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.”
http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1157621">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.
Mr. McCain has dismissed any suggestion that he does not meet the citizenship test.
In April, the Senate approved a nonbinding resolution declaring that Mr. McCain is eligible to be president. Its sponsors said the nation’s founders would have never intended to deny the presidency to the offspring of military personnel stationed out of the country.
A lawsuit challenging Mr. McCain’s qualifications is pending in the Federal District Court in Concord, N.H.
There are, Professor Chin argued in his analysis, only two ways to become a natural-born citizen. One, specified in the Constitution, is to be born in the United States. The other way is to be covered by a law enacted by Congress at the time of one’s birth.
Professor Chin wrote that simply being born in the Canal Zone did not satisfy the 14th Amendment, which says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
A series of early-20th-century decisions known as the Insular Cases, he wrote, ruled that unincorporated territories acquired by the United States were not part of the nation for constitutional purposes. The Insular Cases did not directly address the Canal Zone. But the zone was generally considered an unincorporated territory before it was returned to Panama in 1999, and some people born in the Canal Zone when it was under American jurisdiction have been deported from the United States or convicted of being here illegally.
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http://www.nytimes.com/2008/07/11/us/politics/11mccain.html?adxnnl=1&adxnnlx=1215756455-jW79Lvz52VgKYnDlEdQvrQ
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