***Why John McCain is INELIGIBLE to be President of the United*** This is BIG people

THE PANAMANCHURIAN CANDIDATE:

by my friend: Tannim

Why John McCain is INELIGIBLE to be President of the United

States

Introduction

The question has been raised of citizenship on John McCain in

terms of his eligibility to be President. Please follow this closely as

it is lengthy, bit it shows that he is NOT eligible to be President.

To properly answer this eligibility question, we need to examine

what the Constitution says on the issue, what the federal law says

on the issue, what the federal regulatory policy is on the issue, and

the legal status of John McCain’s place of birth. All of this will

determine what makes him eligible to be President, or not.

The Constitution:

Article II, Section 1, Clause 5 of the Constitution:

No person except a natural born Citizen, or a Citizen of the United

States, at the time of the Adoption of this Constitution, shall be

eligible to the Office of President; neither shall any Person be

eligible to that Office who shall not have attained to the Age of

thirty-five Years, and been fourteen Years a Resident within the

United States.

Amendment 14, Section 1, Clause 1 of the Constitution:

All persons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and of the

State wherein they reside.

From Article II, it’s clear that to be President one must be a

“natural born” citizen.

From the 14th Amendment, a US citizen is a person either born or

naturalized in the United States (not both as they are mutually

exclusive, more on that below). There is no third type of

citizenship.

To be complete, first we must answer the question of whether or

not John McCain is in fact a citizen. The answer and its references

also help answer the natural born question as well.

In legal circles the Latin terms of reference are jus soli (“right of the

soil”) for born in the United States, and jus sanguinis (“right of

blood”) for born to citizen parents. Naturalization is referred to by

lex soli (“law of the soil”). John McCain was born in the Panama

Canal Zone in 1936 to American parents, so jus sanguinis

definitely applies to him, and is not in dispute here. But jus

sanguinis has no basis in US law (only jus soli and lex soli do)

except through applying legislation such as INA below (see the

next section), so it falls under lex soli. And therein is the question:

Is a citizen born in the Panama Canal Zone in 1936 a citizen under

jus soli or lex soli (born or naturalized)?

The Untied States Code:

A quick look at 8 USC 1400 appears to answers the question.

That section of the United States Code comes directly from the

Immigration and Naturalization Act (INA) of 1952, which was

passed when McCain was 16 years old. First, we must answer the

citizenship question.

If you look at 8 USC 1401(a) and (c), you find this:

The following shall be nationals and citizens of the United States at

birth:

(a) a person born in the United States, and subject to the

jurisdiction thereof;”

(c) a person born outside of the United States and its outlying

possessions of parents both of whom are citizens of the United

States and one of whom has had a residence in the United States

or one of its outlying possessions, prior to the birth of such person;

If you look at 8 USC 1403(a), it addressed McCain’s situation

rather clearly:

(a) Any person born in the Canal Zone on or after February 26,

1904, and whether before or after the effective date of this

chapter, whose father or mother or both at the time of the birth of

such person was or is a citizen of the United States, is declared to

be a citizen of the United States.

So it’s pretty clear that John McCain is a citizen.

But is he a natural born (jus soli) citizen or a naturalized (lex soli)

citizen? This is where it gets tricky.

Because 8 USC 1403(a) uses the term “is declared to be a citizen”

(emphasis added), that leans heavily towards a lex soli position

(naturalization). And persons born to citizens between November

1903 (when Panama became independent from Colombia with

U.S. intervention) and February 1904 are not declared citizens

under this section, which indicates that the declaration of citizenship

is simply naturalization and not by birth since it is dependent on the

law and a calendar date.

Furthermore, naturalization is defined in 8 USC 1101(a)(23):

(a) As used in this chapter—
(23) The term “naturalization” means the conferring of nationality of

a state upon a person after birth, by any means whatsoever.

In other words, naturalization means a person is made, conferred,

or “declared” a citizen after birth, leaving “natural born” to only

mean becoming a citizen at birth. This is consistent with 8 USC

1403(a), which was enacted when John McCain was 16 years

old. So at 16 years old John McCain was naturalized as a citizen

by legislation, that legislation being the INA.

But is there anything more concrete than that? The Supreme Court

has never addressed the specifics of a natural born citizen, except

once in passing, in the dissent of the infamous Dred Scott case, of

all places, so it really has no bearing. Other cases have looked at

citizenship, but not specifically the natural born part of it.

Historically, the term “natural born” was put in Article II at the

request of John Jay (who later helped write the Federalist Papers,

became the first Chief Justice of the Supreme Court, and pointed

out in 1796 that jury nullification is a right and duty of the people)

to George Washington in a letter from 25 July 1787.

McCain has claimed that the Naturalization Act of 1790 (26

March 1790) covers his status as a natural born citizen. That is not

true. A close look at the Act indicates that it only covers

“admission as a citizen” (meaning naturalization), and that Act was

repealed in part 29 January 1795 and again in total 14 April 1802.

