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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.

Originally posted to ScarySteve on Fri Feb 29, 2008 at 10:48 PM PST.

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Comment Preferences

  •  More of this shit again? (28+ / 0-)

    Natural born means not being naturalized.  Please go to bed.  Doc.

    Sometimes I feel like Robert Louis Stevenson created me. -6.25, -6.05

    by Translator on Fri Feb 29, 2008 at 10:54:17 PM PST

  •  NOT going here (22+ / 0-)

    I've seen the argument made and understand its position from a wonkish standpoint.

    From a reality standpoint, we as Democrats would be idiots to go down this road.

    The natural born citizen clause, from a common sense standpoint, does apply to a person born of American parents who were stationed overseas on military assignment.  

    Thus, McCAin is ELIGIBLE to be President.

    Qualified?  Based on his votes to cut Veteran benefits, ignore UBL, oppose body armor for our troops, and his cuddling up to wackos like John Hagee, then that's a debate that we should be having.

    I shall not rest until right wing conservatives are 4th party gadflies limited to offering minor corrections on legislation once or twice a year.

    by davefromqueens on Fri Feb 29, 2008 at 10:54:26 PM PST

  •  This is silly. (5+ / 0-)
    Recommended by:
    lrhoke, Reino, Free Spirit, kyril, luckylizard

    I know it's been in the news and McCain even had his campaign research the question, but ultimately this is the kind of idiotic stuff that distracts us from the meaningful issues in elections.

    The founding fathers never intended to exclude someone with McCain's status from being President.  If you want to support an extremely literal interpretaion of the constituion that is your right, but just understand you are keeping compnay with Antonin Scalia more than with the liberals that hang out here.

    I took the Hilobamedwardsondoddinich PLEDGE

    by noble experiment on Fri Feb 29, 2008 at 10:54:45 PM PST

    •  It is more important than just a distraction. (14+ / 0-)

      I think it is designed to alert people to the fact that not only is John McCain a military hero, but so too was his Dad. McCain was born while his Father was serving our country. It is designed to make a comparison between John McCain and Barack Obama. It is designed to make people think this criticism comes from the opposition, so they can counter with "what was Barack's Father doing". From now on look at every single word as a calculated move to boost McCain in the eyes of America, and to shoot down Obama. This is how they play the game, don't ever forget it. Negative, negative, negative. We will win by out-thinking them, and taking nothing for granted, and nothing that comes out at face value. The smart thing to do is not repeat this, and when pressed say how ridiculous it is to even think this is a consideration, and then blame the right wing crazies for their McCain hatred.

      •  Wow, you are good! (5+ / 0-)

        I did not even consider that part.  Any more information regarding the elder McCain's record?  We want to know.  Warmest regards for a very, very good catch, Doc.

        Sometimes I feel like Robert Louis Stevenson created me. -6.25, -6.05

        by Translator on Fri Feb 29, 2008 at 11:10:18 PM PST

        [ Parent ]

        •  Not so good, I have just been around a long time, (4+ / 0-)

          and I am originally from New York. You learn early how to size up your enemy, and get into their head. It is easier with the Republicans they are so predictable, look at what they used in the past two elections. Gore a liar, Kerry not really a war hero. It just seems like the natural progression, first plant the seeds with the middle name flap, bring out the Obama is a secret Muslim email again, the non-patriotic Obama for not wearing a lapel pin. So what do they have to play up on the other side, McCain is a war hero, never mind he is old, never mind he is Washington, never mind he has problems with his very own lobbyists, he is a hero, he comes from a family of heroes. In 2000, I was intrigued by straight talking McCain, I read his book, his Dad and his grandfather were also considered "heroes", or influential military men. This is just a way to get this all out without beating American over the head with it, and if it hurts Obama at the same time, then so be it. McCain will let it come out and then appear to take the higher ground. As I said before it is all so predictable especially for the Republicans. They are betting on the fact that the ardent Obama supporters are just a bunch of naive young kids, not so. We are not all that young, or not all that naive. Many of us know a good thing when we see it, and even the young are pretty bright and can pick up on these signals too.

