The Second Law of Politics is the Law of Unintended Consequences - that is, when you pass a law to fix a problem, it is almost certain to cause some other problem elsewhere that you didn't anticipate. This can be observed all through history and across the entire range of political activity, but is nowhere so enriching as when a politician causes problems for themselves personally as a result of failing to anticipate the downside of his pet programs.
For some reason, John McCain has a particular tendency to fall into this trap. We've already seen how his love of campaign finance reform regulations has handicapped his own Presidential campaign, perhaps critically. Today, we hear that his position on illegal immigration may have a similar effect.
As the highest office in the land, it's appropriate that the Presidency bear with it special requirements. The Constitution specifically requires that the president be at least 35 years old, and it explicitly spells out the oath of office to which he must swear. But unlike any other government office, the Founders felt it necessary to require that the president be a "natural-born" citizen, and that he must have resided in the United States for the last 14 years before assuming the office.
The Founders welcomed immigrants - after all, each and every one of them were either immigrants themselves, or were descended from immigrants in their own living memories. Although they valued immigrants, they had a great fear of foreign influence upon the newly-independent United States.
So, while they were perfectly happy for an immigrant to hold the office of senator, congressman, or judge following their naturalization as a citizen -- and indeed, we've had a great many examples of this all throughout our history -- they thought it essential for the Commander in Chief to have been an American from birth. This is why Arnold Schwarzenegger is legally qualified to be Governor of California, but can never run for President of the United States.
The Constitution states this requirement as follows:
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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
Senator McCain meets the age requirement, but he wasn't a Citizen of the United States at the time of the adoption of the Constitution.
Therefore, he needs to be a natural born Citizen instead. According to some, the New York Times reports, he isn't.
The 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.
Sen. McCain's likely nomination as the Republican candidate for President and the fact 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.
Unlike all the other Presidents we have had, John McCain was not born within the confines of the United States. Thus, the argument goes, he does not count as "natural-born" and cannot be President.
This seems absurd to us. McCain has never held a foreign passport; he was born to American parents who were serving honorably in the United States military at the time of his birth, and were overseas on the orders of the Commander in Chief. The United States has always considered the children of citizens to be citizens themselves, no matter where they were born.
In some jurisdictions, the children may also be entitled to citizenship in the foreign country of their birth, but they are certainly American citizens. Nowadays, the nearest American consulate issues a "Certificate of Citizen Born Abroad" to serve as a U.S. birth certificate; throughout the years, similar arrangements have been made to achieve the same effect.
However, we can't help but note that this problem can be avoided through consideration of the 14th Amendment, which says:
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.
This sheds light on what's intended. The 14th Amendment was passed after the Civil War, long after the Founders were all dead; but, of course, the authors of the Amendment were deeply familiar with the text of the Constitution and wrote the Amendment with original intent in mind.
This Amendment was intended to clear up the longstanding issue of people who were born within the United States and yet were not considered citizens - namely, slaves. It wasn't meant to address Americans born overseas, nor qualifications for the Presidency, yet it illuminates the principles of "what makes a citizen." And it's clear that the location of birth was not the determining factor.
Today, our government often acts as if being born in the United States is automatic proof of citizenship. This has allowed the phenomenon of "anchor babies", whereby illegal immigrants can magically give birth to an American citizen by virtue of their illegal acts. John McCain is a staunch defender of this practice, based specifically on the question of birth location.
If you're born here, says McCain, then you are a citizen - even if your parents had no right to be here themselves, and accepted no obligation to follow American laws or customs. The logical flip-side of that is where McCain finds himself attacked - if you were born somewhere else, then you're not a native-born citizen, even though your whole family is citizens honorably serving in the U.S. military.
But this quibble is entirely unnecessary! If the authors of the Constitution and its amendments had intended citizenship to be that simple, then there would be no need for the clause "and subject to the jurisdiction thereof." This clause makes all the difference, and shows the intent of the authors: Citizenship depends on a legal connection to and acknowledgment of authority.
John McCain's parents were Americans, subject to the jurisdiction of the United States no matter where they were; therefore, McCain himself is a natural-born American citizen, and the physical location where he entered into this world is entirely irrelevant.
Similarly, an illegal immigrant mother has, by her own unlawful actions, rejected the authority and jurisdiction of the United States. Therefore, her child is a citizen of whatever nation she holds rightful citizenship in, even if he happens to be born on U.S. soil. This is logical and follows the clear intent of the Constitution - and indeed, was held to be so repeatedly by Congress and the courts for most of a century after the passage of the 14th Amendment.
Most Americans intuitively realize that of course any child of military parents serving overseas under orders is a native-born American. It's equally obvious that anchor babies are not citizens - or it would be, if our leaders and decision-makers cared about the country rather than their own political agendas.
Sen. McCain can't make this argument in favor of himself because he's already rejected it for the benefit of illegal immigrants. Once again, he would be in a stronger position if he had read the Constitution and listened to what it actually says and means instead of listening to what the members of the other party said it means.
Sometimes being a "maverick" isn't as glorious as one thinks it will be.