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This page contains a single entry from the blog posted on March 2, 2008 5:49 AM. The previous post in this blog was The O on the Sten "satellite" scheme. The next post in this blog is Reader poll: Will Obama win it all this week?. Many more can be found on the main index page or by looking through the archives.

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Sunday, March 2, 2008

Is McCain eligible to be President?

John McCain was born to U.S. citizen parents in the Panama Canal Zone in 1936. He is clearly a U.S. citizen from birth, but is he a "natural born" citizen, as the Constitution requires?

His fans are screaming that this is not an issue, but of course it's an issue -- everything is. And as for statutes that are being proposed now to "clarify" things, it seems unlikely that modern legislation would affect what the words of the Constitution mean. You can't amend the Constitution with a statute.

McCain is apparently saying that this was all settled back when Goldwater ran in 1964 -- having been born in Arizona when it was a U.S. territory. But it was a moot point -- Goldwater lost. Moreover, not everyone agrees that the Panama Canal Zone was ever a territory in the same sense that Arizona was. Is Iraq a U.S. "territory" today? And McCain's references to the Supreme Court in connection with Goldwater seem off the mark -- the Court never addressed his eligibility directly.

Look at it this way: If you're born in the 50 states or the District of Columbia, you're automatically a U.S. citizen, no matter who your parents are. That was not true if you were born in the Canal Zone. And so is a child born to U.S.-citizen parents living in another country "natural born"? Not clear.

Just what we need -- another constitutional crisis after the next election. It's how we decide things in this country.

Comments (32)

I just can't see how this would end up with anything other than a favorable ruling for McCain.

While it is very interesting, would a court really say that the child born to a US military man assigned by the US to a base outside the US now can't have his child run for president?

It makes for good press, but I just don't see this one being s big issue before it's all over.

"You can't amend the Constitution with a statute."

Really? Anti-gun legislators have done a pretty good job legislating the second amendment out of existence. I don't see why the rest of the Constitution is so sacred.

"You can't amend the Constitution with a statute."

Al, the second amendment is a lousy poster child for that statement, since the abundance of commas has led to varying interpretations over the years.

The fourth, however, is unambiguous.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And seems to be surprisingly missing in the discussion of legislation before Congress.

As to McCain, he's probably "natural born" because he didn't have to be "naturalized" to become a citizen. That probably won't stop anybody from engaging in a distracting "debate" about it, though.

Not only was this settled with Goldwater, it was settled with George Romney (Mitt's Dad) who was born in Cuba - to American parents on a mission.

This is a silly argument: Of course he's eligible. There are only two ways to become a citizen of the United States. Either you are "natural-born" or you are "naturalized".

To be naturalized requires an application, a background check, an oral examination, and various other legal requirements and procedures.

John McCain was a United States citizen from the moment he exited his mother's womb. He's never been a citizen of any other country. Thus, "natural-born".

Full disclosure: I am also a natural-born citizen of the United States born overseas. In my case, in Helsinki, to an American professor of political science - who made damn sure that his kid's birth was certified by the U.S. State Department precisely so his kid could run for president. (Ah, the dreams of new fathers... Not very likely.)

Correction: George Romney was born in Mexico, not Cuba.

Let me summarize this another way: It doesn't matter WHERE you born, it matters WHAT you were born. To be president, you must have been born a citizen. John McCain was.

Sue,
You can't amend the Constitution by adding in extra commas!

The rest of your comment does not seem to pertain to the discussion at hand...I'm not sure what you're getting at.

This is off topic, too, but the GOP ban on referring to Obama's middle name seems fair in one sense and unfair in another sense. I understand there's certain amount of ethnic or religious discrimination in emphasizing Barack's middle name of Huessein. But on another level why is it then fair for Obama to refer to McCain as Bush II. It's not discriminatory but it is a form of name calling it would seem (no offense, president Bush).

Now to go really off topic.
Not a bad Sunday morning here in PDX with the sun peeking out, and the Blazers on the tube later this evening. I'm back on board with the Blazers after Friday nights team like attack against the Lakers. It wasn't the old perimeter shooting dependence we've been seeing. Even Kobe was praising his competition. Sweet!

Al:
Huh?

Title 8 US Code, Section 1401

Not only was this settled with Goldwater, it was settled with George Romney (Mitt's Dad)

But it's never been "settled," except in some people's minds. If McCain is elected, someone will raise this in court. I don't think McCain wll get far with "Kari Chisholm said it's o.k."

Title 8 US Code, Section 1401

The Constitution trumps the statute. If "natural born" in the Constitution means born in the 50 states or D.C., Congress alone can't change that. It would take a constitutional amendment.

I am surprised how many people make completely uninformed comments on this issue. Statute 8 USC 1401 that says that children of American parents are citizens from birth was enacted in 1953. McCain was born 16 years earlier. He cannot use this statute to defend his eligibility. In fact one can argue that 1403 (a) was enacted exactly to naturalize people like him, and so he is naturalized, not natural born.

He bases his eligibility on Panama Zone being a "US territory" and SC decision in Goldwater case. However, whether that SC decision really applies is questionable due to its vague wording and vague status of Panama Zone at the time of his birth. This is a minefield, people. And I do not think it is a nonissue--do you want a scofflaw for president?

