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.
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.