Tuesday, July 22, 2008

Roman Declarations of War

Recently, I've been reading The History of Diplomatic Immunity, by Frey and Frey. Their section on Ancient Rome describes the final act of the declaration of war:

"The third stage, the indictio belli, took place on the thirty-third day when a messenger formally declared war and then hurled a magical spear, which had been dipped in blood or pointed with iron, into the land of the enemy to counteract his power. . . . As the Romans extended their power beyond the Latin communities, certain parts of the fetial ceremony became difficult to enact. . . enemy land into which the spear was to be thrown was often either remote or inaccessible. The Romans surmounted the latter difficutly by adopting a curious legal fiction. They had a prisoner of war purchase a piece of land in the Circus Flaminius district and then declared that land hostile territory. The fetials [diplomatic priests] could then cast the spear into it."

This curious example of territoriality is hardly unique in the area of diplomatic law. For instance, there is a longstanding legal fiction that embassies are part of the sovereign soil of their home countries. This fiction serves to limit the power of the surrounding country to enter or to enforce their local laws. Thus, the US embassy in Saudi Arabia can serve alcohol, allow women to work with men, etc. In both cases, the fiction of sovereignty is granted essentially for diplomatic convenience. In the case of the fetial ceremony, it saves the time and effort of travel. In the case of modern embassies, it provides diplomats with a "safe" environment from which they can conduct diplomacy without fear of intimidation or undue discomfort from the host state.

Both examples are pretty strange; the guest countries do not actually weild any power in that territory except by the grace of the host country. But the fetial ceremony is particularly odd because it conveys sovereign status onto soil that belongs only to a citizen of the foreign state. The citizen is made a symbolic representative of the state to which he belongs. His property is foreign soil.

My guess is that the fiction was only valid for this purpose. But what if it weren't? What if a foreign sovereign's property were actually the sovereign soil of his host country--would that make a difference in other areas of law? Let's examine it in the Roman context:

In-home protections against the government were pretty strong, so it wouldn't particularly matter whether a foreigner's home were on foreign soil--representatives of the state (soldiers, presumably) wouldn't be permitted to enter even if it were Rome's sovereign territory. However, in the event that someone broke this rule, it would presumably be an act of war. This would effectively be an extension of the idea that persecuting the citizens of a country can be a justification for going to war (kind of like the so-called "passive personality" principle of jurisdiction). In this case, it would protect the real property of the foreign citizen in addition to his bodily integrity.

Other possible implications: taxation might be affected if the area bore crops. Presumably only the sovereign country could tax the land (although the host country could, I guess, enact some sort of tax on crops traveling off the property). Another area might be emminent domain, which (if such a concept existed at the time) would not apply to territory owned by foreigners. And crimes committed within the house would be under the jurisdiction of the sovereign state. These rules are essentially the same as the current rules for treatment of embassy property.

You're an ancient Roman lawyer representing a foreign citizen. What other implications might this symbolic doctrine have?

Wednesday, July 16, 2008

George W. Bush Commemorative Coin

Today, the U.S. Mint announced the production of the new George W. Bush commemorative coin. The coin, celebrating the President's many achievements in office, will appear in decorative proof versions as well as in mass circulation.

The initial value of each coin is Pi dollars, although, like all US currency, this value will decrease substantially with time. In an unusual move for the US Mint, the coins will be legal tender only for citizens of the United States and Poland. Citizens of other countries will still be able to purchase US debt in larger denominations, like the new $1 Trillion bill, which was created especially for this purpose.

In an press release that accompanied the announcement, the Mint said it hoped the new "W" dollars would simplify and improve our monetary system. Said the statement, "We hope that these coins will do for our economy what the President has done in every area under his control."

Monday, July 14, 2008

Can I be President?

A recent article by Gabriel Chin (http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1157621#PaperDownload) suggests that John McCain cannot be president because he is not a "natural born citizen" under the United States Constitution. This article contradicts the opinion of Laurence Tribe and Theodore Olson, who have concluded that McCain can be President, either because his birthplace, the Canal Zone, was under exclusive U.S. jurisdiction, or because he obtained citizenship by statute in 1937.

Obviously this discussion is irrelevant. No one is going to kick McCain out of the race because he isn't a US citizen; the courts are not going to touch this with a ten-foot pole. But it does present an intriguing question: Can I become President?

I was born in Riyadh, Saudi Arabia, to two American citizens. Because my parents are American, I was born a US citizen. Because my father was not a Saudi citizen, I am not a Saudi citizen, nor am I a citizen of any other country.

I had always been told that I could not be President because I was not born within US territory. However, an alternative interpretation of "natural-born" would include those who were born as US citizens, excluding only those who become citizens through naturalization. The recent discussion appears to follow this model.

The text of the constitution isn't clear on this issue, although "natural-born citizen" does seem to read most logically as "becoming a citizen naturally," rather than by operation of naturalizing process. Nor is the purpose exactly clear. One might think that being born to American parents would be enough to ensure that one is not under the allegiance of a foreign power, or that one knows America quite well. On the other hand, the founding generation might well have wanted to keep the nation out of the traitorous fingertips of those of us who, despite being born as US citizens, were raised and brainwashed in Saudi madrassas.

(Note to FBI readers: Actually, I went to a British school known as "The Puffin School," and my most traiterous impulse is a tendency to spell the shade "grey" instead of "gray.")

So, what do we think? Absent practical considerations (electability; my tendency to make cutting jokes about Pennsylvanians), can I become President?