting was the life expectancy figures, which are poorer than those for the late Roman Republic. In ancient Rome, they had as one would expect a higher rate of death in infancy and high death rates among young adults: young adult women frequently died in childbirth, young adult men died in warfare. If you made it past young adulthood, your life expectancy was pretty good. As I recall, a 40 year old could expect to live to 70.

Meta-satire, right? I.e., satire of what might pass in some crowds as "satire" of nonformalist construction, right? Amusing, if so. But (like much satire these days) sadly outclassed by reality.

Bill Poser

What I found most interesting was the life expectancy figures, which are poorer than those for the late Roman Republic. In ancient Rome, they had as one would expect a higher rate of death in infancy and high death rates among young adults: young adult women frequently died in childbirth, young adult men died in warfare. If you made it past young adulthood, your life expectancy was pretty good. As I recall, a 40 year old could expect to live to 70.

I would bet that in any society, if you make it to 40, you have a decent chance of making it to 70. Calabresi's article said that, in early America, if you made it to 18, your average life expectancy was 47, which doesn't say a lot about a 40-year-old's life expectancy.

I've read that life expectancy in Rome was in the early 20s compared to 37 in the US in 1790, but I don't know if that's right. Anyway, how does anyone know what life expectancy was in Rome?

Wow, Calabresi really beat up that straw man good.

Jack M., I think people here know it was a joke. Us lefties just think it was not a very fair characterization of what any reasonable person actually believes in.

Calabresi writes: "Are there any reasons to think that Obama is naive, inexperienced, arrogant or lacks knowledge of foreign policy? The answer is clearly yes. He has called for talks with the radical Islamic president of Iran. He has criticized the war in Iraq but visited the country for the first time Monday to see how well the surge there is working."

Interestingly, the current President's State Department has also quietly called for talks with Iran, and has of course been engaged in multination talks with North Korea (after putting forth for years the same sort of bluster as Calabresi), and the current U.S. President and the Iraqi President now both endorse some version of Senator Obama's plan to remove combat troops from Iraq. Of course, talks with Iran might not be necessary had we not empowered it by invading Iraq in reckless disregard of the foreseeable consequences, thereby creating a vector of radical Shiite influence (which we are now countering by paying off Sunni radicals [that's right, the same sort of people who attacked us on 9/11] not to fight and to undermine Iran from within). But Senator McCain's prediction (no doubt based in his vaunted experience) that we would be greeted as liberators following that invasion and his repeated public confusion regarding important geographic facts in the region apparently do not make him "arrogant or lack[ing in] knowledge of foreign policy" or betray any sort of naivete.

As for the conspiratorial nonsense being purveyed by some in the comments, does anyone have good reason to doubt the authenticity of this copy of the Obama birth certificate?

http://my.barackobama.com/page/invite/birthcert

If not, please focus on the issues in the serious and studious way that Mr. Calabresi.

"http://my.barackobama.com/page/invite/birthcert"

Um, but isn't that the one from dKos where the guy who posted it showed in-progress versions? And has anyone verified the border pattern as one actually used? All I've seen is the candidate's site and the techdude analysis, so I don't know. You'd think there would be better evidence to lay it to rest than this, is all I'm saying.

Aside from the other idiocies in the article, he is probably wrong in his statement that in 1789, even the average life expectancy of every man who reached age 18 was only about 47.

The earliest date for which I was able to find figures quickly was 1850. According to this table a 20 year old white male had a life expectancy, in 1850 of another 40 years. He could expect to live to be 60. Hard to believe it increased that much in sixty-one years. The current expectancy is age 77, an increase of 17 years after a century and a half of major improvements in public health, discovery of antibiotics, generally huge advances in medicine, etc.

This is rich:

Roosevelt engaged in gunboat diplomacy with Latin American countries such as Panama that tarred America's reputation in that part of the world for the next 100 years. We are still living with the legacy of T.R.'s youthful foreign policy excesses.

A conservative worried about tarring America's reputation. Sure.

Bill Poser (mail) (www):
What I found most interesting was the life expectancy figures, which are poorer than those for the late Roman Republic. In ancient Rome, they had as one would expect a higher rate of death in infancy and high death rates among young adults: young adult women frequently died in childbirth, young adult men died in warfare. If you made it past young adulthood, your life expectancy was pretty good. As I recall, a 40 year old could expect to live to 70.

