Why McCain and I Should be Allowed to be President

Email Print posted by Cenk

02/28/2008 12:50:04 PM EST Google Technorati del.icio.us digg reddit

John McCain was born in Panama. Arnold Schwarzenegger was born in Austria. I was born in Turkey. Article II of the Constitution clearly states, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President." (emphasis added)

End of the question, right? None of us can be President of the United States of America.

This should be especially clear for "strict constructionist" conservatives. John McCain says he wants judges who won't legislate from the bench. He wants them to apply the letter of the law. Well, there you have it - the end of John McCain's candidacy.

Now McCain supporters are saying a plain reading of the constitution isn't fair because his parents were on an American military base in Panama's Canal Zone. Boo hoo. Sad day for you. Strict constructionism!

The Canal Zone is not US land, neither is the military base. He'd have a legitimate argument if he was born in the embassy, but alas, he wasn't. Now, do I think it's unfair that kids born on military grounds to patriotic parents serving their country overseas aren't eligible to serve as US presidents? Yes, I definitely do, but then I'm not a strict constructionist.

Lucky for McCain, I think the legal scholars are looking at this all wrong. He shouldn't have to rely on a fairness or common sense argument. I think there is a plain letter of the law argument to be made in the US constitution that allows McCain, Schwarzenegger and even me to become president.

It's called the Fourteenth Amendment. Look at it. It clearly states:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added)

The Fourteenth Amendment is an ... amendment. It amended many parts of the US constitution, including Article II. Historians say it applied to the newly freed slaves. Of course, it did. But it doesn't say that it doesn't apply to the rest of us. It doesn't mention slaves at all. Plain reading!

If a freed slave had made the improbable journey to the White House after the Fourteenth Amendment was passed, would the Supreme Court blocked him from becoming president since he was not "a natural born citizen" of the United States? No way. The Fourteenth Amendment made clear that all of the laws were supposed to apply equally to born or naturalized citizens. It would have been a clear violation of the Fourteenth Amendment to deny him the office he earned and not treat him as equal to any other citizen.

So, why isn't it equally clear that it's a violation of the Fourteenth Amendment to prevent other naturalized citizens, or in McCain's case, a citizen born outside of the United States, from becoming president? Remember, these clauses are not equal in weight. It's not hard to pick between the two. The Fourteenth Amendment wins because it is an amendment - it changed earlier clauses in the constitution, like Article II.

Fortunately for John McCain he doesn't need liberal jurists or an amendment to the constitution to become president because there already is a clear amendment on this matter - the Fourteenth Amendment.

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Why McCain and I Should be Allowed to be President | 19 comments (19 topical, 0 hidden)
To the best of my knowledge, Cenk (none / 0)
Military bases abroad ARE, indeed, legally American soil.  The host country's laws cannot even be applied on such a base except as specifically laid out in a Status of Forces Agreement.  Two of my children were so born, in Germany, and as I understand it their legal status is US born.

I really doubt such a thing would have escaped notice ere now were the law otherwise.  This is a non-issue, I'm afraid.

SAM: What's new, Normie?
NORM: Terrorists, Sam. They've taken over my stomach and they're demanding beer.

by Spinny on 02/28/2008 12:58:41 PM EST

Don't think US bases abroad are American soil (none / 0)
did a quick search and found something that is related:

"As a general matter, military personnel deployed on military bases abroad are not part of the diplomatic mission of the United States and thus the buildings and ancillary land they occupy are not part of the “premises of a United States mission."
http://www.treas.gov/office s/domestic-finance/financia l-institution/terrorism-ins urance/pdf/redacteddec04.pd f

also I doubt any country would see foreign military bases, whether they be US, French, British, ... on their land as land belonging to the US, French, British

but let's be honest if this was the case for Obama, Republicans would be knocking at the court's gates, but since McCain is a Republican nothing will happen

by callisto on 02/28/2008 01:57:30 PM EST

[ Parent ]
The Bushies have been claiming this all along... (none / 0)
Guantanimo in Cuba is not American soil, so sayeth the Bush administration.  That's why we can treat the prisoners anyway we'd like, and ignore the Geneva Conventions.

by BlueInTexas on 02/28/2008 05:18:16 PM EST

[ Parent ]
some more links (none / 0)
http://answers.yahoo.com/qu estion/index?qid=2008021315 2522AAJwHwi
http://www.fluther.com/disc /5934/are-us-military-bases -considered-us-soil/

by callisto on 02/28/2008 02:04:00 PM EST

[ Parent ]
For the record, my off-the-cuff was wrong (none / 0)
But as per my posts below I still don't think this will stick.

