Thursday, February 28, 2008

Questions Surface About McCain's Panamanian Birth


"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." - US Constitution Article 2 Section 1 Clause 5

Well, we know he is old enough, and we know he has met the residency requirement - but is he considered born here in the USA?

This is something that has been bouncing around the Internet for awhile now: What about John McCain's Panama Canal Zone birth in 1936?
New York Times article By CARL HULSE
WASHINGTON — The question has nagged at the parents of Americans born outside the continental United States for generations: Dare their children aspire to grow up and become president? In the case of Senator John McCain of Arizona, the issue is becoming more than a matter of parental daydreaming.

Mr. McCain’s likely nomination as the Republican candidate for president and the happenstance of his birth in the Panama Canal Zone in 1936 are reviving a musty debate that has surfaced periodically since the founders first set quill to parchment and declared that only a “natural-born citizen” can hold the nation’s highest office.

Almost since those words were written in 1787 with scant explanation, their precise meaning has been the stuff of confusion, law school review articles, whisper campaigns and civics class debates over whether only those delivered on American soil can be truly natural born. To date, no American to take the presidential oath has had an official birthplace outside the 50 states.

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

Mr. McCain was born on a military installation in the Canal Zone, where his mother and father, a Navy officer, were stationed. His campaign advisers say they are comfortable that Mr. McCain meets the requirement and note that the question was researched for his first presidential bid in 1999 and reviewed again this time around.

But given mounting interest, the campaign recently asked Theodore B. Olson, a former solicitor general now advising Mr. McCain, to prepare a detailed legal analysis. “I don’t have much doubt about it,” said Mr. Olson, who added, though, that he still needed to finish his research.

Senator Lindsey Graham, Republican of South Carolina and one of Mr. McCain’s closest allies, said it would be incomprehensible to him if the son of a military member born in a military station could not run for president.

“He was posted there on orders from the United States government,” Mr. Graham said of Mr. McCain’s father. “If that becomes a problem, we need to tell every military family that your kid can’t be president if they take an overseas assignment.”

The phrase “natural born” was in early drafts of the Constitution. Scholars say notes of the Constitutional Convention give away little of the intent of the framers. Its origin may be traced to a letter from John Jay to George Washington, with Jay suggesting that to prevent foreigners from becoming commander in chief, the Constitution needed to “declare expressly” that only a natural-born citizen could be president.

Ms. Duggin and others who have explored the arcane subject in depth say legal argument and basic fairness may indeed be on the side of Mr. McCain, a longtime member of Congress from Arizona. But multiple experts and scholarly reviews say the issue has never been definitively resolved by either Congress or the Supreme Court.

Ms. Duggin favors a constitutional amendment to settle the matter. Others have called on Congress to guarantee that Americans born outside the national boundaries can legitimately see themselves as potential contenders for the Oval Office.

“They ought to have the same rights,” said Don Nickles, a former Republican senator from Oklahoma who in 2004 introduced legislation that would have established that children born abroad to American citizens could harbor presidential ambitions without a legal cloud over their hopes. “There is some ambiguity because there has never been a court case on what ‘natural-born citizen’ means.”

Mr. McCain’s situation is different from those of the current governors of California and Michigan, Arnold Schwarzenegger and Jennifer M. Granholm, who were born in other countries and were first citizens of those nations, rendering them naturalized Americans ineligible under current interpretations. The conflict that could conceivably ensnare Mr. McCain goes more to the interpretation of “natural born” when weighed against intent and decades of immigration law.

Mr. McCain is not the first person to find himself in these circumstances. The last Arizona Republican to be a presidential nominee, Barry Goldwater, faced the issue. He was born in the Arizona territory in 1909, three years before it became a state. But Goldwater did not win, and the view at the time was that since he was born in a continental territory that later became a state, he probably met the standard.

It also surfaced in the 1968 candidacy of George Romney, who was born in Mexico, but again was not tested. The former Connecticut politician Lowell P. Weicker Jr., born in Paris, sought a legal analysis when considering the presidency, an aide said, and was assured he was eligible. Franklin D. Roosevelt Jr. was once viewed as a potential successor to his father, but was seen by some as ineligible since he had been born on Campobello Island in Canada. The 21st president, Chester A. Arthur, whose birthplace is Vermont, was rumored to have actually been born in Canada, prompting some to question his eligibility.

Quickly recognizing confusion over the evolving nature of citizenship, the First Congress in 1790 passed a measure that did define children of citizens “born beyond the sea, or out of the limits of the United States to be natural born.” But that law is still seen as potentially unconstitutional and was overtaken by subsequent legislation that omitted the “natural-born” phrase.

