John McCain: Natural Born Citizen?

A question we should be sure we can answer

By Ben Domenech Posted in | Comments (169) / Email this page » / Leave a comment »

The Man from Panama

With the political comeback of John McCain in this race, there's a question I'd like to throw out to the community that I think we need to be able to answer in the event McCain wins the nomination: is John McCain a natural-born citizen?

As you all know, that's what the Constitution requires to be eligible for the Presidency. And knowing their cutthroat tactics, it's a question the Clinton campaign would almost certainly raise through someone unaffiliated with their campaign...just as some raised questions about George Romney (born in Mexico), it just never got resolved before he dropped from his presidential race.

McCain has faced questions about this issue before. He was born August 29, 1936 in the Panama Canal Zone, to two U.S. citizens. It's a common misunderstanding that the zone was a U.S. territory - in fact, the U.S. had lease rights, but not territorial rights. And according to some lawyers who work in this field, past citizens in the Canal Zone - again, born to U.S. citizens - have not been considered "natural born."

Yet according to the Naturalization Law of 1790 that sought to define the term: "And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens."

See also: Weedin v. Chin Bow 274 U.S. 657 (1927): "A child born outside the U.S. cannot claim U.S. citizenship by birth through a U.S. citizen parent who had never lived in the U.S. prior to the child's birth." So in other words, had McCain stayed in Panama after being born there to US citizens, he still would have been a citizen but any progeny he may have sired while there (if he didn't come live in the US before then) would not have been citizens. But since his parents HAD lived here, he's good to go.

The odd quirk here seems to be that one could argue the child of illegal immigrants, who came to America and then gave birth here, would have a better claim to a legal right to be president than John McCain. I still believe he ought to qualify fully to be president - he was on a U.S. Military Base for crying out loud - but we ought to have our legal ducks in a row on this point should he become the nominee.


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Both the excerpts from the law and case law that you have given say that McCain is a citizen. In the first case, it explicitly states he is to be considered a natural born citizen. The 2nd case doesn't really touch on the issue of "natural born", and is referring to McCain's children if McCain never returned to the USA which he did. I really think this is a non-issue.

Wow. If this is what the debate has come to McCain is running away with the nomination. What's next? McCain wants comprehensive immigration reform to legalize himself before he ascends to the presidency? Please.

is this something that we really need to even discuss?
This is pathetic.

A baby born on an overseas military base is considered to have been born on U.S. soil, right? That's always what I understood while in the Marine Corps.


absentee

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Are considered U.S. soil. Same with American embassies. I got no idea about the canal zone. It is possible there is some legal difference.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

The OP says in the canal zone on a base. The base is what matters. It is American soil, locale notwithstanding right? .


absentee

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I would think that would be case closed right there. Unless there's something specific to the basing agreement in Panama (if there even was one here) that would confuse the issue. I don't think he's got anything to worry about, anyway.
---
Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

"It is our choices that show what we truly are, far more than our abilities." ~Professor Dumbledore

Moreover, I'd be curious as to why in Senator McCain's 72 years, this question has not come up in any manner, shape or form. I can't count the number of times I've been asked that question, so I'm sure he's had to do the same. And yet there's still some doubt? I'm incredulous.

@absentee,

Okay, now I had to go get my copy of the law (Immigration and Nationaly Act or INA) and look it up. Here's what I find:

1. INA Title III is titled "Nationality and "Naturalization"

2. Chapter 1 thereof is titled "Nationality at Birth and by Collective Naturalization"

3. INA Section 303 therein is titled "Persons born in the Canal Zone"

According to Ben's post, Sen. McCain was born in the Canal Zone to two U.S. citizen parents on August 29, 1936. IIRC, one of those parents was then a serving U.S. Navy officer.

INA Sec. 303 is also 8 U.S.C. 1403, "Persons Born in the Canal Zone or Republic of Panama on or After February 26, 1904."

This obviously applies to Sen. McCain, even as old as he actually is he doesn't predate this timeframe.

INA Sec. 303(a) states:

"(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this Act, 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."

This seems to be one of the provisions dealing with collective naturalization, so if we backtrack to INA Sec. 301, "Nationals and Citizens of the United States at Birth," we find, in INA Sec. 301(c), the following:

"(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;"

closed them anyway. McCain was probably born on one of the 8-12 military base hospitals so it will be no problem.

End of US Bases at the Panama Canal

By Robert R. McMillan

One of the silent foreign policy failures of the Clinton administration relates to negotiations to maintain US bases in Panama after the canal is transferred at noon on Dec. 31, 1999. A few weeks ago Panama and the United States announced the termination of talks. World shipping interests are alarmed, and the Panamanian economy will also be hard hit.

Pools constantly show almost 80 percent of the Panamanian population want the bases to remain. While they certainly enjoy the economic benefits, they also favor the bases because of the stability represented by the US military in Panama. After years of dictators, the US military became one stabilizing factor and a boon to the Panamanian economy.

World shipping supports the presence of US bases because of the perception of stability they provide. With a US military presence in Panama, shippers feel that canal traffic flow is less likely to be impeded.

(Panamanian Foreign Minister) Gabriel Lewis clearly stated to me that bases could stay, and they could stay under the cover of being there for drug related purposes. There was to be no narrow construction about the purpose for the bases. That information was passed on through appropriate channels of the United States government. Yet, no concerted effort was made to keep the bases even after Presidents Clinton and Perez Balladeres met in early 1995.

Just another one of Clinton's multitude of Blunders

@BatMasterson,

Actually it does matter, but INA Sec. 303(b) would cover it even if he were born in the Republic of Panama:

"(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 Act, 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 Goverment 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."

It's my understanding (please correct me if I'm wrong!) that Sen. McCain's father was at that time a serving U.S. Navy officer, which certainly counts as a U.S. Government employee.

@zuiko,
Negative and negative. However, there are/were special rules about the Canal Zone; I'd have to look them up.

McCain, being the legitimate (i.e., born in wedlock) child of two U.S. citizens was unquestionably a U.S. citizen from birth.

However, the question as to whether "citizen from birth" means the same thing in jurisprudence as "natural born citizen" is something that has never before become an issue in a presidential race.

@absentee,

Negative.

U.S. territory includes the U.S. state, territories, territorial waters, and airspace. Anyone born therein, with very limited exceptions such as children born to accredited diplomats or hostile invaders/occupiers, is a U.S. citizen. This is guaranteed by the 14th Amendment.

There's a lot of misunderstanding about that sort of thing.

election, it would only help McCain, as it would come across as petty and pathetic as this post is.

Calm down. This is related to an email discussion. I think we can all agree here. But we need to start thinking about the arguments.

At some point the media is going to latch on this story. We might as well discuss it here so when the time comes we can legitimately say we've been there done that.

