There has been much back and forth over Senator John McCain's qualifications for the Presidency. The Constitution provides that only a "natural born citizen" of the United States may be President. Senator McCain was born in 1936 in Panama, more particularly in what was then known as the Panama Canal Zone. This issue last arose in 1968 when Governor George Romney (father of Mitt Romney) ran for the Republican Presidential nomination. George Romney had been born in Mexico while his parents were there on a multi-year Mormon mission.
Senator McCain asserts that he has researched the issue and that he is qualified for the Presidency. A bit of Constitutional research leads me to believe that he is in error. The reasoning is below the jump.
The Panama Canal Zone was created by the Hay-Buna-Varilla Treaty, known as the treaty which no Panamanian signed. Hay was the U. S. Secretary of State. Buna-Varilla was a Frenchman. The Zone was created so that the United States could build and operate the Panama Canal. The Zone was a piece of land several miles wide on either side of the Canal. The Canal Zone was still considered to be part of Panama's soveriegn land with the Panama Canal Company (with military backing) in control of the territory.
To protect the children born there of U. S. citizens, Congress passed a law (8 USC 1403) which provided in subsection (a) that children born in the Canal Zone of U. S. citizen parents were U. S. citizens and in subsection (b) that children born in Panama of U. S. citizen parents were U. S. citizens. The law took effect on February 26, 1904, and is still on the books. Since Senator McCain was born in the Panama Canal Zone, he is clearly covered by the statute and was a United States citizen from birth. However, Congress is powerless to amend the Constitution by the passage of a statute. Therefore, we must seek to understand what the term "natural born citizen" meant to the framers who wrote the Constitution.
There are precious few cases on the subject of citizenship. Two bear looking at, though.
The first is U. S. v. Wong Kim Ark, 169 US 649 (1898). This opinion is incredibly long and traces the history of citizens by birth. It distinguishes citizens by birth and natural born citizens, to a certain extent.
Wong had been born in San Francisco, California. His parents were merchants in San Francisco. His parents were citizens of China and subjects of the Chinese Emperor. A few years before Wong reached majority (age 21 at the time), his parents returned to China. He went with them. He returned to San Francisco for a time. Shortly before reaching majority, he returned to China to visit his parents again. He returned around the time of his 21st birthday, either shortly before or after. He was refused admission because, the government said, he was not a citizen. He sued. The lower court agreed with him and the government sought review in the Supreme Court.
The case turned, of course, on the Fourteenth Amendment, which had been enacted in the latter 1860's after the Civil War. This portion of the Amendment was passed in order to ensure that persons who had previously been "Negro slaves" (their phrase) would be citizens whose rights could not be taken away by any statute.
A history of the concept of citizenship at birth followed in the opinion. Much of this history traced the common law of England, since the United States had become a common law country. To this day, many of our concepts, such as property in the Eastern states, derive from English common law.
The opinion noted that "all persons born under British dominion are natural-born subjects." Wong at 657
It was, though, possible to be born in England without being born "English". A child born to an Ambassador from a foreign country could be born in England but would not be English because not born as a subject. (The concept of diplomatic immunity kept the child from being a subject and thus a citizen.) The same logic would apply to a child born to a foreign invader who was occupying British soil.
The important thing at common law, said the Supreme Court, was that one be born "locally within the dominion of the soverign and ... birth within the protection and obedience [of the crown] ..., within the ligeance of the sovereign." Wong at 659
The Supreme Court took up a related issue in Rogers v. Bellei 401 US 815 (1971). Mr. Bellei's mother was born in Philadelphia, Pa. and reared there. Some time after she reached majority, she married an Italian and moved to Italy. She stayed there and had Mr. Bellei, the person in this suit. The law at the time provided that persons born to U. S. citizens in another country were U. S. citizens provided they spent a certain amount of time in the United States before they reached age 28. Mr. Bellei had, at various times, been admitted to the United States (as a visitor) on a U. S. passport, initially on his mother's passport.
After Mr. Bellei reached the cut-off age in the statute, he attempted to return to the United States again as a citizen. The government turned him down, saying that he was not a citizen. He sued, arging that the government could not first make him a citizen and then take away that citizenship.
The Supreme Court held that the Congressional enactment had given Mr. Bellei citizenship at birth because of the citizenship of his mother. However, that citizenship was subject to a "condition subsequent", to use a lawyerly phrase. He was obliged to spend a certain number of years physically in the United States in order to fulfill the condition necessary to make his citizenship permanent. He did not meet the condition imposed by Congress. He was, therefore, no longer a citizen.
Senator McCain was clearly not born in the United States. Nor was he born within the "dominion of the sovereign" of the United States. He was born in an area controlled by the Panama Canal Company.
Senator McCain, like Mr. Bellei, was born a United States citizen because of a Congressional enactment. Senator McCain was more fortunate than Mr. Bellei because Congress did not impose any conditions on McCain's citizenship.
Nevertheless, Congress cannot create a "natural born citizen" by statute. As the Supreme Court notes somewhere in the Wong case, neither Congress by statute nor the government by regulation could take away Wong's citizenship, for to do so would be to amend the Constitution by statute, which is forbidden.
In the case of Senator McCain, Congress had every right to, and did, make Senator McCain and others like him citizens at birth. Congress could not, by statute, make Senator McCain a "natural born citizen" by enacting a statute. Only a Constitutional amendment could do that.
I believe that Senator McCain is not Constituionally qualified for the office of President of the United States.