      •  Naive (0+ / 0-)

        Young people do have a certain naivete but they are GREAT at spotting b*llsh*t.  Not only that, they don't take kindly to being lied to.  I learned that early on and use it every day as I teach and interact with them.  They will forgive almost anything but a lie.  It's hard to admit to them when I don't know something but I have found that they respect what I do know more because I am honest about my intellectual shortcomings.  They have forced me into this but I like myself better for it.  Kids are great!    It's too bad when older people - politicians, for instance - do not or cannot recognize the resources and opportunities that they waste when they write off the young.

        -7.62, -7.28 "We told the truth. We obeyed the law. We kept the peace." - Walter Mondale

        by luckylizard on Sat Mar 01, 2008 at 01:09:01 AM PST

        [ Parent ]

    •  Scalia being the operative word.... (0+ / 0-)

      because he would decide on McCain's citizenship anyway.

  •  "natural born" (4+ / 0-)

    means that he has always been a citizen. Period.

  •  You're wrong (16+ / 0-)

    The constitution says "No person other than a natural born citizen, or a citizen of the United States, at the time of the adoption of the Constitution, shall be eligible for the office of president.

    Since McCain was born before 1789, he still qualifies.

    Politics ain't beanbag--Mr. Dooley

    by LeftCoastTimm on Fri Feb 29, 2008 at 11:00:47 PM PST

  •  This is like (3+ / 0-)
    Recommended by:
    pb, Translator, kyril

    the issue of whether Cheney is from Wyoming or Texas.  He changed his voter registration from Texas to Wyoming a few weeks before the 2000 election so that he wouldn't be from the same state as W.  If he had been, the electors from Texas wouldn't have been able to vote for both of them, so the VP election would have gone to the Senate, Lieberman would have been VP, yadda yadda yadda.  

    In the real world, this is a non-issue.

  •  Um (2+ / 0-)
    Recommended by:
    sclminc, kyril

    George Romney had been born in Mexico while his parents were there on a multi-year Mormon mission.

    Romney's parents were not in Mexico for an LDS mission. His grandparents had fled the country to continue practicing polygamy.

    As for the rest.

    zzzzzzZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZ

    How does this help us win elections again?

    "Our country right or wrong. When right, to be kept right; when wrong, to be put right" - Carl Schurz

    by RBH on Fri Feb 29, 2008 at 11:04:44 PM PST

  •  Stop it. Just stop. (6+ / 0-)

    Seriously, one of these McCain citizenship diaries shows up every few hours, it seems like.

    Even if you are techinally right, and I don't know if you are: He's going to be the Repub nominee, and he's going to take the oath of office if the Democrats manage to fuck this up.

    •  We are just having a little fun with (1+ / 0-)
      Recommended by:
      kyril

      it right now.  Of course he is eligible insofar as being born is.  Just his issues disqualify him.  Warmest regards, Doc.

      Sometimes I feel like Robert Louis Stevenson created me. -6.25, -6.05

      by Translator on Fri Feb 29, 2008 at 11:13:33 PM PST

      [ Parent ]

  •  I think you have a point; (2+ / 0-)
    Recommended by:
    sclminc, Translator

    I also think it doesn't matter in practice, especially seeing as how Sen. Claire McCaskill has already written up legislation to shore this up for McCain, how Barack Obama has indicated that he'd co-sponsor said legislation, and how this is all likely to go unchallenged (or unreviewed) anyhow.

    But as a Constitutional discussion over exactly what a natural-born citizen is, it's been interesting.

    P.S. It's also a shame that the Bush-Cheney ticket didn't get knocked out because they were both from Texas.

    •  Interestingly, a law does (2+ / 0-)
      Recommended by:
      pb, kyril

      not affect the Constitution.  That Document stands alone.  Warmest regards, Doc.

      Sometimes I feel like Robert Louis Stevenson created me. -6.25, -6.05

      by Translator on Fri Feb 29, 2008 at 11:17:41 PM PST

      [ Parent ]

      •  indeed; (1+ / 0-)
        Recommended by:
        kyril

        However, the courts also do look to Congress as to intent and interpretation. But if it seriously did come to that (and if you believe that a series of courts would reject McCain here, up to and including the Supreme Court), they might even be able to get a Constitutional Amendment passed in time.

        My prediction? It'll never come to that--not even close. But if it did, I bet it would greatly benefit McCain.

