Does John McCain Have an Alexander Hamilton Problem? A Constitutional Challenge May Loom Over McCain’s Eligibility for President

The expected nomination of John McCain has been eagerly anticipated by constitutional scholars, not because of political support but selfless academic interest. McCain’s election would trigger review of an obscure part of the Constitution: the birth eligibility provision of Article II. The requirement that an American be “natural-born” has long been controversial, but few associated John McCain with the problem as opposed to other leaders like Arnold Schwarzenegger. McCain, however, may be a foreign born citizen given his birth in the Canal Zone.
McCain was born in 1936 in the Panama Canal Zone while his father was stationed there as a naval officer. In 1787, however, the framers insisted that any president be natural born — that is, born within the United States. It is a requirement that some of us have long criticized as counter to our tradition as a nation of immigrants. Click here.

However, absent a constitutional amendment, the question remains whether McCain can claim natural-born status. There has never been a president sworn into office who was not born in one of the fifty states. It would be a very close question that has some interesting implications for current disputes in other areas.

People like GOP Senator Lindsey Graham have rightfully noted how gross it would be to deny such eligibility to someone who was born while his parents were stationed abroad during service to the country. However, no one would debate the inequity but that is entirely irrelevant to the legal question of what constitutes a natural born citizen.

Section 1 of Article II of the Constitution states:

“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.”

The 12th Amendment to the Constitution carries over the same requirement: “[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

The standard is so clear that it has barred some deserving candidates. Others like Chester A. Arthur, the 21st president, was rumored to have been born in Canada but claimed that he was born in Vermont. Notably, McCain’s defense of his eligibility seems to differ a bit from Ted Olson’s theory. Click here.

A strong argument can be made 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. It has often been suggested that the provision was written in part to block Hamilton by his detractors — though this may be apocryphal. It seems more likely that people like Jay were concerned with a preference among some to have a King, including some foreign princes who might rule the nation. Moreover, Hamilton was a citizen of the United States at the time of the signing of the Constitution.

The phrase “natural born” was in early drafts of the Constitution and appears to have been initially suggested by John Jay — who wrote a letter to George Washington on the requirement. In his letter, Jay wrote:

Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.

The last time that we faced this question in a serious candidate was Barry Goldwater, who was technically born while Arizona was a territory in 1909. Other such questions were raised by Mitt Romney’s father who ran in 1968 despite his birth in Mexico and former Sen. Lowell P. Weicker Jr., who was born in Paris.

Absent a constitutional amendment (which has been introduced in prior years), the issue is simply one of constitutional construction. The zone was a foreign military base like Guantanamo Cuba. Ironically, the Bush Administration has been arguing for years (with Senate support) that U.S. laws and jurisdiction do not extend to Cuba in the cases of the detainees. If such bases are now treated as U.S. soil, it is unclear how that would affect this long-standing claim that it is not for purposes of civil liberties.

Military installations like Panama were sitting on leased land. They are in that sense different from embassies. The important thing to remember is that we are not talking about citizenship but what constitutes American soil for a natural born classification. Notably when illegal immigrants have a child in the United States, the child is a U.S. citizen. Does that mean that foreign citizens who give birth at United States military hospitals or installations are entitled to U.S. citizenship for the child? That would encompass quite a few people. How about U.S. ships or aircraft? Notably, most framers had a negative view of foreign entanglements and probably did not envision large military installations around the world. They most likely believe that natural born meant U.S. soil.

Ted Olson has reportedly been retained to deal with the question. It raises the specter of a repeat appearance by Olson in front of the Supreme Court on the next president. This redux of Bush v. Gore is almost too painful to imagine. Again, the Republican appointees would be asked to adopt an uncharacteristically liberal interpretation to benefit a Republican candidate for the White House. The problem is that any effort to determine this question before the general election would be viewed as speculative and a request for an advisory opinion, which is disallowed. We would have to wait for the conclusion of the general election to determine if McCain could be sworn into office or his vice president elevated to the presidency (and then select a new vice president). If you come to these things to watch the cars crash, that would be a true constitutional pile up.

For a recent story on the issue, click here.

26 thoughts on “Does John McCain Have an Alexander Hamilton Problem? A Constitutional Challenge May Loom Over McCain’s Eligibility for President

  1. As much as might like to watch the GOP doing their version of the Keystone Kops should McCain be thus disqualified, it seems to me there is SOME law which provides that Sen. McCain would be considered “natural born” by reason of his mother’s America citizenship.

