Why McCain and I Should be Allowed to be President

John McCain was born in Panama. Arnold Schwarzenegger was born in Austria. I was born in Turkey. Article II of the Constitution clearly states, "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." (emphasis added)

End of the question, right? None of us can be president of the United States of America.

This should be especially clear for "strict constructionist" conservatives. John McCain says he wants judges who won't legislate from the bench. He wants them to apply the letter of the law. Well, there you have it -- the end of John McCain's candidacy.

Now McCain supporters are saying a plain reading of the constitution isn't fair because his parents were on an American military base in Panama's Canal Zone. Boo hoo. Sad day for you. Strict constructionism!

The Canal Zone is not US land, neither is the military base. He'd have a legitimate argument if he was born in the embassy, but alas, he wasn't. Now, do I think it's unfair that kids born on military grounds to patriotic parents serving their country overseas aren't eligible to serve as US presidents? Yes, I definitely do, but then I'm not a strict constructionist.

Lucky for McCain, I think the legal scholars are looking at this all wrong. He shouldn't have to rely on a fairness or common sense argument. I think there is a plain letter of the law argument to be made in the US constitution that allows McCain, Schwarzenegger and even me to become president.

It's called the Fourteenth Amendment. Look at it. It clearly states:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added)

The Fourteenth Amendment is an... amendment. It amended many parts of the US constitution, including Article II. Historians say it applied to the newly freed slaves. Of course, it did. But it doesn't say that it doesn't apply to the rest of us. It doesn't mention slaves at all. Plain reading!

If a freed slave had made the improbable journey to the White House after the Fourteenth Amendment was passed, would the Supreme Court blocked him from becoming president since he was not "a natural born citizen" of the United States? No way. The Fourteenth Amendment made clear that all of the laws were supposed to apply equally to born or naturalized citizens. It would have been a clear violation of the Fourteenth Amendment to deny him the office he earned and not treat him as equal to any other citizen.

So, why isn't it equally clear that it's a violation of the Fourteenth Amendment to prevent other naturalized citizens, or in McCain's case, a citizen born outside of the United States, from becoming president? Remember, these clauses are not equal in weight. It's not hard to pick between the two. The Fourteenth Amendment wins because it is an amendment -- it changed earlier clauses in the constitution, like Article II.

Fortunately for John McCain he doesn't need liberal jurists or an amendment to the constitution to become president because there already is a clear amendment on this matter -- the Fourteenth Amendment.

Watch TYT Here

Follow Cenk Uygur on Twitter: www.twitter.com/TheYoungTurks

Comments

[electriclady281]

US Government schools took great pains to inform American students from an early age that those who were born in the Panama Canal Zone that we could not be president of the United States because we were not natural born citizens. To prove our US citizenship, we were required to obtain a certificate of citizenship, but it still didn't make us "natural born citizens" because we were not born in the USA. How then, is Article 2, section 1, clause 5, of the US Constitution interpreted in relation to John McCain's eligibility as a candidate for the presidency? And why would the US Government go to all that trouble if it weren't true?

This is not about his fitness or his citizenship. It is the matter of a constitutional requirement. Our constitution has suffered many blows under the present government to the detriment of all Americans. Will this be yet another?

A Canal Zone birth certificate proves only that a child was born. To prove citizenship, whether or not the birth was recorded at an embassy, many legal documents are required, which are summed up by a certificate of citizenship. Naturalization is not an issue here. Place of birth is. In McCain's case, and mine, and thousands of other US citizens born in the Canal Zonea, according to the constitution and US Government practice, though we are citizens, we are not natural born citizens because we just were not born in the US and there's no document that can change that.

[NorthernCross]

Oh, and the other problem is that "natural born citizen" doesn't equal "person born in the U.S." All it means legally is that a person must be a citizen at the moment of his birth, which also happens to be its plain meaning. The Fourteenth Amendment doesn't specify who is or is not born into citizenship, and in fact the authors of this Amendment intended to leave that up to Congress. And Congress determined a long time ago that a guy like McCain is born a citizen.

[NorthernCross]

Big problem with your Fourteenth Amendment analysis is that it was written to apply to the states, not the federal government. That's the big reason why civil rights attorneys didn't use it when they sued a D.C. school district, which is a federal entity, to desegregate schools there.

