What if John McCain can't actually BE President??
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. Section I, Article II of the US Constitution
Despite his age, I think it's safe to say that John McCain was not alive at the time of the Constitution's adoption. But is he a "natural born Citizen"?
Born August 29 (hey- another Virgo!), 1936 at Coco Solo Air Base, John Sidney McCain III was born in the Panama Canal Zone to US parents. There's no doubt that he is a citizen, and has been since he was born. But that "natural born" tag does not have a real clear definition, and since the only instance of the distinction in the ENTIRETY of US law is the qualification for President and Vice-President, it hasn't had many cases tested against it.
In 1790, the Congress passed "An act to establish an uniform Rule of Naturalization", providing the process for residents to become citizens. Included was this line:
"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"
This followed the English tradition (going back to 1350) of granting the same rights of inheritance to children of British subjects born overseas, then further in the early 18th century, of expressly declaring those children to be natural-born subjects of the crown.
Five years later, this law was repealed, and a new act for naturalization passed. The relevant clause now read:
the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States"
No longer are the children considered "natural born." This could easily have been an oversight on the authors, but based on this phrasing, the Supreme Court ruled in Dred Scott that citizenship deriving from this clause was a form of "naturalization." They didn't rule on the question of whether such a person would be eligible for the Presidency, since they were instead ruling on whether a slave was a person or property, but a citizen is either citizen "by birth" or "by law" (naturalized), and the implication, if read, would infer these children would not be "natural born citizens."
So, thanks to Dred Scott and, oh yeah, the Civil War, the Fourteenth Amendment was passed, overruling Dred Scott and giving a definitive answer:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
So, that's it: Either you're born in the United States, or you're naturalized.
In case this point doesn't seem clear, United States vs. Wong Kim Ark, a case ruling on whether a child born on US soil to foreign nationals is a citizen, provides this telling comment in the dissent, saying that the ruling would have the effect that:
"...the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not." Chief Justice Fuller, dissenting.
Note that because this was a dissent, it does not hold any value as a ruling itself, but at least suggests (strongly, I think) that citizenship granted by statute at birth is NOT the same as "natural born" citizenship.
So, is a US air base, in the Panama Canal Zone, part of the United States?
Legally, the Canal Zone was Panamanian territory under exclusively American control, but not actually incorporated into the United States itself. So, no- the Canal Zone was not the United States. Nor is a military base on foreign soil, United States- a point that the conservative basta... I mean... members of the Supreme Court seem quite clear to point out when they rule on Guantanamo.
So, John McCain was not born in the United States.
He was automatically naturalized, by statute, at birth.
John McCain can not be President.
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Comment by Dugg— 2008/02/28 @ 12:53 PM — (Reply)
BG
Comment by Barry G.— 2008/02/28 @ 01:51 PM — (Reply)
The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns Citizenship. Citizenship is mentioned in Article 1, Section 2, Article 1, Section 3, Article 1, Section 8, Article 2, Section 1, and in the 14th Amendment and several subsequent amendments.
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If you're going to be involved in government in the United States, citizenship is a must. To be a Senator or Representative, you must be a citizen of the United States. To be President, not only must you be a citizen, but you must also be natural-born. Aside from participation in government, citizenship is an honor bestowed upon people by the citizenry of the United States when a non-citizen passes the required tests and submits to an oath.
Natural-born citizen
Who is a natural-born citizen? Who, in other words, is a citizen at birth, such that that person can be a President someday?
The 14th Amendment defines citizenship this way: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." But even this does not get specific enough. As usual, the Constitution provides the framework for the law, but it is the law that fills in the gaps.
Currently, Title 8 of the U.S. Code fills in those gaps. Section 1401 defines the following as people who are "citizens of the United States at birth:"
Anyone born inside the United States
Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person's status as a citizen of the tribe
Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.
Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national
Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year
Any one found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21
Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)
A final, historical condition: a person born before 5/24/1934 of an alien father and a U.S. citizen mother who has lived in the U.S.
Anyone falling into these categories is considered natural-born, and is eligible to run for President or Vice President. These provisions allow the children of military families to be considered natural-born, for example.
Separate sections handle territories that the United States has acquired over time, such as Puerto Rico (8 USC 1402), Alaska (8 USC 1404), Hawaii (8 USC 1405), the U.S. Virgin Islands (8 USC 1406), and Guam (8 USC 1407). Each of these sections confer citizenship on persons living in these territories as of a certain date, and usually confer natural-born status on persons born in those territories after that date. For example, for Puerto Rico, all persons born in Puerto Rico between April 11, 1899, and January 12, 1941, are automatically conferred citizenship as of the date the law was signed by the President (June 27, 1952). Additionally, all persons born in Puerto Rico on or after January 13, 1941, are natural-born citizens of the United States. Note that because of when the law was passed, for some, the natural-born status was retroactive.