Fight On!

check this out from Peggy Noonan:

And if we are to believe the new voice will be a softer, more conciliatory and more engaging one, how to square that with what is going on at HillaryIs44.com, a Web site that is for all intents and purposes a back door to her war room? There you will see that federal prosecutor Patrick Fitzgerald will soon "destroy" Barack Obama in a "scandal" involving an "indicted slumlord" who is Mr. Obama's "friend of 17 years" and with whom Mr. Obama has been involved in "shady deals."

Source:
http://online.wsj.com/article/SB120000928241482363.html?mod=opinion_main...

My grandfather was born in a territory, and I have relatives born in the canal zone.

I think the reality is that the Clintons play dirty, and we should be prepared for everything they can throw at a potential GOP candidate. Immigration law is dicey stuff, and I just want to make sure we all know the merits and aren't swayed by email blasts to anti-immigration lists by Clinton cronies saying "McCain isn't Constitutionally Qualified!" etc.

"I believe in grace, because I have seen it. In peace, because I have felt it. In forgiveness, because I needed it."

-George W. Bush

@Ben,

You're right, it's technical but it's also a matter of the U.S. Constitution.

INA Sec. 301, you find the following language:

"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;"

That language is lifted verbatim from the 14th Amendment. What concerns me is whether a court (perhaps even the SCOTUS) were to hold that the following subsections, including INA Sec. 301(c) under which I believe Sen. McCain derives his citizenship, might _not_ be "natural born citizens."

I don't know if this has ever been settled or tested as a matter of constitutional law before in connection with presidential qualifications. After the 2000 election debacle, a Democratic Party last-minute strafing run at the constitutional qualifications of a Republican presidential candidate, especially if he wins against Sen. Clinton, can't be lightly dismissed.

That sort of thing leads to civil war in less settled republics.

Weird non-issue. Germany, South Korea, etc all have large populations of family members of service members. I have a hard time believing that the citizenship status all of those kids born on base hospitals is remotely in question. Anyone who tries to bring this up in the general will be laughed out of the room.

@ darwinianlurch,

The U.S. citizenship status of children born in U.S. military hospitals overseas (i.e., outside the U.S. or its possessions) owes nothing to their location, but in those cases is solely due to "jus sanguinis" citizenship dirivation. That is, they get from one or both of their parents being U.S. citizens who are qualified to transmit U.S. citizenship to their children.

Transmission qualification is kind of a technical matter that I don't want to get into, but suffice it to say that children of German or South Korean parents who happen to be born in U.S. military hospitals in those countries don't qualify for U.S. citizenship from birth either.

...why this man shouldn't be POTUS -- from Mark R. Levin at NRO - The Real McCain Record

The McCain domestic record is a disaster. To say he fought spending, most particularly earmarks, is to nibble around the edges and miss the heart of the matter. For starters, consider:

McCain-Feingold — the most brazen frontal assault on political speech since Buckley v. Valeo.

McCain-Kennedy — the most far-reaching amnesty program in American history.

McCain-Lieberman — the most onerous and intrusive attack on American industry — through reporting, regulating, and taxing authority of greenhouse gases — in American history.

McCain-Kennedy-Edwards — the biggest boon to the trial bar since the tobacco settlement, under the rubric of a patients’ bill of rights.

McCain-Reimportantion of Drugs — a significant blow to pharmaceutical research and development, not to mention consumer safety (hey Rudy, pay attention, see link).

Not to mention

And McCain’s stated opposition to the Bush 2001 and 2003 tax cuts was largely based on socialist, class-warfare rhetoric — tax cuts for the rich, not for the middle class. The public record is full of these statements. Today, he recalls only his insistence on accompanying spending cuts.

As chairman of the Senate Committee on Commerce, Science and Transportation, McCain was consistently hostile to American enterprise, from media and pharmaceutical companies to technology and energy companies.

McCain also led the Gang of 14, which prevented the Republican leadership in the Senate from mounting a rule change that would have ended the systematic use (actual and threatened) of the filibuster to prevent majority approval of judicial nominees.

While his citizenship, or lack there of, is intriguing there's plenty of substantiated evidence of misconduct on the part of John McCain to the conservative movement!

Founder and contributor to The Minority Report and Editor for The Hinzsight Report

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

...Ben & Dan. But it doesn't negate the argument!

Just saying.

Founder and contributor to The Minority Report and Editor for The Hinzsight Report

...in how we are to defend Mr. McCain on the questionable issue of citizenship it begs the question of how we're supposed to defend these issues which are far more serious.

Unless Ben's intention was just to be flippant and throw this out for that cat... and I just missed it? In which case I'll shut up and go away!:)

Founder and contributor to The Minority Report and Editor for The Hinzsight Report

John McCain's parents were citizens. That is all he needs.
I think even the Clinton camp wouldn't dare touch this with a ten-foot pole.
Besides, McCain comes from a long line of military officers and attended Annapolis himself. IIRC, you must be a citizen to attend the military colleges. Do you have to be natural born? Dunno. My guess is that at the time McCain went, you wouldn't have found one that wasn't anyway.
There are lots of places to hit McCain. This isn't one of them.

"It is our choices that show what we truly are, far more than our abilities." ~Professor Dumbledore

Foreign nationals can and do attend our service academies. As I understand it, we have exchanges with various nations, similar to the inter-service exchanges (had an Indonesian and a Air Force Academy cadet in my company).

Actually there is only two issues here "natural born" and "US" in the constitution that make him look ineligible.

He is a citizen by instant naturalization by statute on the canal zone and panama region US code.

But that doesnt mean he is naturally born, nor does that mean this was official under legal terms US sovereign.

Even the state department warns people of these matters for soldiers

"7 FAM 1116.1-4 Not Included in the Meaning of "In the United
States"
(TL:CON-64; 11-30-95)

...c. Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship."

Time for mccain to step down and for a constitutional ammendment to be proposed and ratified before the next election so no other candidate will be effected.

We still have romney, huckabee, and maybe others that have delegates.

This is probably the Genesis of his penchant to always "bridge the gap".

Honestly though, who cares. His record on conservatism and constitutional issues is enough to realize McCain is not POTUS material.

"Nec Aspera Terrent"
bene ambula et redambula
Contributor to The Minority Report

although I think the word "pathetic" is a bit much, and also a word I would only use when talking with somebody I don't agree with 95% of the freaking time. This is just politics Brandozilla... whoah!

Big fan of yours BD... been reading your stuff for years, but this seems sort of like your are trying to make a point that isn't clear and can't really make with a straight face because there is nothing to the story. Maybe I am missing something, but who cares?

"I believe in grace, because I have seen it. In peace, because I have felt it. In forgiveness, because I needed it."

-George W. Bush

I just have a lot of folks who forward me crazy emails that I have to refute using Snopes. Just trying to head that off at the pass.

The fact is that John McCain should be absolutely considered qualified, and we should be prepared to refute it with the 1790 law.

