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Doesn't the Constitution exclude McCain from the Presidency?
I've only seen whispering of the issue, but I feel since it's a constitutional issue, it should be discussed more.
John McCain was born in the Panama Canal Zone, which was and is not a part of the United States of America.
The Constitution is clear, that to be eligible as President you must be a natural born citizen, that is someone born in the United States of America. You must also be 35 years old, and have resided in the country for the last 14 years.
The Constitution allows for only one exception: If you were born before the United States Constitution was ratified.
By Constitutional standards, McCain is ineligible to be President. Sure, you may say that it's outdated. Sure, you may say that McCain's parents were US citizens. But, you can not say that the Constitution's language isn't clear on this subject. While it may be politics d'jour to ignore the Constitution, it is still the supreme law of our nation.
The Act of Congress that Mccain's campaign said got him around this (5th Congress, March 26th 1790), but found that this act was repealed by the same Congress, January 29th, 1795, RE-defining such children as just American citizens (not natural-born, as required for Pres. by the Constitution), and that this act was re-repealed April 14th, 1802 by the 6th Congress, keeping the same definition of foreign-born US citizens.
Others have proposed a new act of Congress to allow McCain the Presidency. Yet, ONLY an amendment to the Constitution would be the legal route to allow someone who was not born in the US to become President.
Shouldn't the Republicans be forced to address this now?
John McCain was born in the Panama Canal Zone, which was and is not a part of the United States of America.
The Constitution is clear, that to be eligible as President you must be a natural born citizen, that is someone born in the United States of America. You must also be 35 years old, and have resided in the country for the last 14 years.
The Constitution allows for only one exception: If you were born before the United States Constitution was ratified.
By Constitutional standards, McCain is ineligible to be President. Sure, you may say that it's outdated. Sure, you may say that McCain's parents were US citizens. But, you can not say that the Constitution's language isn't clear on this subject. While it may be politics d'jour to ignore the Constitution, it is still the supreme law of our nation.
The Act of Congress that Mccain's campaign said got him around this (5th Congress, March 26th 1790), but found that this act was repealed by the same Congress, January 29th, 1795, RE-defining such children as just American citizens (not natural-born, as required for Pres. by the Constitution), and that this act was re-repealed April 14th, 1802 by the 6th Congress, keeping the same definition of foreign-born US citizens.
Others have proposed a new act of Congress to allow McCain the Presidency. Yet, ONLY an amendment to the Constitution would be the legal route to allow someone who was not born in the US to become President.
Shouldn't the Republicans be forced to address this now?
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It's my understanding that McCain, for this purpose, is making the somewhat legitimate claim that military installations, like diplomatic posts, are considered "US soil".
It does open up at least one interesting can of worms, however. If a military base is US soil for the purpose of a McCain candidacy, then what of Guantanamo? Can US soil not be US soil for purposes of evading US law when convenient?
Is there anyone here well-versed in Constitutional/diplomatic/military law?
March 11, 2008 12:11 PM | Reply | Permalink
Michael:
If you've only seen whispering about the issue, I'll presume you missed the front-page story devoted to the topic in the New York Times. Go read it - it should clarify the issue for you.
But wherever you come down, I think you'll have to admit it's not going to make a difference. The only way to enforce the provision is to convince a federal judge to intervene. I suspect that any federal judge is going to decide that the issue is sufficiently well-known that the constitutionality of McCain's claim to being a natural-born citizen ought to be left to the discretion of the electorate. Federal judges are, as a class, extremely loath to intervene in electoral contests when it's not strictly necessary.
There's even an instructive precedent: in 2000, a federal lawsuit alleged that both Bush and Cheney were citizens of Texas, violating a constitutional provision requiring that the POTUS and VP come from different states. Cheney countered that he had moved his residence back to Wyoming more than thirty days before the election, meeting that state's threshhold test for citizenship. I happen to think that claim transparently false - there was no sense in which Cheney was still a resident of Wyoming and not of Texas. But the judge declined to intervene. I suspect that, whatever the legal merits of the objection, the judge decided that in this day and age that provision was best left to the electorate to enforce - who wants a federal district judge dictating the candidates for the highest offices in the land? So long as there's grounds to argue the point, they're better off not intervening.
March 11, 2008 12:22 PM | Reply | Permalink
I hadn't seen that story. Thanks!
March 11, 2008 12:34 PM | Reply | Permalink
I think the language clarified in the 1790s also would discount that argument, stating that natural-born means born in one of the States. But, clearly, it's not the duty of Congress to interpret the Constitution. So maybe this is another Presidency to be decided by the Supreme Court? *(This time I would argue, validly)
March 11, 2008 12:25 PM | Reply | Permalink
No.
March 11, 2008 2:53 PM | Reply | Permalink
The Constitution does not say you have to be born in the United States. It says you have to be a "natural born citizen".
McCain was a citizen as soon as he was born.
Why do you think that "natural born citizen" means "born in the United States"?
