Image: U.S. Senator John McCain
Larry W. Smith  /  EPA
Republican presidential hopeful U.S. Senator John McCain, seen in Richardson, Texas, on Thursday, was born in the Panama Canal Zone to U.S. parents.
By Pete Williams Justice correspondent
NBC News
updated 2/29/2008 7:21:39 PM ET 2008-03-01T00:21:39

Sen. John McCain, R-Ariz., and his advisers are doing their best to brush aside questions — raised in the liberal blogosphere — about whether he is qualified under the Constitution to be president.  But many legal scholars and government lawyers say it's a serious question with no clear answer.

The problem arises from a phrase in the Constitution setting out who is eligible to be president.  Article II, which also specifies that a person must be at least 35 years old, says "No person except a natural born Citizen" can be president. 

Sen. McCain is undoubtedly a citizen. He was born on Aug. 29, 1936, in the Panama Canal Zone, and Congress has specifically provided that anyone born there of U.S. parents, as he was, is a citizen.  Indeed, the general rule is that anyone born of U.S. parents outside the United States is a citizen.

But is John McCain a natural born citizen? The Constitution does not define the term further, and legal scholars say the notes of the Constitution's drafters shed little light on what they meant. It seems clear only that the founders wanted to make certain that whoever was president would be loyal to the U.S. alone and not to some other country.  But the term "natural born citizen," many scholars say, was not in common use at the time the Constitution was written.

Sen. McCain's supporters draw some comfort from a law passed in 1790 by the first Congress.  It provided that the children of US citizens born outside the US "shall be considered as natural born citizens."  The law is no longer in effect, but it provides some guidance on what the founders had in mind at the time of the Constitution.

And some legal experts find it hard to believe the founders would have considered their own children, if born overseas, to be ineligible for the presidency. 

"If John and Abigail Adams were sent to France on a diplomatic mission, I find it inconceivable that they would have thought their children were not natural born citizens," said Professor John Parry of Lewis and Clark Law School.

Issue has come up before
This issue has been raised before in the presidential campaigns of Barry Goldwater, born in Arizona territory not the United States, and George Romney, born in Mexico.  But it was never resolved.

In 1964, the Supreme Court seemed to say, without deciding, that "natural born" meant born inside the United States.  In an opinion on an unrelated issue, the court observed, "The rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be President." But that language is not legally binding, and the Supreme Court has never ruled on what "natural born" means.

The ambiguity has stirred concern for decades. In 1987, New York Times columnist William Safire suggested amending the Constitution. "The 'natural born' phrase unfairly burdens children of Americans born abroad ... because it casts a shadow across any candidacy: if elected, the President-elect would surely face a challenge on the born-abroad impediment," he wrote.

Sen. McCain has the support of Ted Olson, the former U.S. solicitor general.  "The plain meaning of 'natural born citizen' includes persons who become citizens of this nation 'naturally,' that is, by virtue of their birth to parents who are citizens, particularly when the birth takes place on territory occupied and controlled by the United States, in Senator McCain's case, a U.S. military base in the Panama Canal Zone," Olson says in a statement.  But that is by no means a universally held view.

U.S. 'never had sovereignty' over Canal Zone
Besides, many legal scholars say the Canal Zone never was sovereign U.S. territory.  In a February 1978 speech to the nation on the Panama Canal Treaty, heavily vetted by government lawyers, President Carter said, "We have never had sovereignty over it.  We have only had the right to use it.  The US Supreme Court and previous American presidents have repeatedly acknowledged the sovereignty of Panama over the Canal Zone."

It's not clear, either, who would have the legal right to sue if McCain were elected president.  One expert on federal procedure said any taxpayer aggrieved by an action of a President McCain would have standing to challenge his qualifications.

Legal scholars generally agree on one thing, however. If this issue did produce a legal challenge, the courts would be very reluctant to invalidate the results of an election, especially given such an uncertain legal landscape.

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