  2. § 1401. Nationals and citizens of United States at birth
    How Current is 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;
    (b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
    (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;
    (d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;
    (e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
    (f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;
    (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person
    (A) honorably serving with the Armed Forces of the United States, or
    (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
    (h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

  3. From Constitution Annotated:
    Clause 5. 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.

    QUALIFICATIONS

    All Presidents since and including Martin Van Buren were born in
    the United States subsequent to the Declaration of Inde

    [[Page 434]]
    pendence. The only issue with regard to the qualifications set out in
    this clause, which appears to be susceptible of argument, is whether a
    child born abroad of American parents is “a natural born citizen” in
    the sense of the clause. Such a child is a citizen as a consequence of
    statute.\94\ Whatever the term “natural born” means, it no doubt does
    not include a person who is “naturalized.” Thus, the answer to the
    question might be seen to turn on the interpretation of the first
    sentence of the first section of the Fourteenth Amendment, providing
    that “[a]ll persons born or naturalized in the United States” are
    citizens.\95\ Significantly, however, Congress, in which a number of
    Framers sat, provided in the Naturalization act of 1790 that “the
    children of citizens of the United States, that may be born beyond the
    sea, . . . shall be considered as natural born citizens. . . .”\96\
    This phrasing followed the literal terms of British statutes, beginning
    in 1350, under which persons born abroad, whose parents were both
    British subjects, would enjoy the same rights of inheritance as those
    born in England; beginning with laws in 1709 and 1731, these statutes
    expressly provided that such persons were natural-born subjects of the
    crown.\97\ There is reason to believe, therefore, that the phrase
    includes persons who become citizens at birth by statute because of
    their status in being born abroad of American citizens.\98\ Whether the
    Supreme Court would decide the issue should it ever arise in a “case or
    controversy” as well as how it might decide it can only be speculated
    about.

    \94\8 U.S.C. Sec. 1401.
    \95\Reliance on the provision of an Amendment adopted subsequent
    to the constitutional provision being interpreted is not precluded by
    but is strongly militated against by the language in Freytag v. CIR, 501
    U.S. 868, 886-887 (1991), in which the Court declined to be bound by the
    language of the 25th Amendment in determining the meaning of “Heads of
    Departments” in the appointments clause. See also id., 917 (Justice
    Scalia concurring). If the Fourteenth Amendment is relevant and the
    language is exclusive, that is, if it describes the only means by which
    persons can become citizens, then, anyone born outside the United States
    would have to be considered naturalized in order to be a citizen, and a
    child born abroad of American parents is to be considered
    “naturalized” by being statutorily made a citizen at birth. Although
    dictum in certain cases supports this exclusive interpretation of the
    Fourteenth Amendment, United States v. Wong Kim Ark, 169 U.S. 649, 702-
    703 (1898); cf. Montana v. Kennedy, 366 U.S. 308, 312 (1961), the most
    recent case in its holding and language rejects it. Rogers v. Bellei,
    401 U.S. 815 (1971).
    \96\Act of March 26, 1790, 1 Stat. 103, 104 (emphasis supplied).
    See Weedin v. Chin Bow, 274 U.S. 657, 661-666 (1927); United States v.
    Wong Kim Ark, 169 U.S. 649, 672-675 (1898). With minor variations, this
    language remained law in subsequent reenactments until an 1802 Act,
    which omitted the italicized words for reasons not discernable. See Act
    of Feb. 10, 1855, 10 Stat. 604 (enacting same provision, for offspring
    of American-citizen fathers, but omitting the italicized phrase).
    \97\25 Edw. 3, Stat. 2 (1350); 7 Anne, ch. 5, Sec. 3 (1709); 4
    Geo. 2, ch. 21 (1731).
    \98\See, e.g., Gordon,Who Can Be President of the United States:
    The Unresolved Enigma, 28 Md. L. Rev. 1 (1968).
    —————————————————————————

  4. Well, now Romney’s *suspension* instead of *withdrawl* makes sense.
    Not to worry dear republicans. They have your bases covered. They have Romney in the wings on one side, and Obama ready to win on the other. These are not stupid people with ill thought plans. They have played the people like a fiddle. Romney and Obama have the same 2012 playbook. Welcome to the truth.

  5. Why wrote:

    “They have played the people like a fiddle. Romney and Obama have the same 2012 playbook. Welcome to the truth.”

    I’m sure it’s my own mental density, but missing your point here, Why.

  6. Shaking my head here, guys. Just another example of Bush et al wanting it both ways – depending on the purpose. May as well get a coin and call it in the air – heads or tails.

    Best out of three?

  7. It is clear that the Framers considered natural born to refer to a birth on U.S. soil.

    “Clear” based on what? For all the hand-waving, I have yet to see anyone present a shred of evidence to back that assertion up. The original Constitution guaranteed citizenship to no one, so if “natural-born citizen” meant constitutionally guaranteed citizenship by birth, there were no “natural born” citizens at all until 1868, and every President from Tyler through Johnson was illegitimate. On the other hand, if “natural-born citizen” meant anyone who is a citizen by birth according to statute, those statutes have been in place for almost as long as we’ve had a Constitution.

    Indeed, Alexander Hamilton was viewed as ineligible due to his birth in the West Indies.

