” We have had considerable discussion regarding McCain’s eligibility to serve as President under Article II, Sec. 1, Par. 4 of the Constitution and I do not intend to revisit all of it here.”
You waste enough words pushing the bogus theory but cant even state the simple, clear facts supporting MCCain’s eligibility:
1. McCain is a citizen at birth, since both his parents were US citizens. This has been the US law since its earliest days.
2. A US citizen at birth is a natural-born citizen.
3. Hence McCain is eligible.
“The Constitutional eligibility question is separate from the citizenship question.”
No its not. If McCain was a citizen at birth, he is eligible to be President.
The law is clear that he was a citizen at birth, thus the law is clear that he is eligible to be President.
“Absent an amendment of the Constitution, Congress does not have the power to tell the Supreme Court what the Constitution means.”
Nor do you have the power to ignore the plain meaning of natural-born as understood in common law and in our laws since 1790.
” It is doubtful that a birth in Panama, in the United States only under the Congressional fiction of the sovereign territory doctrine, would pass—and it appears (although again we have not confirmed) that McCain was not born in the sovereign territory in any event and thus does not qualify.”
It is irrelevent where McCain was born. Another rabbit trail. He’d have been a citizen at birth even if born in Mongolia.
” Our own view, based on the facts as I understand them, is that it is likely that if the Supreme Court is faced with this issue, it would hold McCain is not eligible to act as President. “
You continue to push a bogus theory and ignore the massive weight of countervailing evidence, to push a conclusion most lawyer sees as somewhere between arcane and absurd.
This article on Volokh Conspiracy also goes into depth and says the same thing to clearly support the plain, standard view that McCain is clearly eligible:
http://volokh.com/archives/archive_2008_02_24-2008_03_01.shtml#1204265246
” If the drafters of the Constitution had wanted to require that presidents be born in the United States, they could have done so. Instead, they invoked the then-standard idea of natural citizenship as reflecting natural allegiance to the king or the state.
Standard 18th century dictionaries and commentaries couldn’t have been clearer on this point. ...”
They quote Blackstone
“To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”
This basic English legal understanding carried over into the US and was used in the 1790 law, helpfully quoted on this thread. You are a natural born US citizen if your parents were US citizens.
“And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States”. —First Congress, Act of March 26th, 1790, 1 Stat. 103.
The logical error some fall into is one of assuming that since birthright citizenship is the *main* way to become a natural born citizen, that it is the only way. One can be a natural-born US citizen (that is a citizen upon birth without having to undergo any other process) either by blood (jus sanguinis) or by soil (jus soli).
McCain is a natural-born citizen because both his parents were citizens.
See also:
http://stubbornfacts.us/politics/2008_election/mccains_eligibility#comment-13147
“McCain is a natural-born citizen because both his parents were citizens.”
I agree with this conclusion, both because of all the English history you cite (thanks for that: I’d never seen it) and because so many Framers were part of the first Congress that enacted the 1790 statute that essentially codified this same notion.
David’s correct in the technical sense that Congress can’t just change the Constitution using a statute. Moreover, they never have directly ruled on this issue, so it’s not “settled law.” So if a case reached them, I don’t think they would pass on the case on grounds that no ruling was necessary. But I can’t conceive of any circumstances in which they could credibly decide that children born abroad of 2 American citizens were ineligible to become president.