Natural Born

We’ve joked about this before, but apparently, John McCain is barred from actually becoming President by virtue of being born outside of the borders of the United States, like your humble narrator.

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.

[Click to read more details of A Citizen, but ‘Natural Born’? McCain’s Eligibility to Be President Is Disputed by Professor – NYTimes.com]

Naturally, our media guides will ridicule and ignore this minor detail, instead focusing on whether Barack Obama is a Muslim or not.

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.

The second way Mr. McCain could have, and ultimately did, become a citizen was by statute, Professor Chin wrote. In Rogers v. Bellei in 1971, the Supreme Court said Congress had broad authority to decide whether and when children born to American citizens abroad are citizens.

At the time of Mr. McCain’s birth, the relevant law granted citizenship to any child born to an American parent “out of the limits and jurisdiction of the United States.” Professor Chin said the term “limits and jurisdiction” left a crucial gap. The Canal Zone was beyond the limits of the United States but not beyond its jurisdiction, and thus the law did not apply to Mr. McCain.

In 1937, Congress addressed the problem, enacting a law that granted citizenship to people born in the Canal Zone after 1904. That made Mr. McCain a citizen, but not one who was naturally born, Professor Chin said, because the citizenship was conferred after his birth.