McCain’s Canal Zone Birth Raises Questions

I was born overseas at a U.S. military hospital, so I've often thought about John McCain's "natural born" status under the U.S. Constitution (Art. II, Sec. 1) and his qualifications for the presidency.

McCain was born in the Panama Canal Zone, and his eligibility is being questioned, as this New York Times story indicates:

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.

Ms. Duggin favors a constitutional amendment to settle the matter. Others have called on Congress to guarantee that Americans born outside the national boundaries can legitimately see themselves as potential contenders for the Oval Office.

Well, McCain's not Arnold Schwarzenegger (who's Austrian born and widely considered ineligible), but it does sound that McCain's case could really create the demand for a definitive answer to the question.

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UPDATE: Captain Ed provides a pretty good response:

It’s a slam-dunk to the millions of military families whose service to this country should have left then with no doubts about their children being relegated to second-class citizenry. They sacrificed enough for their country without having to sacrifice the futures of their children. Any other conclusion would amount to a penalty for military service on those who did not volunteer.

The Founding Fathers recognized this. They passed a bill in 1790, three years after the adoption of the Constitution, which made clear that “natural born” applied to children born of American citizens “outside the limits of the United States”. That law remains in effect and has never been challenged. At the least, it speaks to the intent of the founders when they used the term “natural born” in the Constitution.

It’s beyond absurd to argue that John McCain doesn’t qualify to run as an American for the presidency. The candidate or party that files a lawsuit to challenge him on this point runs the risk of alienating a large swath of the public who have served this nation in uniform, in diplomacy, and in government.

Well said, Ed!

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UPDATE II: I haven't been as up on this naturar born issues as I might have been, once I get a look at what some of the law bloggers are saying.

Jim Lindgren at the Volokh Conspiracy notes that:

If the drafters of the Constitution had wanted to require that presidents be born in the United States, they could have done so. Instead, they invoked the then-standard idea of natural citizenship as reflecting natural allegiance to the king or the state.

In other words, the key is "natural allegiance" to crown or country. Lindgren cites the William Blackstone commentaries:

An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due.

Ann Althouse, moreover, takes Barack Obama to task, for turning a non-issue into an issue of McCain's qualifications to serve:

The argument that McCain isn't a natural born citizen within the meaning of Article II of the Constitution is an obvious loser, both as a matter of constitutional interpretation and as something that an opposing candidate would want to say. But Obama, co-sponsoring the bill [defining a "natural-born citizen" as anyone born to any U.S. citizen while serving...in the military], is acting generous, as though he is forbearing making an attack. But since there is no attack to make, he's not actually being magnanimous. He's only putting on a show.

What is more, offering a statutory solution sends the message that there is a problem to be fixed. So in fact, it's a crafty way of saying that McCain is not now currently qualified!

Good thing I blog! I'm picking up a lot here!

William F. Buckley, Jr., 1925-2008

William F. Buckley, Jr., died today at his home in Stamford, Connecticut. The New York Times obituary is here (and more views are posted at Memeorandum).

Buckley's ideological project, it may be said, sought to position the growing conservative movement within the mainstream of society, and Buckley sought to distance what he called "thinking right" from the far-right wing fringe, represented in the 1960s by the John Birch Society.

Efforts to that end are the subject of Buckley's article in the March issue of Commentary. Here's an excerpt:

In the early months of l962, there was restiveness in certain political quarters of the Right. The concern was primarily the growing strength of the Soviet Union, and the reiteration by its leaders of their designs on the free world. Some of the actors keenly concerned felt that Senator Barry Goldwater of Arizona was a natural leader in the days ahead.

But it seemed inconceivable that an anti-establishment gadfly like Goldwater could be nominated as the spokesman-head of a political party. And it was embarrassing that the only political organization in town that dared suggest this radical proposal—the GOP’s nominating Goldwater for President—was the John Birch Society.

