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This page contains a single entry by Westley Annis published on February 29, 2008 6:36 AM.

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Can John McCain be president?

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Now that Senator John McCain is the presumptive Republican nominee for President of the United States, questions about his citizenship are being asked.

It seems McCain was born in the Panama Canal Zone in 1936 while his father, John S. "Jack" McCain, Jr., was stationed at Coco Solo Naval Air Station as a Naval officer.

The United States Constitution clearly states in Article II Section 1 the qualifications required to be serve as President.

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States. (emphasis added)

With no clear legal definition of a natural born citizen, the question is ask, Is John McCain a natural born citizen?

When reading the relevant laws, there seems to be no doubt that McCain is a citizen. In 8 USC 1401 - Sec. 1401. Nationals and citizens of United States at birth, it clearly states "(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;" More specifically, in 8 USC 1403 - Sec. 1403. Persons born in the Canal Zone or Republic of Panama on or after February 26, 1904, it states "(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States."

McCain is clearly a citizen and I don't think anyone could make any argument that he is not, but, is he a natural born citizen that could hold the office of presidency?

According to the Vienna Convention on Diplomatic Relations, an embassy is considered to be extraterritoriality and is considered to be part of the sovereign territory of the home country. This would lead one to believe that if McCain had been born in a U.S. Embassy, he would be considered a natural born citizen.

Unfortunately for McCain, he wasn't born in an embassy, instead being born at a U.S. military base. Here, the subject law gets murkier.

Although any attack on a military base that is not hosted on U.S.soil would be considered an Act of War, and rightfully so, a military base is not considered sovereign territory. Even more so, the Panama Canal Zone, was never considered the sovereign territory of the United States either.

The first United States Congress, in 1790, passed a law, Chapter III, Section 1, that says "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". Five years later, Congress passed the United States Naturalization Act of January 29, 1795, which repealed the Act of 1790. The new law stated, "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".

The new law removed the term "natural born" and no notes, official or not, give any hint as to whether the removal was accidental or intentional.

Professor John Parry of Lewis and Clark Law School believes the founders would have found it hard to believe their own children, if born overseas, would not be eligible to run for President. "If John and Abigail Adams were sent to France on a diplomatic mission, I find it inconceivable that they would have thought their children were not natural born citizens."

Ted Olsen, the former Solicitor General of the United States has stated, "The plain meaning of 'natural born citizen' includes persons who become citizens of this nation 'naturally,' that is, by virtue of their birth to parents who are citizens, particularly when the birth takes place on territory occupied and controlled by the United States, in Senator McCain's case, a U.S. military base in the Panama Canal Zone."

Although not all legal scholars agree with the views of Professor John Parry or Ted Olson, they do agree on one thing. Should a legal challenge be raised on the candidacy or election of John McCain for president, the courts would be very reluctant to invalidate the results of such election.

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