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New York Times
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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.
To date, no American to take the presidential oath has had an official birthplace outside the 50 states.
Mr. McCain was born on a military installation in the Canal Zone, where his mother and father, a Navy officer, were stationed. 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.
Oh well, it was worth a shot.
If you’re born to diplomats in America, that doesn’t make you a US citizen, so maybe the embassy analogy doesn’t apply.
I would think George Romney born in Mexico definitely isn’t.
#31
Actually, per the Constitution, if you are born in the US you are a US citizen. Nowhere in the constitution are there exceptions for having parents who are diplomats…
Where does it say that in the Constitution?
This was an issue with one of the terror suspects who was arrested. They ended up deporting him.
#33
14th Amendment
This article has more schmear than a New York delicatessen.
Actually, There IS an exception in the Constitution for diplomats. In the 14th Amendment, it says “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.”
Diplomats are not subject to the jurisdiction of the United States. That’s the whole point about the Diplomatic Immunity and embassies being foreign soil and so forth. That clause was specifically intended to rule out the children of diplomats.
Brons
#36
Afraid that interpretation is untested. If they have a birth cert from a US hospital they can claim citizenship at any point in their life. As far as why that clause says that, pls show the documentation showing that’s why it was written that way.
If they were born in the embassy then that isn’t US soil…
Natural born does not mean “born in the USA.” It means that you were a citizen at birth versus having to apply for citizenship.
It simply doesn’t matter where a person is born, if that person is a citizen of the USA at birth, he or she can become the president.
#38
Thanks. As I thought.
It doesn’t matter, its all rigged, McCain is going to “win” the election.
#18 Dick Cheney was raised in Casper, WY and served 6 terms in the House of Representatives as a representative from Wyoming. He may have been a resident of Texas later, but Wyoming is pretty clearly his home state and if he owns a home there and wants to claim it as his residence he can – just like anybody else.
8 of the first 9 presidents of the U.S. were born in an English colony. That part of this NY Times article stood out.
Yes, but the Constitution gives two options for Presidents. They must be “natural born” citizens OR citizens as of the time of the signing of the Constitution. McCain, old as he is, does not qualify as having been a citizen at the time of the founding. That means he has to meet the “natural born” criteria, and thus the unresolved issue being discussed here and in the Times and in the law journals for the last many years.
This isn’t a new issue brought up for McCain–it was discussed during both the Goldwater and first Romney campaigns, and never resolved, despite the Senators impression. You can read any amount of commentary on it in the various legal journals. FindLaw, being on-line is merely one of the handier ones, and thus my citations of it above.
I first encountered the discussions some three and a half decades ago when I TA’d a philosophy of law class. It was still a popular puzzle due to the then recent campaigns. I think if the McCain’s candidacy brings it to a head, the Admiral’s hero son is virtually guaranteed to have it decided in his favor, but until then it is an open issue.
This has been a fun day with all of the various stuff coming out of the woodwork.
On Obama, someone brought up being born **outside** the continential United States and then added that under the Kenyan constitution, implimented when they became independent of the UK, anyone born in the old colony was an automatic citizen and their children were automatic citizens as well…so Obama’s father(who was born in the old colony fit’s this) so Obama was/is also a citizrn of Kenya, so can’t be President either.
Also, congress passed a law in 1795 allowing that ANYONE born to citizens of the U.S. anywhere in the world was a citizen of the U.S……now the kicker is they used the term **natural born citizen**, but later congreses dropped the *natural* part. So there is a constitutional question on which law is the correct law since none of the later laws were updates or clarifications of the original law.
As to the Canal Zone….at the time of McCains birth it was a territory of the U.S. and he was born on the actual military base(considered an integral part of the U.S), therefore he is a **natural born citizen**.
Some countries do not follow the *born here, therefore a citizen here* train of thought. The U.S. is one that does and it’s in the constitution. If your born on U.S. soil, your a citizen. I will use France(but have no clue what French law is)….if your born in France of citizens of another country then your NOT a French citizen, but a citizen of your parents home country. The U.S. recognises this law when the question comes up concerning a country that uses the home country of the parents and also uses it pertaining to U.S. citizens who have children in other countries. Thus under recognised U.S. law, we follow the old English Common law that allows for parent’s home country as well as born here, your a citizen here. None of this has ever been decided in court. Though the case of the United Staes versus Wong Kim Ark was decided on faulty reading of the constitution by the Judge in his decision.
It all boils down to the fact that a person, born on a U.S. military base, in a U.S. territory to parents who are both U.S. citizens(one of whom is at that base because of their service in the military, thus are there under orders)is a **natural born citizen** if for nothing more than precedent. This would be upheld by even a Liberal court.
The NYT’s said that American’s serving overseas have no idea their children might be able to be eligble to be President. Which of course is just bullshit plain and simple.
