Bench Memos

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Further Notes on McCain’s Eligibility


Yesterday while I wasn’t paying attention (thanks to the day job), The Corner erupted with more discussion of the question whether John McCain is eligible to be president, having been born in the Panama Canal Zone.  This is all prompted by this Thursday article in the New York Times, which I dissected here.  First David Freddoso weighed in, then Mark Hemingway and Jonah Goldberg, finally Mark Krikorian–with digressions on judicial power by Ramesh Ponnuru and Andy McCarthy.  (For chronological order, go here first, then second, third, fourth, fifth, sixth, seventh, and eighth.)  I also got a fair amount of e-mail about it.  So here are some further thoughts prompted by all this discussion.

1  David Freddoso cites 8 U.S.C. 1401, which I should have quoted in my original post.  The statute identifies children born to U.S. parents overseas as “citizens of the United States at birth,” and David wonders aloud how one can be a citizen “at birth” and not also a “natural born” citizen under Article II of the Constitution.  Good point.  One can’t be the first without also being the second.  But here is where those “Ptolemaic epicycles” start spinning.  I have seen it argued that there is a statutory birthright-by-parentage citizenship, and a constitutional “natural born” citizenship resting on place of birth.  The statute in question seems clearly to be a denial of such a distinction.  One thing Horace Gray got right in Wong Kim Ark (discussed in my original post) is that one is a citizen either by birth or by naturalization.  He was wrong to suppose that children born to U.S. parents overseas are naturalized.  No, their citizenship is not statutory in origin (true of all naturalized citizens), it is instead a constitutional citizenship confirmed (not conferred) by statute.  Yes, Congress too interprets the Constitution–usually at least as competently as the Supreme Court does (see point 5 below), and with just as much authority where it acts in its purview, as it does here.

2.  One correspondent wonders why I left out of my analysis the fact that the Canal Zone was a U.S. possession in 1936 when McCain was born.  I didn’t think it was necessary to the argument, and I thought the case could be made for eligibility of all foreign-born birthright U.S. citizens.  Then I got another reason to leave this out.  My dad, who was in Panama in 1940 (and who was born overseas himself), wrote to say he remembers a U.S. Army hospital in Colon, outside the Zone and in Panamanian territory, and wonders whether McCain was born there.  In that case the location of McCain’s birth wouldn’t help him.  But his parentage still clinches it.

3.  Another correspondent, born to overseas military parents in the 1960s, says he has a State Department-issued “Report of Birth Abroad,” which has helped him get past pesky bureaucrats asking for his “naturalization number” on various occasions.  Could this man be president?  You betcha.

4.  A writer I’ll call Concerned Overseas Mother says I was wrong to believe that this question hasn’t nagged at many American parents of foreign-born kids:

I daresay if you walked into a gathering of adults at any of the many American clubs or international schools overseas, an overwhelming majority would confirm that the topic has bothered their children (and themselves) at some time or the other.

Wow.  I stand corrected.  I had originally written, “Dear overseas American moms and dads: if you haven’t been worrying about this, don’t start.”  Now I’ll say, if you have been worrying about this, stop!  Your kids are as eligible to be president as their siblings and cousins and friends born in the U.S.  (Note to my niece so situated: that means you too, sweetheart.)

5.  Finally, one reader notes my argument that this is a political question, not to be settled by judges but by the electoral college and the Congress in choosing and confirming a new president.  (I agree with Mark Krikorian that judicial intervention can’t be ruled out altogether–the reasons for which, see in a moment.)  The reader wonders whether these authorities could blow past the commonsense barrier to a naturalized president and choose, say, Arnold Schwarzenegger.  Wouldn’t we want judicial intervention then?  Sorry, I won’t bite.  This is the sort of hypothetical that some law professors love.  But I prefer truly realistic possibilities–not just what can be imagined, but what we can imagine happening.  The reader’s hypothetical is about as likely as the people voting for, the electoral college choosing, and the Congress confirming the choice of, a 30-year-old person when Article II requires a minimum age of 35.  The track record of Congress is reassuring when such questions are posed–far more than the track record of the Supreme Court.  When hypothesizing about what the Court might say, experience suggests a much smaller gap between wild imaginings and actual decisions.  I am sure that just ten years before Roe v. Wade, virtually every constitutional scholar would have laughed out loud if you had posed it as a hypothetical, much less predicted it as an actual decision.


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