This issue keeps arising. Its latest manifestation is laid out in this NY Times article: http://www.nytimes.com/...
The text of Gabriel Chin's opinion can be downloaded here:
http://papers.ssrn.com/...
At the end of that text, the previous opinion of Laurence Tribe and Theodore Olson is appended.
I happen not to agree with Prof. Chin (and I'm not a lawyer but only a citizen and voter), but I think he makes some excellent points and that his opinion and the appended Tribe & Olson opinion are well worth the time to read.
To me, the most interesting and effective theme in Gabriel Chin's opinion was that the immigration laws of the United States have been made complex and nit-picky primarily because of racism. That is, Congress and the courts consistently attempted to write and to read the law in such a way that white children of white citizens could be citizens at birth, but nonwhites were to be excluded. However, since they (almost) never dared to come right out and say that in so many words, they resorted to very carefully crafted wording that tended to err on the side of exclusion rather than inclusion. Based on this history, Chin (correctly, if legalistically) points out that John McCain was born in a time and place that Congress had defined as disqualifying him to be a native-born citizen. Read the opinion and decide for yourself if this is a convincing argument.
However, Tribe & Olson's opinion was based primarily not upon the 14th Amendment, but on the "native born citizen" clause in the main body of the Constitution. They state that in order to comprehend the intention behind the phrase "native born citizen", it is only necessary to study the British law in effect at the time (British Nationality Act of 1730), which holds "That the Children of all natural-born Subjects, born out of the Ligeance of her said late Majesty, her Heirs and Successors, should be deemed, adjudged and taken to be natural-born 10 Ann. c. 5. Subjects of this Kingdom to all Intents, Constructions and Purposes whatsoever". In other words, when the Framers wrote "native born citizen", they clearly included all foreign-born children of US citizens from the get-go.
Now, Chin discusses this point, and concludes that it mustn't be correct because Congress has passed laws that contradict it, and the courts have upheld some of those laws (generally for racist reasons that would not pass muster even in the Roberts-Alito-Scalia court today, but still). However, this is where I disagree with Chin: if the Native Born Citizen Clause means what Tribe and Olson (and Queen Anne) say it meant, then laws that did not consider children of US citizens born abroad to be native born US citizens were unconstitutional, and court decisions upholding those laws should be reversed. Within Chin's opinion, he explains in detail the racist illogic that has governed US immigration law. Tribe and Olson, correctly in my view, disdain this irrationality and provide a view of the Constitution that does not support it. In each of a number of examples where past laws are thrown out, Chin describes the chaos that would result (thousands of people gaining rights of native citizenship, for example). But in this case, where the native born citizenship clause would be interpreted in its undisputed context and meaning, it seems to me that almost no chaos would result, since existing laws already grant citizenship to virtually all foreign-born childred of US citizens.
So the crux of the disagreement, in my unlawerly understanding of it, is between (1) an interpretation of the plain words of the Constitution, in their undisputed historical context, that considers subsequent racially motivated historical lawmaking and court decisions to be unconstitutional and incorrect; and (2) a reliance on that same racially motivated legal history, in spite of the plain intent of the Framers, to construct a legalistic and technically accurate framework, heavily relying on unconstitutional (IMHO) laws and court decisions, that would deny a small number of individuals, including John McCain, native born citizenship.
I believe that if this matter ever came to the Supreme Court, which I believe should be asked by Congress to decide on it, they would side with Tribe and Olson. A few existing laws would be altered, some earlier court decisions reversed, and perhaps a few individuals would gain US citizenship, perhaps through an ancestor unconstitutionally denied citizenship in the past. (On the other hand, I thought that legal history and context, for example the Articles of Confederation, showed clearly that the right to bear arms protected the right to serve in a well-regulated militia and not the right to shoot burglars, so I may not be so good at guessing what this court will decide.)
Greg Shenaut