There They Go Again

Well the New York Times is at it again. No, they are not reporting on rumored infidelity this time. Instead they are asking whether John McCain is eligible to be president. The Constitution states that only a “natural-born citizen” is eligible to be President of the United States. This is why Arnold Schwarzenegger, an immigrant from Austria, could not run for president absent a Constitutional Amendment. McCain however, is not an immigrant. He was born on a U.S. military base in the Panama Canal Zone, where his father who was serving in the navy was stationed. As it happens, I was also born on a military base, though that base was in Missouri, not Central America. Therefore I am a natural born citizen regardless. Governor Schwarzenegger, on the other hand, is a naturalized citizen, because he legally became a citizen after birth.

The crux of the Times argument that this is a legitimate question is that there has never been a Supreme Court decision defining a natural born citizen. I am flashing back to Al Gore’s claim of “no controlling legal authority” to prevent him from making fundraising calls from his government office and phone. But since the Constitution forbids advisory opinions, the Supreme Court will never define natural-born citizen unless it has a case in front of it where this is an issue. According to Matthew J. Franck of National Review’s Bench Memos blog, it is an issue that should properly never come before the Supreme Court because it is a political question.

The Times article contains a fair amount of handwringing over the fact that there has been no authoritative Supreme Court ruling on this presidential eligibility issue—though near the end it recognizes the difficulty of determining who might have "legal standing" to raise the issue in a court of law. This is the simplest question of all. No one has standing. This is a quintessentially political question, to be settled outside the judiciary by the constitutional authorities responsible for choosing presidents. If, next January, the joint session of Congress, presided over by Vice President Cheney, determines that John McCain is to be president by virtue of a victory in the electoral college, and either assumes silently or addresses openly (in case of a member's objection) the question of McCain's U.S. citizenship eligibility and holds in his favor, that will be an authoritative settlement of the matter—at least as far as McCain is concerned. No court of law could possibly have authority to gainsay such a decision. It never ceases to amaze me, though, how many otherwise sharp legal analysts consider constitutional questions to be unsettled until the Supreme Court has something to say on them.

Constitutional arguments aside, the United States is at war and our troops are stationed around the world, often with their families along (though obviously not in Iraq or Afghanistan). Are we really going to say to American service members that because of their service to this country, their sons or daughters can never aspire to grow up to be President of the United States? That would be absurd on its face.