My best laugh came when a consevative columnist was begging Howard Dean to make an issue of this….maybe even take it to the Supreme Court…..why???….because it would be the perfect way to remind voters just which party went to court to not allow overseas military votes to count in Florida in 2000. The party that claims it *respects* our troops and what thy do……the Democrats. 🙂
#45…above…read……….
>>>>>>The NYT’s said that American’s serving overseas have no idea their children might be able to be eligble to be President. Which of course is just bullshit plain and simple<<<<<<
Should have read….*** ….have no idea their children might NOT be eligible to be President.
#45, Joshua,
Still plying that tired old right wing nut bullshit propaganda.
Barack Obama was born in Honolulu. That makes him an American citizen from the start. To bring up his name and then start discussing some totally useless bullshit about his father’s birth is just plain disingenuous.
So, when are you going to post the source for your claim that Nancy Pelossi is taking orders from the trial lawyers about granting immunities to the telecoms? I just know you wouldn’t make it up? Not someone like you. Not someone who hasn’t even read the NYTimes article
Just like your comment here,: to remind voters just which party went to court to not allow overseas military votes to count in Florida in 2000. More bullshit. Or did you have more of a citation than Rush Limbaugh on that one?
#46, Joshua,
I can’t find the quote you attributed to the NYTimes. So maybe your comment is just more bullshit.
First, there is a byline. That means the story’s author is identified and thus is NOT NYTimes editorial.
Then there is the quote from Sen. Lindsey Graham.
“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.”
and one from retired Senator Don Nichols,
“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.
So the answer is no. The NYTimes did not say that. Two identified people did though.
Geeze, that home schooling must have taught you a lot about research.
#45 Joshua wrote, “As to the Canal Zone….at the time of McCains birth it was a territory of the U.S. and he was born on the actual military base(considered an integral part of the U.S), therefore he is a **natural born citizen**.”
Just to correct your understanding of the legal status of the canal zone, it was not a territory of the U.S. as you and others have claimed. It remained sovereign territory of the country of Panama, a country that came into being largely over the canal issue, with the U.S. supporting the revolution so we could build the canal. The words of the Hay-Buneau-Varilla Treaty specifically allowed the U.S. to use the canal “as if it were sovereign,” later expressed in President William Howard Taft’s famous phrase “titular sovereignty.” You may have missed the meaning conveyed in the words “as if.”
My primary source is remarks made in 1999 by John J. Tierney (click here for bio, impressive for a conservative) in a discussion that was completely insulated from the subject of McCain’s presidential eligibility, so it was untainted by the agenda of recent events and news. Here are some of the salient points that Tierney uses to buttress his conclusion:
* The United States paid Panama annual indemnities; something a sovereign would not possibly do;
* Panamanians born in the Canal Zone were citizens of Panama, not the United States;
* United States General Laws (such as the criminal code) could not be applied in the Canal Zone;
* The United States Constitution never automatically applied in the Canal Zone;
* A 1930 U.S. Supreme Court decision defined the Zone’s ports as “foreign”;
* The 1936 Hull-Alfaro Treaty termed the Canal Zone as the “territory of the Republic of Panama under the jurisdiction of the United States of America.” The U.S. Senate ratified this pact;
* A 1948 Supreme Court decision declared that while Congress “controlled” the Canal Zone, the U.S. did not possess “sovereignty”;
* After World War II, Washington officials repeatedly recognized Panama’s sovereignty in the Canal Zone, as did all presidents from Franklin Roosevelt to Carter.
As for your assertion of relevance that McCain was born on an “actual military base,” it is contradicted most recently by the people you helped put into office, who maintain that American bases exist on foreign soil and therefore are not part of the United States. Because they are not part of the United States, they are not subject to U.S. law.
#48, Gary,
Very interesting comment. Something I hadn’t given too much thought about. All my life I thought the issue of “natural born” was fairly cut and dried.
The best thing about your comment is you sourced your material and cited the reference. And you didn’t need to use WikiRepublicanBullcrap either.
#17 et al, “Title 8 CHAPTER 12 SUBCHAPTER III Part I Secion 1401 of the US Code is about as clear as any law can be.
Of course he is a natural-born citizen. Anyone that puts forth otherwise is an idiot.”
errrr, buddy boy pal o mine, you might want to check SECTION 1403 which specifically says that Panamanians born to US citizens are hereby DECLARED to be citizens… A citizen by DECLARATION is a NATURALIZED CITIZEN *NOT* A “NATURAL BORN CITIZEN” —hence McCain is NOT elligible. As for calling people idiots…. maybe you should read more than just the material that suits you fancy next time… all you had to do was go a couple sections forward… but NO!–cause you were in too big a hurry to insult other people…?
#50, critter,
Thanks for the update. There is nothing like a little research.
In my american history textbook it said you had to be born in the contiguous 48 states, so I guess alaskans and hawaiians are out.
I was born on an AF base too, guess I’m out as well as John McCain.
Don’t rule out those wacky republicans though, they want to amend the constitution so some Austrian bodybuilder can become president.
Panama John – not a natural born Citizen of the U.S.