The law contains one other section of historical note, concerning the Panama Canal Zone and the nation of Panama. In 8 USC 1403, the law states that anyone born in the Canal Zone or in Panama itself, on or after February 26, 1904, to a mother and/or father who is a United States citizen, was "declared" to be a United States citizen. Note that the terms "natural-born" or "citizen at birth" are missing from this section.
In 2008, when Arizona Senator John McCain ran for president on the Republican ticket, some theorized that because McCain was born in the Canal Zone, he was not actually qualified to be president. However, it should be noted that section 1403 was written to apply to a small group of people to whom section 1401 did not apply. McCain is a natural-born citizen under 8 USC 1401(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."
Link to source HERE
No dice Harry.
BG
ps: Vote Obama
Comment by Barry G.— 2008/02/28 @ 01:58 PM — (Reply)
Nowhere in the statute itself is the phrase "natural-born" citizen, nor has that terminology been used since the original Naturalization Act of 1790. The Naturalization Act of 1795 specifically repealed the act of 1790, and did NOT include the stipulation that such children would be considered "natural-born."
It may be cutting things very thinly, distinguishing between "natural-born citizen" and "citizen at birth" (which is the phrasing of the statute), but it is that same sort of frippery that makes lawyers so much money. It's the same sort of razor-fine distinction that allows bastards like Scalia and Thomas to assert that despite their long tradition of "strict Constitutional" reading and strong federalist principles, they are authorized to overturn a state's fundamental right to govern and oversee its own election (Bush v. Gore I and II), or where they rule that our ancient tradition of habeus corpus doesn't apply to Guantanamo, because OFFICIALLY that is Cuban soil, not American. Never mind the fact that Cuba has even less jurisdiction over Guantanamo than Panama had in the Canal Zone.
I am sure that IF a ruling were ever issued (and actually, my expectation is that the all the courts would refuse to hear the case), it would rule in favor of McCain, and I would support that ruling as well.
But that's because I don't hold to the strict constructionist view of the Constitution. Chief Justice Fuller clearly saw (through racist eyes, unfortunately) the risks of a strict reading of the Constitution. I'd love to see the hypocrites on the court talk about "hidden meaning" when ruling on one of their party.
PS- yes, I do believe that if this question was about Obama, not McCain, those same justices would go with a strict reading.
Comment by Michael— 2008/02/29 @ 08:14 AM — (Reply)
Comment by Michael— 2008/02/29 @ 08:16 AM — (Reply)
Comment by Dugg— 2008/02/28 @ 05:18 PM — (Reply)
Comment by Michael— 2008/02/29 @ 08:23 AM — (Reply)
Comment by riffran— 2008/02/28 @ 06:16 PM — (Reply)
Comment by Michael— 2008/02/29 @ 08:51 AM — (Reply)
McCain was born on a naval base where his father was serving in the Navy
the statute that Ed posted at Dugg's site explains this quite clearly
Comment by Elmers Brother— 2008/02/28 @ 06:23 PM — (Reply)
Sorry to rehash old news for you guys. Honestly didn't expect anyone to actually READ this mularkey! :)
Comment by Michael— 2008/02/29 @ 08:53 AM — (Reply)
Ed
Comment by Ed— 2008/02/29 @ 01:31 PM — (Reply)
Ed
Comment by Ed— 2008/02/28 @ 06:25 PM — (Reply)
"The Constitution states, "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 for the Office of President." The 14th Amendment did not alter this provision.
"The status of the U. S. Navy Hospital in the Panama Canal Zone is described by the U. S. Department of State in its Foreign Affairs Manual (7FAM1116.1-4(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
Comment by Dugg— 2008/02/28 @ 07:07 PM — (Reply)
I suggest a look at this along with the case law (suggested reading)
http://en.wikipedia.org/wiki/Natural-born_citizen
Comment by Elmers Brother— 2008/02/28 @ 08:10 PM — (Reply)
McCain's claim to legitimacy must come solely from the right of blood- and not from the right of being born in the United States. It was clearly stated by the Supreme Court in the United States vs. Wong Kim Ark, that being born in the United States (jus soli) IS equivalent to being "natural-born" per Article II stipulations.
On the contrary, it has never ruled (and likely never will) rule as to whether the right of blood (jus sanguinis) is equivalent to "natural-born" per Article II stipulations. In Dred Scott, the Court equated jus sanguinis with "naturalization," because citizenship was conferred by statute. However, that ruling was overturned and superceeded by the Fourteenth Amendment, so other than Chief Justice Fuller's dissent, the question is officially unanswered.
Congress could have, at any time, made the point moot by including that clause into its Naturalization laws, but has failed to for centuries...
