McCain’s Constitutional Dilemma: Native Son But Not Natural Born?

John McCain’s possible election could trigger review under 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. Due to the bar on advisory opinions, this issue might not be ripe for review until after the general election, triggering another Bush v. Gore moment in the high court. Ted Olson has even been retained for the possible fight to complete the scene for a Supreme redux.

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.

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.

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 assumption would likely be that the Framers intended to carry on the English view of natural born status. However, teh Parliament during this period had to make special provisions for English citizens born in the colonies to guarantee things like inheritance rights under English law. A series of laws grafted on rights for foreign born citizens to hold office and inherit. 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.

Notably, in 1790, Congress felt it was necessary to pass a law that defined naturalized citizens. The First Congress passed An Act to establish an 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. It is also debatable whether this bill was needed to change the pre-existing territorial understanding of that term.

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.

Various people have argued that this is a non-issue due to section 1408. However, this statute does little in my view to answer the question.

§ 1403. Persons born in the Canal Zone or Republic of Panama on or after February 26, 1904

(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.
(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.

The language here goes to citizenship not the status of being natural born. This is precisely part of the confusion over the current debate. No one is suggesting that McCain is a foreigner. The question is whether he is foreign born.

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.

John McCain said today that he believes that the question was resolved 44 years ago in the controversy over Barry Goldwater. Click here However, that issue was never ripe for review since Goldwater lost the election.

Ted Olson has reportedly been retained to deal with the question, though McCain balked at his staff calling in Olson (clearly concerned that it would give credence to the challenge). Notably, Olson’s argument is different from McCain’s territory claim. Olson bases his current position on a view that anyone born of U.S. parents is “natural born.” Click here. He is probably right that McCain would be the likely winner in such a challenge, though the rationale remains under clear. Under this theory, as opposed to McCain’s stated theory, it does not matter where you are born. The distinction would be between natural and naturalized citizens.

The possibility of a fight on the issue 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.

17 thoughts on “McCain’s Constitutional Dilemma: Native Son But Not Natural Born?”

  1. The eligibility issue notwithstanding, I wouldn’t elect the man for President anyway. Anyone who shows himself to be such a war-monger as I believe he has isn’t going to get MY vote.

  2. “Bob Esq., I doubt you are even a lawyer!”

    Simply because I ran away to law school after college because the circus wasn’t in town, it does not follow that I’m not a lawyer.

    “Nobody knows more about Constitution law than JT. So, don’t come in here and behave like you own the place-you don’t.”

    Gee, you don’t suppose my visits here and citing of Prof. Turley’s work has anything to do with me holding his keen juristic acumen in such high esteem; do ya?

    And the only thing I claim to own, inalienably, out here on the perimeter of cyberspace, is myself: “Though the earth, and all inferior creatures, be common to all …, yet every [one] has a property in his own person: this no body has any right to but himself.” — J. Locke

    Look ma; no penumbras!

    “You have to come through me, DW, and a few others here first.
    So there’s that…”

    Sounds like a ‘feudal’ effort to me.

    “If you have something to say, say it. Ask your question – IF you are unsure.”

    So, when I refer to Antonin Scalia as “Lord Scalia” or “His Lordship,” you’d know that I was being sarcastic rather than including him within your feudal system; right?

    Hey, I had to ask.

    Regards,

    Bob

  3. JR, I stand by my prediction the group of five will see to it that McCain is sworn in if elected, but agree with your take on the route to the Court. If McCain is elected and the lower courts dismiss any challenges, then the Court will simlply deny cert, deferring to the electoral college. BUT IF a rogue lower court should somehow disqualify McCain after he was duly elected, or try to toss him off the ballot, THEN the Court will swoop in at warp speed like a lightning bolt and reinstate him in a nanosecond.

  4. Bob:

    You will receive visits from three spectres of blogs past, present, and future tonight. Good luck and God’s speed.

