Republican presumptive presidential candidate Sen. John McCain campaigns at a town hall-style meeting in Hudson, Wis., Friday as part of his "Jobs First" tour. (AP Photo/Jim Mone)
by Frank James, updated at 4:53 pm with new material.
We thought our colleague, the Pulitzer Prize-winning investigative journalist John Crewdson, had authoritatively settled the whole question of whether the Panama Canal Zone-born Sen. John McCain was eligible to be president in a February posting.
Now comes a law professor who, according to the New York Times, has concluded that the McCain isn't eligible under the Constitution to run for the White House.
Here's a snippet from the Times article:
In the most detailed examination yet of Senator John McCain's eligibility to be president, a law professor at the University of Arizona has concluded that neither Mr. McCain's birth in 1936 in the Panama Canal Zone nor the fact that his parents were American citizens is enough to satisfy the constitutional requirement that the president must be a "natural-born citizen."
The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain's eligibility to be president. The law conferred citizenship on children of American parents born in the Canal Zone after 1904, and it made John McCain a citizen just before his first birthday. But the law came too late, Professor Chin argued, to make Mr. McCain a natural-born citizen.
"It's preposterous that a technicality like this can make a difference in an advanced democracy," Professor Chin said. "But this is the constitutional text that we have."
Several legal experts said that Professor Chin's analysis was careful and plausible. But they added that nothing was very likely to follow from it.
"No court will get close to it, and everyone else is on board, so there's a constitutional consensus, the merits of arguments such as this one aside," said Peter J. Spiro, an authority on the law of citizenship at Temple University.
That sounds right. It's hard to imagine that a court would take up this issue, especially in a political year like this.
It's also hard to imagine that the Founding Fathers ever intended to make the overseas- born offspring of two U.S. citizens ineligible for the presidency. Matter of fact, John Crewdson found proof that they didn't.
Here's a snippet of what he wrote in his earlier Swamp post:
Let's set the Swamp's Time Machine to March 16, 1790, the second session of the very first U.S. Congress.
The Constitution was only a year old, and Congress was busy passing laws explaining and amplifying what it various clauses and phrases actually meant.
According to the Act of March 26, 1790, 1 Stat. 103, "the children of citizens of the United States, that may be borne beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens of the United States."
So, to become a "natural born" American you don't need to be born in the continental U.S. But you do need to have two parents who are U.S. citizens. By that standard, McCain passes.
To nail things down even more tightly, Congress later stipulated that individuals born in the Republic of Panama or the Canal Zone after February 1904 were automatically U.S. citizens.
So with all due respect, it appears that Professor Chin is way off base.
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Updated at 4:53 pm with Crewdson comments:
by John Crewdson
The Swamp doesn't understand why this is such a difficult concept for its readers to grasp, given their obvious intelligence, education and sophistication. We thought we had sorted out this question out several months ago, when we explained that there are two ways of determining citizenship at birth: where you're born, and who your parents are.
The Swamp's resident authority on immigration matters, Los Angeles attorney Ron Gotcher, agrees that ;
"Professor Chin is way off base. Put aside the Canal Zone issue, both of McCain's parents were U.S. citizens. That made him a U.S. citizen at birth. The problem that most people have with the term 'natural born U.S. citizen' is that they believe it to mean 'born in the United States.' There is no legal authority for that interpretation. Rather, the clear weight of authority holds that anyone who acquired U.S. citizenship automatically at birth is a 'natural born U.S. citizen' - irrespective of the place they were born. As the child of two U.S. citizens, McCain acquired U.S. citizenship automatically at birth."
Gotcher agrees with Harvard law professor Lawrence Tribe, a Democrat, and former Solicitor General Ted Olsen, a Republican, who themselves don't agree on much--but who, according to today's New York Times, have both "concluded that Mr. McCain is a natural-born citizen based on the place of his birth, the citizenship of his parents and their service to the country." Observes Gotcher:
"There were a series of VERY strange citizenship statutes passed in the '30s and early '40s. The 1937 act was an attempt at clarification and doesn't bear on this issue."
Now can we please order a pitcher of martinis and start the weekend?
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Comments
Sounds like Obama is using another of his old tricks to try to eliminate an opponent. Didn't he successfully do this in his race for IL seat -- by saying some of the candidate's petition signatures were forged or invalid? It's the Chicago way.
Posted by: Bob | July 11, 2008 12:55 PM
It's Frank James. it's the New York Times. Not to be taken seriously, except as an attack by partisan media Democrats.
One side fact that Mr. James leaves out: Gabriel J. "Jack" Chin is a Dem Party activist with at least two recorded contributions to Dem Congressional candidates.
Posted by: Bruce | July 11, 2008 1:00 PM
Who cares, I don't want Grampy McCain disqualified from this race anyway. McCain is a terrible candidate, the Dems couldn't ask for a worse opponent than him. The Rethuglicans are going to lose both houses of Congress bigtime and they're only hope is to drag an over the hill, 77 year old, pasty old man across the finish line in the Presidential race this coming Nov.
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http://s144.photobucket.com/albums/r163/InsultComicDog/?action=view¤t=mcain_scanners.jpg
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I like the Dems chance this fall.
