This morning (28 February, 2008) the New York Times ran an article by
Carl Hulse, entitled, “McCain’s Canal Zone Birth Prompts Queries About
Whether that Rules Him Out.” The article spends 21paragraphs getting sweaty
palmed over whether John McCain is eligible to be elected President, since
he was born outside the mainland United States.
The article begins, of course, with the requirement in the Constitution
that to be President a person must be a “natural born Citizen.” The
Constitution also requires that President be “thirty five Years” old, and
“fourteen years a Resident within the United States.” The Times left out
that last requirement, which makes clear that citizenship and residency are
not the same thing.
The article quotes various experts, most questioning McCain’s” natural
born citizenship.” Only three paragraphs from the end does the article
mention that Congress passed a law defining children of US citizens born in
the Canal Zone after 1904, as US citizens “at birth.” The Times totally
misses a law passed in 1790, written by many of the same people who wrote the
Constitution, which provided “citizenship at birth” to children born to US
citizens, outside the country.
The other aspect of the story which the Times totally ignores is the
power of Congress to pass such laws defining citizenship. The original
authority is in Article I, Section 8, Clause 8, which gives Congress the
power to “establish an (sic) uniform Rule of Naturalization.” More recent
and more important, the 14th Amendment begins, “All persons born or
naturalized in the United States, and subject to the jurisdiction
thereof….” That Amendment ends with this, “The Congress shall have the
power to enforce, by appropriate legislation, the provisions of this
Note the critical phrase, “and subject to the jurisdiction thereof….”
Jurisdiction is a legal matter, which is defined in this instance by federal
law, not by accidents of geography.
The bottom line is clear. The 14th Amendment gives Congress the power to
define a child of US parents born outside the US, as nonetheless a “natural
born citizen.” Therefore the Act of Congress to include children born to US
parents in the Canal Zone is plainly constitutional.
So, by doing incomplete homework, perhaps deliberately, the New York Times
has created another hatchet job on John McCain, to benefit either Barack
Obama or Hillary Clinton, either of whom the Times prefers. The Times has
also, again, damaged its reputation as a newspaper that supposedly seeks and
publishes the facts.
But the Times has also done an accidental public service with
this article. It has drawn public attention to Congress’ authority to define,
by law, the circumstances which make a child a “natural born” American.
If Congress has the power to declare that a child of American parents,
but born overseas, is an American, then Congress has the equal power to
declare that a child born of Mexican parents in the United States is NOT an
American citizen. That would apply only if the Mexican, or Canadian, or any
other nationality, parents were not legally in the US at the time of the
John Armor, a spokesman for the ACRU, has written that the problem of
“anchor babies,” children of illegal immigrants who were “US citizens by
birth,” could and should be solved by Congress. “As I pointed out months
ago,” Mr. Armor said, “it is routine federal law that children of embassy
personnel in D.C. are citizens of their parents’ nations, not of the US, even
when they are born in US hospitals. This is not rocket science.”
Those who say that only a constitutional amendment can solve the “anchor
baby” problem, including the Times, are incompetent in doing their homework