    •  Ouch (4+ / 0-)
      Recommended by:
      pb, Ahianne, sclminc, kyril

      I hope McCaskill gets an editor. Because the way it's worded now, it says that anyone born while they are serving in the Armed Forces is a "natural born" citizen, as long as they are born to a citizen.

      I guess they are so desperate for troops these days that they lowered the age requirement to a negative number.

      Sometimes I think it's a sin, when I feel like I'm winning when I'm losing again.
      -Gordon Lightfoot, 'Sundown'

      by Free Spirit on Fri Feb 29, 2008 at 11:54:41 PM PST

      [ Parent ]

    •  No, he doesn't. (3+ / 0-)
      Recommended by:
      Ahianne, Melchuck29, kyril

      Diarist is dead wrong. See above comment.

      Children of US citizens are citizens at birth no matter where they are born. Thus, natural born citizens.

      Wong dealt with the child of foreign nationals born in the US (a US citizen). This is not McCain's situaion.

      The other case dealt with a child of mixed citizenship parents born abroad. Again, not McCain's situation.

      •  *sigh*. (0+ / 0-)

        I think there is a debate here, and some grey areas where reasonable people can disagree. That's why I linked to "natural born citizen":

        The requirements for citizenship and the very definition thereof have changed since the Constitution was ratified in 1788. Congress first extended citizenship to children born to U.S. parents overseas on March 26, 1790, under the first naturalization law: "And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens."[1][2] This was addressed by the U.S. Supreme Court in the Dred Scott case as a form of naturalization.[3] The Dred Scott case, however, was overturned by the Fourteenth Amendment in 1868. The Fourteenth Amendment mentions two types of citizenship: citizenship by birth and citizenship by law (naturalized citizens): "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."

        All persons born in the United States, except those not subject to the jurisdiction of the U.S. government (such as children of foreign diplomats) are citizens by birth under the Fourteenth Amendment. There is some debate over whether other persons with citizenship can also be considered citizens by birth, or whether they should all be considered to be "naturalized". Current US statutes define certain individuals born overseas as "citizens at birth," as opposed to citizens by birth.[4] One side of the argument interprets the Constitution as meaning that a person either is born in the United States or is a naturalized citizen. According to this view, in order to be a "natural born citizen," a person must be born in the United States; otherwise, he is a citizen "by law" and is therefore "naturalized."[5] Current State Department policy reads: "Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular 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 the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth."[6]

    •  The Constitution Does Not Bar Tickets (2+ / 0-)
      Recommended by:
      pb, kyril

      It does limit who can receive Electoral College votes.  And it is silent on where someone is "from", rather addressing the place someone inhabits.  In practice, it would be possible for a ticket between two people inhabiting the same state through the election in November, only to have one of those individuals then establish habitation in a separate state in order to satisfy Constitutional requirements by the time the Electoral College votes in December.

  •  "Subject To The Jurisdiction Thereof" (3+ / 0-)
    Recommended by:
    sclminc, Translator, kyril

    Interesting enough, I was surprised to find out it's possible to be born on American territory and not be covered by the 14th Amendment's birthright citizenship guarantee.

    American Samoans are considered "United States Nationals", but not United States Citizens. The text of the 14th Amendment states.....

    "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."

     
    I would think an American territory would automatically fall under the "subject to the jurisdiction thereof" part? From what I gather, the guarantee of birthright citizenship was extended to territories & outlying areas (i.e. Puerto Rico, Guam and the U.S. Virgin Islands) through the passage of Organic Acts.

  •  Look - I agree with the diarest (2+ / 0-)
    Recommended by:
    sclminc, Translator

    We were stationed in Panama - the hospital was for the military was on Panamian soil - even though it was a military hospital.

    We were told that our childs vitial statistics / birth records etc would be held by the Panamaian government.  He would be born a citizen because his parents were citizens overseas, however, he would not be a "natural born" citizen.

    so guess what - I came back to the states to have him.  

    "America Rising" - John Edwards we are with you.

    by totallynext on Fri Feb 29, 2008 at 11:14:22 PM PST

  •  I think you are wrong. (1+ / 0-)
    Recommended by:
    kyril

    Work it out with this diarist and let me know what you decide.