Mr. McCain’s citizenship was established by statutes covering the offspring of Americans abroad and laws specific to the Canal Zone as Congress realized that Americans would be living and working in the area for extended periods. But whether he qualifies as natural-born has been a topic of Internet buzz for months, with some declaring him ineligible while others assert that he meets all the basic constitutional qualifications — a natural-born citizen at least 35 years of age with 14 years of residence.

“I don’t think he has any problem whatsoever,” said Mr. Nickles, a McCain supporter. “But I wouldn’t be a bit surprised if somebody is going to try to make an issue out of it. If it goes to court, I think he will win.”

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.”
I can't wait to hear what the Constitutional scholars come up with. I am sure there will be opinions galore.

Ah yes, and the circus that is the American presidential elections continues to offer so much entertainment value, who needs American Idol or Lost?

13 comments:

Eric Holcombe said...

“He was posted there on orders from the United States government,” Mr. Graham said of Mr. McCain’s father. “If that becomes a problem, we need to tell every military family that your kid can’t be president if they take an overseas assignment.”

I wonder if Mr. Graham thinks the founding fathers would have had a U.S. military engaged in foreign countries WITH THEIR WIVES to even allow this to happen. It is the deviation from their intent that has brought this circumstance.

Kristina said...

I wonder if Mr. Graham thinks the founding fathers would have had a U.S. military engaged in foreign countries WITH THEIR WIVES to even allow this to happen. It is the deviation from their intent that has brought this circumstance.


There are military "based" abroad at posts other than military bases. For instance, we have military members based at all the embassies. We also have cilivilians there. Would you have these members brought home? Or, would you require that our Ambassadors not take their wives with them, or if they do--not have children while they are there?

Also, since military wives "followed the drum" during the time of the revolution, while the founding fathers may not have meant for our military members to be stationed overseas, many of their wives would have followed them to war in those times. You see, the wives were the nurses, cooks, etc. They certainly continued to give birth during war time.

So, even if our world had not changed from what it was when our country was founded, there would be American babies being born overseas.

Dawn said...

I had thought that military bases were something like embassies, technically a part of the country that runs the base or embassy and not of the country who's soil it's resting on.

Regardless, I find the idea that you have to be ''natural-born'' bizarre and something you guys need to change.

thomas said...

The question must be asked, Was either one of Arnold Shwartenagger's (last name spelling may be wrong)parents a citizen of the united states? if so , he should be a winner in any court challenge to him running for president. he should have been a natural born citizen of the united states.

Anonymous said...

Obama was not born in the United States (1961). If McCain is not eligible to be president by virtue of his birthplace, I guess that we are stuck with the current alternative -- Hillary!

Anonymous said...

Did anyone stop to think that the first 7 presidents of the US were not naturally born US Citizens? Martin Van Buren was actually the first meeting the requirements if you go back to the Declaration of Independence. However, you must wait until #10, John Tyler to be legal back to the ratification of the Constitution.
I wonder if someone was born on the UN property would negate their requirements to become president.

Kristina said...

Actually, he was born in Hawaii. Hawaii was made a state in 1959. He was born in 1961, so he was born in the US.

Eric said...

"Would you have these members brought home?"

If they expect to be citizens of our country, yes. Our country has not declared war for over 60 years. We are not at war with any nation/state today, but we have occupying forces in many places.

"They certainly continued to give birth during war time."

They were also at home in our newly declared independent republic which was establishing/defending itself - not in occupation of a foreign land. Military engagement was not meant to be a lifestyle where people spend their entire lives occupying a foreign land.

In a nation of 300 million people, does it seem likely or often that this should even be an issue? I guess if we want to pick the parts of the Constitution we don't like, or aren't convenient this election cycle, why not put it all on the table?

"Did anyone stop to think that the first 7 presidents of the US were not naturally born US Citizens?"

Yes, including the founders: "...or a Citizen of the United States, at the time of the Adoption of this Constitution...".

Kristina said...

Would you have these members brought home?"

If they expect to be citizens of our country, yes. Our country has not declared war for over 60 years. We are not at war with any nation/state today, but we have occupying forces in many places.


I'm asking if you would bring home our Ambassadors and the military members that are at the various Embassies around the world.

"They certainly continued to give birth during war time."

They were also at home in our newly declared independent republic which was establishing/defending itself - not in occupation of a foreign land. Military engagement was not meant to be a lifestyle where people spend their entire lives occupying a foreign land.


I think you missed my point. I was speaking about a time when the militaries around the world (Mostly we're talking about Great Britain and France, here) traveled to other countries to fight wars. The wives of those soldiers followed the husbands to war. If we were still living that way, when we went to war, the wives would follow their husbands. No, this country has not declared war in 60 years. But, I'm pretty sure John McCain is older than that.

