Is John McCain Qualified To Be President
This is a very interesting legal debate: is John McCain qualified to become president? I’m not talking about his experience, or what not, I’m only talking about his place of birth. The US Constitution says that only a “natural-born citizen” can be the country’s president. No explanation. “Natural born citizen,” what does that mean?
Quite some people believe that it means that only someone who’s born on American soil can become America’s president. This theory means that, for instance, someone born in England, having two American parents, can’t become America’s president, even if, immediately after birth, he and his parents would move back to the US and live there the rest of their life.
McCain is born on a military installation in the Panama Canal Zone in 1936.
Is this a problem?
Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively explains: “There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent.” It is, in other words, “not a slam-dunk situation.”
The articles goes on to say:
Ms. Duggin and others who have explored the arcane subject in depth say legal argument and basic fairness may indeed be on the side of Mr. McCain, a longtime member of Congress from Arizona. But multiple experts and scholarly reviews say the issue has never been definitively resolved by either Congress or the Supreme Court.
Ms. Duggin favors a constitutional amendment to settle the matter. Others have called on Congress to guarantee that Americans born outside the national boundaries can legitimately see themselves as potential contenders for the Oval Office.
“They ought to have the same rights,” said Don Nickles, a former Republican senator from Oklahoma who in 2004 introduced legislation that would have established that children born abroad to American citizens could harbor presidential ambitions without a legal cloud over their hopes. “There is some ambiguity because there has never been a court case on what ‘natural-born citizen’ means.”
It seems obvious to me that McCain (and others like him) should be able to become president. As Senator Lindsey Graham explained: “He was posted there on orders from the United States government. If that becomes a problem, we need to tell every military family that your kid can’t be president if they take an overseas assignment.”
But still.
If one believes that the Constitution should be interpreted as literally as possible – and this is one of conservatism’s bedrock principles, in the US at least – doesn’t it make sense to call on the US Congress to amend the Constitution?
Fascinatingly enough it’s not the first time that a Republican nominee faces this problem (or question). Barry Goldwater had the same problem. He was born in Arizona three years before the territory officially became an American state. In his case, however, it was argued that “since he was born in a continental territory that later became a state, he probably met the standard.”
But McCain’s situation is somewhat different.
Interestingly enough, Franklin D. Roosevelt Jr. was once perceived as “a potential successor to his father, but was seen by some as ineligible since he had been born on Campobello Island in Canada.”
Mr. McCain’s citizenship was established by statutes covering the offspring of Americans abroad and laws specific to the Canal Zone as Congress realized that Americans would be living and working in the area for extended periods. But whether he qualifies as natural-born has been a topic of Internet buzz for months, with some declaring him ineligible while others assert that he meets all the basic constitutional qualifications — a natural-born citizen at least 35 years of age with 14 years of residence.
Should he be eligible? If so, should the US Constitution be amended? Should it just be assumed that he’s eligible? How to deal with this subject?
Should it be made an issue, or not?
Or is the NYT just trying to smear McCain?
All interesting questions, but also questions I’m not willing to give an answer to simply because I’m a foreigner. This is purely a domestic issue, so I won’t cast judgment on it. Since most of you are Americans, however, I wonder what your answers to the questions are.
Meanwhile, if you want to read a good, interesting answer to the questions raised above, go to Stubborn Facts where Simon explains why he believes that McCain is indeed eligible.
American citizens fall into two categories:
1) "naturalized" – those who came here, and had to take an oath of allegiance (as adults) to become citizens,
2) "natural born" — all the rest, who were either born on American soil, or had at least one parent who was an American citizen at the time.
There simply is no other way to become a citizen. And McCain is, clearly, in category #2. Otherwise, since he hasn’t gone thru the naturalization process, he couldn’t even vote.
It’s actually a long-settled question. But I guess some people are looking for a Constitutional question to fret about — even a silly one. (You get off from the charge, not being an American yourself, and therefore not expected to be up on the distinctions.) But anyone who went thru High School civics classes, and paid attention, they would know.
It is actually not settled formally at all. If you read the article, you will see that the Supreme Court has never ruled on the question and Congress has never explicitly clarified the term in legislation except in an 1809 law that cannot really be relied upon as definitive.
But you are right in the sense that it would be settled in favor of McCain. I seriously doubt that anyone would even attempt to file a suit challenging the "natural-born" citizenship of the children of military members. Such a lawsuit would be political suicide for anyone filing it or supporting it. And the courts would be loathe to throw out the candidacy of a major party nominee on such flimsy and politically unsustainable grounds.
So as a technical matter, the question is a live question. But as a political matter, it is dead as a doornail.
