McCain’s Constitutional Eligibility (Part Two)

The debate over this eligibility question for John McCain rages among some for now, but if it were a cut and dry answer regarding the “natural born” citizen issue, no one would be discussing it. Just simply because of the fact that it is being discussed means that some ruling body, either Congress itself or the Supreme Court, needs at some point to clarify this.


Matthew J. Franck who writes for National Review Online did some excellent research and analysis on this. In the case of determining naturalization status, this responsibility falls on Congress and therefore may fall on them to clarify their own laws of naturalization. It is rather hard to believe that children born to military members while serving overseas would not be eligible for the office of the presidency.


However, some of the initial confusion on this topic arises from a Supreme Court decision in 1898. Justice Horace Gray wrote that the Constitution:


contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.


Gray’s error is stating that only location of birth is relevant and effectively ruling out that parentage is relevant. This question seems to be the only one that Justice Gray failed to address in his decision in US vs. Wong Kim Ark (1898).


In my last analysis of this, I suggested that or the Democratic party may bring a Constitutional argument/suit against McCain’s run for the Presidency on these grounds, but there may not be any group that has any sort of legal standing to raise this kind of question.


Franck finished his analysis by stating:


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.


While I have no doubt that McCain would emerge victorious should this question go before Congress or the Supreme Court, just the mere question among the public of having a Constitutionally illegitimate president could severely degrade the morale in the McCain campaign and cause irreparable damage.


Read all of Matthew J. Franck’s analysis here and here.


2 Responses

  1. FOI request for Obama’s birth certificate –found on the internet at all 50 SOS emails-1 stop emailing!

    We need to find out what the SOS of the various States know about Obama’s birth certificate and qualifications to be president. If you have time, please send/fax/email the following FOI (freedom of information letter) to some or all of the SOS bureau of elections. After you get a response please post on,,,,
    1. The address , fax number and email address for the Bureau of elections for the states are at
    2. I like the faxes because they will respond quicker to them. Print off your generic FOI request and past/tape the next name over the top and fax it off. See emails listed below for all 50 SOS.Cut and paste to send all 50 at one time. Sit back and wait for answers.

    November 21, 2008
    Bureau of Elections, California
    1500 11th St, 5th Floor FAX: 916-653-5634
    Sacramento, CA 95814 Email:

    ATTN: Freedom of Information Officer
    REF: Freedom of Information Act Request/Privacy Act/ Open Meeting Act, Common Law
    This is a request under the Freedom of Information Act. Please send the following documents for examining and photocopying:
    1. Documents that show that Barack Obama is qualified to be President of the United States , including but not limited to:
    a. Original birth certificate
    b. Proof that he is a natural born United States citizen
    c. Proof that he was born in Kenya
    AS you know , the FOIA provides that if a portions of a document are exempt from release, the remainder must be segregated and disclosed. Therefore, I would like to examine all nonexempt portions of the records that I requested and I ask that you justify and deletions by citing specific exemptions of the FOIA
    This is a continuing request into the future for 6 months.
    If this is not the proper department, please forward to the Election Bureau/SOS.
    I promise to pay reasonable search and duplication fees in connection with this request. (Note: The FOIA permit some fee reduction or waivers).
    Please notify me if the charges will exceed ($20.00), so that I can decide whether to authorize a higher amount.
    Thank you for your assistance, I look forward to receiving your reply within five business days, as required by law.

    Robert Johnson
    123 Main St
    Anywhere , CA

    Cc: Clerk of the US Supreme Court
    One First Street N.E.
    Washington, DC 20543
    FAX: (209) 479-3021

    Should any person try to cover up this request or documents herein, BE YOU HEREBY PUT ON NOTICE: You may be indicted under USC Title 18 Sec. 3. 4, 2381, 2382, 2383, and 2384. Also, 4 U.S.C. & 101, federal law requires all state employees and officers take an oath of office and records kept of such administered oath.,,,,,, , , ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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