    Diaried within the last 24 hours

    We shall overcome, someday. Yes we can.

    by Sam Wise Gingy on Fri Feb 29, 2008 at 11:15:55 PM PST

  •  Here Is the Problem with Your Logic (2+ / 0-)
    Recommended by:
    Translator, kyril

    You have to remember that when that clause was put in the Constitution, the US was just getting into existence.  There was not a single "natural born citizen" of the US.  In that context, the legal interpretation of the clause would be left to the future and the Congress subsequently clearly allowed babies of US citizens who happened to be born outside the US to be deemed naturalized citizens.  All your analysis applies to interpretations of long-standing doctrines, not somthing "brand new" which is what that clause was in the 1700's.  Finally, as the many diaries about this issue have shown, the progressive community is ready, willing and able to debate McCain on the issues and we do not need some technicality to win that debate.

  •  This is a great meme to spread in Wingnuttia. (0+ / 0-)

    Especially if it's conflated with his stance on immigration.

  •  Why waste time picking nits (2+ / 0-)
    Recommended by:
    Translator, kyril

    Even if it is true, it seems petty and pointless to argue fuzzy legalities rather than issues.

    Although if Mike Huckabee wanted to pursue this as his miracle moment, I'm all for it.

    •  Nits are tasty now and then, thank you! (0+ / 0-)

      Warmest regards, Doc.

      Sometimes I feel like Robert Louis Stevenson created me. -6.25, -6.05

      by Translator on Fri Feb 29, 2008 at 11:34:51 PM PST

      [ Parent ]

    •  Don't take seriously, but fun to think about (1+ / 0-)
      Recommended by:
      kyril

      I think it would be absolutely absurd, and really plain wrong, for Democrats (or anyone else) to use this as an argument keep McCain out of the race. No way should someone disqualified from running because s/he was born overseas simply because his/her parents were station overseas in the service of the country.

      On the other hand, I think this is an interesting legal oddity kind of question, and there's nothing wrong with discussing the ins and outs of this sort of thing for fun, as long as people understand that this should be a theoretical legal question, not something used to keep the children of military personnel or diplomats from serving as president.

  •  Oh enough already (4+ / 0-)
    Recommended by:
    sclminc, Sharon Jumper, Melchuck29, kyril

    This kind of shit is only ammunition for the rightwing talkers who want to babble about how crazy those liberals are.  Drop it already.  The kid of Americans stationed at an American military base on active duty is an American in every sense of the word, pure and simple.

    There are all kinds of reasons for McCain not to be President.  His birthplace isn't one of them.

    ---
    "If Obama is the nominee, we are doomed." -Rush Limbaugh
    "Always speak before Barack Obama, not after Barack Obama." -Olbermann

    by Troutnut on Fri Feb 29, 2008 at 11:39:48 PM PST

  •  Funny thing - the freepers used to buy this (2+ / 0-)
    Recommended by:
    sclminc, kyril

    But now that McCain's the GOP nominee, they think that it's a dumb argument.

    (Seriously - the anti-McCain GOP folks brought this argument up a lot during the nomination fight.)

    •  That's why they are freepers (1+ / 0-)
      Recommended by:
      kyril

      Because they will argue one way when convenient and exactly the opposite when inconvenient.

      And why are we different?

      Because our position remains the same when convenient and when inconvenient.

      This is why the typical progressive has more character in his or her pinkie than the typical conservative has in his or her entire body.

      I shall not rest until right wing conservatives are 4th party gadflies limited to offering minor corrections on legislation once or twice a year.

      by davefromqueens on Fri Feb 29, 2008 at 11:56:06 PM PST

      [ Parent ]

  •  Fascinating responses (0+ / 0-)

    First, I realize that there had been other diaries before this one that touched on this subject.  Those diaries were, to me, unsatisfying because they merely quoted the Constitution without looking into Court rulings or other statutes.  I actually did some research in an effort to provide some basis for debate.  So many comments seem to brush aside the Constitution.

    As an attorney, I have been appalled over the past thirty-plus years at the way the Constitution has been brushed aside by Republicans on the Supreme Court.  I am troubled that so many comments brush aside this diary solely because it doesn't fit within their current mindset, no matter what the facts.

