A Hint of New Life to a McCain Birth Issue



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.

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.


In March, Laurence H. Tribe, a law professor at Harvard and an adviser
to Senator Barack Obama, prepared a memorandum on these questions with
Theodore B. Olson, a former solicitor general in the Bush
administration. The memorandum concluded that Mr. McCain is a natural-
born citizen based on the place of his birth, the citizenship of his
parents and their service to the country.



July 11, 2008
A Hint of New Life to a McCain Birth Issue
By ADAM LIPTAK

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.

“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.

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.

In his paper and in an interview, Professor Chin, a registered
Democrat, said he had no political motive in raising the question.

In March, Laurence H. Tribe, a law professor at Harvard and an adviser
to Senator Barack Obama, prepared a memorandum on these questions with
Theodore B. Olson, a former solicitor general in the Bush
administration. The memorandum concluded that Mr. McCain is a natural-
born citizen based on the place of his birth, the citizenship of his
parents and their service to the country.

In an interview on Thursday, Mr. Olson, whose firm represents Mr.
McCain in the New Hampshire lawsuit, said Congress could not have
intended to leave the gap described by Professor Chin. The 1937 law,
Mr. Olson said, was not a fix but a way to clarify what Congress had
meant all along.

Professor Tribe agreed. Reading the “limits and jurisdiction” clause
as Professor Chin does, Professor Tribe said, “is to attribute a crazy
design to Congress” that “would create an irrational gap.”

Brian Rogers, a McCain spokesman, said the campaign concurred and was
confident Mr. McCain is eligible to serve.

In the motion to dismiss the New Hampshire suit, Mr. McCain’s lawyers
said an individual citizen like the plaintiff, a Nashua man named Fred
Hollander, lacks proof of direct injury and cannot sue.

Daniel P. Tokaji, an election law expert at Ohio State University,
agreed. “It is awfully unlikely that a federal court would say that an
individual voter has standing,” he said. “It is questionable whether
anyone would have standing to raise that claim. You’d have to think a
federal court would look for every possible way to avoid deciding the
issue.”
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