"I believe in grace, because I have seen it. In peace, because I have felt it. In forgiveness, because I needed it."

-George W. Bush

issues when they ran off Tom Delay, I would not put anything past them.
That must be one of the many reasons why they are hoping we screw up and nominte McCain. The dhimmies got friendly courts and lazy judges to block the Republican party from replacing Delay on the ballot in his district. Not linke in New Jersey or Missourri at all, of course. So you can just bet on how the dhimmies would seek to make things a bit easier on Hillary by keeping McCain off the ballot completely. And how I am sure the 9th circuit court of great patriots and freedom lovers would respond to this.....
Another is certainly the Keating five scandal, where McCain was on payola of the Ken Lay of the day.
http://en.wikipedia.org/wiki/Keating_Five
Face it: McCain talking about integrity is way more than just sanctimonious. He was a crook.
And just to remind us all that the campaign finance 'reform' McCain foisted on us is nothing more or less than censorship of free speach, we should not forget about how a movie about Hillary is now considered speech to be controlled by the government:
http://www.breitbart.com/article.php?id=D8U35BSG0&show_article=1
And McCain is a conservative -someone who respects our freedom and rights exactly how?
And his winning stand on immigration is and his subsequent dodge and weave game is in the fresh memories of us all.
And how is the wall construction going, btw?

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

I thought the issue was making sure that McCain is not vulnerable to some sort of dhimmie attack that would derail his candidacy. I offered some specific examples of why citizenship would be a perfect dhimmie tool as well specfic documented examples of why McCain could easily be a magnet for disastrous general election candidate.
It seems to me that is not thread jacking at all, no matter how uncomfortable documenting the many problems McCain faces might make someone.

I can understand throwing this out there to try to defuse any controversy, as Erick states. But this really is a non-issue. Nothing in the post gives a legal basis for even questioning McCain's natural citizenship. IMO the question mark should've bene left off of the title, at the least.

-
NARF

This is coming from someone who currently considers McCain to be unsupportable.

-
NARF

about at least leaving the question mark off.

Everything you said seems to say we have no problem.

Frankly, even if some lawyer could dream up something, A. I doubt that the courts would enforce it, it would probably be considered a non-justicaiable political question, B. I doubt the courts would take the case, knowing it would be a powder-keg, C. Even if there was a chance that they did, nobody would try to file one. If he won the election, and the D's sued to overturn on these grounds, even if they won, they would enter office with about 5% approval ratings.

I'd spend more time worrying about winning the election then crazy worries like this.

John Bolton for President
"FEAR THE 'STACH!!!"

swiftboating our only hope of winning in november is a sure way to get shrillary in the white house. he almost died many times for his country...I think the american people will give him a pass just on that.

Accurately representing a candidate's historical past.

Same thing it's always meant.

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The Red Sox Republican: Burkeanism, Baseball, and Sundries.

Swiftboating is American political jargon that is used (primarily) as a strong pejorative description of some kind of attack that the speaker consider unfair or untrue—for example, an ad hominem attack or a smear campaign.

thus, it has no connotation as to whether it's factual or not.

Swiftboating is liberal blogosphere jargon, not American political jargon. Those who understand who the 2004 Swiftboaters were and what they said would never use their name in such a sense. It's Orwellian to do so -- attempting to change remembered history through repeated misuse of a term.

-
NARF

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

its actual usage connotates that the speaker is whining about a true attack that is especially damaging. By labeling it "Swift Boating," it is hoped that the public will believe that said attack is false, and then later it will be "confirmed" that the attack is false by the repeated invocation of the phrase "Swift Boated" (it's like magic!).

The majority of the American public believed the Swift Boat vets' completely credible claims (did you notice who won the election?). Only idiot lefties consider it to be a perjorative since it basically caused their guy to lose.

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The Red Sox Republican: Burkeanism, Baseball, and Sundries.

defending John McCain, our next POTUS, not that weasel Kerry.

You should perhaps have avoided using the phrase "Swift Boating."

A conservative would have known that.

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The Red Sox Republican: Burkeanism, Baseball, and Sundries.

I like how my bullfighting post became a straight line for you to use, heh.

HTML Help for Red Staters

in this case what would happen is all his delegates would be released. All parties that have filed in all states for the republican ticket would probably get the option to restart their campaigns so any number of good candidates could replace mccain.

Also it appears republicans are leaving to vote apparently for Obama to stop hillary and to help obama beat mccain.

So this is not good at all.

The base is very mad and is moving against the east coast power house in DC and NY centric media/govt control spots.

This could give us a real chance then to win where it appears the loss is going to be very frustrating from my perspective like clinton and bob dole's election

McCain has always been the sole citizen of McCainiac Island, of which, by the way he votes and the bills he sponsors, we are all merely residents at his whim.

If he wants to tell us to shut up--he will.

If he wants to tell us what cars to drive--he will.

If he wants to let millions more come in--he will.

Etc., etc.

It's John McCain's Island and we all need to get used to that fact.

I don't understand why you thought what you just said pertained at all to this post? It seems like you needed a place to rant as opposed to making a valid point. While I understand the draw of that, and have been rightly accused in the past of going so off topic that I was back on topic, it seemed excessive to me.

"I'm just beginning...The pen's in my hand...Ending unplanned"

Hater.

"I'm just beginning...The pen's in my hand...Ending unplanned"

Hope you don't mind my asking, but would you mind pointing me in the direction where I might learn about your rationale for supporting McCain as opposed to say.... Fred or Mitt? If there is a blog here or elsewhere perhaps? Or perhaps you would like to run through a brief version here? Many thanks!

When Leon became Sam Brownback's ecampaign manager, I removed all my blogs because people were looking for ANYTHING to discredit him. I'm fairly unconventional and I decided that rather than deal with any backlash that I would just remove my stuff. I'm pretty sporadic on the site depending upon my free time.

There are currently no comments nor are there any blogs that explain my position, but I may consider writing one this weekend, as I will have a bit of free time.

Thank you for asking.

"I'm just beginning...The pen's in my hand...Ending unplanned"

Thanks for the reply, that is certainly understandable. Look forward to whatever you come up with when you have the time.

Congratulations on having some free time coming up this weekend too, by the way. It must be nice!

Free time has been more plentiful this week and it has been awesome.

"I'm just beginning...The pen's in my hand...Ending unplanned"

This sounds like something that lawyer hating lying bully pervert sexual harasser O'Reilly would come up with .

I am.

I am sitting in front of my monitor chuckling at the idea that a guy who has gone out of his way to support illegal immigration and birthright citizenship for the children of illegals might be denied the right to run for the Presidency because he wasn't born on "US soil".