—————————————————-
I’m starting to feel bad about this for John McCain. He has come so far and to have the very nature of his citizenship to be questioned would be miserable, especially after heroic service. But he is seeking the one occupation that explicitly requires that the officeholder be a “natural born Citizen.” This can only be changed by an amendment that changes the Constitution from saying “natural born Citizen” to something that would include him as eligible, though he is a citizen by jus sanguinis (citizenship by descent).
In presenting this constitutional matter, the purpose is to bring attention to the need for a remedy. This may also mean that the remedy would not be in place in time for Senator John McCain to be eligible to hold the office of President.
U.S. Supreme Court
SCHNEIDER v. RUSK, 377 U.S. 163 (1964)
We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, 1. [377 U.S. 163, 166]
Consider more details if you doubt the seriousness of this matter:
http://idacres.com/politics/mccain/natural_born_Citizen.html
There are three legal terms relating to citizenship: jus soli (“right of the soil” or born in the United States), jus sanguinis (“right of blood” or born to citizen parents), and lex soli (“law of the soil” or naturalization). John McCain was born in the Panama Canal Zone in 1936 to American parents, so jus sanguinis applies to him, and is not in dispute. However, jus sanguinis has no basis in U.S. law (only jus soli and lex soli do) except through applying codified law such as the Immigration and Naturalization Act of 1952, so it falls under lex soli. This is the basis of the question: Is a citizen born in the Panama Canal Zone in 1936 a citizen under jus soli or lex soli (born or naturalized)?
The Supreme Court has never addressed the specifics of a natural born citizen, except once in passing, in the dissent of the infamous Dred Scott case. Other cases have looked at citizenship, but not specifically the natural born part of it.
Outside federal law, the State Department specifically addresses the situation under 7 FAM 1100:
“ 7 FAM 1111.2 Citizenship
(TL:CON-64; 11-30-95)
a. U.S. citizenship may be acquired either at birth or through naturalization.
b. U.S. laws governing the acquisition of citizenship at birth embody two legal principles:
(1) Jus soli (the law of the soil), a rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes.
(2) Jus sanguinis (the law of the bloodline), a concept of Roman or civil law under which a person’s citizenship is determined by the citizenship of one or both parents. This rule, frequently called “citizenship by descent” or “derivative citizenship”, is not embodied in the U.S. Constitution, but such citizenship is granted through statute. As laws have changed, the requirements for conferring and retaining derivative citizenship have also changed.
7 FAM 1116.1-4 Not Included in the Meaning of “In the United States”
(TL:CON-64; 11-30-95)
c. Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.
McCain, having been born in 1936, falls under this clause. Thus determination of jus soli depends upon the Department of State’s interpretation of what constituted the United States at the time he was born.
This law others have fought in Wars for the US and were not even considered people. Kissenger could not be President. Are were going to allow the law rule or the party rule. This is poor work on his staff part.
Even if the Canal Zone was not US territory, McCain would be considered a natural born citizen under the following provision:
Sec. 1401. Nationals and citizens of United States at birth
The following shall be nationals and citizens of the United States at birth:
(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.
Does anyone seriously doubt that either one of McCain’s citizen parents would have met this residency test?
Tierney’s comments paraphrased in post no. 48 and which I have read by clicking on the link are inaccurate and misleading. Tierney mentions several things: the annual payment of idemnities (the payments are not “idemnities”; they are compensation just as compensation was paid for Alaska, the Louisiana Purchase, and the island of Manhattan), the reservation of citizenship only to children born in the Canal Zone of American parents, the hedged phrase that the Constitution didn’t “automatically” apply, and the lack of application of U.S. laws of general application. None of these are necessarily inconsistent with U.S. sovereignty.
Tierney is mistaken if he thinks that the words “as if” convey equivocation about U.S. sovereignty. The phrase is not “as if”; the 1904 treaty specifies that the U.S. acquires all the “rights, power, and authority” it would have if it were the sovereign. That is a face-saving way for the Panamanians to avoid having to expressly concede U.S. sovereignty, but the effect is obviously the same. Moreover, the treaty expressly says that Panama is excluded from the exercise of any sovereignty. Of course it is “titular sovereignty”; that word refers to what something is called, and it is called sovereignty because that is what it is.
The reason why a 1930 Supreme Court decision would define the ports as “foreign” is because the Treaty specifically provided that the harbors of the cities of Panama and Colon, while physically within the Canal Zone, were not included within the grant of sovereignty.
The reason for the 1948 Court decision and post-WWII statements is the intervening Hays-Alfaro treaty, which restored sovereignty to Panama, leaving the U.S. as the manager of the Canal Zone. However, that treaty was not ratified until 1939, after John McCain was born, meaning that McCain was born in territory belonging to the United States. Whether the Canal Zone comes within 8 USC section 1401(a) (conferring birth citizenship on anyone born in the United States and subject to its jurisdiction) or 1401(e) (conferring birth citizenship on anyone born in an “outlying possession” of the U.S. to citizen parents) is another question.