Getting Past McCain’s Citizenship

This item should take care of it, not the least because it appears on the op-ed page of the New York Times. 

The question of McCain’s presidential eligibility, in light of his Canal Zone nativity, flared up again with the posting of this piece by Jack Chin (along with this report by Adam Liptak).  Chin persuasively documents why McCain wasn’t a citizen at birth.  He would have been had he been born anywhere else in the world, including a hundred yards across the Canal Zone border in Panama.  The legislative fluke was fixed on a retroactive basis in 1937 (to extend citizenship at birth to children born in the Canal zone after 1904 to U.S. citizen parents) but McCain was born in 1936.  The history is a fascinating one, a case study in citizenship’s traumas of race and empire.  Jack is to be congratulated for having unearthed this material.

The essay is less persuasive on the consequences of its findings.  "[T]o inaugurate a President in January, 2009 in open violation of the Constitution’s terms risks national trauma," writes Chin.  "It would be a grim moment in history if the very oath to ‘preserve, protect and defend the Constitution’ that made that person President was also a falsehood that defied the document."

I don’t think so.  McCain’s inauguration might be a grim moment but not for any reasons having to do with his birthplace.  Nobody’s going to let a statutory blip upset the applecart of a presidential election; as University of Baltimore lawprof Michael Myerson concludes in today’s op-ed, "ambiguous constitutional language should not be interpreted to deprive Americans of the right to vote for children of their fellow citizens who, by happenstance or due to their parents’ military obligations, chance to be born overseas."  The US Senate, the team of Larry Tribe and Ted Olson, the New York Times, and McCain’s opponent are all on board affirming his eligibility. 

That’s a consensus of constitutional magnitude.  We have an interpretive practice trumping legal text, without the legitimation of a ruling from the courts.  It’s a terrific example of how the letter of the law only gets you so far.