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Posted by on Jul 11, 2008 in Politics | 5 comments

Natural Born

Nearly everyone, including the least qualified among us, likes to play constitutional scholar every once in a while. It’s a fun hobby and generally harmless. With that in mind, there are some interesting facts and observations brought up in this New York Times article where Prof. Gabriel J. Chin of the University of Arizona revisits the question of John McCain’s constitutional qualifications to serve as president.

The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain’s eligibility to be president. The law conferred citizenship on children of American parents born in the Canal Zone after 1904, and it made John McCain a citizen just before his first birthday. But the law came too late, Professor Chin argued, to make Mr. McCain a natural-born citizen.

While it’s unlikely in the extreme that this will go anywhere, the article is an intriguing mental exercise and well worth a read. One of the assumptions which the majority of people seem to make runs along these lines: “The founding fathers would surely have never meant to exclude a man like John McCain, the son of citizens serving abroad, from serving as president.” As I wrote in my Independence Day column, however, we tread upon dangerous ground when we attempt to infer what the founders would or would not intend. It is highly tempting to ascribe enlightened, 21st century mores and values to them, but they lived in a very different society.

What we are left with is our body of laws and the constitution itself – an imperfect document, as one would expect any creation of imperfect human beings to be, which explains why it has needed amending on so many occasions. What the document says follows, and is somewhat lacking in clarity.

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.

This is where we generally encounter the next argument, which basically says, “The constitution never really explains what the phrase “natural born” means, so the argument is pointless.” A compelling take on it, but is that really accurate? Let’s take a look at the 14th amendment.

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.

Here’s what Professor Chin had to say on this matter:

A series of early-20th-century decisions known as the Insular Cases, he wrote, ruled that unincorporated territories acquired by the United States were not part of the nation for constitutional purposes. The Insular Cases did not directly address the Canal Zone. But the zone was generally considered an unincorporated territory before it was returned to Panama in 1999, and some people born in the Canal Zone when it was under American jurisdiction have been deported from the United States or convicted of being here illegally.

And finally – perhaps the most interesting point – there is the matter of that 1937 law, mentioned above, which conferred citizenship on children of American parents born in the Canal Zone after 1904. This law clearly made John McCain a citizen, but that citizenship was conferred upon him shortly before his first birthday. As such, according to Prof. Chin, he was not technically a citizen at the time of his birth and therefore was not “natural born” since “born” is part of the phrase.

Yes, Congress passed a non-binding resolution earlier this year saying that John McCain was eligible to serve, but a non-binding resolution isn’t exactly a law. They can pass them all the live long day, but no law is truly final until it has been challenged in court and passed constitutional muster.

As previously noted, though, will this have any impact on McCain’s candidacy? The closing paragraph of the article sums it up best.

In the motion to dismiss the New Hampshire suit, Mr. McCain’s lawyers said an individual citizen like the plaintiff, a Nashua man named Fred Hollander, lacks proof of direct injury and cannot sue.

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.”