Heh.
____
CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

____
CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

And the worst thing that would happen is McCain decides that he will drop out and endorse Fred

1. Nominate McCain. He's the most electable.
2. Pick very conservative running mate. E.g., Mark Sanford.
3. Win
4. File lawsuit resulting in judgment that he is not eligible to serve (nothing in Art II says you can't elect an ineligible president, he just can't serve). When McCain can't take the Oath, I believe Art XX Sec. 3 could be read to provide that Sanford becomes president.
5. Profit!

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

I fully endorse this plan.

"I believe in grace, because I have seen it. In peace, because I have felt it. In forgiveness, because I needed it."

-George W. Bush

Ben is effectively saying it is a non-issue, but one that will be brought up by the opposition should McCain get the nomination and could therefore be worthy of consideration now. Yet I notice many comments re-re-re-repeating that it is a non-issue. Perplexing.
-------------------------------------------------------

"I AM WHO I AM"; and He said, "Thus you shall say to the sons of Israel, 'I AM has sent me to you.'"

Are, sadly, just reading the first paragraph. But thanks, that's exactly what I was saying.

This won't be raised by Obama, but I wouldn't put it past the Clintons to start a whisper campaign.

And I think Ben is right.

Could this be an issue? Yes. I would not put it past the Dem machine to raise this issue (really non-issue) as a campaign whisper. Not that it would ever go to courts. All that would have to be said in an email, or comments to the press..."DID YOU KNOW THAT MCCAIN WASN'T EVEN BORN IN THE U.S.?, DID YOU KNOW THAT MCCAIN MAY NOT EVEN BE AN AMERICAN?, ETC., ETC., ETC."

Would this have an impact? Possibly. But I think that it would easily be seen through by the public and immediately dissed. It would likely have a negative effect on the Dem campaign and would likely be brought up multiple times later on as a great positive counter-attack by a McCain campaign. "See how sleazy that campaign is..."

This would be a McCain win to raise the issue.

Erik

Way back when I was in my first semester at law school I asked my constitutional law prof if I qualified as a natural born citizen (my father is a German national and my mother is an American; I was born on German soil and neither parent was military; but my mother had me certified by the US Consulate as a "US Citizen Born Abroad"). My prof after a day or two cited the 1790 definition (which shocked me, because not a lot of law profs are inclined to take anything from 1790 as gospel), but she also made an interesting point: if I had never been "naturalized" and was a citizen, then I must be a natural born citizen.

Regardless of the legal status of the canal zone or exceptions for military families, if I qualify then McCain must.

"The Constitution was made to guard the people against the dangers of good intentions."

Same for him. But note that your prof had to dig up the 1790 stuff to support it. Hence, the need for some education.

@Alyosha,

Your constitutional law professor missed out on the concept of "collective naturalization," although I sympathize with his viewpoint.

It's an interesting question as to whether the 1790 law still applies in light of the fact that U.S. nationality law is now solely within the purview of the Immigration and Nationality Act (8 U.S.C) Act of June 27, 1952, As Amended.

Remember that the 14th Amendment wasn't passed until after the U.S. Civil War.

Just curious: at which U.S. consulate. I've got about four sets of "birth papers" myself, three U.S. and one German.

Reading between the lines:

Hey, I'm not saying it's a legitimate issue, and I'm not saying we should all take this argument seriously, but we all need to take seriously the possibility that that the other side will take it seriously. Not that I want to raise the issue myself, I'm just saying it could be raised, and therefore I'm raising the possibility that it may be raised at some point in the future, and therefore we need to raise it among ourselves ahead of time.

Why does this remind me ever so much of when Hillary & Co raised the issue of Barack Obama's drug use in anticipation of the event that Republicans would raise it? In the primaries, no attack is too dirty as long as you can make a plausible argument that it's going to happen anyway.

Hang all traitors and secessionists! Hang them high!
- Me

I specifically say it's been raised before - by the WaPo, not by an anti-McCain outfit. I specifically explain why it shouldn't be an issue, and we should make sure we know the law to refute it if the other side raises it. How is this a dirty attack?

... I tend to think that raising an issue that, so far, no candidate on either the Republican or Democratic side has raised, and which you agree holds no legal merit, indicates an unstated motive. I could be wrong. Maybe you raised this issue solely out of the goodness of your heart, just to help McCain & Co put their "legal ducks in a row." After all, I've been wrong before. But my naturally cynical nature inclines me toward other interpretations.

Let me ask you this, do you support John McCain for president of the United States, in preference to all the other GOP candidates? If you do, then I guess I'm wrong. If you don't, then is it so surprising when some people think that you might be trying to scare republican voters away from McCain so that another candidate might win?

BTW, I've checked your recent blogs and I can't find a reference to a particular favorite candidate. So my question isn't rhetorical; I honestly want to know the answer.

Hang all traitors and secessionists! Hang them high!
- Me

Hello, if your parents are citizens when you are born, so are you. End of story. There are plenty of reasons to go after McCain, but this is just silly.

@Thunder,

That's a simple enough statement, and it's true as far as U.S. citizenship goes.

The question remains whether that meets the Constitutional requirement of Art. II, Sec. 1:

"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 the President;"

If the 1790 law is still operative, then Sen. McCain is unquestionably qualified.

"I believe in grace, because I have seen it. In peace, because I have felt it. In forgiveness, because I needed it."

-George W. Bush

Ben,

I believe your concerns are well-taken. Many people seriously questioned Romney's qualification to run decades ago.

I find the case you cite irrelevant. The statute, however, is quite helpful; but, do you have a citation for it? Is it part of the United States Code? Is it still law? Maybe I'm just not looking for it in the correct place.

Thanks for any more legal analysis you can provide.

Steve Willis
Professor of Law
University of Florida College of Law

Though I know many - far too many, some would say. :)

I find it here:

http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&re...

And thanks very much for raising this point, I'll add that link to the story.

Unfortunately, my initial impression is that the 1790 "law" is not law today. As a reply below states, 8 USC 1401 defines a "citizen . . . at birth." As far as I can tell, the old 1790 statute is just that, an old statute, no longer law.

The current statute does not define "natural born citizen." As Texan below argues, Congress may not have the power to define that term. I need to think about that some more.

The Blackstone argument of Texan is quite helpful and probably convincing; however it relies on contemporaneous commentary rather than actual law or judicial opinion. The 1790 statute also shows contemporary opinion of Congress, which is helpful. On the other hand, the existence of a statutory definition sometimes is viewed as evidence of inherent ambiguity, which gets us back to Congress' power, its current definition, and the lack of a judicial definition (at least not one I know of). I also like the argument of the once first year law student (below); however, it is just that, an argument.

I really doubt McCain would be found to be other than "natural born," if he is elected. However, who decides and how quickly it can be decided concern me. I do not see how it can be decided before he is elected by the Electoral College or House.

All the comments that this is not an issue strike me as silly: they appear to be made by non-lawyers who have an unrealistic view of legal realities. In my experience, a large portion of legal issues rest on jurisdiction or venue or choice or law or service of process or some other "technical" issue. Non-lawyers tend to view such things as unimportant or even unfair. Perhaps they are; however, such technicalities decide a great many cases, like it or not. We ignore them at our peril.

