Who cares who wins? None of them can be President anyway.

Jack Balkin has a pretty good post up at his Balkinization blog over the tempest-in-a-teapot fuss over whether John McCain is eligible to be president under Article II,Section 1 of the Constitution.

The clause in question puts the presidency of this country off limits to anyone not "a natural born Citizen." The fuss is over whether McCain, who was born in the Panama Canal Zone when his father was stationed there in the Navy, meets that definition.

Since our presidential elections lately seem to wind up in the courts, Professor Balkin's attempt to determine the "originalist" interpretation of that clause may well be replayed in the Supreme Court.

His tongue in cheek "plain reading" conclusion is that every president since Zachary Taylor has been ineligible to hold the office.

His reasoning is as follows:

Now the key issue for an original meaning originalist...is whether "at the time of adoption of this Constitution" refers only to "Citizen of the United States" or also to the antecedent clause, "a natural born Citizen. We found out that, according to accepted grammatical rules as they existed in 1787, the use of commas marking off the words "or a Citizen of the United States" means that the phrase "at the time of the adoption of this Constitution" refers to both preceding clauses, i.e., both to "natural born Citizen" and to "Citizen of the United States."

In other words, the original public meaning of the clause says that to be President you either have to have been a natural born Citizen at the time of the adoption of the Constitution, or otherwise a citizen of the United States at the time of adoption, i.e., 1789. That means that persons born after 1789 aren't eligible to be President of the United States. And that includes not only John McCain, but Hillary Clinton and Barrack Obama.

Professor Balkin doesn't stop there and by the time his is through parsing Article II, he makes a case that not even George Washington legally held the office.

An alternate conclusion is simply that our founding fathers were lousy grammarians and had a bit of trouble over the placement of commas.

Since this is one case I won't ever have to deal with, my own interpretation of Article II, Section 1 is more simplistic. "Native born" is not synonymous with born in the USA and simply means born on American territory, i.e. not "foreign" born. At the time of his birth, the Canal Zone was clearly American territory by treaty. Senator McCain has never been a citizen of any other country and thus is no more ineligible to take the oath of office than George Washington was.

Simon at Stubborn Facts does a more serious and thoughtful job of analysis here.