McCain’s Presidential Eligibility and the Constitution Outside the Courts

This episode is shaping up to be a nice little case study in constitutional method. The question: is McCain a “natural born citizen” for constitutional purposes notwithstanding his birth in the Panama Canal Zone. (See background story in the NYT here.) The controversy will never get to the courts — among other jurisdictional thresholds, who has standing? — and yet it’s pretty likely that we’ll have a definitive resolution by November. Congress now has a bill before it that would purport to clarify that children born abroad to US military personnel are eligible to serve as President (what about to employees of Exxon?). That, coupled with the acquiescence of other constitutional actors, should take care of the matter, even in the absence of a Marbury moment.