Fascinating: Obama born in US and is eligible to be President. McCain...maybe not? (Revised)
(A Commenter rightly castigates me for using the word "naturalized" when I was confusing the narrow legal definition of the term with a more broad sense of the term (I got caught up in the 14th Amendment as I was posting, which uses "born or naturalized..."). I have revised this post to clarify the overall point that McCain has more problems with eligibility to be president than Obama, but that McCain should be deemed eligible to be president).
I have had the distaste of receiving emails and hearing from people that say Obama is not eligible to be president. See this Snopes.com debunking of that lie.
But now, legitimate questions are being raised that McCain, born in the Panama Canal zone in 1936, is not eligible to be president. See this New York Times article for details. Essentially, McCain, was born a year before a law was enacted to deem people born in the Panama Canal zone as "born" in America. To be eligible to be president, one has to be either born in the US or deemed by Congress to be "born" in America.
Obama was born in the US. End of analysis. He is eligible to become president.
McCain, however, was not born in any of the States of the United States, which means he can only be deemed by Congressional law to be a citizen "born" in the US. The NY Times article quotes an article from a law professor who says McCain is not eligible to be president because a law that said someone born in the Panama Canal zone is a "born" in America had not yet been passed in 1936, the year McCain was born. It was not passed until 1937.
My argument against the law professor is that the Constitutional provision, the 14th Amendment and the 1937 law may be reasonably interpreted to allow Congress to retroactively make someone deemed to be "born" in the US as long as it is a rationally based law. The 1937 law appears rationally based because it concerns (at the time) American occupied land, the Panama Canal zone, and American citizens were serving there in the military, including McCain's father, at the time McCain was born. The statute said that anyone born in the Canal from the year 1904 forward, a key year as that is the year the zone was formally placed under American occupation, is a citizen "born" in the US.
This situation is far different than if Congress suddenly decided to unilaterally make the current governor of California, who was born in Austria, "born" in America. He was not born in the US nor any territory akin to the Panama Canal. Such an action by Congress would therefore likely be an unconstitutional attempt to get around the eligibility requirements to become president.
So, count me on McCain's side that he is eligible to become president. But then again, I am not the type of legal mind McCain would endorse for a judgeship. Ironically, one can easily see Scalia and Roberts, for example, deciding to screw over Obama if he was in the position of McCain...
(Rewritten to avoid confusion and error in use of the term "naturalized")
posted by Mitchell J. Freedman @ 7:24 AM
3 comments
3 Comments:
As an attorney, how could you be so stupid? A naturalized citizen CANNOT become President of the US. Maybe you were asleep when this question came up about your Governor, Arnold.
Regards
I plead some dumbness in using the word "naturalized" in too broad a sense. However, here is what the NY Times linked article says:
"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.”
To not be born in the US, but covered by a law Congress creates strikes me as something that is not natural, but artificially created.
See also this link from a writer at the Huffington Post, which talks about how the 14th Amendment language may affect the original constitutional limitation:
http://www.huffingtonpost.com/cenk-uygur/why-mccain-and-i-should-b_b_88926.html
I plead guilty to using the word "naturalized" too broadly. I also believe, however, that McCain is eligible to be president.
I have revised my post after writing the response above to Anon. The one thing I will add is that my original post discussed Governor Schwarzenegger and that he is NOT eligible to be president.
My mind did get confused (or "fell asleep") when re-reading the 14th Amendment which speaks of "born or naturalized" persons just before the original posting.
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