Dead Presidents

Historical facts, thoughts, ramblings and collections on the Presidency and about the Presidents of the United States.

By Anthony Bergen
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Posts tagged "Constitution"
Asker Anonymous Asks:
Looking at Charles Carrol's Wikipedia article showed me an interesting tidbit, saying " Maryland passed a law that prohibited any man from serving in the state and national legislatures at the same time." Isn't it in the Constitution (or at least federal law) that you can't serve in state and Federal offices or am I misremembering thing?
deadpresidents deadpresidents Said:

(Okay, I could very well be wrong about this, so if someone has better knowledge, feel free to add it in the replies.)

My understanding is that each of the states are able to set the qualifications for the members of their respective state legislatures. The federal government’s eligibility requirements apply across the board to the U.S. Senate and U.S. House of Representatives. But when it comes to, say, the California State Assembly or California State Senate, the State of California can set the eligibility requirements for their state legislature.

In other words, if a state allows its legislators to also serve in Congress, as long as they meet the federal eligibility requirements, they can serve at both levels. Now, understand, I’m simply saying that the states COULD allow that if that’s their prerogative. However, I believe almost all of the states have laws prohibiting most forms of dual-office holding on the federal, state, local, and municipal levels. So, while it is possible, in practice it is rarely permitted.

The Constitution sets the federal eligibility requirements and what it prohibits (the law you’re thinking of) in Article I, Section 6 is members of the House or Senate from serving in another federal office simultaneously (and vice versa). For those who watched “The West Wing”, an example of this requirement in action is when President Bartlet temporarily hands over his Presidential power via the 25th Amendment to John Goodman’s Speaker of the House character (in the show, there was a Vice Presidential vacancy, which is why power was handed to the Speaker). Before the 25th Amendment went into effect and power was temporarily transferred from Bartlet to Goodman’s character, Goodman had to resign from Congress (even though it was a temporary transfer). That’s Article I, Section 6 in action.

If you reverse it, the same thing would be required if a member of the President’s Cabinet decided to run for Senate or was appointed to a Senate vacancy by their state’s Governor. For example, if Defense Secretary Hagel wanted his old Senate seat back and got his wish, he’d have to resign as SecDef before he could take his seat.

Asker Anonymous Asks:
What do you think was the most significant mistake made by the founding fathers?
deadpresidents deadpresidents Said:

1.  Not prohibiting slavery throughout the United States.  We know that if the Founders had abolished slavery, we probably wouldn’t have had a United States, but political expediency doesn’t excuse the hypocrisy and inhumanity of allowing slavery in a nation founded on “liberty”, “freedom”, and “equality”.

2.  The Founders should have placed a notice somewhere in the Declaration of Independence or Constitution that said this:

"Attention Assholes of the Future:  This is a living document and, as such, it will and must evolve with the advancement of time and technology, growth and national maturity.  It should not be considered Gospel and held to the standards of the era in which it was created, especially over 200 years later.  It is the foundation upon which the framework of this country is built, but like any type of construction, it should be renovated, remodeled, and restructured to fit the needs of the American people and the time in which they live.  In order to sustain the ideas and ideals behind this wonderful nation, you must recognize the organic nature of this incredible document, allow it to develop and progress, and certainly not hold fast to a rigid interpretation of it since it was created in an era completely alien to yours.  Had we been able to foresee the possibility that you dumbshits would interpret is as if you were still wearing powdered wigs, stockings, and buckled shoes, we would have simplified it for you, but we didn’t because we assumed that Americans of the future wouldn’t be jackasses.  Now shake off the stupid and make us proud that we took this awesome, beautiful country from the natives who rightfully possessed it for thousands of years prior to our generous gifts of slavery, smallpox, religious fanaticism, and alcoholism."   

Asker Anonymous Asks:
Do you agree with term limits in both the House and Senate?
deadpresidents deadpresidents Said:

I don’t like the idea of term limits at all, but if we’re going to have term limits for the Presidency (which, of course, we do), then I think the House and Senate should have term limits, as well.  I don’t like the fact that term limits are imposed on the President if Senators and Representatives can keep getting themselves elected (and basically wage a continuous campaign for their seat). 

I want to see a balance there, but I’d much rather see the 22nd Amendment abrogated so that Presidents can serve more than two terms.  The Founders didn’t place anything in the Constitution about term limits.  While every President for 150 years followed George Washington’s two-term tradition, it was just that — a tradition.  The 22nd Amendment was a knee-jerk reaction 65 years ago due to FDR being elected to four terms and the Democrats having what ended up being a 20-year hold on the White House. 

I think the best argument against term limits is the fact that Bill Clinton is only 66 years old, yet he’s been relegated to the sideline for what will soon be 12 years.  If not for the 22nd Amendment, Clinton could still be President today. and there are not too many people on either side of the aisle who weren’t better off during the Clinton years and wouldn’t feel confident with him at the helm  

Hi:-) I was reading through your post and i was wondering, if you have to be 35 at which point? Is it when you first declare you're running, when the votings of the primary take place, november 6th, or January the 20th, or is it some date completely different? Also what do you think of JFK: An unfinished life? Thanks:-)
deadpresidents deadpresidents Said:

Well, the Presidential age of eligibility requirement has never been put to the test, Constitutionally, but my interpretation is that the President has to turn 35 before being sworn in.  So, if he were 34 on Election Day, he would still be eligible to take office as President as long as he turned 35 by Inauguration Day, January 20th.

