Imagine this. The country is fresh from a close presidential election when the Supreme Court is asked to decide who will be president. If you are thinking about the 2000 election, think again. The expected nomination of John McCain for president could trigger a fight over a relatively obscure provision in the Constitution: the requirement that president and vice president be “natural born” citizens. McCain is certainly a citizen, but there is a legitimate question of whether he is a “natural born citizen” given his birth in the Panama Canal.

To complete this Supreme redux, former Bush counsel Ted Olson has been enlisted to develop arguments for McCain. Sen. Barack Obama and others would prefer to avoid such a sequel to Bush v. Gore. They have been quick to support a legislative fix introduced by Sen. Claire McCaskill (D., Mo.). However, such legislation unlikely to resolve the constitutional question, which will be answered on the basis of the language and purpose of Article II of the Constitution.

Section 1 of Article II of the Constitution states in part:

“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.”

Under the 12th amendment, vice presidents must also be natural born.
The requirement of being “natural born” appears to have been initially suggested by John Jay — who wrote a letter to George Washington on the requirement. In his July 25, 1787 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.

Some Framers were probably concerned with a desire among some to have a King, including some foreign princes who might rule the nation. (The theory that it was written to block Alexander Hamilton who was born in the West Indies seems apocryphal since he would have been grandfathered into eligibility at the time of the Constitution’s ratification.)

The requirement that an American be “natural born” has long been controversial, but few associated John McCain with the problem as opposed to popular “naturalized” politicians like Arnold Schwarzenegger. McCain was born in 1936 in the Panama Canal Zone while his father was stationed there as a naval officer. As objectionable as it may be, it is not clear whether a Panamanian-born citizen is a natural born citizen. The issue has simply never presented itself for judicial review because all prior presidents were born in the United States.

The only president who seemed to have a possible Article II problem was Chester A. Arthur, the 21st president. Arthur was rumored to have been born in Canada, but claimed that he was born in Vermont.

Some past contenders for the presidency would have forced the question if elected – but weren’t. 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 George Romney, who ran in 1968 despite his birth in Mexico, and former Sen. Lowell P. Weicker Jr., who was born in Paris.

The problem is that such an issue is only “ripe” for review after a general election and before the swearing in ceremony. While it is conceivable that a ballot challenge (contesting the eligibility to be on a ballot) is possible, a court could deny any pre-election lawsuit as an impermissible request for an “advisory opinion.”

Any review would turn on a difficult interpretive question. Two obvious meanings are possible. The Court could view the term as referencing a purely territorial qualification: people born within our borders. The Court could also view the meaning as encompassing a parentage meaning: covering people born to citizens regardless of the place of their birth. The latter interpretation would make natural born status as synonymous with citizenship and the colloquial term “native son.”

Interestingly, McCain and Olson each articulated different theories of why he is eligible. When confronted last week. McCain cited Goldwater and articulated a territorial argument – suggesting that a territory is U.S. soil and Panama was a territory. McCain insists that Goldwater had resolved the question, yet that is not accurate. It was never resolved because Goldwater was never elected president.
When pressed, Olson offered the parentage or native son theory. However, while there is some logical sense for such a theory, the historical sources and text do not establish such a meaning conclusively. Indeed, it does not appear to be the common law understanding of natural born at the time.

In answering this question, the court would likely look to English common law. Notably, the Parliament in the eighteenth century had to make special provisions for English citizens born in the colonies to guarantee things like inheritance rights and office holding under English law. It could be argued that these laws were necessary because it was not assumed that English parents alone or birth in a colony would qualify for the status of natural born citizens.

In 1790, Congress passed An Act to establish a uniform Rule of Naturalization, providing:

And 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: Provided, That the right of citizenship shall not descend to persons whose fathers have never been residents in the United States … .

“Considered as natural-born citizens” can be subject to debate as to its meaning. Moreover, some would claim that this bill was an effort to change the pre-existing territorial understanding of that term.

The 1904 law governing births in the Canal Zone is equally unhelpful, merely saying that children of U.S. citizens shall also be citizens. No one is suggesting that McCain is a foreigner. The question is whether he is foreign born.

Absent a constitutional amendment, the issue will remain one of constitutional construction, not legislative correction. 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. Panama was never U.S. soil. It is different in that sense from embassies or even territories. If such military installations are U.S. soil, it raises a host of even more difficult questions. For example, 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? How about U.S. ships or aircraft?
The new legislation will not likely resolve this question. If a court takes a territorial view of the requirement of being natural born, Congress cannot change that meaning through legislation –any more than it could redefine other words. Thus, it could not legislatively define the age 35 requirement to mean 25 by saying that it is the view of Congress that 25 is the new 35.

It is, of course, a good thing that members are seeking a resolution, but they will have to be cautious not to take one course that could fail in the brief window between a general election and the swearing in ceremony.

In the long run, the McCain candidacy can indeed serve to unite the nation – at least on one question. We need to amend our Constitution and allow all of our citizens to be eligible regardless of the place or status of their birth. As for McCain’s Panamanian problem, Congress is unlikely to be able to settle the question, which will remain not just one of constitutional interpretation but a close one at that.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

Roll Call: March 6, 2008