Posted by: John E | July 11, 2008 1:07 PM
When do Republicans ever follow the Constitution? Nothing new here.
Posted by: Paul | July 11, 2008 1:10 PM
Nobody would doubt that Mccain is an american. Where was barack obama really born? Kenya? Why is he hiding his birth certificate?
Posted by: brigitte | July 11, 2008 1:13 PM
Speaking of hiding things....let's see Obama's college transcripts. The way this guy struggles with the English language and stumbles through his stump speeches....I can't imagine him having higher grades then that dope John Kerry!
Posted by: joe | July 11, 2008 1:28 PM
McCain should be disqualified from the Prez race for going around the country saying stupid stuff like this:
http://www.youtube.com/watch?v=0P6bkbdAkFg
Posted by: Kasey | July 11, 2008 1:31 PM
Facts I found out in 2 minutes, but which the Swamp and the NY Times can't find--or won't try to find:
Gabriel Chin is a Dem party activist who's not only made contributions to 2 Dem Congressional candidates, but has also made at least 2 contributions to his home county's Democratic Party and another to the Dem governor of AZ.
These facts would give a reader needed perspective on Mr. Chin's motivation for writing the essay. The NY Times and the Swamp nonetheless hide these facts from readers.
Posted by: Bruce | July 11, 2008 1:35 PM
These people are as whacked out as the people who say they don't have to pay taxes.
Posted by: Todd M | July 11, 2008 1:44 PM
Yes sure Bob. Its a conspiracy that Obama is spearheading the McCain is not a citizen effort. And the moon is made of cheese. Equally ignorant is that Obama is hiding his birth certificate. Really Brigit? Really? LOL too funny. I love it when people cannot speak about issues so they speak about what they do know about....decieption and mudslinging. Way to go!
Posted by: Penny K | July 11, 2008 1:47 PM
Of course, this is an Obama conspiracy. Thanks, Bob for your brilliant reasoning. The constitution definitely needs to be amended to add the qualification that the a president be psychologically fit to be president. This certain eliminates McCain.
Posted by: GEEP | July 11, 2008 1:57 PM
Aha! We found a way to win!!
Posted by: Average Obamabot | July 11, 2008 1:59 PM
Nice to know that the an AMerican soldier can not even have a kid while serving his country. The NYT has an agenda just like the Swamp. I always knew the swamp did but they took it to another level by posting the discuaaions for the anti-McCain book. that is when I gave up on teh swamp. Bruce I suggest you do the same. They are the same as Kieth Olberman. They distort everything to help Obama an leave out facts that hurt their argument. At elast Fox news lets both sides hash it out. Olberman and the Swamp only give you the Obama side. With McCain closing the gap in all of the polls I am not worried.
Posted by: Vinny | July 11, 2008 2:47 PM
If Republicans were smart, they'd use this as an excuse to replace McCain with someone electable. Instead, they'll whine about a left wing conspiracy, and hand Democrats the White House just as they handed then Congress.
Posted by: michael the conservative | July 11, 2008 2:53 PM
Some people are nuts. Obama has indeed released his birth certificate.
And joe, seriously? You think one of the most eloquent political writers and speakers of our time 'struggles' with the english language? Really?
Really?
Posted by: Joe | July 11, 2008 3:01 PM
"CONGRESS SPEAKS"
BY REMOVING, ATTORNEY GENERAL IN CONSULTATION WITH THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION, INSERTING SECRETARY OF HOMELAND SECURITY!
HE IS!
OOOOOOOOPS S BILL 1639 DIDN'T PASS!
THE SECRETARY CANNOT DEEM IT NECESSARY!
BORN IN COLO SOLO PANAMA CANAL ZONE, 1936 "JURISDICTIONAL"
AMERICAN NATURAL SOIL!
IT'S NON-BINDING!
IT'S POSSIBLE!
IT'S PROBABLE!
ARCHIVES DON'T LIE!
Posted by: Roger Morris | July 11, 2008 3:03 PM
This is not an Obama conspiracy, rather it's an attempt by the republicans to replace a failing candidate that can't win!
Posted by: Fred | July 11, 2008 3:11 PM
Bob, Bruce, Joe and Brigette can't find anything positive in their candidate, so they sling mud on Obama. Hide behind a birth certificate? How, Brigette Midget Brain, can you prove your place of birth?
Posted by: Rick/Sneads Ferry, NC | July 11, 2008 3:36 PM
joe,
Magna cum laude, Harvard.
Look it up.
Posted by: Bubba | July 11, 2008 4:03 PM
John McCain was born at the Coco Solo U.S. military base in the Panama Canal Zone to U.S. parents. Although the Panama Canal Zone was not considered to be part of the United States, federal law states that "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". However, it should be noted that the law that conferred this status took effect on August 4, 1937, one year after John McCain was born. (Wikipedia)
So...is he or is he not eligible?
I'm with John E., though. I like the Dems chances this fall with a bumbling candidate like McSame to run against.