It would be interesting to see it put to the test, however.  The age of eligibility for a United States Senator is 30 years old, according to the Constitution.  However, here’s where things get tricky: the Senate itself is the only body which can decide the qualifications for admission of its members, not the Supreme Court or judicial branch.  This has resulted in three Senators (Henry Clay, John Eaton, and Armistead Mason) serving before they turned 30 (Clay was 29 while Eaton and Mason were 28).  Those three underage Senators took office early in 19th Century, and while there is no evidence that they weren’t aware of their exact age, it wasn’t surprising for many people of that time to have no record of when or where they were actually born.

In more recent times, we’ve seen Senators elected before they were Constitutionally eligible, including Joe Biden, who was 29 years old when he was first elected in November 1972, but he turned 30 a couple weeks after Election Day and was Constitutionally eligible when he was sworn in. 

We don’t know exactly how a Constitutional test of the Presidential eligibility requirements would turn out, and as is the case with many of these “what-if” scenarios, it would probably be ugly and messy and overly partisan.  Any of the above actions are possible, but there’s also the case of U.S. Senator Rush Holt of West Virginia.  Like Biden and Clay, Holt was 29 years old when he was elected to the Senate.  Unlike Biden, Holt didn’t turn 30 before his inauguration, and, unlike Clay, the Senate didn’t seat Holt before his birthday in June 1935.  The Senate DID, however, hold Holt’s seat for him until he was old enough to occupy it.

Now, that could never happen with the Presidency because there can’t ever be an interregnum, but if a candidate was elected in November and wasn’t Constitutionally eligible to hold the office until, say, April, would he be out of luck and disqualified from that election cycle?  Would the Vice President-elect be inaugurated on January 20th and assume the office under the 25th Amendment (like the VP does when the President has surgical procedures which require anesthesia and is temporarily unable to discharge the powers of the Presidency) until the President-elect turns 35 and is Constitutionally eligible to assume office? 

There are lots of unanswered questions and “what-ifs” and at some point we’re probably going to have to answer some of them.  Believe me, I run some of these scenarios through my mind and start pulling out my hair when trying to come up with the correct answer without falling down more Constitutional rabbit holes.  It’s such a weird thing trying to form a more perfect union out of such an imperfect document.

As for the last part of your question, whether it is An Unfinished Life: John F. Kennedy, 1917-1963 (BOOKKINDLE), or one of his two volumes on LBJ — Lone Star Rising: Lyndon Johnson and His Times, Volume I: 1908-1960 (BOOKKINDLE) and Flawed Giant: Lyndon Johnson and His Times, Volume II: 1961-1973 (BOOKKINDLE) — you cannot go wrong with Robert Dallek.  His recent book, Nixon and Kissinger: Partners in Power (BOOKKINDLE), is a fascinating look at two of the most influential figures of the 20th Century, particularly when it came to foreign policy and international relations.  Dallek also wrote a short, concise book, Hail to the Chief: The Making and Unmaking of American Presidents, which looks at how the Presidency has worked since McKinley modernized it at the end of the 19th Century and beginning of the 20th.

Asker Anonymous Asks:
What is your opinion on the age limit required to run for president?
deadpresidents deadpresidents Said:

I don’t have a problem with it.  I feel comfortable when my President has some solid experience behind him.  Quite frankly, if you’re under 35 years old you probably haven’t had enough life and career experience to truly go into the Presidency ready to do the job.  It’s hard enough for Presidents who HAVE had a lot of executive or legislative experience. 

If we had a 30-year-old President, the only way he/she would be kind of ready for the White House is if they had somehow been elected Governor or to Congress when they were 16.  Even a 35-year-old President would probably be really inexperienced in comparison to other Presidents.  

By the way, when I was 18 or 21, it seemed like 30 was really old.  But, I’ll be turning 32 years old on January 20th and all I keep thinking is, “Holy shit, why are people my age allowed to even vote!” and “Sure would be nice if I finally grew up”. 

Basically, what I am saying is that as I get older I feel like my President should be older.  I haven’t learned the secret yet, so I’m hoping my President has enough years behind him to have figured it out.

Follow-up on Lincoln: Here's the commentary from Justice Joseph Story in his 1833 "Commentaries on the Constitution of the United States:"

"A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by congress since the establishment of the constitution. It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body."

See § 1336 here:
deadpresidents deadpresidents Said:

More from hypographs on Lincoln and habeas corpus.  As I said last night, I don’t pretend to be a Constitutional scholar (I only pretend to be a Presidential scholar!), so it’s awesome that there are people in the audience who can give some educated insight on something like the debate about habeas corpus and how it is very possible that the Constitution intended for the suspension of habeas corpus a legislative rather than an executive function, which validates the criticisms of Lincoln’s possible abuses of power during the Civil War.