    If one is truly progressive, one ought to have a certain desire to return some integrity to the Constitution.  One cannot pick and choose amongst Articles or Amendments in order to concentrate solely on the results one wants.  One either supports the Constitution or one does not.  If a portion of it is wrong, then it should be amended.

    Finally, I did not find any reference to the Canal Zone being a military base.  Yes, there was a military presence there but it was operated by the Panama Canal Company.  McCain's father was in the Navy, which seems to have had a presence there to protect shipping.

    If the facts and the law don't matter, why bother having elections or Courts or a Congress?

    •  Well, although it's all been said (2+ / 0-)
      Recommended by:
      kyril, luckylizard

      The key issue is, of course, the fact that his parent's were U.S. citizens -- the status of the Canal Zone is irrelevant.  Now, there seems to be a pretty good consensus that he is a citizen without going through the naturalization process.

      So the only question is that, although he is a citizen is he a natural-born citizen?  That's the only area of uncertainty which the fact that the first congress attempted to clarify, explicitly stating that 'natural born' included children born to U.S. citizens beyond the seas.  While congress cannot amend the constitution by statute, it can certainly be considered to be a pretty good indication of the founder's intent in writing the passage as most of them were still walking around at that point.

      Another interesting point is that we clearly have people who become citizens by going through the 'naturalization' process and those that are born that way.  I'm not aware of a recognized third catagory.

      •  The letter of the law (0+ / 0-)

        If we are going to be really picky the first natural born president of the United States of America was Martin Van Buren.  Prior to the ratification of the Articles of Confederation  there was no United States, therefore none of the presidents before him were "natural born citizens" of this country.  No reasonable person would assert that a child born to citizens who are in service to this country overseas is not a citizen.  Whether McCain's father was protecting the country or a company is not relevant.  If he was sent there by the Navy or the country, as a member of the Navy, he was serving.  How can this be so hard to understand?

        I don't like McCain and I cannot defend anything he says or stands for but this is nuts!  

        -7.62, -7.28 "We told the truth. We obeyed the law. We kept the peace." - Walter Mondale

        by luckylizard on Sat Mar 01, 2008 at 01:26:50 AM PST

        [ Parent ]

    •  You are an attorney? (0+ / 0-)

      I didn't think this was the case from the diary.

      Again, I'd argue that factually, Wong and the other case you cited are not applicable to McCain, as the parentage situations are not the same.

      Second, quoting common law English (different nationality laws) from Wong, and common law at all, is dicey here. For reasons that should be obvious. See #1 above.

      Third, the idea that citizenship laws are inconsistent with this rather unspecific Constitutional provision is just not supportable in this case. As any lawyer should know, laws can clarify the Constitution, flush is out, without being in conflict with it. Such is the case here. The CT has left it for Congress to determine what the citizenship laws are (as the Constitution itself provides no guidance.) As should be obvious from the CT quoting common law in Wong. So your argument is that English common law can have a bearing on a CT determining who is a US Citizen, but a specific Federal Statute can't? Come now, you don't really believe that, do you?

      For persons born prior to 1934, derisive citizenship was able to be passed on by the father to the child, if the child was born outside the US, if the father had previously resided in the US. This IS the McCain case. Game, set, and match. Though the original law (Act of 1885) was later held to be Unconstitutional because it did not allow the MOTHER to confer such citizenship, that detail doesn't impact McCain.

      Check out AMJUR Aliens 2229 for more info. It's late, I'm drunk, so I don't have time to do more research tonight, but the factual dissimilarities from your cited cases to McCain's situation should be enough to give you pause.

      Lawyers bet: I bet you $100 dollars I'm right.

  •  Your are dead wrong. Those cases are different. (5+ / 0-)
    Recommended by:
    dnta, wgard, Grannus, kyril, shigeru

    If both your parents are U.S. citizens, you are a US citizen at birth. Period and end of story.

    This is a dead issue. There are basically two ways to become a citizen.

    1. You are born in the US (Wong).
    1. You are born to parents who are both US citizens (McCain).
    1. Mixed citizenship parents, born abroad: a third case, is a bit more complex.

    In either of the first two cases, you are a natural born citizen. A citizen at birth (as opposed to a naturalized citizen).