  5. JonathanTurley:
    As you can see, Bob, there are informal eligibility requirements enforced the denizens of this site. You must earn your bones with DW, Patty C and others, but don’t give up. It is much like the Gambino clan, just do a guy and gain respect.
    ****************

    Uh-oh. Now I’m wondering what eligibility requirements I might have missed, which assignments I inadvertently failed to complete. JT, can you or one of the Council members let me know what, if anything, I neglected? Many thanks. 🙂

  6. As you can see, Bob, there are informal eligibility requirements enforced the denizens of this site. You must earn your bones with DW, Patty C and others, but don’t give up. It is much like the Gambino clan, just do a guy and gain respect.

  7. Bob Esq., I doubt you are even a lawyer! Nobody knows more about Constitution law than JT. So, don’t come in here and behave like
    you own the place-you don’t.

    You have to come through me, DW, and a few others here first.
    So there’s that…

    If you have something to say, say it. Ask your question – IF you are unsure.

    Otherwise, I’m not interested.

  8. Bush v. Gore revisited:

    1. Bush v. Gore was not justiciable (See Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 NOTRE DAME L. REV. 1093 (2001)

    2. Justiciability issues are [subject matter] jurisdictional in nature and must be raised by the court even if the parties do not. (See Warth v. Seldin)

    3. ***Objections for lack of subject matter jurisdiction are NEVER waived.

    4. Axiom: No branch of the Federal Government, individually or jointly, has the power to amend the constitution; since ““In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.” See REID v. COVERT, 354 U.S. 1 (1957)

    Perhaps before analyzing the subtleties of John McCain’s citizenship we should take a close look at Amendments 12, 20, 22 & 25 and ask what happened on March 4, 2001.

    Hint: As of 12:01 pm, January 20, 2001, Clinton lacked the ‘capacity’ to remain in office as President of the United States.

    Regards,

    Bob

  9. I’d like to think that the Justices wouldn’t willingly overturn the results of an election that wasn’t in dispute, but after 2000 I just can’t believe that anymore.

    On the plus side, though, if SCOTUS does indeed set the precedent of a liberal interpretation of the “natural-born” clause to favor McCain, then at least we’ll have a clear precedent on the subject. And I think it’s unlikely that the Court would so eagerly interject itself into a disputed election again (I’m starting to get the feeling that Roberts is actually interested in preserving the Court’s reputation and that Kennedy wouldn’t want to handle this hot potato again, so perhaps only Thomas, Scalia and Alito would grant cert), so if McCain unquestioningly wins the vote and a challenge is raised, and it reaches SCOTUS, the Justices will likely defer to the electorate and/or the legislature on the matter.

    Or I could be completely wrong, and we’d have the Court, for the first time, invalidating the results of an election wholesale and ruling a victorious nominee is ineligible to serve–but I just don’t see that happening.

  10. Mark:

    I offer some additional views on the territorial verses parentage distinctions in today’s blog entry on the McCain issue.

  11. Well, we could look at the rationale for the clause, as well as the original understanding.

    As you note, the purpose of the Clause as seen by John Jay was “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.”

    So, they did not want foreign generals, no matter how gifted, to be in charge of American forces. Nor did they want foreign princes or politicians named to high offices in the government. Would allowing infants born abroad to grow up to be President foil either of these aims? Clearly not.

    The original understanding can be found by looking at what we now call legislative history. The Constitution Annotated reports that “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. . . .’ 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. 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.”

    The clause and the 1790 act were apparently drawn from familiar British laws, which treated infants born abroad as natural born subjects. Absent evidence to the contrary, we may reasonably assume that the framers had a like intent. Moreover, it is very unlikely that the Members of the First Congress, sitting at a time when the Constitutional Convention was a living memory, would have got this one wrong.

    Finally, constitutional research, scholarship, and learned debate on this issue would probably be a complete and total waste of time and effort. A page of history will outweigh them all.

    I hereby predict that, when and if the case gets to the Court, Justices Roberts, Alito, Thomas, Scalia and Kennedy will vote to seat McCain simply because he is a Republican, just as Rehnquist and his henchmen did for Bush in 2000.

  12. Excuse my ignorance of the Constitution, but I assumed that a child born of one or two U.S citizens is automatically a “natural born citizen.” I believe that several European countries (e.g., Germany) do not share our “territorial view” of citizenship, but base citizenship on blood lines alone. As an example, a person born in Germany of parents who are not German citizens, is not considered a German citizen.

    Mark
    Arlington, VA

Comments are closed.