My opinion about Lincoln’s legacy remains unchanged.  Lincoln had to take extraconstitutional actions and without his leadership during the Civil War, this nation would not have survived.  What it would be today is a whole different story, but it certainly wouldn’t be United States.

Asker Anonymous Asks:
How do you feel about the criteria for presidency as mentioned in the Constitution?
deadpresidents deadpresidents Said:

I don’t really have any disagreements with it.  I’m not a fan of term limits, but I understand them.  I think 35 is a good age limit and, apparently, so has history since we haven’t had a President elected who was under the age of 42.

While I am totally fine with the current requirements for the Presidency, I also wouldn’t mind some changes.  As I’ve mentioned before, I think we’d be better off with no term limits.  I also think that we’ve come to a point in our nation’s history (and in our relations with the world) that a person doesn’t need to be born in this country in order to be able to help lead it.  If the Secretary of State, Chief Justice of the United States, or Speaker of the House can be a U.S. Citizen who happened to be born originally in another country, I believe a President can be, too.

Asker bbkld Asks:
What was the Founding Fathers' motivation for barring foreign-born citizens from becoming President (ironic considering they were all British subjects at one time in their lives)? Were they trying to bar a potential Lord or Baron taking office someday and converting it to a monarchy? That's not improbable considering George III's predecessors from the House of Hanover were born in Germany and problems speaking the language of the empire they governed.
deadpresidents deadpresidents Said:

That is a really great question, and I’m not quite sure what the answer might be.

Of course, the Founders had very strong viewpoints on foreign entanglements and neutrality.  The “natural born citizen” clause in the Constitution is vague and curious, especially since, as you mentioned, all of the Founders were British subjects.  They made sure to grandfather in a clause requiring the President to be a natural born citizen or a citizen of the United States at the time of the Constitution’s adoption.

People much smarter than me have spent decades trying to decipher the words and intentions of those who created our Constitution.  What I am doing is merely venturing a guess, but I don’t think the Founders were worried about the President being a foreigner.  I think that they were worried about the Commander-in-Chief of the United States Military being a foreigner, and the Commander-in-Chief just happens to be the President.

If the Founders had placed the Commander-in-Chief in another branch of the government or had the Commander-in-Chief of the military separate from the President, I question whether the Presidency would be barred to foreigners.  I don’t think that the Founders were as worried about a foreigner running the Government as they were worried about a foreigner running the military.

Here’s the thing, though:  eventually, this clause will be challenged and will create a Constitutional crisis.  Quite frankly, it’s amazing it hasn’t happened already.  No other office in the U.S. Government besides President and Vice President is barred to foreigners.  Furthermore, the Constitution is very cloudy about what a “natural born citizen” is.  Is it someone born within a state of the Union?  What about someone born in Puerto Rico or Guam or the U.S. Virgin Islands?  They are considered U.S. citizens, right?  Could a Puerto Rican be elected President?

Plus, there’s those dumb questions about Obama’s birthplace.  Well, what if John McCain had won the 2008 election?  He was born in the Panama Canal Zone.  Sure, he was born to American citizens and he was born on an American military installation, but he wasn’t born within the United States.  Does that make him a “natural born citizen” who is eligible for the Presidency? 

Not only that, but there is the question of foreigners who might be in the Presidential line of succession.  It’s highly unlikely that something would happen to the President and Vice President simultaneously, but if it did, what would happen if the Speaker of the House was a foreigner?  There is no restriction on foreigners serving in House or Senate positions or the Cabinet.  The ranking Cabinet member in the line of succession is the Secretary of State and two of the most prominent Secretaries of State in the past 40 years were foreign-born:  Henry Kissinger and Madeline Albright. 

The Presidential succession issue is bound for a crisis again in the future, and in my opinion, it will be a crisis revolving around the “natural born citizen” requirement or the fact that the president pro tempore of the United States Senate (third in line to the Presidency) is almost always the oldest member of the Senate, sometimes so old that they can barely function as a Senator, let alone as President.

Do you have any good websites or books about the US constitution, other thank wikipedia? I've been reading your blog to study the presidents for APUSH summer assignments (its really helpful!).
deadpresidents deadpresidents Said:

I’m glad that I could help with your summer assignments.  It’s nice to feel like a high-tech version of Presidential CliffsNotes.

I can’t say that I know any good websites about the United States Constitution.  I’m sure that the U.S. government actually has a pretty good website about it (maybe the National Archives or Library of Congress websites?).

As for books, Akhil Reed Amar’s America’s Constitution: A Biography is a really good book and a biography is fitting for the Constitution because it truly is a living, evolving, organic document.  

To tie it into the Presidency, Richard Labunski wrote an interesting book published in 2006 called James Madison and the Struggle for the Bill of Rights which focuses on Madison’s reversal from opposing the first ten amendments to wholeheartedly supporting it.