Unless, of course, you got to be emperor, in which case your life expectancy would be about 44.

Angus:

"I've always received a printout similar to the one Obama posted on his website."

The printout you get has an embossed seal. The argument over the one posted is that it either lacks the seal or it's on the wrong side of the paper. The Hawaii office says it won't release anything without BHO's written permission and so far he won't give it. Supposedly there are other problems with the posted certificate as well.

Who says that conservatives don't have a sense of humor?

Why don't you people just get it over with start wearing brown shirts and march in formation to his convention speech out at Triumph of the Will, I mean the DNC this summer?

Get it? Do you get it? 'Cause it's like they're Nazis!!! Hilarious. Get over yourselves, lefties! Steven Calabresi is a comic genius!!!!

people, it was a snarky joke. And yes, he made some good points---you lefties mad at him for poking holes in your living constitution crap are just stamping your feet. No, its not serious scholarship, it's meant as dismissive sarcasm---such as if some lefty judge made a joke about originalism.

Sorry, but it's not that. Let's say you have a theory that all dogs should be trained in a certain way. And someone tries to make fun of you by saying "you wouldn't train a cat that way", to which the response is, that's right, there's nothing funny about that, and we always acknowledged that this training method is only for dogs.

That's what Calabresi's missing. Advocates of a living Constitution have never claimed that narrow, unambiguous rules in the Constitution get broad and sweeping interpretations. So when he thinks he is so clever by saying "you see, you guys don't really think that narrow, unambiguous rules get broad and sweeping interpretations", we respond "yeah, where's the joke? We never believed that."

This is what conservatives incapable of grasping complexity TELL THEMSELVES that we believe. Just like they tell themselves that they just follow the language of the Constitution, when in fact they don't do that all the time either.

Advocates of a living Constitution have never claimed that narrow, unambiguous rules in the Constitution get broad and sweeping interpretations.

Liar.

frankcross,

It's the "Krugman Phenomenon". What's not to get?

A better question is whether the man is even a natural citizen. The birth certificate he supports appears to be a brazen forgery. What is he hiding?

C'mon -- everyone who ever went to Sunday School in a fundamentalist church KNOWS The Antichrist wasn't "born" a mere 46 years ago, and ain't gonna reveal his true pedigree until well after the Rapture. Oh, bye, Ye Obamaton Unbelievers, have a nice Tribulation!

/Sarcasm OFF

"Mildly amusing point segues directly into McCain attack ad."

Which, er, isn't particularly surprising given that he works for McCain's "advisory committee" (i.e. his political campaign), no?

Anyway, this general take has it right: "This is what conservatives incapable of grasping complexity TELL THEMSELVES that we believe." If it's a joke, then it's one based on ignorance rather than wit.

"Um, but isn't that the one from dKos where the guy who posted it showed in-progress versions? And has anyone verified the border pattern as one actually used?"

The onus is on the people who claim to have doubts about the certificate's authenticity; Have you verified that what is posted on Obama's website is not in common use? Has the claim that Hawaii won't release the "real" certificate been verified by Hawaii? What have you presented that would lead a reasonable person to believe in your forgery theory. So far the doubts posted here come from lunatic fringe websites and the poster Zarkov, who has repeatedly posted borderline racist remarks about Senator Obama at this site. This stuff is of a pace with the push-polling about McCain in South Carolina in 2000 and is beneath contempt.

At least Mr. Calabresi attempted to make it about the issues, while making a fairly silly caricature of nonoriginalist constitutional interpretation.

"Have you verified that what is posted on Obama's website is not in common use?"

I haven't the means, but the techdude guy did. That's why I asked.

"What have you presented that would lead a reasonable person to believe in your forgery theory."

I have no forgery theory. The hyperbole and innuendo against favored candidates is digusting. Every question has to be attacked by standing on assumptions five stories tall in order to make sure I understand that you have neither any answers nor a sense of humor.

Fine, we get it. Il Duce is beyond reproach. Now shut up about it.

