John McCain: Citizen of the US?

Last week, the McCain campaign ridiculed Barack Obama for calling himself a "citizen of the world," during the latter's (extremely) well attended speech in Berlin.

Whatever your opinion of either candidate, McCain's broadside exposed two ironies. For starters, JFK used that very phrase nearly half a century ago, in his timeless Inaugural Address.

But the second irony provides the kicker: McCain might not even be eligible to run for president -- because he may not have been a US citizen when he was born.

For all their wisdom and virtue, the Founding Fathers disenfranchised a large segment of our country when they drafted the Constitution. While we have made much progress, the Constitution still bans immigrants from running for president. So who can't run for the White House? Let's see: California Gov. Arnold Schwarzenegger (born in Austria), Michigan Gov. Jennifer Granholm (born in Canada), two-thirds of Asian Americans, 40 percent of Latinos -- and maybe even John McCain.

Law professor Gabriel Chin just published a paper with a politically charged thesis: John McCain is ineligible to run for the White House.

How did Chin reach this explosive conclusion? He started with two inconvenient facts:

1. The Constitution only allows "natural born citizens" to run for president (article II, section 1).

2. Although his parents were both US citizens, John McCain might not be a "natural born citizen" because he was born in the Panama Canal Zone.

McCain was born in the Panama Canal Zone in 1936, when it was an unincorporated US territory. At the time, it was at best unclear whether anyone born in the Panama Canal Zone was a "natural born citizen" -- that is, a citizen at birth. (Earlier, the Supreme Court had decided that residents of unincorporated US territories were not guaranteed full citizenship rights.)

To fill in this gap, Congress passed a law making everyone born in the Panama Canal Zone a citizen. But here's the catch: that law was passed in 1937 -- the year after McCain was born. Therefore, Chin concludes, McCain was not a US citizen on the day he was born.

For better or worse, no court will touch this issue before the election. In New Hampshire, a voter has brought a lawsuit challenging McCain's eligibility. That case will probably be tossed on a technicality (i.e., the voter cannot sue because he hasn't been "harmed").

Something is terribly wrong when American citizens -- including most Asian Americans and many Latinos -- cannot run for a land's highest office. The Constitution must be amended so that all naturalized citizens (including McCain) can also seek the White House.

This should not be a partisan or ideological issue. In fact, uberliberal Sen. Ted Kennedy and archconservative Sen. Orrin Hatch both support such an amendment.

To be sure, some oppose allowing naturalized citizens to become president for one main reason: the spectre of the so-called Manchurian candidate (here's nativist Wes Clark on the topic). Basically, they fear that immigrants might betray their adopted land.

But there's no reason to be afraid. Currently, if someone moves to the US just one day after being born, he or she cannot run for president. Does that make any sense? Is it fair?

What's more, there is a way to ensure that an immigrant has built enough ties to this country. Just require all naturalized presidential candidates to have been US citizens for at least 20 years (that's what Hatch has proposed).

Finally, there's political reality: immigrants usually have a tougher time running for any political office. While there's no doubt Obama was born in the USA (in Hawaii), some voters still ask whether he is "really" American -- but give McCain a free pass. Why? Because, unlike McCain, Obama had an immigrant father and spent part of his childhood in a country where Christianity isn't the majority religion.

Like McCain and Obama, we are all proud citizens of the United States. Let's make it possible for every American to dream about becoming president.

Comments

[rob126]

Brainuser seems to have this right. The same issue came up when Lowell Weicker ran for President years ago. He was born in France to American parents and under Federal Law was a natural born citizen.

[sharpz111]

This is quite simply an injustice and contradiction within the Constitution on a similar scale to the clause that a non-Caucasian man is worth 2/3 of a white man.

Whilst that abhorrent example of discrimination was struck out, the differentiation between natural-born and naturalized citizen still serves to undermine the primary declaration of the nation's founding document: "all men are created equal"

By definition a 'citizen' represents equality before the law. The existence of two 'classes' of citizen serves as a symbol of a very Un-American distrust of naturalized immigrants (Citizens).

(In this case however, brainuser seems to be perfectly correct. McCain, by virtue of his parents' US nationality, was born with a right to US citizenship, no matter what territory he was born on - he could have been born in China and still be a natural born US citizen)

[Gautam Dutta - Huffpost Blogger]

Thanks for your comments. To be sure, we can disagree over whether immigrants should have the full rights of American citizenship. However, foreign-born children of US citizens may ALSO be banned from running for President.

As brainuser mentions, a 1790 law would have allowed them to run for the White House -- but that same law was repealed in 1795. According to the Supreme Court, even the children of US citizens born outside US territory might not automatically be US citizens AT BIRTH (United States v. Wong Kim Ark, 169 U.S. 649).

Currently, over 30 million American citizens cannot run for President -- and that number will only grow with time.

[brainuser]

Ok, so maybe I shouldn't have sold my law library when I retired. "According to the Supreme Court, even the children of US citizens born outside US territory might not automatically be US citizens AT BIRTH" (citation). That's not what Wong Kim Ark held. His parents were Chinese citizens legally in the US and domiciliaries and residents of the US when he was born. John McCain--I'm not supporting him, but right's right and fair's fair--was born outside the US to parents who were US citizens. Let's agree to disagree.

[ThatsNotFunny]

Yes, this is entirely fair. Why go through the enormous cost and trouble of amending the constitution for something that would affect an infinitesimal percentage of the population?

[brainuser]

There is one way to be a citizen in the U.S.: to be a citizen from birth by statute. Those born abroad of U.S. citizen parents fall under this category. The Founding Fathers, based on the history of the UK, has a fear of foreign princes somehow becoming President. None of the Founding Fatherst been born the "U.S.A." Those states were all colonies at the time of their births.They pretty clearly intended the "natural born" language to include those born of two citizen parents. The original citizenship law, the Naturalization Act of 1790, enacted by a Congress that had many of the Founders as members, and signed by George Washington, provided that "the children of citizens of the United States, that may be born beyond the sea, . . . shall be considered as natural born citizens . . . ." Act of March 26, 1790, 1 Stat. 103, 104. End of story.

[SamThornton]

While the above is historically accurate, the law has been amended heavily over time. The current law on the issue of "citizenship" of persons born in the Canal Zone (effective Jan. 3, 2007) can be found at the Cornell Law Library (the source used by the THOMAS registry of U.S. law) -- http://preview.tinyurl.com/5s8emd -- and reads in its entirety:

(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.

(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States. (U.S. Code, TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I > 1403)

Note the current law does NOT say persons who receive citizenship under this provision are "natural born citizens," a distinction that almost certainly would have been made if that was the legislative intent.