Ben, you are quite right to raise this issue. I have no doubt McCain has lawyers who have researched it. I am certain Clinton does as well. I am seriously considering voting for McCain in the Florida primary and I would like to know more about this before then. (Please do not ask me why I might support McCain . . . leave that for another thread).

Steve Willis
Professor of Law
University of Florida College of Law

Very interesting, and certainly very helpful commentary on this for us non-lawyers.

Were I in Florida, I would be interested in finding out about this same issue. Please feel free to post a diary about this if you find out more in the future, as I want to make sure I understand current law on the issue.

Title 8 section 1401of the US code states: anyone born outside the United States, both of whose parents are citizens of the US, as long as one parent has lived in the US, is defined as a "citizen by birth."

The problem is that constitutionally i do not think natural born citizen status can be granted to the citizen.

So unless a constitutional ammendment is made the office of the president wont allow mccain to run.

McCain was born on August 29, 1936 in Panama at the Coco Solo Air Base in the then American-controlled Panama Canal Zone.

http://en.wikipedia.org/wiki/John_McCain

Several main candidates have sought the office who were born outside the United States (e.g., George Romney was born in Mexico to U.S. parents, Barry Goldwater was born in Arizona while it was still a U.S. territory, and John McCain was born in the Panama Canal Zone to U.S. parents).

http://en.wikipedia.org/wiki/Natural_born_citizen

If McCain cant become president, then all the children on service men and women are excluded from being President.

Interesting nonsense. :)

@Samsara,

Note that none of the presidential candidates you cite have ever been elected to the presidency; apparently their candidacies weren't challenged on Art. II, Sec. 1 grounds.

Anyone know what the Federal Elections Commission says about this? After all, they're the ones with whom presidential candidates have to file.

Total threadjack to a poorly produced hit piece.

absentee

| | |

I didn't know that there might even be any controversy with McCain's citizenship. Nd I agree with you that I don't think there is, but facing the Clinton machine, we just don't know what they are going to try and throw at him. Better to get this right out there into the open, discuss it and put it to bed.

___________________________________
Two thirds of the world is covered by water,
the other third is covered by Champ Bailey.

I think McCain's lawyers can handle it.

If any of the Clintonistas have a question about it, I can refer them to this video:


___________________________________
Two thirds of the world is covered by water,
the other third is covered by Champ Bailey.

I don't think most other people in the country will either. As a point of interesting legalese this will undoubtedly wind up as a million-word discussion on DailyKOS, though. Good. Let them waste their time.

Be assured that if McCain wins the GOP nomination, the next day you will see hundreds, if not thousands of stories in the MSM about skin cancer and its dangers.


I believe that he has had several cancerous skin patches removed, but it's a very scary and dicey type of cancer, and they will do everything possible to use it to scare the electorate into thinking that if elected he's likely to die in office..

I know Kerry and Dole lost, but cancer wasn't a big issue with them, nor would it be for McCain, Rudy or Fred.

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

Attacking McCain for his citizenship is wrong on every count. He is the son of a war hero and is a war hero himself. Hitting him on some sort of legal loophole would not only be counterproductive, but play right into McCain's hands. If I were him, I would welcome any attack on his citizenship.

It's very petty and would backfire immediately. There are plenty of reasons to like or not like McCain. No Democrat with half a brain would every hit him on this issue.

McCain's foes have to find something that will stick. The latest poles show that having Limbaugh and Hannity repeat the word "Amnesty" for three hours a day isn't working.

http://www.realclearpolitics.com/epolls/2008/latestpolls/index.html

So I expect that they will keep floating things out on the blogs until they find something more effective.

More politics as usual.

Our Constitution requires that the President be a natural-born citizen--OR a citizen at the time of the adoption of the Consitution--so for anyone interested in the rule of law, the satisfaction of this requirement in the highest law of the land is important.

McCain may be, as he says "old as dirt," but I think there is good reason to believe that he was not a citizen of the United States at the time of the adoption of the Constitution.

So he must be a "natural born" citizen of the United States.

I initially thought this would be a problem, because he does not appear to enjoy birthright citizenship within the meaning of the Fourteenth Amendment--he was not born "in the United States." According to the Supreme COurt precedent, which seems to me plausible, the "unincorporated" territories are not "in" the United States, so the nationals born in our insular possessions (which were once many--including millions in the Phillipines) may enjoy citizenship by virtue of congressional naturalization, but are not citizens by birth according to the Fourteenth Amendment. The Panama Canal Zone was never incorporated into the United States--with an eye toward its becoming a state. Other territories (like our former continental territories, including Alaska) were so "incorporated."

And birth to American parents is not sufficient to establish "natural-born" citizenship. If so, Congress would not, as Ben suggested, have included a provision declaring such persons born-abroad as citizens and to be "considered" as such.

To be natural-born, as Blackstone indicated, was dependent on the place of birth--one born within the King's dominions was, by definition, born into subjectship. So as a general rule, one born abroad is not natural-born.

What is important to note, however, is that there is not necessarily a perfect correlation between birth "in" the United States, pursuant to the Fourteenth Amendment, and being a natural-born citizen of the United States, pursuant to Article II.

McCain, although born outside the United States, was a natural-born citizen because (1) he was a citizen at birth, albeit by statute and not by force of the 14th Amendment and (2) he was born within the full "dominion" of the United States, for was he born not only in a territory fully subject to the jurisdiction of the United States, but also on a military base to a father serving in the military, and was therefore akin to the children of ambassadors, which, as Blackstone noted, "were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent."

McCain, therefore, was almost certainly not only a citizen at birth, but a natural-born citizen as well.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

The 1790 Act cited is a "naturalization act." So its provisions represent not a definition of who is a natural-born citizen, but an exercise of a power to "naturalize" persons who are NOT "natural" citizens.

This Act could not define the meaning of "natural born" under the Constitution, because Congress did not have authority to make laws that define constitutional terms.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

The members are sworn to uphold the Constitution. Just like the President and the Supreme Court members.

It's their JOB to legislate the Constitution into practice.

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They can and should define the meaning of the terms for their own purposes--pursuant to their oath to uphold the Constitution.

But to say that Congress can declare, for example, that any person they naturalize is a "natural-born" citizen would effectively eviscerate the requirement that the President be "natural-born"--and NOT a naturalized--citizen.

Kinda like Congress declaring that "issue" ads run a month before an election are not "speech" within the First Amendment.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

It has to be somebody. Either all three branches get to, or you exclude one or two.

Personaly I'd rather take the simple view that all three equal branches get to, than to instead limit it to just the courts or just the President.

