Michael I. Meyerson: Is McCain a natural born citizen?

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[Michael I. Meyerson, a professor of law at the University of Baltimore, is the author of “Liberty’s Blueprint: How Madison and Hamilton Wrote The Federalist, Defined the Constitution and Made Democracy Safe for the World.”]

ARTICLE II of the Constitution declares that “No person except a natural-born citizen ... shall be eligible to the office of president.” This undemocratic provision could prevent voters from selecting their top choice, be it Arnold Schwarzenegger, the Austrian-born governor of California, or Jennifer Granholm, the Canadian-born governor of Michigan.

We cannot just wish away inconvenient constitutional language. Clearly, a child born in a foreign country to two non-American parents cannot ascend to the nation’s highest office. But does the Constitution also prohibit John McCain — who was born to two Americans in the Panama Canal Zone in 1936, while his father served in the Navy — from becoming president?

The Constitution does not define the phrase “natural-born citizen,” and there was virtually no discussion of it by those who drafted or ratified the Constitution. The language originated in a letter that John Jay, the future chief justice of the United States, wrote to George Washington during the Constitutional Convention.

“Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government; and to declare expressly that the command in chief of the American Army shall not be given to nor devolve on, any but a natural-born citizen,” Jay wrote.

In a short note to Jay, Washington replied cryptically, “I thank you for the hints contained in your letter.” Two days later, the requirement that the president be a “natural-born citizen” was formally proposed to the Convention. The proposal passed unanimously without debate.

In March 1790, within a year after first convening, the first Congress elected under the new Constitution enacted our first naturalization law. That Congress, which included 20 members who had been delegates to the Constitutional Convention, decreed that “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.”

History, however, is not free from ambiguity. When Congress five years later passed a naturalization law that replaced the 1790 law, it said merely that these children “shall be considered citizens.”...
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