McCain Not a U.S. Citizen?
posted by Deven Desai
Now wait. I am not saying Mr. McCain is evil or should not be President. Those may or may not be true statements depending on who one is. But this is a law blog and one of our former guests, Jack Chin, has an article about the legal question of Mr. Cain’s citizenship that has caught some attention. [Clarification: As a comment notes, the issue relates to the idea of natural born citizenship status]. The NY Times piece about the issue is worth the read. For one thing it cites to Jack’s paper on SSRN. And before folks think this is some new fangled attack, note that the law is old and as Jack put it “It’s preposterous that a technicality like this can make a difference in an advanced democracy, … But this is the constitutional text that we have.” On the other hand there is a lawsuit pending on the issue (it’s in the District Court of New Hampshire). So although Peter Spiro of Temple indicates that courts will not likely get near it, a few folks seem to have started their engines. Hey the Senate looked into its crystal ball (as opposed to the magic eight ball used for major decisions) passed a non-binding saying McCain is eligible to be President because as the Times put it “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.” Right. Regardless, the idea has tickled someone’s imagination.
On a side note here’s a tip: Rather than invoking some notion of tea-leaf reading or channeling what the founders thought, try this on for size: it is just not logical that they wanted this result. After all maybe the founders thought that being born on a military base was a problem. One could be educated abroad which could open the door to brain-washing (oh no they didn’t have that at the founding, curses!) or improper exposure to foreign blood, air, and water would be an issue. Or maybe the result, although apparently enough of a problem that statutes were passed to fill a legal gap, was, just as Jack put it, “preposterous… But this is the constitutional text that we have.”