The society had been founded in 1958 by an earnest and capable entrepreneur named Robert Welch, a candy man, who brought together little clusters of American conservatives, most of them businessmen. He demanded two undistracted days in exchange for his willingness to give his seminar on the Communist menace to the United States, which he believed was more thoroughgoing and far-reaching than anyone else in America could have conceived. His influence was near-hypnotic, and his ideas wild. He said Dwight D. Eisenhower was a “dedicated, conscious agent of the Communist conspiracy,” and that the government of the United States was “under operational control of the Communist party.” It was, he said in the summer of 1961, “50-70 percent” Communist-controlled.

Welch refused to divulge the size of the society’s membership, though he suggested it was as high as 100,000 and could reach a million. His method of organization caused general alarm. The society comprised a series of cells, no more than twenty people per cell. It was said that its members were directed to run in secret for local offices and to harass school boards and librarians on the matter of the Communist nature of the textbooks and other materials they used.

The society became a national cause célèbre—so much so, that a few of those anxious to universalize a draft-Goldwater movement aiming at a nomination for President in 1964 thought it best to do a little conspiratorial organizing of their own against it.

The remainder of the essay elaborates Buckley's immediate pattern of "conspiratorial organizing."

William F. Buckley was an interesting man. He had an intriguing, kind of airy way about addressing people, with a roll of the eyes or a long pause before speaking, and his manner sometimes seemed, to me, like that of a true American aristrocrat.

May he rest in peace.

Teenagers Ignorant on Basic History and Literature

From the "Department of Tell Me Something I Didn't Already Know," here comes a new survey finding that America's teenagers are ignorant of basic American history (via the New York Times):

Fewer than half of American teenagers who were asked basic history and literature questions in a phone survey knew when the Civil War was fought, and one in four said Columbus sailed to the New World some time after 1750, not in 1492.

The survey results, released on Tuesday, demonstrate that a significant proportion of teenagers live in “stunning ignorance” of history and literature, said the group that commissioned it, Common Core.

The organization describes itself as a new research and advocacy organization that will press for more teaching of the liberal arts in public schools....

In the survey, 1,200 17-year-olds were called in January and asked to answer 33 multiple-choice questions about history and literature that were read aloud to them. The questions were drawn from a test that the federal government administered in 1986.

About a quarter of the teenagers were unable to correctly identify Hitler as Germany’s chancellor in World War II, instead identifying him as a munitions maker, an Austrian premier and the German kaiser.

On literature, the teenagers fared even worse. Four in 10 could pick the name of Ralph Ellison’s novel about a young man’s growing up in the South and moving to Harlem, “Invisible Man,” from a list of titles. About half knew that in the Bible Job is known for his patience in suffering. About as many said he was known for his skill as a builder, his prowess in battle or his prophetic abilities.

The history question that proved easiest asked the respondents to identify the man who declared, “I have a dream.” Ninety-seven percent correctly picked the Rev. Dr. Martin Luther King Jr.

About 8 in 10, a higher percentage than on any other literature question, knew that Harper Lee’s “To Kill a Mockingbird” is about two children affected by the conflict in their community when their father defends a black man in court.

Read the whole article, for I've ommitted the sections discussing how the sponsoring organization is using the findings to attack the Bush administration's No Child Left Behind Act as "crowding out" history and literature in the schools.

I'm not wading into this debate, except I will say that while NCLB has its flaws, the law is possible one of the greatest attempts to expand equal protection in education opportunity in education in decades. I get these students at my college, unable to place the Civil War - or the Vietnam War - in historical context.

But more fundamentally (and sadly), I get these students (way too many) who can barely read and write, and then who are expected to master a curriculum (in my department, at least) that would be challenging for an average freshman at San Diego State or UCLA .

So while I'm not surprised that 17 year-olds don't know much about history, I'd like to see more discussion of the fundamental family, cultural, and community traditions that prevent these kids from gaining the underlying skills to needed master these texts, skills they'll need to develop into a meaningful, fully realized participatory citizenry.