Thursday, February 28, 2008


Times Reports Internet Buzz

The NY Times continues in their partisan campaign to find ways to discredit or diminish Sen. John McCain as Presidential Candidate. This time, the always reliably partisan Carl Hulse was tasked to pound out a tendentious cloud of oblivious blather about whether John McCain is eligible to run for President.

Hulse begins with this howler of an assertion:

WASHINGTONThe question has nagged at the parents of Americans born outside the continental United States for generations: Dare their children aspire to grow up and become president? In the case of Senator John McCain of Arizona, the issue is becoming more than a matter of parental daydreaming.

Mr. McCain’s likely nomination as the Republican candidate for president and the happenstance of his birth in the Panama Canal Zone in 1936 are reviving a musty debate that has surfaced periodically since the founders first set quill to parchment and declared that only a “natural-born citizen” can hold the nation’s highest office.

The worlds most quiet nagging, no doubt, and a “debate” so musty that it’s acquired over 200 years of dust since anyone’s seriously made the argument. No settled debate too archaic to escape the probing attention of NYT muckrakers, if a remote possibility exists that any of it will stick to their political opposition.

Blather, speculate, and cite academics who’d love to see the GOP candidate suffer any ill effects -- regular readers of the Times can imagine how the rest goes without needing to read further.

But in fairness, the NYT points to two pieces of legislation that directly clarify what little ambiguity stands in the Constitution:

Quickly recognizing confusion over the evolving nature of citizenship, the First Congress in 1790 passed a measure that did define children of citizens “born beyond the sea, or out of the limits of the United States to be natural born.” But that law is still seen as potentially unconstitutional and was overtaken by subsequent legislation that omitted the “natural-born” phrase.

Mr. McCain’s citizenship was established by statutes covering the offspring of Americans abroad and laws specific to the Canal Zone as Congress realized that Americans would be living and working in the area for extended periods. But whether he qualifies as natural-born has been a topic of Internet buzz for months, with some declaring him ineligible while others assert that he meets all the basic constitutional qualifications — a natural-born citizen at least 35 years of age with 14 years of residence.

Nice touch. In the first case, Hulse notes the very early fix (within scant years from the Constitution’s adoption), but then invokes unseen and unidentified authorities who see the law as “unconstitutional” and “overtaken by subsequent legislation.” None of the  serious Constitutional scholars weighing in today have attested to such views. (And how exactly does that work, where subsequent legislation overtakes, and in some fashion, invalidates what came before, without in any way refuting or rescinding?)

In the second reference, Hulse offsets statutes that held sway over the Panama Canal Zone, by invoking the heady and definitive scholarship of Internet Buzzmakers. Buzz, buzz, those internet bees, the stuff of academic (and journalistic) legend.

Matthew Franck, writing at NRO’s Bench Memos, offers an excellent critique of the NYT, including doubt about whether this issue has “nagged” anyone, mention of the 1790 act of Congress and lots of other Constitutional and other judicial detail.

Franck’s assessment is blunt:

The last line of the Times article, quoting the author of a long-ago law review article, is that "it is certainly not a frivolous issue."  I think that's just what it is, Ptolemaic epicycles of abstruse constitutional reasoning to the contrary notwithstanding. 

(Via Memeorandum)

A child born abroad to a US citizen in the military is automatically granted US citizenship as “natural born.” They are usually given birth certificates with a title, "US Citizen Born Abroad," issued by the US State Department.

My daughter was born in Germany in 1987 while stationed there, she was born in a German hospital (off base), yet the process is well understood by military and even German authorities, who confirmed at the time that my daughter WAS NOR eligible for (dual) German citizenship.

The US State Dept. processed and issued the birth certificate as part of normal consular activities.

Hey, NY Times! Look what I was able to Google: a US State Department information sheet on documentation for US citizens born abroad.

Documentation of United States Citizens Born
Abroad Who Acquire Citizenship At Birth

The birth of a child abroad to U.S. citizen parent(s) should be reported as soon as possible to the nearest American consular office for the purpose of establishing an official record of the child’s claim to U.S. citizenship at birth. The official record is in the form of a Consular Report of Birth Abroad of a Citizen of the United States of America. This document, referred to as the Consular Report of Birth or FS-240, is considered a basic United States citizenship document. An original FS-240 is furnished to the parent(s) at the time the registration is approved.

Because, of course, persons born to US Citizens abroad are automatically granted the status of natural born citizens. Much like spurious email chain letters, the NYT (and internet buzz) imaginings that question McCain’s eligibility rests on US citizenship documentation processes for US territories and possessions. Again, from the US State Dept.:

NOTE: Consular Reports of Birth are not available for persons born in Puerto Rico, the U.S. Virgin Islands, the Panama Canal Zone before October 1, 1979, the Philippines before July 4, 1946, American Samoa, Guam, Swains Island, the Commonwealth of the Northern Mariana Islands, or the former U.S. Trust Territories of the Pacific Islands. Birth certificates for those areas, except the Panama Canal Zone, must be obtained from their respective offices of vital statistics. Panama Canal Zone birth certificates should be requested through the Vital Records Section of Passport Services (see address below.) The fees are the same as those for DS-1350.

The oddity in the case of McCain rests on an anomaly of how the birth of such US citizens was documented for the Panama Canal Zone. Documentation for the birth of US citizens in US territories and possessions were issued by territorial Office of Vital Statistics. And since those offices no longer exist for the Panama Canal Zone, you have to request copies from US State Department Passport Services.

And nowhere in that process was there ever any process required to naturalize little Johnny McCain. No necessity at all, since he was a natural born US citizen.

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