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I'm really not being clear. Need more caffeine. As to the act entitled a "naturalization act," Congress was naturalizing the persons born abroad by giving them the privilegse of "natural-born" citizens. By that act, those members of Congress were declaring their citizenship to be a function of statutory naturalization.

Such persons, from a constitutional perspective, remained naturalized citizens, not natural ones.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

They should go after him right now as a U.S. Senator.

Article I, Section III of the U.S. Constitution states:

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

So if McCain is not really a citizen of the United States, anyone who has a problem with his citizenship should raise the lawsuit to have him removed from the Senate. And they should have raised it when he first became a Senator.

He is most certainly a citizen by congressional naturalization--and thus qualifies for be a member of Congress. The question is whether he is natural-born citizen under the Constutution.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

I appreciate the distinctions made in this thread and I just learned a lot about how far some people will go to hairsplit these definitions. Really it's such a far-out question that I didn't think anyone would seriously entertain it, but apparently these days we're questioning ourselves right down to the very roots of our Republic.

Unbelievable.

So much so that they debated some of them at length in the constitutional convention---and incorporated them into the "highest law of the land."

On balance, these restrictions have been good for the country. I don't want an 18-yr-old American-Idol winner running for president. And I'm glad that we require that Americans have lived for 14 years in the United States before being qualified. Not sure about the "natural-born" requirement.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

I pretty much figured that if McCain qualified to be a U.S. Senator for all this time that his credentials to be President as a U.S. Citizen were unimpeachable, but apparently that's not the case. Wow.

He could be a Senator, not President.

______________________________________
Donate to the Rs in Close Senate Races through Slatecard

That until I saw this thread today on RedState the thought of McCain having a Constitutional challenge to his status as a "natural born citizen" hadn't even entered my mind. Among the things I might oppose McCain in his bid for President about, this was such a far outlier of a concern that I didn't even know it existed.

since it was used against his dad.

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

The Jane Hamshers of the world wouldn't hesistate. It's better to get this kind of thing out in the open right away.

I understand the purpose of the blog and am not complaining. That's just my disclaimer.

To answer the question, though, I ask again. Is it not simple? If he was born on a Military base then he wasn't born abroad. That's U.S. soil right?

I'm not familiar with the law on this. Seems it's possible that a military base is like US territory, but it certainly isn't annexed territory. I don't think we treat everyone born on the base as a US national or citizen. And some local laws might even apply, but I guess that will depend on our treaty.

And Guantanamo base issue--I think Pres' Bush's side's main position is that it is NOT American soil.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

I'm almost certain persons born there are not 14th Amendment citizens; they are not "born" in the United States.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

Hey, I'm just going based on "common" knowledge, ie. scuttlebutt, while a lowly enlisted Marine. You think it's unclear to you?
Muscles Are Required Intelligence Not Essential, know what I mean?


absentee

| | |

Were you stationed abroad for any time?

While there, at what time wree you subject to local law? Ever? Or only when you did something off the base? OR only if you did something outrageous--serious violation of criminal law?

I'm really curious.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

I think you are right; however, neither you nor I get to decide. I am not sure who gets to decide. This has long been an open question. But it cannot be decided until it becomes a real justiciable issue. That means McCain (or someone with similar birth issues) must be elected. Then someone with a proper right of action must raise the issue in a forum willing to consider the issue. That forum - or someone - must then assert authority to enforce its decision. All this takes time.

I believe it will be an unsuccessful attack; however, we cannot know until we know.

Steve Willis
Professor of Law
University of Florida College of Law

Probably not a justiciable question--but perhaps, arguably the President of the Senate and members of Congress could reject votes for President when the person designated is ineligible.

But as a practical matter, if the issue is raised, it will be raised in the course of the campaign--and the people to decide will be the voters. And it probably won't make much difference because McCain's eligibility is at least plausible, so the voters won't care.

The voters would care, I hope, if he was clearly ineligible--e.g., he had already been elected President twice, or was 25 years old, or otherwise. Indeed, I think my optimism here is justified--that such constitutional ineligibility still translates into political ineligibility--which is why Clinton #1 doesn't bother running again, and why Granholm and the Governor of California never really considered running either.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

I doubt voters care unless, as you say, the person is clearly ineligible. I care, but I suspect I am one of very few.

I would be horrified if the Senate or Congress decided this; however, this is not an impossible scenario.

I believe it will be raised after McCain is elected by the Electoral College; however, finding the right person to raise it may be problematic. Would Clinton do it? I don't know, though I'm sure she's thought about it, or will.

I would expect an expedited set of procedures to get it to the Court quickly. I suspect your arguments relating to Blackstone would carry the day. But, I still don't think we'll know until we know.

Steve Willis
Professor of Law
University of Florida College of Law

Thanks - fascinating and helpful.

@A Texan,

It's those little discrepancies in language that trouble me.

Does acquiring citizenship from birth to U.S. parents abroad constitute being a "natural born citizen" under Art. II, Sec. 1? The 14th Amendment doesn't really clarify that point.

I have to fully disagree with your point "(2)" above. Neither the Canal Zone nor U.S. bases within the Republic of Panama were de jure the United States, so being born there doesn't automatically accrue U.S. citizenship. Sen. McCain gets his U.S. citizenship wholly and lawfully from the jus sanguinis provisions whatever citizenship laws were in effect at the time of his birth.

Had he never been documented as a U.S. citizen subsequent to his birth, he'd be documented today under INA Sec. 301(c) which covers children born abroad both of whose parents are U.S. citizens (at least one of whom resided in the U.S. prior to the child's birth).

This is the sort of question that may very well require either another Constitutional amendment to spell it out, or a Supreme Court decision that interprets citizenship from birth as a Constitutional equivalent of "natural born citizen."

McCain takes the lead and this is all you've got? Try again. FREDstate can do better than this.

What exactly are you saying about Ben Domenech and the other Directors of Red State?

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he's saying that the directors of Redstate are very intelligent people, many of whom endorse the candidacy of a man named "Fred" (hence the name "Fredstate"), but whose intelligence and support for Fred are not manifest in this kind of criticism of John McCain.

He's mistaken in that the issue raised here is, at first glance, an important one.

As I am not as intelligent as the directors here, but I do support Fred, and do not like McCain. So I'll just limit my criticism to this--McCain is a war hero, a patriot, and an obnoxious man who has for years insulted conservatives and advanced various pet liberal projects, seemingly out of petty pride and the vain desire to win the cheap praise and attention of the liberal media.

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke

because I've been only moderately sarcastic today, and I got LOADS of that stuff laying around work here...

I think what he meant by "try again" was something like the following.

