Is McCain a “Natural Born Citizen”?

Any naturalized citizen can run for any office in the land — except for President and Vice-President. They have to have been citizens at time of birth. That, at least, is how I and almost everyone reasonable reads the relevant Constitutional clause — it's not about Caesarians.

Everyone agrees that persons born in the USA are natural born citizens. Almost everyone agrees that persons born outside the US who qualify for birth citizenship pursuant to a statute are also “natural born citizens” and eligible to be President. That's certainly my view. A few people have argued that only persons born here are “natural born” citizens, and that other class of birthright citizens are not sufficiently “natural”, but I think that's a losing argument, and it hasn't gained much traction.

John McCain was famously born in the Canal Zone — not in the US. But both his parents were citizens, so that's no problem, right?

Not so fast.

From Adam Liptak's latest, A Citizen, but “Natural Born”? McCain's Eligibility to Be President Is Disputed by Professor, we learn of a serious argument against McCain's eligibility.

The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain's eligibility to be president. The law conferred citizenship on children of American parents born in the Canal Zone after 1904, and it made John McCain a citizen just before his first birthday. But the law came too late, Professor Chin argued, to make Mr. McCain a natural-born citizen.

What about citizenship by descent? There was a glitch.

At the time of Mr. McCain’s birth, the relevant law granted citizenship to any child born to an American parent “out of the limits and jurisdiction of the United States.” Professor Chin said the term “limits and jurisdiction” left a crucial gap. The Canal Zone was beyond the limits of the United States but not beyond its jurisdiction, and thus the law did not apply to Mr. McCain.

Which is why the 1937 law was needed in the first place.

The Supreme Court has relied on far less pettifogging distinctions to deny the right to sue to whole classes of workers. Surely a 'strict constructionist' court would read the law this way too? (The counter-argument is the sort of purpositive reading of law that conservatives usually claim to eschew, namely that this is a crazy result that Congress couldn't have meant in the earlier law, and the '37 act was just housecleaning.)

Mr. Liptak suggests we'll never know, as (despite there having been a suit on this issue filed in New Hampshire) there is probably no one with standing to sue, a legal term that approximates the concept of direct, palpable or probable, person injury of a kind not shared equally with all citizens. Prof. Chin suggests that if McCain is elected, the Vice President-elect will have standing, but is unlikely to sue.

I think the standing argument is probably right. Even so, it would be nice to think that the issue could get into court, but not to throw McCain out of the election, which would be a travesty. As Prof. Chin rightly says, “Presidential candidates who obtained their citizenship after birth are no more likely to be disloyal than those born citizens, and the People of the United States should be allowed to elect whomever they choose.” (Insert “shortly” before “after birth” if it makes you feel better.)

No, the reason to wish this would get into court is that it would provide a strong excuse for knocking the stuffing out of the largely pernicious Insular Cases which form the basis for the argument of McCain's ineligibility. The Insular Cases are the basis for the argument — wrong in my opinion — that most of the Constitution stops at the water's edge. I believe that the Constitution applies to the officials whose offices exist under it whereever they act. I don't think non-US citizens abroad have constitutional rights like US citizens at home or abroad do, but I don't think that government officials lose the shackles of law when they cross the border. Too often — think Guantanamo — our officials act as if they do, and their lawyers try to justify it in court.

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17 Responses to Is McCain a “Natural Born Citizen”?

  1. John P Slevin says:

    The issue was addressed and defined by the first congress. It needs no more clarification and no professor today has “discovered” anything new about it. The wording of the Constitution, as originally passed, caused many to question “what if”…and circumstances like those in John McCain’s situation was addressed, by the first congress.

    As for another comment you make “I don’t think non-US citizens abroad have constitutional rights like US citizens at home or abroad do, but I don’t think that government officials lose the shackles of law when they cross the border.”

    Your opinion fundamentally differs with the fact that this is a society based on law, not on man. Laws exist in nature. It was the belief in natural law which led to the founding of our nation. Rights are not conferred by the Constitution. Rather, that document seeks to define government, especially limits on the government.

    It’s very clear if you read the Bill of Rights that each of those first 10 Amendments prohibit government violation of rights.

    Since rights exist, in nature, the rights we recognize apply to ALL people, not to Americans exclusively.

    Jefferson put it very poetically in the Declaration of Independence “We hold these truths to be self-evident; that all men are CREATED equal, that they are ENDOWED, by their Creator, with certain unalianable rights, and that among these…”

    That’s a poetic definition of natural law. It means what it says. Government doesn’t give rights and Americans are not somehow entitled to protections and allowed to violate rights of non-Americans.

  2. Don Pedro says:

    Wouldn’t another candidate, say, Bob Barr, have standing to challenge McCain’s eligibility?

  3. Joe says:

    Payback for the 2000 election could be vicious. A good lawsuit could throw the bastards so off kilter that they would never recover.

  4. PHB says:

    Surely Congress has the right to decide this issue when it meets in joint session to count the votes of the electoral college.

    If members of the electoral college vote for an ineligible candidate the votes would be invalid. There then being no majority for any candidate they would go through the tiebreak process.

    If Congress decides the votes are valid then it has by definition decided that the candidacy is valid. The courts are then barred from any consideration of the issue as it is a proceeding in Congress.

    It could however be used for mischief at the state level. Another candidate might sue to keep McCain off the ballot in the first place.

  5. Joe says:

    PHB, I think that the constitution trumps anything congress might do with this matter. Congress spoke in 1937, they have not spoken since then. The constitution defines who can be president. I doubt that the electorate will allow an amendment at this late date. GAME ON!!

  6. Kenneth Fair says:

    It seems to me that another presidential candidate would have standing in such a case.