Comment by Michael— 2008/02/29 @ 08:36 AM — (Reply)
It is LIKELY that Congress could have made the point moot by including that clause. However, the argument could be made (not very persuasively in my opinion) that any citizenship granted by statute is a form of 'naturalization,' contrary to the automatic citizenship granted by jus soli and the 14th Amendment. Under this very strict reading of the Constitution, the only 'natural born' citizens would be those born in the United States, and it would take a constitutional amendment to change this.
Comment by Michael— 2008/02/29 @ 09:17 AM — (Reply)
Comment by Dugg— 2008/02/29 @ 09:20 AM — (Reply)
Ed
Comment by Ed— 2008/02/29 @ 01:27 PM — (Reply)
Comment by Elmers Brother— 2008/02/29 @ 01:28 PM — (Reply)
Bill would remove doubt on McCain's presidential eligibility
By Carl Hulse
Friday, February 29, 2008
WASHINGTON: Senator John McCain said Thursday that he had no concerns about his meeting the constitutional qualifications for the presidency because of his birth in the Panama Canal Zone. A Democratic colleague said she wanted to remove even a trace of doubt.
The Democrat, Senator Claire McCaskill of Missouri, introduced legislation that would declare that any child born abroad to citizens serving in the United States military would meet the constitutional requirement that anyone serving as president be a "natural born" citizen.
"In America, so many parents say to their young children, 'If you work hard and you play by the rules, in America someday you can be president of the United States,' " said McCaskill, a supporter of the presidential bid of Senator Barack Obama, an Illinois Democrat. "Our brave and respected military should never have to spend a minute worrying whether or not that saying is true for their child."
Traveling on his presidential campaign, McCain, an Arizona Republican, said he was convinced he was eligible under the natural-born definition and that from his perspective the matter had been reviewed and settled in earlier campaigns. McCain was born in 1936 on a military base in the Canal Zone, where his father, a navy officer, was stationed at the time.
"It's very clear," McCain said. "An American born in a territory of the United States whose father is serving in the military could not be eligible for presidency of the United States is certainly not something our founding fathers envisioned."
Legal scholars who have explored the issue say that a conclusive legal finding on the clause has never been delivered and that there is the potential for some uncertainty about whether someone born outside the nation proper would qualify. To date, no president has been born outside what would become one of the 50 states. A handful of serious candidates have been born elsewhere but none were elected and the citizenship question was not tested.
Senior members of McCain's campaign team have also said they are very comfortable that McCain meets the definition of natural born and that he could overcome any challenge should one be made. They have asked Theodore Olson, a veteran Supreme Court lawyer and McCain supporter, to prepare a legal analysis of the issue.
A group of lawmakers made an unsuccessful effort four years ago to eliminate any lingering doubts about the meaning of the provision through legislation that would have said children born outside the country to American citizens are eligible for the presidency.
McCaskill said that her legislation should be noncontroversial and that Congress should move rapidly to clear up any ambiguity. She acknowledged there could be some who believe the only route to resolve the confusion is through a Constitutional amendment.
"We can at least make a legislative declaration that the definition of 'natural born' includes children of the active military," she said. "This should be done quickly and easily."
Comment by Elmers Brother— 2008/02/29 @ 01:31 PM — (Reply)
Uh huh.
Comment by Dugg— 2008/02/29 @ 02:16 PM — (Reply)
from wikipedia
Three major candidates have sought the Presidency who were born outside the United States: Barry Goldwater, George Romney and John McCain.
Barry Goldwater, who ran in 1964, was born in Arizona while it was still a U.S. territory. Although Arizona was not a state, it was a fully organized and incorporated territory of the United States, making it debatable whether or not he was born "outside" the United States. [9]
George Romney, who ran in 1968, was born in Mexico to U.S. parents. Romney’s grandfather emigrated to Mexico in 1886 with his three wives and children after Utah outlawed polygamy. Romney's parents retained their U.S. citizenship and returned to the United States in 1912. Romney was 32 years old when he arrived in Michigan.
John McCain, who ran in 2000 and is running in 2008, was born at the US military base Coco Solo in the Panama Canal Zone to U.S. parents. The Panama Canal Zone was under United States sovereignty between 1903 and 1979 but was unincorporated.[10]
Comment by Elmers Brother— 2008/02/29 @ 01:35 PM — (Reply)
it's too remove any doubt...
Comment by Elmers Brother— 2008/02/29 @ 02:24 PM — (Reply)
Comment by Dugg— 2008/02/29 @ 02:29 PM — (Reply)
Ed
Comment by Ed— 2008/02/29 @ 02:29 PM — (Reply)
duh
and why would you want to limit the children of US military personnel born overseas from serving as president?