SAM: What's new, Normie?
NORM: Terrorists, Sam. They've taken over my stomach and they're demanding beer.

by Spinny on 02/28/2008 02:16:31 PM EST

[ Parent ]
Here's the State Department regulation (none / 0)
Found at:

http://www.state.gov/docume nts/organization/86755.pdf

7 FAM 1116.1 "In The United States"
7 FAM 1116.1-1 States and Incorporated Territories
(TL:CON-64; 11-30-95)
a. The phrase "in the United States" as used in the 14th Amendment clearly includes
States that have been admitted to the Union. Sections 304 and 305 of the INA provide a
basis for citizenship of persons born in Alaska and Hawaii while they were territories of the
United States. These sections reflect, to a large extent, prior statutes and judicial decisions
which addressed the l4th Amendment citizenship implications of birth in these and other
U.S. territories. Guidance on evidence on such births should be sought from CA/OCS.
b. Sec. 101(a)(38) INA provides that, for the purposes of the INA,
The term "United States",... when used in the geographical sense,
means the continental United States, Alaska, Hawaii, Puerto Rico,
Guam, and the Virgin Islands of the United States.In addition, under Pub.
L. 94-241, the "approving Covenant to Establish a Commonwealth of the
Northern Mariana Islands in Political Union with the United States of
America", (Sec. 506(c)), which took effect on November 3, 1986, the
Northern Mariana Islands are treated as part of the United States for the
purposes of sections 301 and 308 of the INA.
c. All of the aforenamed areas, except Guam and the Northern Mariana Islands, came
within the definition of "United States" given in the Nationality Act of 1940, which was
effective from January 13, 1941 through December 23, 1952.
d. Prior to January 13, 1941, there was no statutory definition of "the United States" for
citizenship purposes. Thus there were varying interpretations. Guidance should be sought
from the Department (CA/OCS) when such issues arise.

Now I'm assuming that McCain was born before 13 Jan 41, since my dad was and McCain is sure to be older than he.  That means the definition of up to the State Department, according to para d. above.  Any guess how they'll rule?

SAM: What's new, Normie?
NORM: Terrorists, Sam. They've taken over my stomach and they're demanding beer.

by Spinny on 02/28/2008 02:08:44 PM EST

Another perspective (none / 0)
This is just Yet Another Web Link and so not nearly as authoritative as a State regulation, but the author argues pretty persuasively and with abundant citations.

http://stubbornfacts.us/com ment/reply/2334

SAM: What's new, Normie?
NORM: Terrorists, Sam. They've taken over my stomach and they're demanding beer.

by Spinny on 02/28/2008 02:14:48 PM EST

I don't know that I care all that much (none / 0)
I think this is kind of nitpicking.  Anyway, would you rather they pick a Romney or a Huckabee?  At least McCain is trying keep the frothing-at-the-mouth types (like Cunningham) from setting the tone of his campaign.  I don't know if this will end up making a difference or not, but you have to give him credit for doing that much.

by bfaul on 02/28/2008 02:28:42 PM EST

This is a mute point... (none / 0)
The Canal Zone in Panama since 1903 was US Territory, therefore US Land and Property...We didn't officially give it back until sometimes in 1979 (jointly held until 1999, now run by the Chinese!)...

Chester Arthur was born in Canada, and He was President... This is a stupid subject for any court... Truly a non story...Go after McCain on legitamate grounds - (The fact that hes fucking nuts no matter where he was born is a good start!!!)

Thanks...

by bobo1 on 02/28/2008 02:29:23 PM EST

the 14th amendment does not apply (none / 0)

at least, not as forcefully as one might expect.

findlaw's writ has a number of good articles discussion the issue of "natural born" citizenship being a requirement for presidency.

here is john dean's take on the matter:

http://writ.news.findlaw.co m/dean/20050311.html 

dean provides other arguments for relaxing the natural born requirement.

 

on a related note, i think the u.s. needs to move from a "jus soli" model of citizenship to a "jus sanguinis" model---i see absolutely no sense in granting citizenship to the children of illegal immigrants simply because they happened to be born within u.s. soil.

u.s. citizenship should be based on either naturalization, or because _both_ parents of a child are u.s. citizens at the time of the child's birth. intermediate cases (one parent a citizen, and the other not) can be decided by statute and subject to change, but the basic requirement should not be based on geographical vagaries.

by neo on 02/28/2008 04:56:48 PM EST

Amen! (none / 0)
"I see absolutely no sense in granting citizenship to the children of illegal immigrants simply because they happened to be born within U.S. soil."