If I am following my husband overseas for duty, I fully expect my children, who by birth-born to two US citizens, to be eligible to serve as president. You may not consider it important, but I consider it important. One person really can change the world.

Finally, it was always my understanding that "natural born" meant being either born in the United States or to citizens of the United States-both of which automatically make the child a US citizen rather than a naturalized citizen.

Eric said...

"I think you missed my point."

I guess so. I was still talking about the United States of America - you were talking about Great Britain and France. I do not believe it was the Founders intent to model these countries, otherwise why revolt? Also I was discussing military, not straw man ambassadors. John McCain's father was not ambassador to the Panama Canal.

"But, I'm pretty sure John McCain is older than that."

And the U.S. Constitution is older than all of us.

"You may not consider it important, but I consider it important."

As you may not consider occupying foreign lands contrary to our Constitution (undeclared "war", etc.) important enough to not do it.

Kristina said...

Eric,
I think you missed my point again. Perhaps I'm not making it clear enough. I'll try again.

If our soldiers' wives still followed the drum as was the custom during the time of the founding of this country (hence the reference to GB and France--they had established militaries, we did not), then wives would have been in many places during WWI, WWII, the Korean War, Vietnam, and would currently be in Afghanastan and Iraq--regardless of whether we have declared war or not. The militaries of that time did not pay for the wives to follow the men, they just did. Like I said, they were nurses, cooks, etc. You'll see this in the Civil War, too. The difference there is that many of those wives stayed home and brought the wounded into their homes to care for them.

You may not have been discussing our Ambassadors, but I don't know how you could ignore the fact that they are there. Also, we have Marines stationed at embassies to guard the embassies. We also have other military personnel there for communications purposes. They could make these "isolated" tours in that they could not bring along their families--and in some cases they are. However, you still have to understand that Ambassadors and their wives can have babies, too. The question here is not whether our military should come home, but rather wheter or not a child born to American citizens abroad is a natural born citizen.

Of couse the Constitution is older than any of us. YOU made the point that war had not been declared in 60 years as a reason why the military should not be overseas (I think that was your reasoning), but John McCain is older than that, so it wasn't a valid point.

Finally, on your last point, I think the problem there is that we disagree on what the military is doing overseas. I'm not going to argue about that. I'm just wondering why you won't answer the very valid question as to whether or not you believe that Ambassadors' children do not have the right to become President. Your original argument was based on the military "illegally occupying" foreign lands. So, I asked the question about Ambassadors. But, you're calling it a strawman. I sincerely want to know what you think of that.

Eric said...

Children of ambassadors has nothing to do with the subject of the post. It is a straw man. I stand by my original position which is if the US Constitution forbids it, then it should not be allowed for convenience or because you think one person can make a difference. If military occupation of foreign land contrary to our Constitution is the root cause of the contrived citizenship scenario, and because they are breaking the law for the government exceptions should be made, then again, why not put the whole document on the table for exceptions? This is the "living, breathing document" path - making it relevant for our "modern culture". Thus, you get the use of terms like "arcane" in the referenced article. If you honestly believe the founders envisioned an America with hundreds of military bases in 50 countries and we should alter our citizenship/leadership requirements to accommodate that - then I suggest your citizenship ideal resembles the Roman Empire version much more than a comparison to Clara Barton will allow.

The declaration of war and 60-year time period have everything to do with the US engaging in activity contrary to our Constitution and the timetable for the endless foreign military bases and embassies- not how old McCain is. It is this entangling in foreign affairs (another "arcane" idea) that makes these ambassadors and endless military bases all over the world a reality - which is the ONLY reason your straw man ambassador's child would be born there to begin with.

Kristina said...

Quickly recognizing confusion over the evolving nature of citizenship, the First Congress in 1790 passed a measure that did define children of citizens “born beyond the sea, or out of the limits of the United States to be natural born.” But that law is still seen as potentially unconstitutional and was overtaken by subsequent legislation that omitted the “natural-born” phrase.

The constitution was adopted in 1787. The following year, it was ratified. The Bill of Rights was ratified in 1790.

So, in the very beginning of the adoption of the constitution, it was changed to show that children born to citizens of the US living outside the bounds of our borders were "natural-born" citizens of the United States of America.

It has always been my understanding that theses children were considered "natural-born" children BECAUSE they were born to US citizens. Otherwise, they would have to apply for their citizenship.

If you can show me, via the constitution, that children born to US Citizens outside the country, military or no, are not natural-born citizens, then I will concede the point willingly.

I would argue that the whole point of the military being overseas (which we'll just have to disagree on) is moot. I think that was a strawman by the article's author, to begin with. There are certainly plenty of US Citizens living abroad who are not military OR ambassadors, or in any way related to the government of the US. (Think businessmen and missionaries.)