Academic

McCain's Birthplace

By Calvin Massey

     Now that the New York Times has run an article raising the question of whether John McCain's birth in the Panama Canal Zone to two American-citizen parents, at a time when the Canal Zone was an American territory, makes him ineligible to be President, I guess we have to take the issue seriously.  If the Old Gray Lady speaks, we must listen.  (Or was that E. F. Hutton?)  Anyway, is McCain a "natural born citizen"?  And who decides?

     Jill Pryor, the Atlanta lawyer mentioned in the Times article, wrote a good note on the topic for the Yale Law Journal: 97 Yale L.J. 881.  Her conclusion was that Congress ought to be permitted to settle the question by legislation.  Congress did so in 1790, by its Act of March 26, 1790, 1 Stat. 103, when it unequivocally declared that a person born abroad to American parents was a natural born citizen.  Even if you don't buy Pryor's argument, the 1790 act is a pretty good indication of what the Framers meant by a natural born citizen.   The Fourteenth Amendment doesn't clarify matters because it speaks to a different issue -- eliminating the odious doctrine of Dred Scott that denied citizenship to blacks.

   In any case, who decides?  Who would have standing to raise the issue?  Even if standing is established, doesn't this present a non-justiciable political question?  Too bad Barry Goldwater wasn't elected in 1964.  Because he was born in the Arizona Territory to American citizens, we would now have a handy precedent.   In my opinion, this is the biggest non-issue of the election.   

Full post as published by The Faculty Lounge on February 28, 2008 (boomark / email).