[PandeiroMan]

I concur completely. As an American father of two girls born in Brasil to a Brasilian mother, (we are NOT married Ha Ha Ha Religious Right) I think the term Natural Born Citizens should apply to anysuch citizen who is born unto at least one American parent who then immediately registers said child with the US embassy, at the same time that they apply for citizenship in the "Host Country" (such as it were, their mother might disagree with the term "host country" but she has never even heard of the huffpo- once again ha ha ha). McCain should not be president of the USA for a virtual plethora of reasons, but the fact that he was born in the Panama Canal Zone should not be one of them. That being said shout outs to the Zonians I met in the summer of 97- Kirby the Pilot, Big Al, Mr. Morales, Danny Maduro and that crazy ass Conan and all the other peeps living trapped between two worlds in the Zone.

[dlswriter]

Let the SC decide and see just how much "strict constructionist" they are.

[siegfried]

If he were to choose an extreme conservative to be vice president and actually win, I suspect they would rule him ineligible, but state that the decision did not amount to a precedent.

[MsLiz]

The 14th Amendment says what the states can not do to citizens. It applies the Bill of Rights to the states. Prior to the 14th amendment, states could try people without due process of law, juries, right against self-incrimination, right to counsel, etc. It doesn't change what the national government can do. Sorry, Cenk.

This possibility of amendment of the Constitution to allow naturalized citizens to run for president, e.g. Kissinger, Swarzenegger, Cenk Urgur comes up from time to time. One name quashes the idea: Rupert Murdoch.

[nypoet22]

At the very least, it's a good idea to be completely clear on the issue. I would interpret "natural-born" to mean that a person was a US citizen at birth, not "natural-ized" from a different citizenship. In other words, "natural-born" means born a citizen, regardless of the actual location where the birth took place. One may be born a citizen if either parent is a citizen, or if they are born on US-owned land or over US waters.

[anon004]

Cenk- I seriously hope your analysis is wrong, because I want you to run!

[DietrichMoody]

Yeah, and if Article II of the Constitution, said that "[n]o person except a Naturally Conceived" American can be President, that would rule out test tube babies, and those artificially inseminated.


It shows how silly the strict constructionist arguments are sometimes. John McCain was born in Panama on a Naval Base to American Parents. Arnold Schwarzenegger was born in Austria to Austrian parents at home and you were born in Turkey, to Americans, on a US Base? All different circumstances, but funny. Hypothetically, why shouldn't someone born in Turkey, raised in the US since the age of one - and joined the Military, etc. be unable to run for President? Silly.


For McCain, this will be "more of a question of interest" than it is disbarring McCain from seeking the Presidency but it's and interesting question that should not be ignored. What if a child on a American Base in Iraq, is born to American parents and in 45 years wants to Run for President. It is an issue, it is not silly. Weedin v. Chin Bow (1927) holds that "at common law the children of our citizen born abroad were always natural born citizen from the standpoint of this government­."scholars believe that McCain is qualifiedhttp://writ.corporate.findlaw.com/dean/20050311.html

It's interesting enough for the McCain campaign to ask Theodore Olson, a former solicitor general now advising McCain, to prepare a detailed legal analysis. "I don't have much doubt about it," said Olson, who added, though, that he still needed to finish his research.http://www.iht.com/articles/2008/02/28/america/28mccain.php


McCain never made it this far in a Presidential election, neither has anyone born in the Marshall Island, Puerto Rico, or any foreign base. Although McCain appears to be "natural" according to , Article II of the Constitution, that "[n]o person except a natural born Citizen" can be President of the United States. Senator Barry Goldwater, who ran for president in 1964, was born in the Arizona Territory in 1909, before statehood. Was he "born in the United States"? The authors believe that under early American common law, and given the Congressional intent underlying the Fourteenth Amendment, that "Senator Goldwater was probably safe in seeking the presidency."

Now, as for American born Senator McCain's mental stability, vision, demeanor and judgment - that's a whole other questions not in the Constitution or Supreme Court ruling but I'm sure being foreign born like you Arnie - I probably trust your's and Arnie's mental stability, vision, demeanor and judgment better.

[Shipwreckedcrew]

This column as well as the comments reflect a real ignorance about both the constitution and a textual analysis.

The pertinent question for a strict constructionist would be "What did the framers mean by the term 'natural born' as used in Art. II Sec. 1, Cl. 4"?

That clause mentions two classes of "citizens" eligible for the office of President -- "a natural born citizen" or a "Citizen ... at the time of the Adoption of this Constitution."

