"John Sidney McCain, III, is a `natural born Citizen' under Article II, Section 1, of the Constitution of the United States."
--U.S. Senate Resolution, April 30, 2008.
On Wednesday evening, the U.S. Senate unanimously declared John S. McCain III a "natural-born citizen," eligible to be president of the United States. That was the good news for the presumptive Republican nominee, who was born nearly 72 years ago in a military hospital in the Panama Canal Zone. The bad news is that the Senate resolution is a non-binding opinion that fails to resolve one of the murkiest, untested areas of the U.S. constitution.
In an attempt to clarify the issues at stake, I am posting the key documents in the debate. For a more detailed look at the constitutional debate, see my story in today's print edition of the Post, available here. As a bonus for the conspiracy theorists out there, I am also posting exclusively an extract from the Panama Canal Zone birth registers for August 1936 that contains no mention of McCain's birth! Make of this what you will.
Article two of the constitution states that "no person except a natural born citizen...shall be eligible to the Office of president." Legal cases have been filed in at least three states--New Hampshire, Pennsylvania, and California--challenging McCain's eligibility for the presidency. You can read the New Hampshire filing, by a 49-year-old computer programmer named Fred Hollander, here.
The McCain campaign has consulted two leading jurists, Theodore Olsen and Laurence Tribe, on the constitutional issues. Olsen and Tribe were on opposite sides of the 2000 Bush vs Gore Supreme Court case, but they see eye to eye on the question of McCain's eligibility for the presidency. They argue that McCain is a natural born citizen because the United States exercised sovereignty over the Panama Canal at the time of his birth on August 29, 1936, he was born on a U.S. military base, and both of his parents were U.S. citizens. The Olsen-Tribe opinion is available here.
Sarah Duggin, an associate law professor at Catholic University, who has made a detailed study of the natural born issue, says the question is not as simple as Olsen and Tribe make out. While she believes that McCain would likely win a determined legal challenge to his eligibility to be president, she says the matter can only be fully resolved by a constitutional amendment or a decision of the Supreme Court.
McCain's birth on August 29, 1936, in what was then the Panama Canal Zone was announced in the English language Panamanian American, available here. The McCain campaign has declined to publicly release his birth certificate, but a senior campaign official showed me a copy. Contrary to some Internet rumors that McCain was born outside the Canal Zone, in Colon, the document records his birth in the Coco Solo "family hospital."
Exclusive tidbit for conspiracy theorists: There is no record of McCain's birth in the bound birth registers of the Panama Canal Zone Health Department, which are available for public inspection at the National Archives in College Park, Md. Here is a sample page from the August 1936 birth register.
While some people will no doubt seize on the missing birth record as evidence that McCain was not born in the Canal Zone, my own view is that it is probably a bureaucratic snafu. The combination of the birth announcement in the Panamanian American plus the McCain birth certificate plus the memories of his 96-year-old mother persuades me that the senator was indeed born inside the Canal Zone.
But that does not entirely end the constitutional debate. The question remains: how did McCain acquire his U.S. citizenship, by birth or by naturalization. Even though the 10-mile wide Canal Zone was effectively under American sovereignty between 1904 and 1979, when it was handed back to the Panamanians, it was not "in" the United States. Here is what a State Department manual on U.S. citizenship has to say about children born on U.S. military installations:
Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.
There are few precedents for someone born outside the United States proper running for president, let alone becoming president. The best one the McCain camp has been able to come up with is the case of Vice Preisdent Charles Curtis who was born in the territory of Kansas, in January 1860, a year before Kansas became a state. The twelfth amendment requires that vice presidents possess the same qualifications as presidents.
UPDATE FRIDAY 3 P.M.
I have been getting phone calls from retired State Department types who say that McCain's strongest argument that he is a natural-born citizen is that he was born abroad to two U.S. citizens. The fact that he was born on a U.S. military base or in the Panama Canal Zone is of secondary importance, they say. Not everyone born on a U.S. military base or in the Canal Zone (during the period when it was under U.S. jurisdiction) has the right to U.S. citizenship.
Here is a more technical explanation for the different categories of U.S. citizenship:
1. Jus Soli. "Right of the land." Anybody born in the U.S. is a natural born citizen, with a clear right to be president.
2. Lex Soli. "Law of the land." People who acquire their citizenship through naturalization, such as Arnold Schwarzenegger. Experts agrees that these citizens are not "natural-born," and do not have the right to be president.
2. Jus Sanguinis. "Right of blood." Anybody born outside the U.S. to U.S. citizens has right to U.S. citizenship. My retired State Department informants believe that these children are also "natural born" and have the right to become president. So do Tribe and Olsen. But other constitutional lawyers, like Professor Duggin, say the issue is not clear cut. The constitution is ambiguous and the point has never been argued before the Supreme Court.
Normally, parents of children in the Jus Sanguinis category file a Form 240 Report of Birth to the local U.S. Consulate to establish the right to citizenship. For what it's worth, it does not seem that McCain's parents filed such a form. Looking through State Department records at the National Archives, I found numerous Forms 240 filed for children born in the Canal Zone in 1936, but no such form for Senator McCain. (The fact that his parents did not file the form does not mean that he is not a citizen, just that it could be a little more difficult to prove.)
The Pinocchio Test
It seems common sense that a child born to U.S. citizens on a U.S. military base while his father was on active military service should be eligible for the presidency. But the constitution is ambiguous about the precise meaning of "natural-born citizen." According to Professor Duggin, the "McCain side has some really good arguments, but ultimately there has never been any real resolution of this issue. Congress cannot legislatively change the meaning of the constitution."
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