Maybe this will hault the practice of pregnant Mexicans running across the border in labor, so they can squirt out another instant American.

by KenTX on 02/28/2008 10:06:03 PM EST

[ Parent ]
I don't think you need the 14th amendment (none / 0)
The line is "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President." I don't think it matters where he was born, only that he was a US citizen when the doctor slapped his little pink ass.  I'm assuming that children of US troops are US citizens even if born on a forgien base. 

by adamandruth on 02/28/2008 09:43:33 PM EST

Congratulations Adam & Ruth. (none / 0)
Both of you are correct.

I declare this thread officially closed.

by KenTX on 02/28/2008 09:53:52 PM EST

[ Parent ]
Good but losing arguments (none / 0)
1) Lose: "Natural born citizen" means born in the georgraphical USA or born to a parent who is a US citizen.  So Romney's dad, born in Mexico, and McCain, born in Panama, are "natrual born citizens" becasue their parents were US citizens. 

2) Win (possibly), Lose (probably): I like the 14th Amendment argument that it amends the "natural born citizen" requirement of Article II. It would win with me if I was on the Supreme Court. But I don' think it would win under today's Supreme Court because they would argue that the 14th Amendment is a general provision that does not amend the more specific provision in Article II without a direct reference. This is a time honored rule of construction.

The "only applies to slavery" argument is a non-starter because that argument was made and lost 130 years ago when people challenged the "equal protection" clause as it applies to corporations, which definitely were not slaves. The Supreme Court holds that the 14th amendment applies to corporations because they are legal "persons" under the law, so the 14th Amendment doesn't even just apply to natural people.

by Gregory Wonderwheel on 02/28/2008 10:13:52 PM EST

P.S. think about the corporations (none / 0)
Addendum to my previous comment. Think about how the courts interpret the 14th Amendment to apply to corporations.  Are corporations mentioned in the 14th Amendment? NO. "Persons" are. Are corporations mentioned anywhere in the US Constitution? NO. So how in the world are corporations called "persons born or naturalized in the United States"?  Has a corporation ever been "born"?  Has a corporation ever taken the naturalization test and been given the naturalization oath?  When you can figure out what kind of rationalization the Supreme Court uses to apply the 14th Amendment (that was clearly by its own plain language intended to apply only to born or naturalized persons) to corporations, then you will know how fascism works in America.

by Gregory Wonderwheel on 02/28/2008 10:24:37 PM EST

Sorry, Cenk, but you are facing two barriers . . . (none / 0)
Cenk, you can never be the President, even though you are eminently qualified.

First, as you have said, you were born in Turkey, and Americans rigorously enforce the "natural born citizen" clause of the Constitution.

Second, you are not a Christian, and those same Americans rigorously ignore the "No Religious Test" clause of that same Constitution.

If you don't want a third strike, start dating white chicks.

by Dogger on 02/29/2008 02:24:18 AM EST

Another angle (none / 0)
The Constitution says "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."  The Constitution was adopted on September 17, 1787.  Isn't McCain old enough to have been alive then?  This is the same reason Hamilton was eligible to be President (contrary to the common public understanding) even though he was born in the West Indies.

by pdseay on 03/02/2008 10:44:55 AM EST

McCain (none / 0)

McCain was born on a military base though so the 1790 Naturalization Law goes into effect for him. It's fine for me if we can get him on qwirk of somesort so we can keep him from ruining the party, but I don't think we'll be so lucky. 

The Naturalization Law of 1790 that sought to define the term: "And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens."

 


by acroso on 03/03/2008 06:41:33 PM EST

Calling Out Acroso (none / 0)
 any implication that Democrats are weak and would give in to the terrorists polite? Why are they allowed to be complete and utter assholes, but we're not allowed to call them out on it? Cenk

Maybe you could enlighten us as to where you came up with this information other than regurgitating Rush Limbaugh....