SC decision in Goldwater case. However, whether that SC decision really applies is questionable due to its vague wording and vague status of Panama Zone at the time of his birth.

What Supreme Court decision? Hello!!!! There was no Supreme Court decision about Goldwater's eligibility.

This is a non-issue. Are children born to illegal aliens in the USA "natural born" Americans? Of course not. A rule that was applied to ensure that the children of former black slaves would not be deported has been contorted to produce the current "anchor baby" phenomenon that we now face.

If it is now to be claimed that the offspring of American citizens born on foreign soil while their parents are assigned there by the USA, in the service of the USA is somehow not a natural born American, then it seems clear that the citizenship status of "anchor babies" must be revoked as well.

{/rightwingrant}

why is it then fair for Obama to refer to McCain as Bush II.

Ridiculous and incorrect. McCain is Bush III.

I'll spot it being close enough for McCain. I'm sure someone could spend many millions of dollars tying up the courts about it if he gets elected, but what good would that do for the country? What terrible precedent would it set to just let it go this once, instead of engaging in (or speculating about) a nakedly partisan court case?

Nitpicking to this degree is unhealthy.

After Bush v. Gore, that's going to be a hard sell.

Sue:
Exactly.

Yes, Obama can't even get his math right when he labels McCain as Bush II instead of Bush III. Maybe it would be most effective if he labeled McCain as another Bush, dropping off the number.

Sounds like an issue that Congress addressed in 1795 when it provided that persons born outside the United States to (two) USA citizens would be considered as citizens of the United States.
http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=538

There's no doubt that such a child is a U.S. citizen, but is he or she a "natural born" U.S. citizen? It's a different question.

That same section of the statute -- indeed, the same sentence -- also declares that U.S.-resident minor children of people who are naturalized automatically become citizens by virtue of their parents' naturalization, but are such children "natural born" citizens? I would think not.

The fact that both types of children's citizenships are dealt with together would be an argument against McCain, not for him.

An interesting (to me) question would be whether McCain was eligible for Panamanian citizenship, having been born where he was. If not, I think his case for Presidential eligibility is at least a little stronger.

Ginsberg Howled, "I've seen the best minds of my generation lost to madness," which was emended by a wit more rapier than mine to "I've seen the best minds of my generation lost to law school."

From a layman's perspective it seems the spirit, if not the letter, of the law would consider McCain a natural born citizen.

Of course, from a strict constructionist stand point, I could see that natural born might exclude those born of Cesarian sections, since the Founders were surely worried about birthing Emperors.

And from a stricter reconstructionist perspective, I could see the term being interpreted as meaning only those who are born again can become President, because the only natural way to become a citizen in God's Kingom is to be born again, and the United States is nothing more than God's Kingdom on Earth.

I guess I'm saying I would prefer we leave it alone, at least until Schwarzenegger forces the issue.

How ironic that the Republicans are divided by the immigration status of their Southwestern leaders.

The land within the Panama Canal Zone was all deeded land before the U.S. got involved. It was sold to investors to pay for the building of the canal. The U.S. bought up the deeds and it owned the land until President Carter gave it away. It seems that Sen. John McCain was born on U.S. soil.

Mere U.S. government ownership of real property does not place that property in the territorial jurisdiction of the United States -- if indeed that is what matters under the "natural born" requirement for Presidential eligibility.

Panama John - not a natural born Citizen of the U.S.
----------------------------------------------------
I'm starting to feel bad about this for John McCain. He has come so far and to have the very nature of his citizenship to be questioned would be miserable, especially after heroic service. But he is seeking the one occupation that explicitly requires that the officeholder be a "natural born Citizen." This can only be changed by an amendment that changes the Constitution from saying "natural born Citizen" to something that would include him as eligible, though he is a citizen by jus sanguinis (citizenship by descent).

In presenting this constitutional matter, the purpose is to bring attention to the need for a remedy. This may also mean that the remedy would not be in place in time for Senator John McCain to be eligible to hold the office of President.

U.S. Supreme Court
SCHNEIDER v. RUSK, 377 U.S. 163 (1964)

We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II, 1. [377 U.S. 163, 166]

Consider more details if you doubt the seriousness of this matter:

http://idacres.com/politics/mccain/natural_born_Citizen.html

In 1789 "natural born" clearly did not mean born in the US--slaves and Indians born in the US were not citizens. "Citizen at birth" is the only possible meaning of "natural born citizen."

"Mere U.S. government ownership of real property does not place that property in the territorial jurisdiction of the United States--" Oh yeah! Name one place that is U.S. owned abroad that is not. All our embassies, consulates, military bases, military ships and airplanes, civilian owned ships and airplanes flying the Stars and Stripes, are all considered U.S. territory.

Really? To whom -- you?

In 1789 "natural born" clearly did not mean born in the US--slaves and Indians born in the US were not citizens. "Citizen at birth" is the only possible meaning of "natural born citizen."

How about "citizen at birth, and born in the U.S."? Certainly a "possible meaning."

Guantanamo isn't U.S. territory -- just ask the Justice Department.

It really doesn't matter whether McCain was born on US soil. He certainly qualifies to run for President. However, should he be president? That's another issue. He says he doesn't feel comfortable dealing in economic issues. Well we are in an ecomonic crisis. He said we will probably need to be in Iraq for another 100 years. Unfortunately, he is Bush 2 and we can't survive another GW.


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