Posted by: Rick/Sneads Ferry, NC | July 11, 2008 4:44 PM
No No No. It's a right wing conspiracy, so they can get the Supreme Court to say it's ok for McCain so Arnold can get elected ;->
Really folks. Let's just vote on the real issues and forget about Micky mouse stuff. (Except for vacations and such)
Posted by: Tom in Idaho | July 11, 2008 4:48 PM
This alleged "scholar" didn't take the time to do much research, nor did Swamp in reporting such a flawed paper. Title 8 of the U.S. Code, Section 1401 defines the following as people who are "citizens of the United States at birth:" including anyone born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S." The term, "at birth," means "natural born."
Posted by: Chiara | July 11, 2008 4:54 PM
joe,
Magna cum laude, Harvard.
Look it up.
Posted by: Bubba | July 11, 2008 4:03 PM
In his book he states that he spent the last two years of High School high on drugs and barley attending classes....how did he even get into college? Maybe Dan Rather should investigate!!!!
Posted by: joe | July 11, 2008 5:25 PM
"Vinny", you and I and many others have given up on The Swamp as a serious or nonpartisan news source. As an Obama Campaign Newsletter masquerading as a news blog, it still has its interest--if for no other reason, to find out what the pro-Obama press is thinking, and how much they're willing to rewrite and censor to promote their man.
Posted by: Bruce | July 11, 2008 7:04 PM
Chaira is wrong about Title 8 of the US Code.
At the time McCain was born, the law said, to be precise, "[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States.”
BUT, McCain was born in the Canal Zone in 1936. In a location that was OUTSIDE of the limits of the United States but INSIDE its jurisdiction. Much like a US warship overseas.
This situation was so problematic, that in 1937 Congress passed a law to naturalize all the people who were NOT citizens at the time but were born to US parents in the Canal zone. This included Senator McCain. On the day of his birth he was NOT a US Citizen. So much so, that Congress passed a law when McCain was 11 months conferring US citizenship on him and like-born people.
But when the man was born, he was not a US Citizen.
READ the article.
Posted by: Sun | July 11, 2008 11:51 PM
Thats what I love about Law Professors and lawyers. Today they will tell you that Blue is Blue. Tomorrow they will tell you that the same blue is really "RED" .
VJ Machiavelli
http://www.vjmachiavelli.blogspot.com
Posted by: VJ Machiavelli | July 12, 2008 2:27 AM
I read about this, it's a real case in Concord, New Hampshire, and there are doubts that they can show "injury" by Senator McCain to the plaintiff. There has been an interesting politic going on there, where the Doles have a cabin and then Vice-President Bush asked us from the upper deck of the motorship "Mount Washington" in Wolfeboro on Lake Winnepeasauki, to join him in a silent prayer as he was about to assume the control of the country as then President Reagan went under anesthesia for colon operation. Ironically, there were dirty tricks in the last Presidential election that by phone jamming caused public volunteer services from delivering elderly to the polls. That guy did a couple of years in the "big house".
Posted by: George Myers | July 12, 2008 8:03 AM
Joe: Did you ever hear of someone turning their life around?? Or do you think it's better that they stay on the same downward course the rest of their life?? Have YOU never made a mistake in YOUR life?? STOP BEING JUDGMENTAL...JUDGE NOT...LEST YE BE JUDGED!!!!
Posted by: Mary in Fort Madison | July 12, 2008 8:35 AM
Bob, Bruce & Jeff.
All names for the same project?
Like Tom, Dick & Harry, the 3 tunnels the escapees were digging at Stalagluft III?
Anyway, the anti-Barack smear machine has as one of its favorite "talking points" the claim that Barack was not born in the US.
"He was born in Indonesia". Or, a little closer to the truth, the claim Hawaii was not a State when he was born there.
Repuglicans gloss over the rather important point that the Canal Zone was pretty clearly not a part of the US back in the part of the 30's when McCracky was born there. They're so used to ignoring laws and constitutional provisions that don't suit them.
Posted by: ornery | July 12, 2008 10:32 AM
I predict that none of this will matter -- unless McCain somehow defeats Obama in November. Then, there will be a rush among many on the Left to see who can get to the courthouse first to file the suit to invalidate McCain's election. Then, when the Supreme Court decides in favor of McCain, the Left can again claim the SCOTUS stole another election from them. But that aside, I thought Obama's people were only interested in "issues?"
Posted by: JB | July 12, 2008 3:04 PM
It is quite simple McCain is not eligible. The main stream media is not covering anything about McCain. This is understandable because of the Isman where extensive lobbying on the billions of dollars in media cross ownership issues were in McCain's senate committee. It is the same with Budweiser Inbev takeover. McCain's wife has the largest Bud distributorship and gets 10's of million in the government (ATF) enforced corporate fascism. Oh yea one of Jesse Jackson kids has one of these also.. Ron Paul told the truth the sheep and unfortunately the media cartel marginalized him like Perot to some crazy status. McCain senate resolution is illegal. The club has made poor investments in credit and debt. The main stream media spent more time on a 12 year old child murder case than the collapse of the housing (debt) ponzi scheme.. America is getting what they deserve. I pray they smarten up. We need to cut the role of government and get rid of these interventionist criminal class and obey the Constitution.
Posted by: John | July 13, 2008 8:46 AM