  • Dems think our troops are "Nazis" http://www.theyoungturks.co m/comments/2007/10/25/21313 4/43/102#102
  • Dems are starting their vicious attack on American identity, national religion, taxpayers etc, http://www.theyoungturks.co m/comments/2007/10/22/11525 /191/10#10
  • Voting for Democrats are at best like voting for street bums and at worst a lot like voting for terrorists.http://www.theyo ungturks.com/comments/2007/ 10/14/155517/23/33#33
  • Dems do want to take away our guns and they do want to limit our freedom of speech http://www.theyoungturks.co m/comments/2007/6/20/13312/ 0705/3#3
  • La Raza is running and directing what the dems do http://www.theyoungturks.co m/comments/2007/6/14/16394/ 1135/15#15
  • The dems desire to defeat the troops in Iraq and Afganistan. They want to impeach Bush because that is another way to victory in the war against the war (or another way to defeat the U.S., whichever way you look at it.) http://www.theyoungturks.co m/comments/2007/4/11/112312 /588/9#9
  • Pelosi has set a date for surrender to the terrorists in Iraq, Pelosi has set a date for surrender to the terrorists in Iraq, http://www.theyoungturks.co m/comments/2007/4/11/112312 /588/2#2
  • the Terrorists and the Democrats have had a lot of success in their attempts to break the will to fight of the American people. http://www.theyoungturks.co m/comments/2007/4/9/131553/ 4837/1#1
  • Many Americans have lsot the will to fight the terrorists after the non-stop rhetoric coming from the left and the L&S divisions of our campuses http://www.theyoungturks.co m/comments/2007/4/9/131553/ 4837/1#1
  • The Dems mato is defeat. Common sense tells us they were going to surrender to the terrorists if they took power incongress.This defeatism means implementing dates for withdrawal and defunding the our troops. http://www.theyoungturks.co m/comments/2007/3/28/102731 /281/11#11
  • Nancy hangs the troops out to dry to let the Americans know who the dems really are and to lets the Islamos know that your party supports them http://www.theyoungturks.co m/comments/2007/3/23/14658/ 5848/1#1
  • Go complain to Harry Reid who is heading up the defeat our troopsbillhttp://www.theyou ngturks.com/comments/2007/3 /2/941/60818/2#2
  • the Dems support the troops by supporting their defeat. The dems can't be trusted on any matters of national security.http://www.theyoun gturks.com/comments/2007/2/ 25/61739/1922/63#63
  • I posted his closing speech in the effort to stop the Dems pro-Al Qaeda resolution.http://www.theyo ungturks.com/comments/2007/ 2/25/61739/1922/54#54
  • Dems ARE unpatriotic bafoons, and the republicans aren't. http://www.theyoungturks.co m/comments/2007/2/16/13593/ 4879/2#2
  • Well if there is one thing the Dems don't do is " Caring about our country." They've been working on tearing apart the ideaof what it means to be American since way before the farewell speech of Reagan where he talked about the elimination of nationalpride and collective memory.http://www.theyoungt urks.com/comments/2007/2/17 /22318/8973/22#22
  • the Dem supported the troops by supporting their defeat in the 60s. Now they "support" the troops by supporting their defeatin the war on terror. It comes to reason that the Democrats DO NOT SUPPORT THE TROOPS.http://www.theyoungt urks.com/comments/2007/2/15 /175041/565/41#41
  • How did they manage to trick the voters into this new hope ( Obama ed.) filled bipartisan agenda when the cooks are running their party?http://www.theyoungtu rks.com/comments/2007/2/6/1 1367/49130/2#2
  • Like I said, if it wasn't for the Democrats hindering the war effort, funding, and the troops we'd have won these years ago. What we need is a much larger standing army, more media control, and fewer rules. Unfortunately Al Qaeda has learned to game our media in order to dispirit the American people and the dems just act an amplifier for their message. http://www.theyoungturks.co m/comments/2007/2/2/18320/2 3155/9#9
  • CNN can play the terrorists propaganda vids along side of the dem resolution supporting the terrorists.
  • Well I do know why the dems voted for General Patraeus and his plan for a surge along with giving funding to president Bush for the troops surge yet pass resolutions opposing what they just did\approved. It's all politics. Their rabid anti-American base demands that the dems politicize the war and pretend to not support the troop http://www.theyoungturks.co m/comments/2006/5/3/12955/5 1892/8#8
  • the CNN sniper video of troops getting shot that was filmed by the terrorists in Iraq for propaganda. They want to break the American will so they give the tapes to the libs in our lib media who have like minded goals.  http://www.theyoungturks.co m/comments/2007/1/5/19828/5 3784/2#2
  • The dems are invested in defeat, and cheer it on http://www.theyoungturks.co m/comments/2006/12/3/151518 /361/4#4

"Freedom is important to Republicans as long as someone else pays for it on the battlefield and on April 15th."

by MRFred on 03/03/2008 09:11:32 PM EST

[ Parent ]
Why McCain and I Should be Allowed to be President | 19 comments (19 topical, 0 hidden)
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