There should be universal agreement that the question of McCain’s eligibility for president shows a grossly unfair and unnecessary limitation within Article II. McCain was born in 1936 in the Panama Canal Zone while his father was stationed there as a naval officer. In 1787, however, the framers insisted that any president be natural born — that is, born within the United States.
The language here goes to citizenship not the status of being natural born. This is precisely part of the confusion over the current debate. No one is suggesting that McCain is a foreigner. The question is whether he is foreign born.
Military installations like Panama were sitting on leased land. They are in that sense different from embassies. The important thing to remember is that we are not talking about citizenship but what constitutes American soil for a natural born classification. Notably when illegal immigrants have a child in the United States, the child is a U.S. citizen. Does that mean that foreign citizens who give birth at United States military hospitals or installations are entitled to U.S. citizenship for the child? That would encompass quite a few people. They most likely believe that natural born meant U.S. soil.
Ted Olson has reportedly been retained to deal with the question, though McCain balked at his staff calling in Olson (clearly concerned that it would give credence to the challenge). Notably, Olson’s argument is different from McCain’s territory claim. Olson bases his current position on a view that anyone born of U.S. parents is “natural born.” He is probably right that McCain would be the likely winner in such a challenge, though the rationale remains under clear. Under this theory, as opposed to McCain’s stated theory, it does not matter where you are born. The distinction would be between natural and naturalized citizens.
McCain, however, may be a foreign born citizen given his birth in the Canal Zone. Due to the bar on advisory opinions, this issue might not be ripe for review until after the general election, triggering another Bush v. Gore moment in the high court.
The zone was a foreign military base like Guantanamo Cuba. Ironically, the Bush Administration has been arguing for years (with Senate support) that U.S. laws and jurisdiction do not extend to Cuba in the cases of the detainees. If such bases are now treated as U.S. soil, it is unclear how that would affect this long-standing claim that it is not for purposes of civil liberties.