Below The Beltway

I believe in the free speech that liberals used to believe in, the economic freedom that conservatives used to believe in, and the personal freedom that America used to believe in.

New York Times Raises Questions About McCain’s Eligibility

by @ 7:22 am on February 28, 2008. Filed under 2008 Election, John McCain, Politics

It’s not as bad as unsubstantiated allegations of an extramarital affair, but this morning the New York Times has jumped on the bandwagon of those wondering if John McCain might be Constitutionally ineligible to be President:

Mr. McCain’s likely nomination as the Republican candidate for president and the happenstance of his birth in the Panama Canal Zone in 1936 are reviving a musty debate that has surfaced periodically since the founders first set quill to parchment and declared that only a “natural-born citizen” can hold the nation’s highest office.

Almost since those words were written in 1787 with scant explanation, their precise meaning has been the stuff of confusion, law school review articles, whisper campaigns and civics class debates over whether only those delivered on American soil can be truly natural born. To date, no American to take the presidential oath has had an official birthplace outside the 50 states.

“There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” said Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively. “It is not a slam-dunk situation.”

Mr. McCain was born on a military installation in the Canal Zone, where his mother and father, a Navy officer, were stationed. His campaign advisers say they are comfortable that Mr. McCain meets the requirement and note that the question was researched for his first presidential bid in 1999 and reviewed again this time around.

While it’s true that there isn’t a definitive Court ruling on the issue, the argument that John McCain is not eligible to be President is, in a word, nonsense.

The Constitutional provision in question can be found in Article II:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

In other words, only a “natural born citizen” can be President of the United States. This is why Arnold Schwarzenegger cannot run for President and why Madeline Albright, President Clinton’s Secretary of State (who was born in Czechoslovakia) was not part of the line of succession during the time she was in office. The question is, what is a “national born citizen”. Obviously someone who is born here, unless they are the child of a foreign diplomat at the time, is a natural born citizen, but the definition has always been broader than that.

In it’s current form — which is set forth in Title 8, Section 1401 of the United States Code, American citizenship is defined as follows:

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(…)

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

Now, it’s clear that Senator McCain was born outside the continental United States — but he was born to two American citizens who had lived in the United States before he was born and he was born on an American military base in the Panama Canal Zone. Which brings 8 USC 1403 into play:

(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.

(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.

Additionally, American military bases are generally considered extensions of American soil and children born their to service members, such as the Senator, are considered citizens of the United States by birth. In other words, by operation of law, authorized by Congressional authority under Article I, Section 8, John McCain is a natural born citizen of the United States, meaning he is eligible to serve as President.

Now, let’s move on to a real issue.

Further thoughts at Betsy’s Page, Sweetness & Light, TownHall Blog, Riehl World View, Patterico’s Pontifications and American Power

Update: I raised a point in a comment below that is worth repeating here:

There are two kinds of citizens — people who are citizens by virtue of birth (”natural born citizens”) and people who become citizens by virtue of naturalization. John McCain falls into the first group because he is the son of two American citizens and was born in a military hospital on American territory. He has never filed naturalization papers, because he doesn’t have to. He’s voted, legally, in whatever elections he’s voted in.

The people who are trying to argue that McCain isn’t eligible are reading language into the Constitution that isn’t there. It says “natural born citizen” it does not say that, to be eligible to be President, one must be physically born in the United States. Presumably, if the founders had wanted to make that distinction, they would have. There concern at the time, and it was well-placed, was that the Executive would not have ties to a foreign state, not that he might have been born to American citizens while they were sailing back from Europe.

Post to Twitter Post to Digg Post to Facebook Post to Reddit Post to StumbleUpon

12 Responses to “New York Times Raises Questions About McCain’s Eligibility”

  1. Ron says:

    As I remember things, the Canal Zone was very much a possession of the United States much like Puerto Rico, the Northern Marianas, or, for that matter, anyone born in a U.S. embassy or consulate. So John McCain is easily qualified under the Constitution.

  2. Ron,

    That would seem to be the correct legal argument.

    Unless one is a member of the nutroots, or an employee of the New York Times

  3. [...] at Below The Beltway easily dug the information up. So does Steve at Sweetness & Light. And Betsy Newmark. [...]

  4. James Young says:

    A “real issue.” Well, Doug, a “real issue” is, of course, Democrats getting power. That’s what this is all about. And don’t doubt for even a second that, should McCain win in November, that many in the far Left moonbatosphere will declare him “illegitimate” for this reason. Witness those who still inveigh against GWB’s 2000 “selection.”

