Constitutional Law

Arizona and Harvard Profs Differ Over McCain’s Eligibility for Presidency

Law professor Gabriel Chin of the University of Arizona disagrees with a highly regarded Harvard constitutional law scholar, as well as the U.S. Senate, on how to interpret Article II’s citizenship requirement for U.S. presidents.

Harvard Law School professor Laurence Tribe has concluded that John McCain is a natural-born citizen, making him eligible for the presidency. The Senate has taken Tribe’s side, unanimously approving a nonbinding resolution declaring McCain to be a natural-born citizen.

Chin begs to differ, the New York Times reports. His argument is based on a 1937 law granting citizenship to children born to American parents in the Panama Canal Zone after 1904. The law was adopted about one year after McCain was born there. Because the law conferred citizenship after McCain’s birth, the presidential candidate was not a naturally born citizen, Chin argues.

Tribe says Chin is wrong in asserting that the law granted citizenship, the story says. Instead, Tribe says, the law simply clarified that Congress had already granted citizenship under a prior law covering children born to American parents “out of the limits and jurisdiction of the United States.”

Chin says the prior law didn’t apply because the Canal Zone was beyond U.S. limits, but not beyond its jurisdiction.

Experts told the Times the debate may be academic, since courts will be reluctant to decide the issue. Voters who seek a ruling may see their cases tossed for lack of standing. A suit challenging McCain’s eligibility is pending in Concord, N.H., federal court.

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