########begin channeling fast200#######

I've already heard about these complaints about McCain:
(1) His gang of 14 subverting the GOP's last best chance to line the Senate's confirmation process up with the Constitution, and in the process throwing some completely qualified judges under the bus.
(2) Lindsey Graham likes him.
(3) Rape of the First Amendment -- the McCain-Feingold BiPartisan Campaign Finance Reform. Also known as :
(a) the Incumbent Protection Act
(b) the Media-Gets-To-Pick-Winners Act
(c) the 'shut Wisconsin Right To Life up so Feingold can get re-elected' Act
(d) the Screw Honest People Act
(4) Amnesty, amnesty, and amnesty
(5) Volcanic temper, and proneness to petty grudges (see 'Gang of 14')
(6) his name seems to keep cropping up in alot of things called 'bi-partisan', where it means 49 Democrats * McCain and a couple of other Republicans.

Those are boring. Can't you guys come up with anything *better*?

########end channeling fast200#########

Stare decisis is fo' suckas -- Feddie

If the some of the editors of FREDstate are going to try to collectively take down the Republican front runner, you are going to have to do better than this and Fred is going to have to step it up on his own.

Ben has stated his motive, and it's not the one you're accusing him of having. What do you have against him?

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And to be honest, I think he's out of this anyway, and it's going to come down to Huck, McCain, and Rudy post-Florida.

So come up with another motive, buddy.

Sounds similar to Hillary disseminating the "cocaine" issue because she's concerned about Obama in the general.

...with a baby screaming counterpoint.

BEHAVE!!!!!

The Fuzzy Puppy of the VRWC. I've been usurped!

See Levin on NRO today for a list of McCain's horrible policy choices in the recent past. I'll just paste a FEW of them here:

"McCain-Feingold - the most brazen frontal assault on political speech since Buckley v. Valeo.

"McCain-Kennedy — the most far-reaching amnesty program in American history.

"McCain-Lieberman — the most onerous and intrusive attack on American industry — through reporting, regulating, and taxing authority of greenhouse gases — in American history.

"McCain-Kennedy-Edwards — the biggest boon to the trial bar since the tobacco settlement, under the rubric of a patients’ bill of rights.

"McCain-Reimportantion of Drugs — a significant blow to pharmaceutical research and development, not to mention consumer safety (hey Rudy, pay attention, see link)."

Go Fred! Go Mitt! Down liberal, back-stabbing McCain! Down with liberal, populist Huckabee!

What does this have to do with the opening post?

Also, cross-posting the same tripe in multiple threads, especially when it's not even original, and just copied and pasted off another site, is really annoying.

There is no President but Lincoln, and Reagan is his prophet

won't make an issue out of this. I thought they believed the Consitution is a living document thats meaning changed over time and anyways we know the Clintons do not play the Politics of Personal Destruction that us vast right wing conspitors use unfairly aganist them.

McCain '08

"McCain-Feingold - the most brazen frontal assault on political speech since Buckley v. Valeo."

"Go Fred!"

How are you endorsing someone who co-sponsored the "most brazen frontal assault on political speech since Buckley v. Valeo"?

Fred Thompson on the Bipartisan Campaign Reform Act of 2002:

"We are making headway to do something that will reduce the cynicism in this country and that will help this body, that will help us individually."

OK, cordpt, you have been pretty open about your support for McCain, so its hard to see how you can attack Fred on campaign finance reform. I am not a Fredhead (I support the candidate that has consistently criticized campaign finance "reform" -- Romney), but my understanding is that Fred has shifted on this -- having recognized what a mistake it has been. McCain has not, and that is a serious flaw in his candidacy. Instead, he and his surrogates attack the flip-floppers. I'll give credit (such as it is) where it is due -- McCain has been consistent on many major issues -- consistently wrong.

What a bizarre story to put on the front page...

The Panama Canal Zone was an officially recognized U.S. exclave. It even had its own U.S. District Court.

Whereas John McCain's father, John S. McCain II, was a Naval officer, they would have been living on a military installation and Johnny Mac is a U.S. citizen ANY WAY YOU CUT THIS.

This will not be a tactic of the Clinton campaign. It's a non-starter because it's so *easy* to refute.

Ben,

I've found 100 law review articles through Lexis on the subject. I've read through about ten. The best so far is found at:

85 B.U.L. Rev. 53 (2005)

The author was then only an Assistant Professor of Law. Her discussion is lucid and interesting. She raises many questions, including those involving territories, possessions, bases, territorial waters, D.C., embassies, and other places.

The relevance of the 14th amendment is also interesting: it defines citizens as those born in the U.S. or naturalized. A possible implication is that anyone not born "in" the U.S. is naturalized. It can be reasonably read otherwise, but some dicta from a 1927 Supreme Court opinion reads it that way. This would be troubling for McCain.

Anyway, this is a fascinating issue. I would like to hear from the McCain campaign on this. I would like to know specifically where he was born. I've seen assertions that it was on a military base, but I've not seen a document.

I cannot imagine this not becoming an issue: too many people in this country are litigious for it not to be raised.

Many articles have proposed amendments to strike the requirement. This, along with several failed attempts in Congress for such amendments, is disconcerting. Such articles and attempts tend to show great concern and ambiguity, which does not help McCain's case.

I still believe he would be successful; however, I am no way near certain.

I must go camping tomorrow morning with the Boy Scouts, so I have to stop now. I'll try to read more of these opinions next week. I doubt, however, I'll be convinced it is anything but unsettled.

For the record, my preferences are (in order, as of today):

McCain
Thompson
Guiliani
Romney
Huckabee

Steve Willis
Professor of Law
University of Florida College of Law

@Steve Willis,

It seems to me you can interpret Sen. McCain's situation in several ways. The most practical is to assume that since his citizenship was acquired at birth, that does constitute being a "natural born citizen." Being born long after Feb. 26, 1904, his is not a case of being collectively naturalized, nor was he ever required to naturalize as an individual.

Surely the FEC must review a candidate's Constitutional fitness when he officially files his or her candidacy. They wouldn't accept a filing from someone under 35 years old or a non- or naturalized citizen.

Or would they?

@Steve Willis,

Being an old Eagle Scout myself, I hope your camping trip went well.

This post is nothing more than trying to get people fired up. I'm sure this moronic post will help your cause to raise money to update the site.

IMWITHMCCAIN

This is not an issue now but it will be a huge issue if McCain tries to take office. He will be challenged, and so far all the evidence points to the GOP and McCain losing this argument, and the election.

The Constitution doesn't say that you have to be a citizen, it says you have to be a natural-born citizen, and that means your citizenship in this country must be derived purely from your birth, and not from any legislation or naturalization. Citizens born in territories get their citizenship from legislation. Citizens born in military hospitals in foreign bases are not, repeat, _not_ natural born citizens. Children born in foreign countries can claim citizenship through legislation. It is not automatic.

