McCain "Natural Born" Question Going Before Judge

By: Brian Montopoli
Topics: John McCain

As we've previously noted, there are questions surrounding whether or not John McCain – who was born in the Panama Canal Zone in 1936, when it was a U.S. territory – is legally a "natural-born citizen."

If McCain isn't "natural-born" then he can't be president, according to the Constitution.

The definition of "natural-born" has never been fully fleshed out. Now, the Associated Press reports, "a federal judge in California has been asked to determine if the Republican presidential candidate meets the legal test to qualify for the White House."

McCain and attorney Ted Olson believe the presumptive Republican nominee is in the clear.

"I am confident that the United States Supreme Court, should it ever address the issue, would agree" that McCain qualifies as a natural-born citizen, Olson said in a statement.

Brian Montopoli
Brian Montopoli is the senior political reporter at CBSNews.com.
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by scottwww March 14, 2008 3:23 PM EDT: If the Supreme Court made a decision. It would settle the matter for the forseeable future, much as the case of Roe vs. Wade. Once the court makes a decision, it is essentially done. Beyond that, it would probably take an amenement to change it.

I just want to see it decided one way or the other. I would rather the decision were as I understand it. But I would accept it the other way and probably not revisit the issue.

I don''t want to see a president elect denied the office or for many lawsuits to be filed to remove him from office, especially in a time of war. The only way to stop one of these scenarios is to get it done before November - preferably before the convention in September.

What would happen if McCain were the president elect and the Chief Justice would not swear him in. Would the VP get sworn in? There is no precedent of which I am aware. Would the VP who became president step down to VP again if the case were decided in favor of the president elect? There are many scenarios that I would not want to see in reality.; Reply to this comment


by scottwww March 14, 2008 3:14 PM EDT: It would seem there were those who desired to establish citizenship at birth for those who would be born away from U.S. soil. Since U.S. law did not recognize parentage as adequate reason to be called citizen, it was written into the Naturalizaiton Act. The name of the act itself should give a clue that parentage is not the same as natural born Citizen.

So, this is likely why the term was defined in 1790 (see below). It was to make right of blood co-equal to right of the soil. But that definition did not fit the true meaning of the phrase "natural born Citizen" and was in contradiction with the original intent of the constitution. This likely was contributory to the reason the 1790 act was repealed and replaced with the an act in 1795 that did not try to redefine natural born citizen, but instead simply defined as citizens those who were born of U.S. citizen parents outside the United States.

Then the 1795 act was repealed in 1802 leaving us with the original intent in the constitution as it was in 1789. Further legislation never attempted to redefine natural born Citizen. This is where we are today.; Reply to this comment


by scottwww March 14, 2008 3:12 PM EDT: There is no direct case law dealing with this subject. It has not been challenged because we never had a president elect who didn''t meet the criteria of "natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution". For a case to go to court there has to be a breech of the law. It can be argued that McCain did break the law when he applied for federal matching funds if he had to certify that he was eligible to run for president.

The definition of natural born Citizen likely was easily understood at the time. The phrase represents people who are citizens by the very nature of their birth within the country (jus soli). That is a natural born Citizen of the United States.

Others are citizens at birth by descent (jus sanguinis). They are not natural born Citizens of the United States.

Still others are citizens by naturalization. They were citizens of other nations and later became citizens of the United States. Obvious to all, they are not natural born Citizens of the United States.; Reply to this comment


by scottwww March 14, 2008 3:11 PM EDT: The Naturalization Act of 1795

SEC. 3. And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization, and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States. No person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted as foresaid, without the consent of the legislature of the state in which such person was proscribed.

SEC. 4. And be it further enacted, that the Act, intitled, "An act to establish an uniform rule of naturalization," passed the twenty-sixth day of March, one thousand seven hundred and ninety, be, and the same is hereby repealed.; Reply to this comment


by scottwww March 14, 2008 3:09 PM EDT: TheGateway1, you need to do more research.

Consider The Naturalization Act of 1790. It read, "And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens..." This was a concession. They never were considered to be natural born citizens until this act.

