John McCain’s Presidential Eligibility Redux
Gabe Chin, a University of Arizona law professor, has re-opened the “Is John McCain a natural-born citizen” debate with a new paper arguing that persons born in the Panama Canal Zone did not technically become automatic citizens until eleven months after his birth. Adam Liptak examines this closely in today’s NYT and gets a wide variety of legal opinions on Chin’s analysis.
What’s clear, though, is that the discussion is entirely academic.
“No court will get close to it, and everyone else is on board, so there’s a constitutional consensus, the merits of arguments such as this one aside,” said Peter J. Spiro, an authority on the law of citizenship at Temple University.
Daniel P. Tokaji, an election law expert at Ohio State University, agreed. “It is awfully unlikely that a federal court would say that an individual voter has standing,” he said. “It is questionable whether anyone would have standing to raise that claim. You’d have to think a federal court would look for every possible way to avoid deciding the issue.”
Miami lawprof Michael Froomkin agrees but adds,
Even so, it would be nice to think that the issue could get into court, but not to throw McCain out of the election, which would be a travesty. As Prof. Chin rightly says, “Presidential candidates who obtained their citizenship after birth are no more likely to be disloyal than those born citizens, and the People of the United States should be allowed to elect whomever they choose.” (Insert “shortly” before “after birth” if it makes you feel better.)
No, the reason to wish this would get into court is that it would provide a strong excuse for knocking the stuffing out of the largely pernicious Insular Cases which form the basis for the argument of McCain’s ineligibility. The Insular Cases are the basis for the argument — wrong in my opinion — that most of the Constitution stops at the water’s edge. I believe that the Constitution applies to the officials whose offices exist under it whereever they act. I don’t think non-US citizens abroad have constitutional rights like US citizens at home or abroad do, but I don’t think that government officials lose the shackles of law when they cross the border. Too often — think Guantanamo — our officials act as if they do, and their lawyers try to justify it in court.
Frankly, it might be time to simply fix the Constitution in the manner the Framers intended: by amendment. It’s wholly unclear to me why all of the restrictions on whom Americans may elect president (age, citizenship, number of years previously served) shouldn’t be swept away.