You know, I've seen a similar argument used with the 7th amendment's "twenty dollars" requirement: that it should be read as "the date-the-suit-is-filed inflation adjusted equivalent of twenty 1791 dollars".

All-Republican? I was not aware that there was not a single Democrat left in Congress after the '94 midterm elections.

All houses of congress.

It's interesting because only someone who believes in original intent (and I'm not sure who that would really include) would think there is something to this age argument. It's certainly not a liberal interpretation. Liberals read the Consitution to be broader, not narrower, than it reads; conservatives do the opposite.

Except, of course, in Heller.

Liar.

Brett, before going off and calling me a liar, why don't you cite some scholarship or caselaw from the living Constitution tradition which advocates interpreting a narrow, specific, clear rule as instead creating a broad, sweeping right? After all, you must actually have such scholarship or caselaw in mind before calling me a liar, right?

You couldn't simply have a preconceived notion of what liberals believe about the Constitution that you don't wish to give up, right?

Jerome Cole

You have confirmed all my deepest suspicions. Others may mock, but the truth will out. The Group will meet Friday at the usual place. Email me for the sign and password.

Il Duce is beyond reproach.

I get it, it's like Obama is a fascist!!! Your subtlety won't escape me again!!! Hilarious............

Okay, Dilan: Marty Lederman argues that the Thirteenth Amendment -- very narrow, specific, and clear -- somehow authorizes Congress to pass hate crimes legislation encompassing crimes motivated by sexual orientation.

So you think "neither slavery nor involuntary servitude is allowed" is as narrow as "the president shall be at least 35 years old"?

Look, I wouldn't particularly find a power to pass hate crimes legislation in the 13th Amendment, but it seems to me that there's a pretty strong argument that it is within section 5 of the 14th Amendment.

The broader point, though, is that the 13th Amendment isn't a narrow, specific restriction. "Involuntary servitude", in particular, leaves a lot of play in the joints.

So you think "neither slavery nor involuntary servitude is allowed" is as narrow as "the president shall be at least 35 years old"?

So when you asked for an example of a living constitutionalist interpreting a narrow provision broadly, you meant that you wanted an example of a living constitutionalist interpreting the 35-years-old provision broadly?

zarkov:

his "birth certificate" lacks the necessary embossed seal and signature

Yes, that's what israelinsider says. Of course, they also say this:

Is Barack Obama a Muslim wolf in Christian wool?

This birth-certificate nonsense has been very thoroughly debunked by James Joyner, AJ Strata and Dean Esmay, who all have impeccable right-wing credentials.

But I hope you keep it up, because you're being funny. Unintentionally.

By the way, where are all the other presidential birth certificates? I think McCain supposedly showed his to a reporter. How come I don't get to see it? And I never saw Dubya's. Have you?

What about all the other presidents? Aren't you tired of being scammed?

smokey:

Do voting citizens have the right to know the truth, or not?

Good point. Where are all the papers on all those other folks?

I find the jokes comparing Obama to Mussolini to be somewhat distressing coming from (presumably) fellow conservatives. Mussolini had flaws, but he did not share all (or even most) of Obama's flaws. Say what you will about Il Deuce, but he loved his country. Moreover, while it is true that Mussolini had racist and anti-semitic political allies (something he shares in common with Obama), at least neither his wife nor his religious mentor was a racist. And while we are on the subject of religion, Mussolini may have been a sinner like the rest of us, but he did not publicly profess to be a Christian while simultaneously mocking everything that Christianity stands for.

Listening to you people prattle on and on about Obama's birth certificate is really amazing. It seems that you guys are suffering from a right-wing version of whatever disease has afflicted the 9/11 "Truthers."

"I find the jokes comparing Obama to Mussolini to be somewhat distressing"

It isn't quite how he's presenting himself (though poofter puffery is the major part of his campaign), as much as it is how his worshippers treat him (including television and print media). I would hope that's clear by now.

My birth certificate from New York City (The NY City Department of Health and Mental Hygiene issues its own Certs, or at least they did back in 1977) that looks like something I created at home (not even typed - the boxes are filled in by hand), with a raised seal that won't scan/photocopy and has "flattened" with age, and that has gotten questioned at the DMV in every state I've moved to and the US Passport Office (the latter forcing me to order an "updated" copy from NYC before they would issue a passport)... Yes, genuine paper Certs that are 30+ years old can easily look like forgeries.

