I know others have written about this, but...
Article II, Section I, Clause 5 of the Constitution does state: “No Person except a natural born Citizen, or a Citizen of the United States, at the same 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.”
John McCain was born in 1936 to American parents stationed at the Coco Solo air Base, an American base in the Panama Canal Zone. Wikipedia calls it an "air" base in one place and a "submarine" base in another place. Was it a navy air base? At any rate, the base was inside of the Panama Canal Zone. As best as I can understand the Panama Canal Zone was never considered to be American soil, and was always a kind of rented property in the nation of Panama itself run by the Panama Canal Company.
So, McCain was born on an American military base in the Panama Canal Zone. Has there ever been a court decision or legislative act that says directly that American military bases are American soil as pertains to matters or citizenship? Yes, children born to American parents on a US military base are citizens, but that is only one part of the total picture. Are children of non citizens born on military bases considered citizens? If a pregnant person who is a citizen of another country were to be visiting a friend on an American military base, and if she were to go into emergency labor, and have a child on the base, would that child be an American citizen? If not then American bases are not the same as American soil as pertains to citizenship.
But citizenship per se is not the question here.
The Naturalization Act of 1790 addresses the question of who exactly is a citizen. Unfortunately the act rules includes racial restrictions, restrictions which have finally been eliminated over time. But the part of that act germane to the question of John McCain is the part that involves citizenship for Americans born "abroad." As the Act states, "the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens." This Act was replaced by The Naturalization Act of 1795, but the provision quoted above was not changed, including the phrase "natural born citizen." The Act determined that children of Americans born abroad were Americans, but this not necessarily make them eligible to be president.
The Fourteenth Amendment also has language regarding citizenship, but does not speak directly to John McCain's situation. It says, "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."
There have been a couple of court cases which touch on the issue tangentially, but never one which has addressed the matter directly. It seems that according to the wording of the Article II, Section I, Clause 5 of the Constitution that John McCain may not be eligible. An "Act" such as the Naturalization Act of 1790 does not carry the authority of a constitutional amendment, does it? I am not a lawyer obviously.
Mitt Romney's father George Romney, who ran for the Republican nomination for President in 1968 (losing to Richard Nixon) was born in Mexico. I am not aware of his eligibility having been challenged.
So, it seems to me that John McCain's status is questionable. I don't think it should be, but I think that it is. I wonder if anyone has a plan to go to court over his eligibility if he wins the nomination? It would be scummy thing to do but who knows?
This interests and concerns me because I was highly involved in the candidacy of Charles "Pug" Ravenel for Governor of SC in 1974. He won the Democratic nomination only to be ruled ineligible later by the state supreme court by virtue of not meeting a residency requirement. Though he had lived out of state he had kept property in SC and considered it his home state. It was his Democratic opponents that did him in. The Democratic Party did not recover and the Republican candidate won the nomination.
Despite the wording of the Naturalization Act of 1790, it seems to me that the non amended wording of the Constitution itself could be a problem for McCain. Is someone out there just waiting to pull this card, either before or after the nomination?
I would like to see us amend this part of our constitution, maybe as suggested by Orin Hatch in 2003:
SECTION 1. A person who is a citizen of the United States, who has been for 20 years a citizen of the United States, and who is otherwise eligible to the Office of President, is not ineligible to that Office by reason of not being a native born citizen of the United States.
SECTION 2. This article shall not take effect unless it has been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States not later than 7 years from the date of its submission to the States by the Congress (CITE).
Hatch’s proposal never got any traction but it seems worthy of consideration to me.
For the record, though I am not a big John McCain fan, I think that if he isn't eligible to be president no one should be. But there is that pesky constitution...