Is John McCain a ‘Natural-Born Citizen’?
John McCain was born on a U.S. Navy base overseas. The NYT’s Carl Hulse has an interesting article about whether McCain is Constitutionally eligible to be president.
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.
The short answer is that most legal scholars presume someone who was born a citizen, regardless of location, qualifies. But the question has never been tested in court.
That it’s even an issue at this stage is silly. The Founders had a not unreasonable concern in 1789 that the fledgling nation be led by someone with unquestioned loyalty but they made a mistake enshrining that in the Constitution. Now, though, the idea that an Arnold Schwarzenegger or a Henry Kissinger or John Shalikashvili shouldn’t be eligible to run for president is absurd.
UPDATE: Jim Lindgren has a detailed discussion of the common law meaning of “natural born” demonstrating that McCain would, of course, qualify. Of particular interest is this passage from Blackstone:
When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s embassadors born abroad 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; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the embassador.
To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
That has always been my understanding as well. The distinction is between bithright citizens — i.e., those who were citizens at the time of birth — and naturalized citizens, who who born citizens of another country and have to apply and be admitted to American citizenship, renouncing their former allegiance.