McCain's Hole Card

"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"

-- Article II, Section 1, U.S. Constitution

It is doubtless true, as Daniel Tokaji tells the Times, that "a federal court would look for every possible way to avoid deciding the issue" of whether John McCain, having been born in the Canal Zone, really is eligible to serve as president under the U.S. Constitution.

But not for the absurd reason Lawrence Tribe gives, that Congress would never have approved legislation with a "crazy design" that "would create an irrational gap." Congress does that kind of thing rather often, as Prof. Tribe surely knows himself.

No, the real reason is that here you have one of those rare instances where the common law curtain of respectability has been torn completely away and we see revealed behind it the Wizard of Laws for what he really is: "a lawyer who knew a dead governor," in the timeless phrase of one prominent critic of the judiciary.

An honest reading of past statutes and case precedents such as Prof. Gabriel J. Chin has done might well lead to a result that would embarrass nearly everyone in the political world and outrage many who aren't. In such circumstances, it's "To hell with stare decisis and all that legal reasoning mumbo-jumbo. Just skip to the result we want."

Even so, Prof. Chin's meticulous legal research may not go to waste. There's one person on Earth who could be persuaded, with effort, to rely upon it: John McCain himself.

If, as seems more plausible with each passing week, "GOP insiders unhappy with McCain" grow ever more alarmed about his poor campaign style, organization, and finances, McCain could come under intense pressure to step aside by the time the GOP convention opens on September 1.

Of course, he'd need a graceful way to exit. Until now, poor health has been the only hole card. And that one leaves an unpleasant odor no matter how much perfumery is used.

Now, Prof. Chin has given new life to another ace up the sleeve: John McCain was born in the Canal Zone and naturalized by statute only after birth. Therefore, the Constitution and case precedents say he cannot take the presidential oath of office. All he'd have to do is click his heels and repeat, "I want to go home, I want to go home."

The major difficulty with all of this, of course, is that before anyone in the G.O.P. tries to strong-arm McCain, they would have to have someone else -- someone who'd make a better Republican candidate -- waiting in the wings. The G.O.P. doesn't seem to have anyone. The Republican primaries already decided that.

Or, did they?

Further Amplification Dept.

The Week That Should Have Ended McCain's Presidential Hopes
Max Bergman:

During this past week: McCain called the most important entitlement program in the U.S. a disgrace, his top economic adviser called the American people whiners, McCain released an economic plan that no one thought was serious, he flip flopped on Iraq, joked about the deaths of Iranian citizens, and denied making comments that he clearly made -- TWICE. All this and it is not even Friday! Yet watching and reading the mainstream press you would think McCain was having a pretty decent political week, I mean at least Jesse Jackson didn't say anything about him.

But let's unpack McCain's week in a little more detail... [more]