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Flanking Attack

Having failed as yet to get McCain on a morals charge, NYT mulls the question of whether he’s sufficiently American: 

WASHINGTON — The question has nagged at the parents of Americans born outside the continental United States for generations: Dare their children aspire to grow up and become president? In the case of Senator John McCain of Arizona, the issue is becoming more than a matter of parental daydreaming.

Mr. McCain’s likely nomination as the Republican candidate for president and the happenstance of his birth in the Panama Canal Zone in 1936 are reviving a musty debate that has surfaced periodically since the founders first set quill to parchment and declared that only a “natural-born citizen” can hold the nation’s highest office.

Almost since those words were written in 1787 with scant explanation, their precise meaning has been the stuff of confusion, law school review articles, whisper campaigns and civics class debates over whether only those delivered on American soil can be truly natural born. To date, no American to take the presidential oath has had an official birthplace outside the 50 states.

“There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” said Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively. “It is not a slam-dunk situation.”

Mr. McCain was born on a military installation in the Canal Zone, where his mother and father, a Navy officer, were stationed. His campaign advisers say they are comfortable that Mr. McCain meets the requirement and note that the question was researched for his first presidential bid in 1999 and reviewed again this time around.

But given mounting interest, the campaign recently asked Theodore B. Olson, a former solicitor general now advising Mr. McCain, to prepare a detailed legal analysis. “I don’t have much doubt about it,” said Mr. Olson, who added, though, that he still needed to finish his research.

Senator Lindsey Graham, Republican of South Carolina and one of Mr. McCain’s closest allies, said it would be incomprehensible to him if the son of a military member born in a military station could not run for president.

“He was posted there on orders from the United States government,” Mr. Graham said of Mr. McCain’s father. “If that becomes a problem, we need to tell every military family that your kid can’t be president if they take an overseas assignment.”

The phrase “natural born” was in early drafts of the Constitution. Scholars say notes of the Constitutional Convention give away little of the intent of the framers. Its origin may be traced to a letter from John Jay to George Washington, with Jay suggesting that to prevent foreigners from becoming commander in chief, the Constitution needed to “declare expressly” that only a natural-born citizen could be president.

Ms. Duggin and others who have explored the arcane subject in depth say legal argument and basic fairness may indeed be on the side of Mr. McCain, a longtime member of Congress from Arizona. But multiple experts and scholarly reviews say the issue has never been definitively resolved by either Congress or the Supreme Court.

So is the NYT just idly sucking its thumb on an issue no one is seriously challenging, or in it’s typically less than subtle way flagging it? Lack of any support for its position is no obstacle, as we saw last week. But if so in this case, the NYT report notes in balance it would be a fool’s errand. Anyone else hope the Dems can’t help themselves but give it a shot? Best efforts for both parties so often go tragically awry. Speaking of which, what’s the big holdup on impeachment?

Here’s the birth-citizenship history, which is more complicated and recurrent than you might have thought:.

Mr. McCain’s situation is different from those of the current governors of California and Michigan, Arnold Schwarzenegger and Jennifer M. Granholm, who were born in other countries and were first citizens of those nations, rendering them naturalized Americans ineligible under current interpretations. The conflict that could conceivably ensnare Mr. McCain goes more to the interpretation of “natural born” when weighed against intent and decades of immigration law.

Hang on. Maybe that’s why he’s so soft on illegal aliens. … Kidding.

Mr. McCain is not the first person to find himself in these circumstances. The last Arizona Republican to be a presidential nominee, Barry Goldwater, faced the issue. He was born in the Arizona territory in 1909, three years before it became a state. But Goldwater did not win, and the view at the time was that since he was born in a continental territory that later became a state, he probably met the standard.

It also surfaced in the 1968 candidacy of George Romney, who was born in Mexico, but again was not tested. The former Connecticut politician Lowell P. Weicker Jr., born in Paris, sought a legal analysis when considering the presidency, an aide said, and was assured he was eligible. Franklin D. Roosevelt Jr. was once viewed as a potential successor to his father, but was seen by some as ineligible since he had been born on Campobello Island in Canada. The 21st president, Chester A. Arthur, whose birthplace is Vermont, was rumored to have actually been born in Canada, prompting some to question his eligibility.

Quickly recognizing confusion over the evolving nature of citizenship, the First Congress in 1790 passed a measure that did define children of citizens “born beyond the sea, or out of the limits of the United States to be natural born.” But that law is still seen as potentially unconstitutional and was overtaken by subsequent legislation that omitted the “natural-born” phrase.

Topics: McCain, media, pols

  Posted by Jules Crittenden at 9:58 am on Thursday, February 28, 2008

9 Responses to “Flanking Attack”

1. El Cid Says:
   February 28th, 2008 at 10:16 am

   Surely you gestation. OK, so it a damn sad groaner, Gimme a break, huh?

2. Robert Says:
   February 28th, 2008 at 10:32 am

   Trying, no doubt, to defect attention to the fact that Hussein was raised in a muslim country.

3. Jules Crittenden Says:
   February 28th, 2008 at 10:40 am

   Hey, I was raised in Muslim countries. Also, in an idol-worshipping pagan one. Good point, though.

4. RebeccaH Says:
   February 28th, 2008 at 1:00 pm

   It only seems common sense that a person born to American parents who have not renounced their citizenship is a natural-born American — especially if he is born on a military base under the jurisdiction of Americans. The question is ridiculous, in my mind. But then, we are talking Democrats who can’t stoop low enough.

   Personally, I feel that people born in America to non-citizens should not automatically be citizens of America. That would certainly put Mr. Obama’s eligibility into a gray area, despite his mother’s citizenship.

5. saltydog Says:
   February 28th, 2008 at 1:48 pm

   Boy, are they reaching! Does this mean that we must set up OB facilities in our Embassies in foreign countries so that any American who finds herself in labor in that country can assure their children are natural born? But, the Mexican national who rushes across the border when she finds herself in labor doesn’t birth a natural born Mexican?

   Is there no common sense left?

6. El Cid Says:
   February 28th, 2008 at 4:29 pm

   Salty

   “Is there no common sense left?”

   Truer words, where never typed….NONE…’they” have absolutely none.

7. Vanguard of the Commentariat Says:
   February 28th, 2008 at 7:29 pm

   Since when did the NYT care about either philandering public servants or whether someone was natural born American?

   I seriously thought one issue was your private life and the other was a nativist view of inflexible right wingers.

   Man its tough trying to keep up with the mental gymnastics of that paper.

8. El Cid Says:
   February 28th, 2008 at 7:48 pm

   W-E-R-E…Honest to God.

   This is the correct place to use it…W-H-E-R-E have you been, Vanguard of the Commentariat?

9. Vanguard of the Commentariat Says:
   February 29th, 2008 at 9:41 pm

   Thanks for asking Cid. Been moving across the country, Nevada to Virginia. Was time for a change. I owned an acre of the Great Basin, sold up and I now own a half acre of George Washington’s old farm. I met nothing but nice people of all stripes over 2700 miles of this great country. We were in a rut, an opportunity presented itself and we took it. It is good to be back with Jules and the gang and my wife got me the Washington Times, so now I don’t get hopping mad when I read the paper!

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