McCain and the No Man's Land of Citizenship

Does the candidate perhaps have a “birth defect”? According to the wording of the constitution, whoever wants to become president of the United States has to be a “natural born citizen.” For months now, jurists have been disputing whether or not the Republican presidential candidate John McCain fulfills this requirement. In 1936, McCain was born in the Panama Canal Zone, which today lies outside the territory of the fifty American states and which, as law professor Gabriel Chin from the University of Arizona has just concluded, is the no man’s land of citizenship.

Only in August 1937 did the Congress enact a law that conferred the American citizenship on children of American parents born in the Canal Zone after February 26, 1904. According to Chin, however, in McCain’s case this law is not enough to comply with constitutional requirements. Due to the fact that even though the candidate became an American citizen later on in life, at the time of his birth he was not.

A Pertinacious Advocate of a Literal Interpretation of the Constitution.

Chin’s analysis is the response to a short report that was submitted in March by Theodore Olson, a former solicitor general in the Bush Administration, and liberal Harvard law professor Laurence Tribe, a Barack Obama advisor. Olson and Tribe straightened out legal irregularities in McCain’s case by pointing at the original intentions of the founding fathers and the fact that McCain was born to American military personnel. The majority of the Senate approved this argument in a legitimate, non-binding resolution that confirms McCain’s eligibility to be president.

But how does such a pragmatic-situational interpretation of the constitution agree with McCain’s harsh criticism on any kind of “judicial activism” – a legal approach that considers the constitution a vivid structure of the political community, instead of clinging vehemently to the wording and assumed intentions of the founding fathers?

Gabriel Chin emphasizes that, in order to make McCain a “natural born citizen,” one would have to look past the restrictive dogmatism of citizenship law that has been developed by conservative jurists for more than a century. This would also severely affect the precarious status of many illegal immigrants.

But despite an already pending lawsuit in New Hampshire, it is highly unlikely that any court will agree to make a decision in McCain’s case. This assumption is confirmed by Peter Spiro, an expert on international law who recently proved in a study about American citizenship that the identity-generating power of citizenship is fading – and not only in the United States: a person who frequently crosses borders in the course of occupational mobility develops manifold transnational ties. Vice versa, social and cultural identification is no longer only possible within territorial borders. Although the current debate about McCain’s citizenship does not jeopardize his candidature, it raises questions that should be addressed more frequently – and not only on Capitol Hill.