Saturday, March 01, 2008


Birthright and the presidency


There’s some misguided hoo-hah going on about whether John McCain might be ineligible to be President of the United States because he was born in the Canal Zone, and not in the “U.S. proper”.

As the NY Times article points out, this isn’t the first time this issue has come up, but it’s never been definitively resolved. And as the Times article points out, through the pundits it quotes, this is not a straightforward question, from a technical point of view:

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


Lawyers who have examined the topic say there is not just confusion about the provision itself, but uncertainty about who would have the legal standing to challenge a candidate on such grounds, what form a challenge could take and whether it would have to wait until after the election or could be made at any time.

In a paper written 20 years ago for the Yale Law Journal on the natural-born enigma, Jill Pryor, now a lawyer in Atlanta, said that any legal challenge to a presidential candidate born outside national boundaries would be “unpredictable and unsatisfactory.”

“If I were on the Supreme Court, I would decide for John McCain,” Ms. Pryor said in a recent interview. “But it is certainly not a frivolous issue.”

Not a straightforward question at all, from a technical point of view. But that’s an academic issue. From the point of view of sense, it’s quite straightforward:

  1. The authors of the constitution had a particular agenda: they wanted to be sure that the newly created United States was led by locals, not by someone who sailed over from Britain and might likely have allegiance to King George or his successors. We still want to be sure of the intentions of our presidents, but the question isn’t the same now as it was then.
  2. It surely was never the intent of the Founding Fathers to prevent the offspring of military personnel, or of other personnel serving the country, from becoming President, if they happened to have been born out of the country by the chance of a foreign assignment.
  3. Even apart from the service issue, it seems unlikely that those born in U.S. territories were meant to be excluded, and the Canal Zone was a U.S. territory when Senator McCain was born there.
  4. The previous item calls into question the meaning of “natural born citizen”, as specified, but not defined, in the Constitution (Article II, Section 1, paragraph 5). The courts have to interpret that officially, of course. My interpretation is that it refers to the condition of citizenship at birth... and it’s clear that Senator McCain was a U.S. citizen at birth, regardless of where the birth occurred. The Constitution doesn’t talk about the where, but only the when: “a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution”. It seems clear that it refers only to when the candidate became a citizen.

No one of any sense would think that Senator McCain should not be eligible to be President, and this is just a matter of groping at technicalities and hoping that the Supreme Court will go along with it. It seems likely that they won’t, and they shouldn’t. I’m with Ms Pryor on that: if I were on the Supreme Court, I, too, would decide for John McCain.

I don’t want to see President McCain. But this isn’t a valid way to stop that. Let’s do what we can, and work against his election, instead of groping and hoping.

1 comment:

The Ridger, FCD said...

I thought this was settled when George Romney ran for president - and there was a lot more reason to argue about him. Did they quit worrying about it when he dropped out of the race?