P.S. The personal attack on Michael’s nationality and alleged motivations was out of line.
Jason, my comment was not at all intended as a personal attack on Michael. On the contrary, it was intended to make clear that I was not lumping him in with Americans, who should know better. If it seemed like a personal attack to anyone, I am very, very sorry.
I’m no Constitutional scholar, but common sense tells me that there’s no reason the phrase ‘natural born citizen’ should be so hard to pin down. It implies that the person must be a citizen who was always a natural citizen and didn’t have to go through the naturalization process to become a citizen- thus a person born to one or more US citizens is automatically (‘naturally’) a citizen without going through the process of applying for that status, even if he/she wasn’t born on US soil.
Of course, you can click over to the comment section at Stubborn Facts to see that my own son would still fall into a grey area with that interpretation, and I’m now wondering if we need to tell him that he can aspire to be anything he wants to be when he grows up, except for POTUS.
Christine, actually your comments are at this post at Stubborn Facts, not the one linked to in the post. I made an update post summarizing my arguments and Simon’s, and linking to the current hooplah (since we initially did the debunking almost 2 weeks ago).
I think the answer is quite simple, mostly along the lines pointed out by wj. He’s been a citizen from the moment he was born; he’s never "naturalized." There is nothing to suggest that "natural born" is synonymous with "born in" except for some, frankly, careless drafting in the 14th Amendment, which does not purport to address or amend the relevant constitutional provision. As Simon points out in his post at Stubborn Facts, to define "natural born citizen," we must look to the common law of England as it existed around 1790; that was the source used by the framers for the meaning of terms of legal art.
And as you will see in our S.F. posts, it was well-settled at that time that children of ambassadors and other agents of a sovereign who were born while their parents were stationed abroad are citizens, by right of birth, of their parents’ nation, regardless of the physical location of their birth.
And I would add that that’s an ENTIRELY "textualist," "originalist" argument. No amendment to the constitution is necessary. That is the proper result from applying the text of the constitution as written by the framers.
I’m impressed by how effectively this was addressed here (or, more aptly, at SF).
Jason, thanks for the idea on the lawsuit…….I’m thinking a sockpuppet post over at ThinkProgress to suggest the notion…….
This is interesting, I’m actually in the same situation as John McCain in this respect. I was born in Spain but declared American at birth (Spanish law at the time said you have the nationality of your father and anyway any child of an American parent has an instant right to nationality). You get a little birth certificate, I still have mine, of "American born abroad". I had always assumed that since I wasn’t born on American soil, I was ineligible for the presidency (not that I’m interested).
To me it was a holdover from the first years of the US, an attempt to make sure that no Englishman could become American, become president, and then hand us back to the king. It always has struck me as rather ridiculous, an American born while his or her parents are on vacation is ineligible for the presidency, but an American born in Texas who grows up in Paris could legally try to become president.
Hopefully it ISN’T unconstitutional, I don’t want McCain to lose on THAT silly count. If it is it should be resolved, by an amendment. I can’t think that it would have difficulty passing.
Nope. McCain is NOT eligible. See http://muddythoughts.blogspot.com/2008/02/panmanchurian-candidate-mccain.html for the fully cited legal details.
just another way to treat the children of military personnel as second-class citizens. what else is new?
Johnny "Manchurian Candidate" McCain has nothing in common with Goldwater. The difference between him and Goldwater is Johnny is no Barry Goldwater libertarian-republican. Goldwater was born in a territory of the USA, Arizona. Thus Goldwater is a "natural born citizen". McCain was born in the Panama Canal which was never recognized as a territory of the USA. Foreign embassy’s are US territories, military bases are not. Thus he can’t be Presidento, except of Panama.
Encinoman- perhaps you can start a movement to bring a lawsuit then, on behalf of the Democratic party, to make sure those children of military families never subvert the country by claiming to be eligible to run for POTUS.
I would be fascinated to know whether the people raising this issue are right-wing xenophobes, or left-wing anti-militarists. Because I somehow doubt that any significant portion of them are actually scholars of Constitutional law.
wj: Does this answer your question?
Kind of makes sense that that crowd would use this particular attack. "Look! He’s not even a REAL AMERICAN!!!!"
This comment from the comment section of Volokh Conspiracy sums it up for me. That would include the civics class Encino.
Houston Lawyer:So the NYT position is that the son of US Citizens born abroad is ineligible for president but that the son of illegal aliens born in this country would be eligible. I was taught in high school civics class that children of US parents are citizens from birth regardless of where that birth took place. It wouldn’t surprise me to learn that no one at the NYT ever took high school civics.