From the State Dept web site:

a. A U.S.-registered or documented ship on the high seas or in the exclusive economic zone is not considered to be part of the United States. A child born on such a vessel does not acquire U.S. citizenship by reason of the place of birth - Lam Mow v. Nagle, 24 F.2d 316, 9th Cir., 1928.

b. A U.S.-registered aircraft outside U.S. airspace is not considered to be part of U.S. territory. A child born on such an aircraft outside U.S. airspace does not acquire U.S. citizenship by reason of the place of birth.

c. Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are __not part of the United States within the meaning of the 14th Amendment__. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and __does not acquire U.S. citizenship by reason of birth__.

Children born in foreign countries on land currently being used by the US government or military are not natural-born citizens. The argument bears plenty of weight and you can rest assured it will be brought up in the courts. The Panama Canal Zone was never a territory of the US -- it was leased land. That you rent something does not make it yours, you should know that by now. The exact text of the treaty:

"The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement, and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise, __if it were the sovereign of the territory__ within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority."

Not only does the treat explicitly say that the US is not the sovereign of the land in which the Zone is located, it explicitly says that it only grants the rights as "if it were the sovereign".

In 1906, Pres. Theodore Roosevelt explicitly declared that there was never any intent of creating a sovereign territory of the United States in the Canal Zone, only a tract of the land owned by Panama and managed by the United States __as if it were a territory__.

You can't even use as an argument the 1790 law that declares children born of US citizens overseas as natural-born citizens, because the Supreme Court decision that validated that, Dred Scott, was struck down. The law of the land as it stands now is the 14th Amendment, which specifically makes a distinction between people born in the United States, and everyone else, considered citizens by naturalization, automatic or otherwise.

Do republicans want to continue to support a candidate who has a 99.999% chance of being prohibited from taking the oath and becoming president because he is not a natural-born citizen? This is no different than Arnold's case. He is not a natural-born citizen, and neither is McCain. It is _that_ simple. Proceed at your own peril, republicans. You already stand a pisspoor chance of winning the election -- this won't help you one bit.

This is such a non-issue it isn't even funny.

All you 2 hour, 12 hour and one day wonders -- I provide you Exhibit A You ask why we are so hard on short timers? Why we question their motives. Why we demand they prove their bonafides.

This guy proves the rule!

Suit yourself. I could care less how you think you treat "short-timers". I've been around the net since before you had a clue what a modem was. If McCain wins, I know I will still have that last laugh come December.

I am not an expert on this stuff, but the Constitution says that

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;

McCain is old enough that he was probably a Citizen at the time of the adoption of the Constitution, so he is alright either way.

But seriously, even assuming he shouldn't count as natural-born, what will happen? The Supreme Court says he cannot run, after he wins the Republican nomination? The Supreme Court would not do that, they would lose a lotta legitimacy that way. They would read the Constitution in a way that would grant him "natural-born" status.

There are probably already precedents concerning this, but I will leave that to someone else to talk about.

The Supreme Court cannot stop him from running. But they can stop him from taking office. They would lose a lot more legitimacy by allowing him to run roughshod over the Constitution. After all, that document is the reason for their existence. You can't "grant" someone natural-born "status". You're either natural-born, or you are not. If you were born in a piece of land where another country was sovereign, you're a natural-born citizen of that country, not the US of A. Open up that pandora's box and the cost to the US in terms of litigation, people sneaking into military bases and anything else where the US has a government office in a foreign country to give birth, people claiming citizenship backdated to the day of McCain's birth, etc. will be stratospheric. Is McCain worth that much grief to the nation? The GOP should know better than this, but as we have seen in the past 8 years, they don't.

Look, Sparky, I understand, really: the entire status of Puerto Rico is one of those situations that can get people torqued off a touch. That's a given. And I suppose that, from your perspective, there's something really silly about how being born on an overseas military base is infinitely less of a bar to becoming President than being born on an island that has been American territory for over a hundred years. I get all of that.

However, the fact remains that this is a very silly argument to be making, the United States Supreme Court has no intention of finding merit in it, and if they ever do the resulting firestorm will consume the Democratic Party utterly.

So this is what you're going to do; you are not going to stop arguing this. You are simply going to stop acting like a dweeb while doing it, because I don't care how ticked off you are at Anglos / squids / Republicans / the Tooth Fairy; you're being disruptive, and we have rules against that sort of thing. And, contrary to popular belief, RedState was not created to give Democrats a venue to work out their frustrations against a Republican Party that they can't even vanquish when the former is the ostensible majority party.

That's all. You can go back to what you were doing.

Moe

*No, it's his name.

The Fuzzy Puppy of the VRWC. I've been usurped!

Yes, Moe, let's talk. I'll be brief.

First, I told you to keep your day job. Too bad you still don't listen to the voices in your head, telling you that as a shrink, you stink.

Second, you're still confusing me with someone who gives a flying intercourse whether or not you think talking about constitutional issues is "being disruptive." Look into my eye, sonny. Again.

Third, the Republicans don't need to worry about the Democrats beating the crap out of them... again... because they're doing a perfectly credible job of doing that to themselves. Just pass the popcorn, we'll watch the show. :)

Finally, this is not 2000, this is not about confused jews, and this is not about an opinion on the part of a court. He who laughs last, laughs best. Watch Larry King tonight. :)

A government big enough to give you everything you want is strong enough to take everything you have. Thomas Jefferson

I figured that it gave him a little leeway.

Oh, well.

The Fuzzy Puppy of the VRWC. I've been usurped!

you should have just said "I'm a brain damaged Soros robot selling out to the highest bidder while I eat my popcorn".

Kate

“It is the American vice, the democratic disease which expresses its tyranny by reducing everything unique to the level of the herd.” Henry Miller

Kate

“It is the American vice, the democratic disease which expresses its tyranny by reducing everything unique to the level of the herd.” Henry Miller

and, in any event does not apply given that McCain's parents had lived in the US and McCain's children? or is it just one child? isn't running).

Dicta, for the un-law schooled, is language in a court's opinion (notice that word opinion, as we will return) that is unnecessary to reach the result/judgment of the case based on the facts of the case at hand.

The matter of defining who is a natural born citizen under Article II, and thus eligible serve as President is, a political question as much as a legal question in this context. The SCOTUS very rarely rules on political questions when the other two branches disagree, and never has when the other two agree. So, the 1790 law is controlling.

The Constitution is silent on defining natural born.

Courts issue opinions, called as such, because they can't enforce them via force, hence their credibility and weight depends on public acquiescence.

If We the People, thru our elected reps memorialized into law, decide that a natural born citizen can be born to Somalies, then it would stand.

Congress can always expand rights. It is when they contract them, or seem to, that courts get involved.

Mike "Gamecock" DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson

The 1790 law was repealed by a 1795 law and the language 'natural born citizen' replaced with just 'citizen' when speaking of people, like McCain, born to U.S. Citizens outside the territory of the U.S. You can see both here.

The questions I still have is if anyone would have standing to challenge McCain's eligibility in court.

Art II words "eligible to", no one would have standing until one is sworn in. Then, any citizen would have standing.

Mike "Gamecock" DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson

 
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