  5. Neo says:

    While we’re examining Constitutional muster, what kind of problems does this cause ?

    U. S. Senator Barack Obama is a citizen of Kenya and became a citizen of Kenya under the Independence Constitution of Kenya in 1963. Obama has never renounced his Kenyan citizenship. He is also a U. S. Citizen.

  6. Malibu says:

    I disagree with this superficial analysis which is par for the legal analysis often found on the internet and in the media – especially the pundits on Fox News or MSNBC – but NOT in the courts.
    In the concise language of the U.S. Constitution penned by Governeur Morris of Pennsylvania in 1787 the term “natural citizen” may have been used. But analysis of the intent of the 55 framers assembled in Philly during the summer of 1787 is found articulated under the pen name “Publius” (actually Madison, Hamilton, or Jay) and reveals that the intent of the ratified document regarding the national executive for the new government – expressed to the citizens of New York in “The Federalist Papers” – will need to abjudicated by constructionist constitutional judges. The matter will need to be considered this summer – and don’t be dismayed to learn that John Shipley “Double Talk Express” McCain – while he may be a bona fide citizen – is NOT eligible to be President of these United States.

    This is about the construction and intent of the U.S. Constitution – like most issues of constitutional law – and it is up to the judicial branch to finally resolve this matter.

    The New York Times is to be applauded, while Grandpas Old Party will nominate someone who finished in the bottom of his class at the US Naval Academy – and who is NOT even eligible to be U.S. President.

  7. Malibu,

    First, which of The Federalist Papers do you contend addresses this issue. I have, as a matter of fact, read each of the Papers on the Executive Department and none of them seem to discuss it at all.

    Second, it’s really quite simple. There are two kinds of citizens — people who are citizens by virtue of birth (“natural born citizens”) and people who become citizens by virtue of naturalization. John McCain falls into the first group because he is the son of two American citizens and was born in a military hospital on American territory. He has never filed naturalization papers, because he doesn’t have to. He’s voted, legally, in whatever elections he’s voted in.

    For you to argue consistently that he is not eligible to be President you would also have to argue that he, and every other person born to American parents outside the 50 states, is a person without a country.

  8. Malibu says:

    With all due respect, I think a link to the NY Times article, will help any readers of this blog.

    The link : http://www.nytimes.com/2008/02/28/us/politics/28mccain.html?_r=1&oref=slogin

    It appeared on Page A21 in the print version of the Thursday, February 28 New York Times.

    An objective read of that excellent piece written by Carl Hulse SHOULD make anyone realize that it just is NOT that simple at all.

    There are clues in that article as to where to look for the intent of those 55 architects of the U.S. Constitution who met, and argued, in a balmy summer in Philadelphia.

    The U.S. Supreme Court will likely adjudicate this matter – as it SHOULD be the arbitrer – and not the superficial discussions on the internet.

    McCain’s staff legal analysis is WAY wrong, IMHO.

    But please, I hope you read that article before any claim over-simplification that the Mccain camp wants promulgated.

    No one is saying that McCain is not a bona fide U.S. citizen – but the framers had good reason to NOT want a President born on foreign soil. No one is saying McCain is without a country.

    But we ARE saying John Shipley “Double Talk Express” McCain is just INELIGIBLE to be President of these United States by the exact intent of the United States Constitution.

    It’s THAT simple.

  9. Malibu,

    I read the article, of course. You do notice I linked to it right ?

    I also read the Constitution, the United States Code, and several articles about the status of citizenship statutes going back to 1790.

    Did you know that the very first citizenship law passed by Congress in 1790 provided that the child of two American citizens who happened to be born abroad was an American citizen automatically (i.e., a natural born citizen) ?

    Considering that Congress and the Washington Administration were populated with the men who actually drafted and ratified the Constitution, I think that’s a fairly good indication of what the Founder’s intent was.

    And you’re wrong about something else, this case will never get to the Supreme Court. If someone is dumb enough to file a lawsuit on this issue, it won’t make it past a Motion to Dismiss in Federal Court.

    You can bank on it.

  10. [...] that McCain is constitutionally ineligible to be President is total nonsense can be found here and here.   [...]

  11. ray smith says:

    did McCain renounce his american citizenship as a POW?

  12. [...] Turley.  He wrote the first story asking if John McCain was eligible, and The New York Times printed a similar article the same day.  The Democratic machine started the whole “Birther” [...]

[Below The Beltway is proudly powered by WordPress.]