Comment by Elmers Brother— 2008/02/29 @ 02:30 PM — (Reply)
Comment by Dugg— 2008/02/29 @ 02:38 PM — (Reply)
Perhaps a change of tactics
Comment by Elmers Brother— 2008/02/29 @ 02:42 PM — (Reply)
Comment by Dugg— 2008/02/29 @ 02:46 PM — (Reply)
Comment by Elmers Brother— 2008/02/29 @ 02:57 PM — (Reply)
at best it's ambiguous
Comment by Elmers Brother— 2008/02/29 @ 02:31 PM — (Reply)
Comment by Dugg— 2008/02/29 @ 02:43 PM — (Reply)
Comment by Elmers Brother— 2008/02/29 @ 02:56 PM — (Reply)
Or...what if his parents were astronauts on Mars when he was born sent there by NASA as US citizens?
Ed
Comment by Ed— 2008/02/29 @ 02:31 PM — (Reply)
Comment by Dugg— 2008/02/29 @ 02:39 PM — (Reply)
Comment by Elmers Brother— 2008/02/29 @ 02:40 PM — (Reply)
Comment by Elmers Brother— 2008/02/29 @ 02:33 PM — (Reply)
I think McCain might be one of them
Comment by Elmers Brother— 2008/02/29 @ 02:37 PM — (Reply)
I'm confused Dugg. Should I be flattered to be referred to as a 'smarmy half jackal'?
Comment by Ed— 2008/02/29 @ 02:58 PM — (Reply)
Now what BS did I need to refute? Lets see -
What if???? Then he'd be ineligible like McCain. I feel confident in saying that Ron Paul is the last guy who'd break the Constitution. If he was like McInsane - he'd quit before he dishonored the Constitution. He is the champion of the Constitution, after all.
Comment by Dugg— 2008/02/29 @ 03:08 PM — (Reply)
Comment by Dugg— 2008/02/29 @ 03:09 PM — (Reply)
Comment by Elmers Brother— 2008/02/29 @ 03:15 PM — (Reply)
Ed
Comment by Ed— 2008/03/02 @ 01:57 PM — (Reply)
In 1880, there was a rumor spread about that Chester A. Arthur, Republican Vice-President, had been born in Canada, not Vermont as he claimed. This was due to records being poor, and his erroneous notion that he was born in 1830- when his parents had already moved from Vermont up to Quebec, Canada. While no definitive proof can be found one way or the other, historians largely accept that he was born in Vermont in 1829, actually.
But the point is that in 1880, there was a small buzz for some to oppose Arthur based on the fact that he was not "natural-born" despite being born of two US citizens. There were actually other reasons folks opposed his candidacy, and in all likelihood, they used "Canada-born" to justify their ends.
I'm actually in favor of the "natural born" clause, and this is one instance where I believe the founding fathers got something right for reasons that they couldn't have imagined. They feared foreign influence, something conceivable at the time, but doubtful in today's world. (I don't buy the notion that it was targetted at Hamilton specifically- because he was a citizen at the time of the adoption, so could have, and did make initial plans to, run for President.)
I think history shows instead, that some of the worst nationalistic ideologues are not "native sons." Napoleon, Hitler, Stalin... none where born to the country they would lead.
Okay- Stalin's a bit of a technicality. He was Georgian, a Soviet Republic, but Russia was and had been the dominant nationality of the USSR... and I think Stalin's brutal suppression of Georgia in favor of the centralized state merits his inclusion.
Still, the three worst nationalistic demogogues were not "natural born." Coincidence? Perhaps... but I'm willing to accept that nationalistic fervor can be most addictive to the non-native. That's not to say that Mr.Schwarznegger would take us down the same path that Napoleon or Hitler took their nations... but who knows what the future may hold?
What I would strongly support is a law, and if necessary, an amendment, to make clear that "natural born" does include children born of US citizens, even if born overseas. I don't think either is actually necessary- I don't think McCain will win, and I don't believe any courts currently would hear the case (probably citing 'separation of powers' if they gave any reason at all).
Comment by Michael— 2008/03/02 @ 10:13 AM — (Reply)
Comment by Elmers Brother— 2008/03/02 @ 12:11 PM — (Reply)
Comment by Michael— 2008/03/02 @ 12:42 PM — (Reply)
Comment by Elmers Brother— 2008/03/02 @ 12:44 PM — (Reply)
The founding fathers got some things right, but they also were annoyingly vague or imprecise in others. And they should have known better- they had nit-picking lawyers even back then.
Comment by Michael— 2008/03/02 @ 12:50 PM — (Reply)
well I admit the question doesn't seem settled, I don't see why anyone of good conscience would try to prevent someone with his service to this country from being president based on this issue
how he stands on the issues is another matter...me included
Comment by Elmers Brother— 2008/03/02 @ 01:04 PM — (Reply)
Ed
Comment by Ed— 2008/03/02 @ 10:42 AM — (Reply)