    “Was viewed” by whom?! Surely not by anyone who read the Constitution itself. As you noted, he was a citizen at ratification, so even if he was not considered a natural born citizen, he was clearly eligible for the Presidency, anyway.

  8. The McCain legal problem I find more interesting, because of its intricacies and that it just reflects so badly on McCain, is the whole FEC and campaign loans mess, particularly as it relates to the Ohio ballot, described here.

  9. Just checking the Daily Digest, and saw that this was introduced in The Senate yesterday:

    By Mrs. MCCASKILL:

    S. 2678. A bill to clarify the law and ensure that children born to United States citizens while serving overseas in the military are eligible to become President; to the Committee on the Judiciary.

    So it’s not an amendment that’s needed… just a “clarification?”

    Uh huh….

  10. If all that mattered to our Founding Fathers was for presidents to be born in the US, then they would have used the term native born citizen, which means “of a specified place by birth”. But they did not. They used instead the more restrictive term natural born citizen, which means born in the US to US citizen parents. This definition comes from Vattel in his 1758 legal treatise The Law Of Nations: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” This definition makes McCain (not born in the US), Obama (one parent not a US citizen), and Jindal (both parents not US citizens at time of birth) all not natural born citizens.

  11. If the founders had intended to limit the Presidency only to children born on U.S. soil, that is, the states and territories, then they could have said “native born citizen” or “born in the land of the United States.”

    Instead, they chose native born citizen. Blackstone had said that native born subjects included everyone born in the realm, even if their parents were not subjects, and those born outside the realm to British subjects. The framers changed subject to citizen, since there was no longer any King to be subject to.

    The framers also took Hamilton’s draft, and limited the Presidency to a person who would “hereafter be born a citizen of the United States” A citizen from birth, by reason of birth, and by virtue of his birth, like McCain, is a natural born citizen, born to American citizen overseas, even if he were not a “native born” citizen, born on US soil. (And McCain was born on US soil in the Canal Zone, according to Olson and Tribe).

    The framers wanted to be sure that they could include children born beyond the seas to US citizen parents under the term natural born citizen. Many of the same framers, sitting in the First Congress, did just that when they passed a law treating children born beyond the seas as natural born if their parents were citizens. Washington, who also signed the Constitution, signed that law. There is federal court authority giving weight to the views of the framers in the First Congress. Also, take a look at Lincoln’s Cooper Union speech in 1860 for intent of the framers.

    They wanted to be sure that the child born to the American ambassador in London was not a British subject, and did not have to be naturalized.

    The only persons excluded by natural born citizen are naturalized citizens.

    Vattel? Looks like his stuff about natural born had not even been translated into English yet in 1789. And he was Swiss, and talked about European Code systems of law, not the common law.

    They took Hamilton’s draft, and said the Presidency could be held by any person who would “hereafter be born a citizen of the United States”

    This is made clear by looking at his entire suggested draft: The full clause was: “No person shall be eligible to the office of President of the United States unless he be now a citizen of one of the States, or hereafter be born a citizen of the United States”

  12. Instead, they chose native born citizen.

    Hey VT, I know you meant to write they chose ‘natural born’ citizen…

    A teeny difference in wording, but a big difference in meaning, as you can attest.

  13. you claim to have a great legal mind and you don’t even know the legal meaning of natural born citizen.. Read the article by Democrat Alexander Porter Morse from 1904.. OBAMA WAS BORN BRITISH BECAUSE HIS KENYAN FATHER HAD BRITISH CITIZENSHIP, but I’m sure you know this.

    So consequently you must be a NWO commie propagandist.. well actually you are probably a star member of the journolist. You have no soul.. You are a traitor to the Constitution.

  14. You fools it is Obama Jr who is ineligible without a doubt if born of visitor to the U.S. B Obama Sr
    McCain might stand a chance under the “in the armies of the people” clause Vattel

    b.o. jr absolutely was born owing allegiance to a foreign sovereign

  15. P. Barnett’s and Tom’s incoherent posts have been answered here over and over. Omama was born in the US, was subject to its jurisdiction at the time, and therefore is a citizen by birth.

    RTFM. See 14th Amenment to the Constitution. The Supreme Court in Wonk Kim Ark said that a person born to non-citizens in the US is just as much a citizen as the child of natural born citizens.

    Vattel did not write the Constitution, nor did he ratify it, since he was dead at the time, and his term “naturels” was not even translated into English as “natural born citizen” until 10 years after the Constitution was drafted.

    Puerile name calling, like “commie,” “traitor,” and “fools,” are the calling cards of the birthers.

  16. Is everybody retarded? The definition of natural born citizen is anyone who is an American Citizen at birth regardless of where they were born. John McCain was born in Panama, since his parents were American citizens he was given American citizenship at birth.

    Natural born citizens are born overseas all the time.

Comments are closed.