Canthook

It seems strange to suggest that a child born in a US Territory, to American parents, one of which is stationed in that territory at the insistance of the US government, is not a citizen.

When John McCain was born in the Canal Zone in 1936, though, that was the case.

There's a lawsuit challenging Mr. McCain’s qualifications to be president, pending in the Federal District Court of Concord, N.H.

According to the US Constitution, the 14th Amendment, “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The Supreme Court declared in 1971 that Congress had broad authority to decide whether and when a child born abroad to American citizens is a citizen. In that case, Rogers v. Bellei, Aldo Mario Bellei was born in 1939 in Italy to a woman born in Philadelphia in 1915. A law passed in 1952 says that under such circumstance, the child is a citizen at birth, but loses his citizenship if he doesn't enter the US and remain here for five years between the ages of 14 and 28.

He didn't stay here five years, and his citizenship was revoked. He sued, and lost.

The law at the time of McCain's birth said that the child of a marriage, one of which is a US citizen, who is born “out of the limits and jurisdiction of the United States” is a citizen. House Report 75-1303 from the House Committee on Immigration and Naturalization explains that a change to the law was necessary. The Committee wanted to grant this class citizenship; as most were children of U.S. workers "they are citizens in every sense except as a matter of law."

As Rep. John Sparkman explained on the House floor, "The Canal Zone is a 'no man's land.' Every place in the world except the Canal Zone has been covered by either the law of 1855 [S. 1993] , which applies to foreign countries, or by the fourteenth amendment."

So in 1937, the year after McCain was born, Congress enacted a law conferring citizenship to anyone born in the Canal Zone after 1904. However, making 1-year-old McCain a citizen does not make him a natural-born citizen; it makes him a naturalized citizen.

Or at least, that's how the argument goes, as presented by Gabriel J. Chin, law professor at the University of Arizona. Chin says McCain falls "eleven months and 100 yards short" of being a natural-born citizen.

Chin's work criticizes that of Lawrence Tribe and Ted Olson, saying they ignored that 1937 law. Tribe and Olson, of course, are heavyweights, but not impossible for them to err, nor is their work on this issue necessarily rigorous; it's human nature to give short shrift to something that seems absurd. Chin, moreover, is hardly a nobody. Despite his young age, he's already been cited by over 450 papers, according to Brian Leiter who publishes a highly-regarded rating of law schools.

The Washington Post published a story by Adam Liptak suggesting that the lawsuit is likely to be dismissed. He quotes Peter Spiro of Temple University of saying the merits of Chin's arguments are immaterial, as “No court will get close to it."

The suit, brought by a man named Fred Hollander, is likely to be dismissed. McCain's lawyers argue that Hollander cannot show direct injury, and thus lacks standing to sue. So who does have standing? Apparently nobody has.

Nikita Khrushchev, in 1956, proclaimed "Мы вас похороним!", which was translated as "We will bury you!" At the same time, American hot-rodders were proclaiming, "Eat my dust," which means about the same thing, although it was taken as being less threatening.

Nikita himself didn't live long enough to attend the funeral, and if "we" means the USSR, well, that's been gone a quarter century as well. However, if there is no legal way to enforce the US Constitution, no way to challenge unconstitutional action, then it doesn't matter than there's been no "hot" war. The question here isn't whether McCain would be a good leader, nor whether McCain is a patriot. The question is whether we are a nation ruled by law, or a nation ruled by men - and if we are the latter, then all that is left is to kick a few crumbs of dirt on the coffin on behalf of Nikita Sergeyevich Khrushchev.

Other Bloggers On Related Topics:
Aldo Mario Bellei - Fred Hollander - Gabriel Chin - John McCain - Lawrence Tribe - natural born citizen - Nikita Khrushchev - Panama Canal Zone - Peter Spiro - Temple University - Theodore Olson - University of Arizona