tazzygirl
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The Facts
Article two of the constitution states that "no person except a natural born citizen...shall be eligible to the Office of president." Legal cases have been filed in at least three states--New Hampshire, Pennsylvania, and California--challenging McCain's eligibility for the presidency. You can read the New Hampshire filing, by a 49-year-old computer programmer named Fred Hollander, here.
The McCain campaign has consulted two leading jurists, Theodore Olsen and Laurence Tribe, on the constitutional issues. Olsen and Tribe were on opposite sides of the 2000 Bush vs Gore Supreme Court case, but they see eye to eye on the question of McCain's eligibility for the presidency. They argue that McCain is a natural born citizen because the United States exercised sovereignty over the Panama Canal at the time of his birth on August 29, 1936, he was born on a U.S. military base, and both of his parents were U.S. citizens. The Olsen-Tribe opinion is available here.
Sarah Duggin, an associate law professor at Catholic University, who has made a detailed study of the natural born issue, says the question is not as simple as Olsen and Tribe make out. While she believes that McCain would likely win a determined legal challenge to his eligibility to be president, she says the matter can only be fully resolved by a constitutional amendment or a decision of the Supreme Court.
McCain's birth on August 29, 1936, in what was then the Panama Canal Zone was announced in the English language Panamanian American, available here. The McCain campaign has declined to publicly release his birth certificate, but a senior campaign official showed me a copy. Contrary to some Internet rumors that McCain was born outside the Canal Zone, in Colon, the document records his birth in the Coco Solo "family hospital."
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I have been getting phone calls from retired State Department types who say that McCain's strongest argument that he is a natural-born citizen is that he was born abroad to two U.S. citizens. The fact that he was born on a U.S. military base or in the Panama Canal Zone is of secondary importance, they say. Not everyone born on a U.S. military base or in the Canal Zone (during the period when it was under U.S. jurisdiction) has the right to U.S. citizenship.
Here is a more technical explanation for the different categories of U.S. citizenship:
1. Jus Soli. "Right of the land." Anybody born in the U.S. is a natural born citizen, with a clear right to be president.
2. Lex Soli. "Law of the land." People who acquire their citizenship through naturalization, such as Arnold Schwarzenegger. Experts agrees that these citizens are not "natural-born," and do not have the right to be president.
2. Jus Sanguinis. "Right of blood." Anybody born outside the U.S. to U.S. citizens has right to U.S. citizenship. My retired State Department informants believe that these children are also "natural born" and have the right to become president. So do Tribe and Olsen. But other constitutional lawyers, like Professor Duggin, say the issue is not clear cut. The constitution is ambiguous and the point has never been argued before the Supreme Court.
Normally, parents of children in the Jus Sanguinis category file a Form 240 Report of Birth to the local U.S. Consulate to establish the right to citizenship. For what it's worth, it does not seem that McCain's parents filed such a form. Looking through State Department records at the National Archives, I found numerous Forms 240 filed for children born in the Canal Zone in 1936, but no such form for Senator McCain. (The fact that his parents did not file the form does not mean that he is not a citizen, just that it could be a little more difficult to prove.)
http://blog.washingtonpost.com/fact-checker/2008/05/citizen_mccain.html
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