The controversy over whether John McCain is, in the words of Article II of the Constitution, a "natural born Citizen," and thus eligible to be President, despite having been born on a military installation in the Panama Canal Zone, has sparked all sorts of interesting commentary, and a NY Times story detailing the ambiguities of the requirement. For the record, I will say that I regard this limit as one of the worst features of our Constitution. Until it is amended, I would favor reading it so as to make eligibility for the Presidency as wide as possible. The best reading---although not necessarily the original understanding---would be to say that anybody who was a citizen at birth (whether because born in the U.S. or because born to U.S. parents overseas), should qualify as "natural born." Thus, in my view, McCain is eligible to be President.
Here I want to note a historical puzzle. It is frequently said that the "natural born Citizen" requirement was inserted in the text of the Constitution to prevent Alexander Hamilton---who was born in the West Indies---from becoming President. Some scholars note that this account is probably not true, but when they do so, they still tend to assume that Hamilton was not eligible to be President. For example, GW Law Prof Jonathan Turley says on his blog: "It is clear that the Framers considered natural born to refer to a birth on U.S. soil. Indeed, Alexander Hamilton was viewed as ineligible due to his birth in the West Indies."
Turley may well be right that Hamilton's contemporaries thought Hamilton ineligible for the Presidency. Reputable historians have said as much. But if so, Hamilton's contemporaries were surely wrong. It's true that Hamilton wasn't a "natural born Citizen," but the Constitution says that to become President one must be EITHER a "natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution . . . ." (boldface added). The boldface language was included because, at the time of the adoption of the Constitution, nobody who was old enough to be President had been born a citizen of the United States, there not having been a United States until July 4, 1776.
So, was Hamilton a Citizen of the United States in 1789, when the Constitution was adopted? Well, the Constitution contained no criteria of citizenship at that time. (Indeed, even today, it contains only partial criteria in the Fourteenth Amendment.) And by definition there were no federal statutes defining citizenship yet at the time of the Constitution's adoption. So it's not entirely clear where we look for citizenship criteria, but at the very least, it appears that State citizens were citizens of the United States. (This statement would later be called into question for African Americans when the Court said, in the Dred Scott case, that they are not citizens of the United States, even if a State treated free blacks as citizens, but that point doesn't affect the status of the white Hamilton.) And of course, in 1789, Hamilton was a citizen of New York, and thus a citizen of the United States.
We are thus left with the mystery of how, given what seems very clear constitutional language, people could have thought that Hamilton was ineligible for the Presidency.
Posted by Mike Dorf