Thursday, July 10, 2008

Can John McCain be President?

Floating around have been questions as to whether John McCain constitutionally can be president. He was born on a military base in the Canal Zone in Panama in 1936. The Constitution requires that the president be a "natural-born citizen." McCain didn't become a naturalized citizen until 1937 the year that Congress passed a law granting citizenship to military personnel living in the Canal Zone after 1904.

The debate is over whether that Congressional law in 1937 entails that McCain is "natural-born." According to the analysis by Professor Gabriel Chin, the law was conferred a year too late to make McCain "natural born." Others, including liberal legal theorist Lawrence Tribe argue that it's preposterous for Congress to have created a loop-hole of this sort.

Congress in the spring passed a non-binding resolution that declared McCain eligible to run for the presidency and to hold that office if elected. But, there's a legal case in New Hampshire brought forth by a citizen, Fred Hollander, against McCain, challenging his constitutional right to run for president. The problem here is that generally such lawsuits are thrown out, because the plaintiff can't prove direct injury, and therefore cannot sue.

It's a fascinating legal paradox that likely will go unanswered. My own sense of this is that McCain may not be constitutionally allowed to be president, but that to prevent a guy who was born to American citizens, born on an American military base, and that if he had been a born a year later would be considered "natural-born", as being absurd. But, I'm not a legal scholar. Just a citizen thinking about what is the right and fair thing.

Read the details at the New York Times.

4 comments:

TRH said...

This is one example of the interesting way that even 'strict' interpreters of the constitution decide to 'be practical', rather than tightly interpret the constitution.

Btw, I think McCain has every right to be president. But the deeper issue is not about McCain, but about how interpretations of the constitution are sanctioned as legit or not. Stanley Fish had a nice piece in the NYTimes on this recently.

http://fish.blogs.nytimes.com/2008/07/06/what-did-the-framers-have-in-mind/

Jenny Stromer-Galley said...

That article by Fish is terrific, Timothy. Thanks for drawing my attention to it.

I agree with you that McCain is just a symptom, perhaps, of a larger problem, which is interpretation. How does one interpret Congress in 1937 (in McCain's case) or the Constitution (in the Second Amendment case).

Interpretation: when two people can experience the same event or read the same text and come to different meanings of the event or text!

TRH said...

Stanley Fish has actually published some nice articles on interpretation in legal journals. Two good examples --

“There Is No textualist Position,” San Diego Law Review (2005),
and
“Intention Is All There Is,” Cardozo Law Review, 2008.

Both can be found on the web.

Rod Carveth said...

This reminds me of the year 2000 when Dick Cheney claimed he was a citizen of Wyoming, when he hadn't lived there in years (though he apparently did have property and an address there). In fact, he lived in Texas, and the Constitution forbids the president and vice-president from coming from the same state.

Rod