John McCain’s possible election could trigger review under an obscure part of the Constitution: the birth eligibility provision of Article II. The requirement that an American be “natural-born” has long been controversial, but few associated John McCain with the problem as opposed to other leaders like Arnold Schwarzenegger. McCain, however, may be a foreign born citizen given his birth in the Canal Zone. Due to the bar on advisory opinions, this issue might not be ripe for review until after the general election, triggering another Bush v. Gore moment in the high court. Ted Olson has even been retained for the possible fight to complete the scene for a Supreme redux.

McCain was born in 1936 in the Panama Canal Zone while his father was stationed there as a naval officer. In 1787, however, the framers insisted that any president be natural born — that is, born within the United States. It is a requirement that some of us have long criticized as counter to our tradition as a nation of immigrants. Click here.

However, absent a constitutional amendment, the question remains whether McCain can claim natural-born status. There has never been a president sworn into office who was not born in one of the fifty states. It would be a very close question that has some interesting implications for current disputes in other areas.

People like GOP Senator Lindsey Graham have rightfully noted how gross it would be to deny such eligibility to someone who was born while his parents were stationed abroad during service to the country. However, no one would debate the inequity but that is entirely irrelevant to the legal question of what constitutes a natural born citizen.

Section 1 of Article II of the Constitution 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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

The 12th Amendment to the Constitution carries over the same requirement: “[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

The standard is so clear that it has barred some deserving candidates. Others like Chester A. Arthur, the 21st president, was rumored to have been born in Canada but claimed that he was born in Vermont.

The phrase “natural born” was in early drafts of the Constitution and appears to have been initially suggested by John Jay — who wrote a letter to George Washington on the requirement. In his letter, Jay wrote:

Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.

A strong argument can be made that the Framers considered natural born to refer to a birth on U.S. soil. Indeed, Alexander Hamilton was viewed as ineligible due to his birth in the West Indies. It has often been suggested that the provision was written in part to block Hamilton by his detractors — though this may be apocryphal. It seems more likely that people like Jay were concerned with a preference among some to have a King, including some foreign princes who might rule the nation. Moreover, Hamilton was a citizen of the United States at the time of the signing of the Constitution.

The assumption would likely be that the Framers intended to carry on the English view of natural born status. However, teh Parliament during this period had to make special provisions for English citizens born in the colonies to guarantee things like inheritance rights under English law. A series of laws grafted on rights for foreign born citizens to hold office and inherit. It could be argued that these laws were necessary because it was not assumed that English parents alone or birth in a colony would qualify for the status of natural born citizens.

Notably, in 1790, Congress felt it was necessary to pass a law that defined naturalized citizens. The First Congress passed An Act to establish an uniform Rule of Naturalization, providing:

And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been residents in the United States … .

Considered “as natural-born citizens” can be subject to debate as to its meaning. It is also debatable whether this bill was needed to change the pre-existing territorial understanding of that term.

The last time that we faced this question in a serious candidate was Barry Goldwater, who was technically born while Arizona was a territory in 1909. Other such questions were raised by Mitt Romney’s father who ran in 1968 despite his birth in Mexico and former Sen. Lowell P. Weicker Jr., who was born in Paris.

Absent a constitutional amendment (which has been introduced in prior years), the issue is simply one of constitutional construction. The zone was a foreign military base like Guantanamo Cuba. Ironically, the Bush Administration has been arguing for years (with Senate support) that U.S. laws and jurisdiction do not extend to Cuba in the cases of the detainees. If such bases are now treated as U.S. soil, it is unclear how that would affect this long-standing claim that it is not for purposes of civil liberties.

Various people have argued that this is a non-issue due to section 1408. However, this statute does little in my view to answer the question.

§ 1403. Persons born in the Canal Zone or Republic of Panama on or after February 26, 1904

(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.

The language here goes to citizenship not the status of being natural born. This is precisely part of the confusion over the current debate. No one is suggesting that McCain is a foreigner. The question is whether he is foreign born.

Military installations like Panama were sitting on leased land. They are in that sense different from embassies. The important thing to remember is that we are not talking about citizenship but what constitutes American soil for a natural born classification. Notably when illegal immigrants have a child in the United States, the child is a U.S. citizen. Does that mean that foreign citizens who give birth at United States military hospitals or installations are entitled to U.S. citizenship for the child? That would encompass quite a few people. How about U.S. ships or aircraft? Notably, most framers had a negative view of foreign entanglements and probably did not envision large military installations around the world. They most likely believe that natural born meant U.S. soil.

John McCain said today that he believes that the question was resolved 44 years ago in the controversy over Barry Goldwater. Click here However, that issue was never ripe for review since Goldwater lost the election.

Ted Olson has reportedly been retained to deal with the question, though McCain balked at his staff calling in Olson (clearly concerned that it would give credence to the challenge). Notably, Olson’s argument is different from McCain’s territory claim. Olson bases his current position on a view that anyone born of U.S. parents is “natural born.” Click here. He is probably right that McCain would be the likely winner in such a challenge, though the rationale remains under clear. Under this theory, as opposed to McCain’s stated theory, it does not matter where you are born. The distinction would be between natural and naturalized citizens.

The possibility of a fight on the issue raises the specter of a repeat appearance by Olson in front of the Supreme Court on the next president. This redux of Bush v. Gore is almost too painful to imagine. Again, the Republican appointees would be asked to adopt an uncharacteristically liberal interpretation to benefit a Republican candidate for the White House. The problem is that any effort to determine this question before the general election would be viewed as speculative and a request for an advisory opinion, which is disallowed. We would have to wait for the conclusion of the general election to determine if McCain could be sworn into office or his vice president elevated to the presidency (and then select a new vice president). If you come to these things to watch the cars crash, that would be a true constitutional pile up.