    Wong deals with a person born in the US to non-citizen parents. McCain is the opposite case, a person born outside the US (at least arguable) to US citizens. (Though the canal zone at the time was part of the US, like a base or an embassy).

    Thus, one cannot apply the reasoning in Wong to McCain, they are factually dissimilar. And in Wong, the child of foreign citizens born in the US WAS declared to be a US citizen. How ridiculous would it be for children of foreign nationals born in the US to be citizens (and illegal immigrants, by the way) but not children of US citizens born abroad (especially on military bases)?

    The other case deals with another situation, where one parent is a US citizen, and the other is not, and the child is born abroad. This, again is a different situation than McCain's. Both his parents were US citizens (and he was technically born in the US as well), but even if not, he's a citizen at birth anyway.

    While you research skills are impressive, your legal analytical skills need some polishing. Still, nice diary.

  •  Have you considered (0+ / 0-)

    this argument?

  •  Warmest regards, Doc (0+ / 0-)

    Warmest regards, Doc Warmest regards, Doc Warmest regards, Doc Warmest regards, Doc Warmest regards, Doc Warmest regards, Doc Warmest regards, Doc Warmest regards, Doc Warmest regards, Doc Warmest regards, Doc Warmest regards, Doc Warmest regards, Doc

  •  Such a worthless diary! (0+ / 0-)

    You are factually incorrect as to the law and stare decisis, and you are attempting to be inflammatory, as well.

    I tell you what.  You tell any servicemember, past or present, that their child, by virtue of being born outside the contiguous US or Hawaii or Alaska, such servicemember serving at a particular location at the specific order of the US government, that the child is a citizen, but effectively a 'second class' citizen in ANY respect... and I suspect you had best run for any cover you can find as quickly as possible!

    I will not vote for McCain, obviously... but I will vigoursly defend his rights as a citizen, in this case (in my belief and understanding of law) as a 'natural citizen' fully compliant with the intent of the Constitution, to both seek the presidency, and (God forbid!) if successful, to occupy that office.

    Why do you or others like you keep peddling this horseshit?  You do not have a winning position... yours is not supported by logic, by law, or by general opinion.  Maybe you should give it up?

    Life is not a 'dress rehearsal'!

    by wgard on Sat Mar 01, 2008 at 04:29:32 AM PST

  •  I understand you are really (0+ / 0-)

    A Schwarzenegger's supporter trying to get a law changed.

  •  This is utter nonsense! (0+ / 0-)

    First, there is ZERO chance that either Congress or the Supreme Court would rule that children born of U.S. service members serving overseas are not qualified for the Presidency.  ZERO.  And that being the case, even if you were correct, who the hell is going to enforce this "law."

    Second, while Congress can't AMEND the Constitution, it can certainly interpret it, and its interpretation in this case exactly appeals to common sense and a basic sense of fairness.

    Finally, only A TOTAL IDIOT would want to argue, in an election year, that the son of two generations of U.S. Navy Admirals, who was born overseas where his father was serving, and who himself behaved heroically as a member of the U.S. armed forces, is constitutionally disqualified from the Presidency.  This argument is so idiotically counter-productive that I'm beginning to suspect these diaries are posted by Republican trolls wanting to make us look bad.

    "Those who would sacrifice liberty for security deserve neither liberty nor security." -Ben Franklin

    by leevank on Sat Mar 01, 2008 at 05:49:45 AM PST

  •  You've Done A Lot of Work Here... (0+ / 0-)

    And, I don't want to dismiss that effort, it's important to know the historical and legal considerations on this issue.

    But, this just isn't going to be a factor, I don't think. Who will take this issue to the court to bar McCain from being a candidate for the Presidency?

    No one.

    The political implications are nightmarish.

    I think this mischievous debate will go nowhere in the end, because no one will want to challenge this--McCain was born in the Panama Canal Zone on US property--a military base--to military parents. The law states that he is a citizen by virtue of the fact that he was born to parents who were US citizens.

    He was born on US property. His parents were U.S. citizens. The law provides that he is a U.S. citizen.

    The "natural born" issue just doesn't wash.

    "Hope has to be made a reality in politics." ~ Hillary Clinton

    by SignalSuzie on Sat Mar 01, 2008 at 06:10:30 AM PST

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