So that argument does not work because it was repealed and

because it creates naturalization instead of natural born citizenship.

Federal Policy:

It turns out there actually is something more concrete than just the

USC mentioned above, and that is the regulations put forth by the

State Department on citizenship. Specifically, 7 FAM 1100

addresses the situation quite clearly:

7 FAM 1111.2 Citizenship
(TL:CON-64; 11-30-95)
a. U.S. citizenship may be acquired either at birth or through

naturalization.
b. U.S. laws governing the acquisition of citizenship at birth

embody two legal principles:
(1) Jus soli (the law of the soil), a rule of common law under which

the place of a person’s birth determines citizenship. In addition to

common law, this principle is embodied in the 14th Amendment to

the U.S. Constitution and the various U.S. citizenship and

nationality statutes.
(2) Jus sanguinis (the law of the bloodline), a concept of Roman or

civil law under which a person’s citizenship is determined by the

citizenship of one or both parents. This rule, frequently called

“citizenship by descent” or “derivative citizenship”, is not embodied

in the U.S. Constitution, but such citizenship is granted through

statute. As laws have changed, the requirements for conferring and

retaining derivative citizenship have also changed.

7 FAM 1116.1-4 Not Included in the Meaning of "In the United

States"
(TL:CON-64; 11-30-95)
c. Despite widespread popular belief, U.S. military installations

abroad and U.S. diplomatic or consular facilities are not part of the

United States within the meaning of the 14th Amendment. A child

born on the premises of such a facility is not subject to the

jurisdiction of the United States and does not acquire U.S.

citizenship by reason of birth.

So citizenship is either by birth or naturalization, according to 7

FAM 1111.2(a) here and noted above. Furthermore, the principle

of jus sanguinis is NOT part of the law, except by statute (lex soli)

according to 7 FAM 1111.2(b)(2) here and also noted above.

The regulation at 7 FAM 1116.1-4(c) puts forth the idea of a birth

in a military installation aboard as not part of the United States

under the 14th Amendment, and therefore children born there must

be naturalized in order to be considered citizens.

For 7 FAM 1116.1-4(c) to apply to John McCain, then, it must

be shown that the Canal Zone was not “in the United States”.

That brings us back to 8 USC 1101(a)(38):

(38) The term “United States”, except as otherwise specifically

herein provided, when used in a geographical sense, means the

continental United States, Alaska, Hawaii, Puerto Rico, Guam,

and the Virgin Islands of the United States.

Note the Canal Zone is not listed. However, since the Canal Zone

is no longer under United States control as of January 1, 2000, this

is only an indicator and not conclusive.

To get a better understanding of the status of the Canal Zone, we

look at the relevant treaties. The first one is the Hay-Bunau Varilla

Treaty of 1903, which established the Canal Zone for the actual

building of the Panama Canal. The second one is Torrijos-Carter

Treaty of 1977, which transitioned the Canal Zone control back to

Panama by December 31, 1999.

Who Owned The Canal Zone?

Was the Canal Zone actually a territory under United States law,

or was it just a leased area?

To answer that question, we look at the original Hay-Bunau Varilla

Treaty of 1903, negotiated by Theodore Roosevelt and his

Secretary of State John Hay.

Of note are both Article II and Article III:

Article II

The Republic of Panama grants to the United States in perpetuity,

the use, occupation and control of a zone of land and land under

water for the construction, maintenance, operation, sanitation and

protection of said Canal of the width of ten miles extending to the

distance of five miles on each side of the center line of the route of

the Canal to be constructed; the said zone beginning in the

Caribbean Sea three marine miles from mean low water mark and

extending to and across the Isthmus of Panama into the Pacific

Ocean to a distance of three marine miles from mean low water

mark with the proviso that the cities of Panama and Colon and the

harbors adjacent to said cities, which are included within the

boundaries of the zone above described, shall not be included

within this grant. The Republic of Panama further grants to the

United States in perpetuity, the use, occupation and control of any

other lands and waters outside of the zone above described which

may be necessary and convenient for the construction,

maintenance, operation, sanitation and protection of the said Canal

or of any auxiliary canals or other works necessary and convenient

for the construction, maintenance, operation, sanitation and

protection of the said enterprise.

The Republic of Panama further grants in like manner to the United

States in perpetuity, all islands within the limits of the zone above

described and in addition thereto, the group of small islands in the

Bay of Panama, named Perico, Naos, Culebra and Flamenco.

Article III

The Republic of Panama grants to the United States all the rights,

power and authority within the zone mentioned and described in

Article II of this agreement, and within the limits of all auxiliary

lands and waters mentioned and described in said Article II which

the United States would possess and exercise, if it were the

sovereign of the territory within which said lands and waters are

located to the entire exclusion of the exercise by the Republic of

Panama of any such sovereign rights, power or authority.

Note that Article II Panama grants the United States “the use,

occupation and control of a zone of land and land under water” for

the Canal. It does NOT say it cedes that land to the United States,

not does it say that Panama grants ownership of the land to the

United States, just use and control of it. This is a lease, not a

transfer of real estate, and therefore Panama still owned the land.

