Is John McCain constitutionally ineligible to serve as president?

Feb. 29, 2008 by LawReader Senior Editor Stan Billingsley – A news story broke on Feb. 28th. which suggested that an issue has been raised about the eligibility of Sen. John McCain to serve as president due to the fact he was born outside of the United States. He was born Aug. 29, 1936 in the Panama Canal Zone. 

The U.S. Constitution at Article II, Section 1 says “No person except a natural born Citizen….shall be eligible to the Office of President.? 

This raises the question as to the meaning of “natural born? as used in Article II. 

For many years it has been the widely held belief that this term meant that future presidents had to actually have been born in the U.S. and that this provision was written to prevent Tories who had migrated from England from having undue prominence in our young country. This provision effectively prevented an English Nobleman from bringing their wealth and titles across the sea and to impose their royal influence on the United States. The McCain campaign quickly released a legal opinion by Theodore Olson a former Solicitor General in the Bush Administration.  Olson concluded that there was really no issue and that McCain could indeed serve as president. 

We have read Article II Sec. 1 of the Constitution and we do not see that issue is clearly resolved in McCain’s favor as does Solicitor Olson. We note that Congress passed a law in l790 declaring a child born of U.S. Citizens to be “natural born citizens.?  But here’s the rub, Congress is not entitled to interpret the U.S. Constitution.  Only the courts can interpret the Constitution. 

This issue is further complicated by an act of Congress in l952 while felt it necessary to declare that children born in the Panama Canal Zone (as was Sen. McCain) were U.S. citizens.  See the provision for yourself:

Article. II.  -  U.S. Constitution  Section 1.

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.

  We note that Congress is without power to amend the meaning of the U.S. Constitution by a legislative act.  However, in l790 Congress wrote a definition for Art. II, Sec. 1 by defining a child born to U.S. citizens while absent from the U.S. to be “natural born.?  

That act, The Naturalization Act of 1790, held that children of citizens of the United States, that were born “beyond the sea?…?shall be considered as natural born citizens?.  If this act and subsequent acts by Congress are used as authority on this issue, then one must explain where Congress derived the power to interpret and make exceptions to constitutional provisions.  Mr. Olson did not explain that to us.

Whatever the term ”natural born” means, it no doubt does not include a person who is ”naturalized.

The Supreme Court has gone so far as to rule that even a subsequent amendment to the Constitution (the l4th. Amendment) could not provide a definition for a term in the original portion of the  Constitution. In Freytag v. CIR , 501 U.S. 868 (1991),  the Supreme Court declined to be bound by the language of the 25th Amendment in determining the meaning of ”Heads of Departments” in the appointments clause.            See also id., 917 (Justice Scalia concurring).

FINDLAW PUBLISHED BY THOMSON WEST, CONCLUDES:   

If the Fourteenth Amendment is relevant and the language is exclusive, that is, if it describes the only means by which persons can become citizens, then, anyone born outside the United States would have to be considered naturalized in order to be a citizen, and a child born abroad of American parents is to be considered ”naturalized” by being statutorily made a citizen at birth.?

   The issue remains that Congress is not empowered to amend the constitution by declaring a “naturalized citizen? to be the same as a “natural born citizen? particularly when the requirement for being a “natural born citizen? is a requirement for service in the Office of President.

This issue is not an open and shut case as Olson claims.  

We conclude that only the U.S. Supreme Court can put this issue to rest, by providing an opinion about the meaning of “natural born? as used in Art. II, Sec. 1.   

Since the Supreme Court has among its members so called “strict constructionists? and  Justice Scalia is committed to the doctrine of “original intent? , it will be fun to see how they deal with this issue.

Will they say that this concept of “natural born citizen? is outmoded and write some new constitutional law? And thereby make the constitution fit into the realities of the modern era, thereby giving McCain the benefit of the doubt?  Or would they live up to the original intent doctrine and strictly hold that the clause means actually born in the United States?

Footnotes:

SEN. JOHN MCCAIN WAS BORN IN THE PANAMA CANAL ZONE as the child of a father who was a citizen and who was in the United States Navy.  The following provision of the U.S. Code declare that he is a citizen of the U.S. but does not declare him to be a “natural born citizen? per Art. II , Sec. 1 of the Constitution.

UNITED STATES CODE   -   TITLE 8--ALIENS AND NATIONALITY
             CHAPTER 12--IMMIGRATION AND NATIONALITY
             SUBCHAPTER III--NATIONALITY AND NATURALIZATION
       Part I--Nationality at Birth and Collective Naturalization
Sec. 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. (June 27, 1952, ch. 477, title III, ch. 1, Sec. 303, 66 Stat. 236.)
 

See: FREYTAG v. COMMISSIONER, 501 U.S. 868 (1991)

JUSTICE BLACKMUN delivered the opinion of the Court.

The leading Framers of our Constitution viewed the principle of separation of powers as the central guarantee of a just government. James Madison put it this way: "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 324 (J. Cooke ed. 1961). In this litigation, we must decide whether the authority that Congress has granted the Chief Judge of the United States Tax Court to appoint special trial judges transgresses our structure of separated powers. We answer that inquiry in the negative.

Despite Congress' authority to create offices and to provide for the method of appointment to those offices, "Congress' power . . . is inevitably bounded by the express language of Article II, cl. 2, and unless the method it provides comports with the latter, the holders of those offices will not be `Officers of the United States.'" Buckley, 424 U.S., at 138 -139 (discussing Congress' power under the Necessary and Proper Clause).

The judgment of the Court of Appeals is affirmed.

It is so ordered.

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