Legal News

Does John McCain Have a Birthplace Problem?

By Dan Slater

Here’s some LB Thursday morning triva: What do the following Republican presidential candidates have in common?

A) John McCain (2008)
B) George P. Weicker Jr. (1980)
C) George Romney (1968)
D) Barry Goldwater (1964)

OK, so our headline sort of gives it away. Yes, they were all born on foreign soil, and therefore their basic constitutional qualifications for the presidency — a natural born citizen, at least 35 years of age with 14 years of residence — have been called into question. And now it’s McCain’s turn. (Here’s the NYT story.)

In 1936, McCain was born at the Coco Solo Air Base, in the then-American controlled Panama Canal Zone (pictured), to Jack McCain, a Navy officer, and Roberta McCain. If McCain wins the 2008 election, he’d be the first American to take the presidential oath who has an official birthplace outside the 50 states.

“There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” said Sarah H. Duggin, an associate professor of law at Catholic University. “It is not a slam-dunk situation.”

According to the Times story, McCain’s campaign recently asked Gibson Dunn’s Ted Olson to prepare a detailed legal analysis. “I don’t have much doubt about it,” Olson told the Times, adding that he still needed to finish his research.

Senator Lindsey Graham, the South Carolina Republican, was a bit more definitive, “He was posted there on orders from the United States government,” Graham said of 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.”

LB’ers, any Con law scholars who’ve looked at this admittedly obscure area? If so, chime in and let us know how a court might rule on this question of first impression.

LB Tangential Request: All this talk of birthdays and birthplaces got us thinking about the quirk in tomorrow’s calendar. It’s going to be February 29, a leap year! We’d like to ask our LB lawyer-readers if there are any loyals among you who were born on February 29. If so, please write to lawblog@wsj.com and let us know.

Full post as published by Law Blog - WSJ.com on February 28, 2008 (boomark / email).