In The Naturalization Act of 1795 that repealed the act of 1790 the language was changed to "shall be considered as citizens of the United States." It would seem that this change was by design, recognizing that nature did not make these babies citizens, it was only by law. The law cannot change nature. The term "natural born Citizen" could not apply to these people. It only applies to jus soli (where the place where one is born naturally determines citizenship).; Reply to this comment


by buckman2012 March 14, 2008 3:48 AM EDT: I''ve been fully aware of this fact and all the arguements that might arise. The true question is how blaten and ridiculous we will all let this get. The constitution is trampled on daily...

Ron paul has said many times that we never know what might happen in the future. Me and ron have known this fact about mccwar all along. If you think his friends and family didn know this your a silly nilly.
The republican convention is close my friends. Mccwar can talk all he wants about spending my money. My country men will never let that happen. Constitution of this united states is the Rule of Law in this nation. Even though our declaration of independance, bill of rights, and constitution are not beiong taught in grade school any more. We still remember!
April 15th Freedom march! Show your peace signs+freedom from war, freedom from unaportioned taxes, freedom from the war on drugs, and Freedom from the war on the middle class.

I clean Harley davidsons for a living.
I make under 20,000 a year.
I buy to many books... is that possible.
I hate bigots and racist.
I love the ideas of Thomas jefferson.; Reply to this comment


by gstear March 13, 2008 5:23 PM EDT: If you review the treaty by which the United States acquired the Canal Zone about 1903, there is language within it granting to the United States in perpetuity all of the rights of territory, including the language "as if it were sovereign". Is was ours bought with hard cash and we should never have given it away. For that I blame the late "Lord" Bentsen who at the time was called a United States Senator from Texas but he sure didn''t act like one on that vote, and the vote passed the Senate to give it away by only one vote. If he had voted the other way it would still be sovereign U.S. territory.; Reply to this comment


by djendrizal March 13, 2008 3:58 PM EDT: CZborn:

You make some good points. It is interesting to note that the government of Panama considers children born on the military installations to be dual nationals. I just returned from Panama and the people there are watching this election closely. Many were unaware that McCain was born in La Zona Canal.; Reply to this comment


by scottwww March 13, 2008 3:19 PM EDT: Panama John

Since Senator John McCain was not born "in the United States" he is not a natural born Citizen of the United States and therefore is not eligible to the Office of President.

It''s really quite simple, and only needs further explanation because the general consensus of politicians and the media has been to duck the issue. All evidence supports the conclusion seen in the topic sentence. Sources that support this conclusion include the U.S. Constitution which is the supreme law of the land, The Naturalization Act of 1790, The Naturalization Act of 1795, and the Hay-Bunau-Varilla Treaty ratified for the construction and operation of the Panama Canal Zone.

John McCain was born on the sovereign territory of the Republic of Panama to U.S. citizen parents. McCain is a United States citizen due to parentage, not naturally by reason of birth on U.S. soil which is a basic constitutional requirement.

McCain cannot hold the office. If he were elected president, legal challenges would be inevitable.

Without an amendment to the U.S. Constitution, it is unlikely the Supreme Court of the United States could rule in McCain''s favor except by legislating from the bench.

The sidestepping of this critical issue in the media, by the politicians, and the political parties is alarming and may lead to a national crisis in the event of a McCain win in the general election.

More detail at http://idacres.com/politics/mccain/natural_born_Citizen.html; Reply to this comment


by donaldd8 March 13, 2008 1:24 PM EDT: Immigration and Nationality Act (INA).%u201D http://www.uscis.gov/naturalization

The Immigration Act of 1924 states:

%u201CProvided, That the Secretary of Labor may, under such conditions and restrictions as to support and care as he may deem necessary, permit permanently to remain in the United States, any alien child who, when under sixteen years of age was heretofore temporarily admitted to the United States and who is now within the United States and either of whose parents is a citizen of the United States.%u201D

%u201CSEC 28. As used in this Act- (a) The term "United States," when used in a geographical sense, means the States, the Territories of Alaska and Hawaii, the District of Columbia, Porto Rico, and the Virgin Islands; and the term "continental United States " means the States and the District of Columbia; (b) The term "alien" includes any individual not a native-born or naturalized citizen of the United States, but this definition shall not be held to include Indians of the United States not taxed, nor citizens of the islands under the jurisdiction of the United States;%u201D

http://www.historicaldocuments.com/ImmigrationActof1924.htm

The Hospital where John McCain was born was not in the Panama Canal Zone at the time of his birth therefore he is not a "Native-Born" Citizen of the United States.; Reply to this comment