    Does the Senate’s resolution on this matter (co-sponsored by Obama, by the way) have any tangible effect?

  7. jim says:

    “Another candidate might sue to keep McCain off the ballot in the first place.”

    Difficult, since the candidates are not actually on the ballot. A slate of electors pledged to vote for the candidate is what’s actually on the ballot and I don’t think a court can strike them on the grounds they might later act unconstitutionally.

    PHB above is right. Congress’s certification of the electoral college result is the sole mechanism for enforcing restrictions on who can become President.

  8. John P Slevin says:

    The same sort of “constitutional challenge” was raised against Barry Goldwater, who was born in the then territory of Arizona.

    This sort of nonsense distracts from what is important.

    There is absolutely no proper “constitutional challenge” against McCain.

    Technicalities are not where the fight needs to be waged.

    Especially when those technicalities are bogus.

    McCain is the wrong person to hold any public office…however, voters keep putting him there. That’s the problem, not the Constitution, not any bogus interpretation of that document.

  9. Joe says:

    Not quite the same. I don’t have my history books in front of me, but I don’t thnk that George Washington, John Adams, or Thomas Jefferson were born in the United States. They were born in territory that later became the United States, and they were not challenged on that point, that I can recall. The Panama Canal Zone has not yet entered the union as the 51st state.

  10. John P Slevin says:

    Of course not, and you need no history book.Washington, Adams and Jefferson were born when there was no US.

    Absolutely no one elected to the first congress or to any national office for decades was born in the US.

    Kinda tells you what the intent of the framers was, right? I mean, they weren’t excluding themselves when they wrote the thing.

  11. Joe says:

    You missed the obvious point. They were all born in territory that became a part of the United States by the time that they took office. McCain was born in a location that has not yet become a part of the United States, and at the time of his birth, was not included in the 1937 law referenced above. Arizona became a state between Goldwater’s birth and 1964. McCain’s situation is not the same.

  12. John P Slevin says:

    That’s making a big stretch in logic.

    The Constitution doesn’t say anything which can be construed to mean that it’s ok to be born “outside” the US IF that location later has become a state. That is entirely your construction.

    Imaginative, but hopelessly illogical. And, perhaps motivated by your desire to see to it that McCain doesn’t become president? Don’t worry, he hasn’t got a snowball’s chance in hell.

    Your extrapolation on the wording of the Constitution, where you determine meaning which is not written there, is exclusionary of many other American citizens. By excluding children born of military parent(s) serving overseas, you exclude people from running for national office. Nothing in the Constitution suggests this would be a good idea, and of course, the Constitution makes very simple qualifications for holding office. 35 years of age, natural born.

    Over time the law has included definitions of what the qualifications are: essentially, both US citizen parents have lived in the US for a specified period of time, and fairly recently to the time of birth. In McCain’s case, both parents had met these qualifications. And, courts have upheld these laws as consistent with the Constitution.

    When the baby emerges, to determine whether or not that child may one day take office as president it is NOT the soil that is important, it is the natural born citizenship of the parents.

    It is both hopeless and wrong to try and interpret the Constitution to achieve a partisan political goal.

    Just vote against McCain (and vote against Obama) and others of their ilk. Don’t, however, throw out the baby with the bathwater. There are others whose birth situation is similar to McCain’s and they don’t deserve to have their ability to run for office eliminated.

  13. Joe says:

    Your lack of logic is the problem. Congress had an opportunity to define the criteria, and Congress did so, but the definition does not include John McCain. Ergo, he is not qualified to be president, very simple end of discussion. My point about prior presidents being born in areas that were later assimilated into the United Staes is NOT a construction, but it is a simple recognition of facts. The Supreme Court has yet to speak on this issue, and I, for one, believe it is high time that they did. If your candidate gets shot down a second time, so be it. If the rule of law applies in this country, it should apply to all, not just those to whom you want it to apply.

  14. John P Slevin says:

    The rule of law does apply, the courts have decided the issue. Repeatedly, it gets raised, as you have raised it again. The question is as old as the country, it was answered at the time of the first congress, and subsequently nothing like what you suggest has been found to have any merit.

    Since the rule of law applies to all, all who meet the specific, and very simple qualifications to be president (natural born, 35 years old) are qualified, despite the attempts of some to say they have deciphered the real meaning of the Constitution, and to put a new spin on “natural born”.

  15. Pete Creelman says:

    John Slevin accuses Joe of making his own peculiar interpretations of the Constitution on who is eligible to run for
    President. Yet he appears to do that himself when he says: “When the baby emerges, to determine whether or not that child may one day take office as president it is NOT the soil that important, it is the natural born citizenship of parents.”
    Where in the Constitution does it say this? Please provide the article and section, John.

    Also, where and which court cases support your contention: “Over time the law has included definitions of what the qualifications are: essentially, both US citizen parents have lived in the US for a specified period of time, and fairly
    recently to the time of birth. In McCain’s case, both parents had met these qualifications. And, courts have upheld these laws as consistent with the Constitution.”

  16. So, BOTH major candidates are linked to “natural born citizen” questions. Isn’t it ironic that in the United States of America where most everyone is a descendant of immigrants, other than Amerindians and Native Americans and slavery descendants, that “immigrants” is a major issue. The real issue is massive discrimination against Native Indians and Latinos and Hispanics in their own land, the Americas, including North America. It is time for the United States of America government to obey treaties it has signed with American Indian Nation tribes. Candidate Obama position papers report he supports a nod in that direction, and it is the right thing to do. – v. martin ogrosky, esc national group, oct, 2008

  17. michael says:

    There is NO — none, zero, nada — natural born citizen question about Obama, as he was born in Hawaii two years *after* it became a state. Check out snopes or if you have any doubts about this.

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