What language of the Constitution would a textualist rely upon for the proposition that "natural born" is limited to those born only within the physical confines of a State? I don't see any. Mr. Uygur doesn't attempt to find any in his piece. He just assumes that's what the framers meant.

He points to the 14th Amendment as solving the problem without recognizing that the 14th Amendment is really MORE of a problem than Art. II, since it says the person in question must be "born IN the United States." A person relying on the plaining meaning could certainly read that as a geographical limitation much more specific in its application that "natural born".

The answer that allows McCain to run is found in the approach to the question that a strict constructionist would adopt -- what did the Framers intend. That would require looking at the common law and the English law to see what persons using the term "natural born" meant in the 1780s.

At common law, “[n]atural-born subjects are such as are born within the dominions of the crown of England….” 1 W. Blackstone Commentaries on the Laws of England 354 (1765). That was the common-law understanding of “natural born,” which leaves only the question of what it means to be born within the “dominions” of the crown. Blackstone goes on in the same comment to say:

"Yet the children of the king’s embassadors born abroad were always held to be natural subjectsz: 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 plftliminium) to be born under the king of England’s allegiance, represented by his father, the embassador.... [A]ll 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."

English common law made no distinction between a "Subject of the Crown" and a "Citizen of Britain." They are synonymous.

So, under Common Law, "natural born" has no geographic implication. It has to do with the alligience of the child attained through the father. Whether born on British soil or abroad, if the father's alligience was to the Crown of Britain, then the child was "natural born."

[SevereTireDamage]

Part of this issue seems to be whether the Canal Zone was, at that time, "U.S. Territory", whatever that means. I have no doubt that, for example, someone born in Puerto Rico would be eligible. Or what about someone born in D.C.? No more "in a state" than Goldwater, but not even a territory.

[Lon]

The reading of the 14th Amendment is interesting. The question obviously is whether the right to be president is a priviledge of a citizen. And it certain looks to be. But then is it discriminating against people under the age of 35 that they can't run? That seems doubtful.

On the otherhand, this idea that the plain reading of "natural born citizens" is born within the US seems silly. As in the 14th Amendment, the contrast seems to be with people who had to go through a naturalization process to become citizens. McCain, who is a citizen by virtue of birth to citizens, would certainly seem to be a naturalized citizen. Tough luck for President Schwartzenager and President Uygur. Although I would be more likely to vote for the latter than the former.

[ESerafina42]

From a literal reading, I don't know if ANY of the 14th Amendment applies to McCain. He wasn't born in this country and he certainly wasn't naturalized, though from the original clause in Constitution, he may have been a citizen at the time it was adopted. :)

Freed slaves would be a different matter since they were (presumably) born within US territory.

[ceu]

Some of the arguments I've heard regarding this issue point to US Code, Title 8, section 1403 that specifically addresses the status of people born in the Panama Canal Zone to parents who are US citizens, that they are declared to be citizens, which some folks differentiate from being natural born citizens.
I found an interesting explanation of it, which agrees with you, Cenk, without bringing the 14th amendment into it - two ways to answer the question...
"In 2008, when Arizona Senator John McCain ran for president on the Republican ticket, some theorized that because McCain was born in the Canal Zone, he was not actually qualified to be president. However, it should be noted that section 1403 was written to apply to a small group of people to whom section 1401 did not apply. McCain is a natural-born citizen under 8 USC 1401(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.' "
http://www.usconstitution.net/consttop_citi.html

[PioneerKing]

So, is Panama in the United States now? Just what are you saying? As Bill Cunningham likes to call Sen. McCain, "Juan Pablo McCain," I was looking forward to the first latino president. Vamos Juan Pablo

[ceu]

McCain, like it or not, qualifies as a citizen of the US at birth (a natural born citizen) as set out in Title 8 of the US Code, Section 1401

[SevereTireDamage]

Where does he get the "Juan Pablo" from? McCain's middle name is Sidney, not Paul...

[richiec182]

See the one mistake that you have made is in thinking that republicans follow the rule of law and that thing called the Constitution. Hasnt the past 7 years taught you that the constitution can be twisted and misconstrued to say anything you wanted to say and by goodness if a citizen who wasnt born in the United States wants to seek the highest office in the land well he should darn well be able to. I can just see the headlines for next year. Schwarznegger/Rove 2012

[harveyr2]

Born on a US military base to US citizens. This very likely meets the expectations of the framers.

[bmora]

Framer's expectations is an interpretation of the letter of the law. If McCain has his way, the Framer's are irrelevant. I think that is the point of the story.