Before you answer that question, please be aware that the first Congress, composed (to a large degree) of the people who actually wrote the Constitution, explicitly defined "natural born citizen" to include people who were citizens at birth, regardless of where they were born.
March 11, 2008 6:50 PM | Reply | Permalink
As a natural born citizen of the US who was born in Germany, I have to agree with Zig Zag's interpretation here.
Natural born citizen merely means you were born a citizen and did not become one later in life.
March 11, 2008 7:27 PM | Reply | Permalink
i was born in ecuador while my father was in the peace corps. he was and is an american citizen. i was always under the impression that i could not run for president. i guess by these standards i can?
March 11, 2008 10:49 PM | Reply | Permalink
Well, McCain was born on a US military base, on land that the US held a 99 year lease on. It's not quite the same as being born to Peace Corp volunteers at a clearly foreign hospital.
Still, the term "Natural Born Citizen" isn't defined in the Constitution itself and so Congress could clarify how exactly the courts should interpret it. Mitt Romney's father, George Romney who ran briefly for the GOP nomination in the 60's was considered to most likely be eligible, despite being born in Mexico to parents that had fled the US because their traditionalist Mormon beliefs in plural marriage made his parents' (Mitt's granparents') family illegal in the US.
March 12, 2008 1:59 AM | Reply | Permalink
Again, The Act of Congress that Mccain's campaign said got him around this (5th Congress, March 26th 1790), but found that this act was repealed
by the same Congress, January 29th, 1795, RE-defining such children as just American citizens (not natural-born, or born on US soil, a State, as required for Pres. by the Constitution), and that this act was re-repealed April 14th, 1802 by
the 6th Congress, keeping the same definition of foreign-born US citizens.
Also again, I don't know how Congress can interpret the Constitution, only the courts can do that. Congress can legislate, and the executive branch can enforce. Broad terms, yes, but generally accepted interpretations of the powers.
Obama, as a Constitutional lawyer, would be interesting to hear from on this subject.
March 12, 2008 9:14 AM | Reply | Permalink
The Constitution did preclude the Bush/Cheney ticket, from what I understand, because Cheney actually resided in Texas not Wyoming, and the VP and the President must come from separate states.
http://www.usatoday.com/news/vote2000/cheney2.htm
Mitt Romney was also legally residenced in Utah when he ran for governor of Massachusetts, but the Democrats were gentlemanly and did not challenge this.
March 11, 2008 7:09 PM | Reply | Permalink
Since when does the constitution require that the P. and VP be from different states?
And you are a natural born American if you are born of American parents anywhere... its up to different countries to decide how that works - but sometimes you end up with a minor with dual citizenship.
March 12, 2008 12:02 AM | Reply | Permalink
I'm no expert by any means on the subject, but the NYTimes says here, "The 12th Amendment of the Constitution prevents the president and vice president from living in the same state."
http://query.nytimes.com/gst/fullpage.html?res=9E00EEDC1E3CF93BA35751C1A9669C8B63
March 12, 2008 2:13 AM | Reply | Permalink
Although it's often disregarded, the US is one of the few countries that does not allow dual citizenship.
March 12, 2008 2:20 AM | Reply | Permalink
Wow, does this mean someone born of a cesarean section wouldn't be eligible (just being wierd).
March 12, 2008 12:22 AM | Reply | Permalink
Minor point of correction: the Constitution doesn't prohibit both the President and Vice President from being from the same state. It merely prohibits electors for voting for two people from the same state. And so no party since has nominated two people living in the same state (although there was some discussion in 1980 of Ronald Reagan choosing Gerald Ford as his running mate; the fact that both were, at that time California residents effectively shot that down). But there's nothing constitutionally that would prevent two such candidates actually being elected.
From Amendment XII:
The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;
Given how close the 2000 election was, had Cheney somehow been ruled as a Texas resident, the Texas electors presumably would have voted for Bush for President, but someone else for vice president. Had they voted for Joe Lieberman, he would have become Vice President. But if they voted for anyone other than Lieberman (which would be more likely), then the Senate would get to vote on the VP. Again from Amendment XII:
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President;
(Emphasis added). It's almost identical to the text governing the selection of the President, except that the Senate breaks the tie instead of the House of Representatives (voting as blocks by state).
The 12th amendment was passed to solve a larger flaw in the presidential election process: prior to its passage, the President was the person getting votes from the majority of electors with the highest total (each elector could vote for two people), and the VP was the person with the second-highest total of electoral votes. This worked well enough until 1800, when the new parties each nominated specific Presidential and VP candidates, and then the Democratic-Republican candidates Thomas Jefferson and Aaron Burr tied at 73 votes in the electoral college, requiring a vote of the House of Representatives to decide the presidency.
March 12, 2008 10:44 AM | Reply | Permalink
Clarification to my above comment: electors can't vote for two people from their state. Nothing prevents electors from California for voting for two Texans. They just can't vote for two Californians.
People interested in the "Natural born" discussion might find this Jack Balkin post amusing: he finds grounds to argue that no one elected president has ever been eligible!
March 12, 2008 10:57 AM | Reply | Permalink