Is a person eligible for the presidency who is not 35 years old when nominated? When the popular vote takes place? When the Electoral College votes? Or is it enough that the President be 35 on Inauguration Day, when he or she actually starts to serve?

jukeboxgrad:

You said

"This birth-certificate nonsense has been very thoroughly debunked by James Joyner, AJ Strata and Dean Esmay, who all have impeccable right-wing credentials."

I looked at the Esmay argument because if true it would have ended the whole question definitively as a matter of law. Only he was careless and it didn't. As for the certificate itself, I did not assert that it must be a forgery; I said BHO could end the matter by giving the Hawaii office permission to allow the press to inspect whatever documents they have. I don't think we can prove an something authentic by way of electronic images alone, although something can be shown to be a fake. Recall the memo about Bush. The Daily Kos was certain the memo was typed on an IBM and went on endless about their proof. Only they were dead wrong. So they are not reliable on this kind of thing.

Zarkov:

"You have ignored things like my analysis of BHO's health plan. The other items have to do with his failure to be completely forthcoming about his background. You obviously can't deal with specifics so you result to insults. Have I ever insulted you or any other poster? Why don't you simply follow our hosts instructions about civil behavior here?"

Your use of the term "insult" implies that my characterization of some of your past comments about Obama as veiled racism is false, whereas I believe it is accurate and that reasonable people reading them would agree with my description. I leave it to the other readers to judge which of us is behaving civilly.

David Nieporent,

Dilan Esper seems to interpret his own posts a lot like he says lefties don't interpret the constitution...

Brett, before going off and calling me a liar, why don't you cite some scholarship or caselaw from the living Constitution tradition which advocates interpreting a narrow, specific, clear rule as instead creating a broad, sweeping right? After all, you must actually have such scholarship or caselaw in mind before calling me a liar, right?

You couldn't simply have a preconceived notion of what liberals believe about the Constitution that you don't wish to give up, right?

See David Nieporent's point, above, paying particular attention to how you hilariously suggest there's "play in the joints" of the term "involuntary servitude".

So, again: you are a liar.

For further examples, see virtually any of Jack Balkin's insane blatherings on the Fourth Amendment.

zarkov:

BHO could end the matter by giving the Hawaii office permission to allow the press to inspect whatever documents they have

Breaking news. Someone found a birth announcement in the local paper, indicating that Obama was born in the US, after all.

But some people are still saying some very funny things:

I’m not sure that any info on the COLB is fake, but perhaps the document was set up to appear to be fake, so that we would spend hundreds of hours studying it

The birth certificate thing is puzzling to me: why would anyone think that Obama was not born in the US? Do they really think there's a significant chance that his mother got knocked up, turned 18, got married, and flew out of the country to give birth, only to quickly return? I just don't see why Obama would be that much more likely than another candidate to not have been born in the States

I agree, this stuff is priceless. The thread lm is talking about is here.

I suggest reading the posts by Lori. She's the person who actually found the
birth-announcement newspaper clipping. And she did some careful investigation to make sure the clipping is genuine, and means what it appears to mean. So even though her original intent was to find dirt on Obama, she is now convinced. And she explains her findings in a very clear and rational way. But it's amazing to notice how many of her pals in the group simply don't believe her. Here are some excerpts:

I wondered if maybe the British or Kenyan consulate was at that address and the Mr. and Mrs. Obama who had the son referred to a son born in Kenya.

there could have been another Mr. and Mrs. Obama.

Ship travel between Hawaii and the mainland was very common in thosde days. If OB was born on shipboard, notice of the birth would be cabled to the state of embarcation (Hawaii) for recording

How do we know that the microfiche at the Hawaii State Library has not been altered?

a news clipping will never suffice as proof in a case of this importance

A local newspaper is an informal affair to run — it wouldn’t be difficult to insert a birth notice if there is a paste up person you could convince to drop it in — you could even say the hospital missed it, and you are very very upset, whatever con it takes.

you are building a lot off of one scrap of a clipping. Have you validated the clipping by other means, or is it just a one-shot of a data point?