Article III is exactly the same in nature, but it applies to auxiliary

areas if Panama owns them. Read the sovereign clause carefully as

the “it” in there refers to Panama, not the United States.

Also of note is the resource use grant in Article IV:

Article IV

As rights subsidiary to the above grants the Republic of Panama

grants in perpetuity, to the United States the right to use the rivers,

streams, lakes and other bodies of water within its limits for

navigation, the supply of water or waterpower or other purposes,

so far as the use of said rivers, streams, lakes and bodies of water

and the waters thereof may be necessary and convenient for the

construction, maintenance, operation, sanitation and protection of

the said Canal.

In other words, the landowner (Panama) granted water rights to

the lessee (United States).

Further, note the payment schedule in Article XIV:

Article XIV

As the price or compensation for the rights, powers and privileges

granted in this convention by the Republic of Panama to the United

States, the Government of the United States agrees to pay to the

Republic of Panama the sum of ten million dollars ($10,000,000)

in gold coin of the United States on the exchange of the ratification

of this convention and also an annual payment during the life of this

convention of two hundred and fifty thousand dollars ($250,000)

in like gold coin, beginning nine years after the date aforesaid.

Notice it never says these payments are compensation for the land,

just the “rights, powers, and privileges” to use it. This is RENT.

One last part adds to the lease argument, Article XXV:

Article XXV

For the better performance of the engagements of this convention

and to the end of the efficient protection of the Canal and the

preservation of its neutrality, the Government of the Republic of

Panama will sell or lease to the United States lands adequate and

necessary for the naval or coaling stations on the Pacific coast and

on the western Caribbean coast of the Republic at certain points to

be agreed upon with the President of the United States.

If the United States owned the Canal Zone land, thereby making it

a United States territory, then this clause would not be necessary

as they could build such stations within the zone, and this clause

would not have been necessary.

It’s pretty clear from the original treaty the Canal Zone was

actually Panamanian land leased to the United States.

The Torrijos-Carter Treaty of 1977 further backs this up:

Article I

2. In accordance with the terms of this Treaty and related

agreements, the Republic of Panama, as territorial sovereign,

grants to the United States of America, for the duration of this

Treaty, the rights necessary to regulate the transit of ships through

the Panama Canal, and to manage, operate, maintain, improve,

protect and defend the Canal. The Republic of Panama guarantees

to the United States of America the peaceful use of the land and

water areas which it has been granted the rights to use for such

purposes pursuant to this Treaty and related agreements.

Note this treaty declares Panama as the territorial sovereign,

meaning they own the land and water, and they grant to the United

States use of the land and water.

It is conclusive that the Panama Canal Zone was Panamanian

sovereign land administered and operated under treaty by the

United States, and that popular belief that the Canal Zone was a

United States territory is mistaken. This also is consistent with the

State Department regulations in 7 FAM 1100 and 8 USC 1403(a)

cited above.

Since the Canal Zone was not “in the United States” with respect

to the 14th Amendment, it must follow that the only place it can be

is outside the United States. John McCain was born outside the

United States in the Canal Zone, and as we have already seen,

was covered under 8 USC 1403(a).

If you look again at 8 USC 1401(c) and 1403(a), you see a big

difference. 8 USC 1401(c) address births outside the U.S.,

meaning clearly that the “born in the United States” clause of the

14th Amendment cannot apply to this form of citizenship.

Therefore a person that falls under 8 USC 1401(c) has to be a

naturalized citizen. 8 USC 1403(a) already “declares” citizenship

and implies naturalization. The only logical conclusion is that the

Canal Zone was considered to be outside the United States, else

these sections (8 USC 1401(c) and 8 USC 1403(a)) never

needed to be codified into law in the first place, and 8 USC

1401(a) would apply instead (see above).

Conclusion

That leads us all back to the Constitutional requirements. The

citizenship definitions of both Article II and Amendment 14 apply

in terms of McCain running for President.

So, tying it all together so far:

1. The 14th Amendment and matching regulations limit citizenship

to natural born and naturalized.
2. John McCain was born in the Canal Zone to citizen parents.
3. 8 USC 1403(a) declares naturalized citizenship on persons born

in the Canal Zone to citizen parents.
4. Therefore 8 USC 1403(a) applies to John McCain.
5. Therefore John McCain is a naturalized citizen.
6. The Canal Zone was not part of the United States.
7. Therefore John McCain was not born in the United States.
8. Therefore John McCain is a citizen not born in the United

States.
9. Therefore John McCain is not a natural born citizen.
10. Article II of the Constitution states to be President a person

must be a natural born citizen.
11. THEREFORE John McCain is not eligible to be President of

the United States under Article II of the Constitution.

Sources:
• Latin terms from Black’s Law Dictionary.
• State Department Regulations
• United States Code from Findlaw.
• Hay-Bunau Varilla Treaty of 1903
• Torrijos-Carter Treaty of 1977

February 14, 2008