The Constitution’s 14th Amendment sets forth the two principle modes of acquiring citizenship, birth in the U.S. and naturalization, “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.” Those who crafted the 14th Amendment were very aware of Article 2 Section 1 Clause 5 eligibility standard for the Presidency of “natural born” and defined it as, “All persons born.. in the United States and subject to the jurisdiction thereof”.
The United States’ Department of State’s Foreign Affairs Manual(7FAM1116.1-4(c)) says, “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic 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 U.S. jurisdiction and does not acquire U.S. citizenship by reason of birth”. Clearly this statute means that fact of the McCain’s birth at the birth at the military hospital in Coco Solo Air Base in Panama’s Canal Zone, did not grant him any natural born citizenship status.
In Rogers v. Bellei 401 U.S. 815, 828 (1971). The Supreme Court held that “children born abroad of Americans are not citizens within the citizenship clause of the 14th Amendment.”… “To this day, the Constitution makes no provision for jus sanguinis, or citizenship by descent… Thus, acknowledging petitioner’s claim that he is a Fourteenth Amendment citizen, Pet. 9, does not mean that his children born abroad have any right under the Constitution to United States citizenship at birth.”… “Our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.” Id. at 828. Such a statute would be a Congressional act, which can only naturalize, per Article 1 Section 8 Clause 4, “To establish a uniform Rule of Naturalization”, not make someone “natural born”.

Although McCain may claim citizenship from 8 USC 1403(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”…someone who is “declared” a citizen by Congressional law is being naturalized and is NOT a “natural born” citizen. McCain’s citizenship status is “naturalized”, and not “natural born”. The act cited above “naturalizes” the citizenship of those born to US citizens in a foreign country through declaration of law, making a citizen through naturalization of those who would, except through the said act of Congress(8 USC 1403(a) would not be a citizen. The Constitution, Article 1 Section 8 Clause 4, gave Congress the power “To establish a uniform Rule of Naturalization” to make U.S. citizens out of those who would not otherwise be U.S. citizens..NOT to re-define what “natural born” meant, or make “natural born” those who, were born under another nation’s sovereignty and not in these United States, as was McCain. Nothing short of a Constitutional Amendment could do that.
McCain has claimed that the Naturalization Act of 1790 covers his status as a natural born citizen. That is not true. A close look at the Act indicates that it only covers “admission as a citizen” (meaning naturalization), and that Act was repealed and replaced in part in January 1795 and again in total dpril 1802. So that argument does not work because it was repealed and replaced and because it creates naturalization instead of natural born citizenship for such a Congressional act can only naturalize, per Article 1 Section 8 Clause 4, “To establish a uniform Rule of Naturalization.

… “Whether a case is filed or not, and whether the courts take it or not, my prediction stands that the current Supreme Court will insure the seating of McCain. Look this up on January 20, 2009.’

In reality, it may only become ripe in December after Vice President Cheney, sitting as President of the Senate, presides over the counting of the votes of the Electoral College in the presence of the House and the Senate. The issue may have to be initially raised in that proceeding, and ruled on before any further legal challenge.

After that, how would anyone other than the losing candidate have standing, and wouldn’t that be a political non-starter? Even if standing obstacles were overcome, would not the question of justiciability arise? The courts may say something to the effect that this is a political question not suitable to judicial scrutiny. They may say that it is textually committed by the Constitution to other parts of the government. They may not desire to interfere in the operations of the College and the vote count in Congress in the absence of a clear violation of the age, residence, and prior presidential service of the candidate.

I am not sure there is much if any difference between McCain and Olson here. Assuming Goldwater’s parents were US citizens, then he was qualified to President under both theories, by birth on US soil and by birth to US citizens. McCain would qualify just as Goldwater did if he relies on his US citizen parents.

If there were a real issue here, why wouldn’t a ballot challenge work? If a 25-year-old ran, or if Henry Kissinger or Arnold were put on a presidential ballot, I doubt if it would get past the Secretary of State, and proponents would have to sue to get the names listed. No one seems inclined to challenge McCain, but Goldwater was challenged in court. I recall that lawyers called him a foreign-born extremist in their filings. Cases were filed in California and New Jersey, and they lost, because Barry was on the ballot in all 50 states.

Overall, this is a fine column that benefited from its out of town tryout on the blog, especially from xrlq who first flagged the fact that Alexander Hamilton probably did not have a McCain problem.

Whether a case is filed or not, and whether the courts take it or not, my prediction stands that the current Supreme Court will insure the seating of McCain. Look this up on January 20, 2009.

Voters meed to be secure that the nominees, duly elected, will actually be the same ones to complete their swearing-in ceremonies.

So per Cheney v. Gore, the 12, 20th, 22nd & 25th Amendments, circa March 4, 2001 (objections for lack of subject matter are never waived) would be quite the “super delegate?”

http://jonathanturley.org/2008/02/29/mccains-constitutional-dilemma-native-son-but-not-natural-born/#comment-7323

12th Amendment:

….and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

>>!!And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

You still don’t quite understand why I said what I did about Bush v. Gore and the 12th, 20th, 22nd and 25th amendments in that previous post; do you?

http://jonathanturley.org/2008/02/29/mccains-constitutional-dilemma-native-son-but-not-natural-born/#comment-7323

First in time = first in right

Regards,

Bob

Cheney on the other hand…

I don’t know much Maritime Law, but wouldn’t the same rules making naval vessels sovereign entities at sea be applicable?

Far as McCain goes; the greater tragedy will always be that Alexander Hamilton was ineligible to become president.

Bush would remain in office while it is being tossed around
- for at least the 2 plus months.

That’s why it mustn’t happen. It has to be be ‘bullet-proof’ ahead of time, in my view.