Legislation Introduced to Remove McCain’s Panama Problem in Seeking Presidency

Sen. Claire McCaskill (D., Mo.) has introduced legislation that would declare that any child born abroad to citizens serving in the United States military to be natural born citizens for the purposes of the constitution. It is a admirable bipartisan effort to resolve any questions about McCain’s eligibility under Article II. However, it is not the first time such legislation has been introduced and it is not clear if it would be sufficient.

There should be universal agreement that the question of McCain’s eligibility for president shows a grossly unfair and unnecessary limitation within Article II. Indeed, we should amend the Constitution to get rid entirely of the ban on naturalized citizens becoming presidents.

However, it is not clear whether legislation can resolve the constitutional question. The fact is that McCain probably has the advantage in any challenge as to his eligibility. He has strong arguments to make. However, this question is not an easy one. If a court takes a strict territorial view of the requirement of being natural born, there is a limit as to how Congress can change the meaning of a constitutional provision through legislation. Such legislative modification could be viewed as circumventing the constitutional amendment process. This is also a close question.

Clearly, Congress could not assert the right to redefine other terms. 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 could not define intra-state matters to be interstate matters by simple legislation to expand federal jurisdiction.

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 — when any challenge is likely to occur.

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. 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.” 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.

The legislative fix seems uncomfortably close to the current effort to amend the composition of the House legislatively to allow for a vote for the District. Click here. In our system, it is often as important how we do something as what we do.

In this case, the means will depend greatly on the problem. If the problem is that courts view the meaning as natural born in the territorial rather than parentage sense, then it is doubtful that Congress can simply declare a meaning. Notably, such constitutional interpretative roles are played by the Parliament in the English system. However, since Marbury v. Madison, Congress has not been afforded such a constitutional interpretative role.

25 thoughts on “Legislation Introduced to Remove McCain’s Panama Problem in Seeking Presidency”

  1. Panama John – not a natural born Citizen of the U.S.
    I’m starting to feel bad about this for John McCain. He has come so far and to have the very nature of his citizenship to be questioned would be miserable, especially after heroic service. But he is seeking the one occupation that explicitly requires that the officeholder be a “natural born Citizen.” This can only be changed by an amendment that changes the Constitution from saying “natural born Citizen” to something that would include him as eligible, though he is a citizen by jus sanguinis (citizenship by descent).

    In presenting this constitutional matter, the purpose is to bring attention to the need for a remedy. This may also mean that the remedy would not be in place in time for Senator John McCain to be eligible to hold the office of President.

    U.S. Supreme Court
    SCHNEIDER v. RUSK, 377 U.S. 163 (1964)

    We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, 1. [377 U.S. 163, 166]

    Consider more details if you doubt the seriousness of this matter:


  2. JT: “United States is not a reference to “states” meaning individual states. Such reference appear throughout the Constitution.”

    So the word “state’ can be have different meanings in the Constitution, depending on the context. I agree that when it created a Congress of the United States chosen by the people of the several states, it excluded the District. When it said a militia is necessary to the security of a free State, many say it did include the District. I tend to disagree, since the District is the furthest thing from a free State under any definition of that term, being more like a colony ruled by the Members of Congress.

    Turning to the clause in question, it was not written by Bruce Springsteen, and does not say Born in the USA. It does say natural born citizen of the United States. It does not say born in the United States, nor born in the several states, nor born on American soil, so why read those terms into it?

    The clause does include a person born in the District of Columbia, even though it is not a state. It does include one born of in a territory, since territories are just like the District insofar as they are owned and ruled by Congress. Their residents are citizens of the United States, and not of any other country. Moreover, George Washington and many framers said that natural born citizens included children born beyond the sea to citizens of the United States, and that is good enough for me for now.

    So, McCain is a natural born citizen of the United States, even though he was not born in the USA. Cue the music please: “…a cool rocking Daddy in the U.S.A.”

  3. My tingly ‘Spidey’ sense tells me there is something else nefarious afoot and it has Bush/Cheney/Rove CHAOS written all over it.

    The public endorsement of John McCain, to me, was reminiscent of the
    Bush Family huddled together late on the evening of November 7, 1999 in that hotel room while on the phone with Fox disputing the early results call of Gore’s win in Florida – yada yada yada…

    The very next day after the endorsement of McCain there was the NY Times Vicki Iseman/Paxman/FCC story which could have (should have) been released sooner-during the NH primary. And then the matching funds FEC tangle announcement.


    It is vitally important to stay on point and on message on this 2008 ballot election issue but no more so than the other long standing pending criminal issues yet unanswered .

    We have to ensure that there is no possibility of another challenge, as JT fears, or of Bush/Cheney remaining in office for any additional length of time. This needs to be agreed upon ahead of the election.

    It’s not only fair, it is critical, in my view.

    Unfortunately, I’m not sure there is enough time either. And while Obama appears well-intentioned, I’m not sure he thought this through entirely.

    Help me construct a persuasive argument that would support a posthumous lawsuit as to the legacy left to descendants, as ‘caretakers’, on behalf of the Fathers. As just one example, Senator Sheldon Whitehouse (D-RI) is a decendant of William Bradford, cited below, as am I and thousands of others.

    Perhaps the Mayflower Society, the DAR, SAR, and ‘Hysterical’ Society members everywhere will get on board and do something really significant and memorable.


    Befitting his high station in the Plymouth Colony, Governor William Bradford rests beneath a marble obelisk which bears a text in Hebrew, now much worn, which is said to mean “Jehovah is the help of my life,” and a Latin inscription which may be translated “Do not basely relinquish what the Fathers with difficulty attained.” The Governors monument bears his name and the names of his parents and that of his birthplace, giving also the years during which he served the colony. About him lie many other Bradford’s. Other early tombstones near at hand are those of Edward Gray (1681), William Clark (1697), and John Cotton (1699)

  4. United States is not a reference to “states” meaning individual states. Such reference appear throughout the Constitution.

  5. JT: “The Constitution does not refer to “states” in this provision.”

    There are three references to states: First, a natural born Citizen [of the United States]. Second, a Citizen of the United States at the time of the Adoption of this Constitution. Third, fourteen years a Resident within the United States.

  6. JT “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 IS very likely apocryphal. The Clause expressly states that eligibility extends to “a Citizen of the United States, at the time of the Adoption of this Constitution.” Assuming that Hamilton, after stellar military and civil service in the Revolution and under the Articles of Confederation, managed to become a citizen by the time of adoption, he was clearly eligible under this language.

  7. JT: “it would be interesting who has standing to bring the action.”

    Ralph Nader may have standing as a declared Presidential candidate who stands to suffer real, tangible injury if an unqualified candidate is allowed to appear on the ballot against him.

  8. JT: “The Constitution does not refer to “states” in this provision.”

    By the same reasoning, I do not see any reference in the Clause to American soil or federal enclave. If there was never a question about the District, why was there ever a question about Goldwater, who was also born on American soil? Why is his status still unresolved due to his loss of the election? The District and the territories are often linked in their status under the Constitution.

    This seems to be tacking the extra-constitutional requirement of American soil on to the plain language and clear contemporary understanding ot the clause.

    McCain is a natural born citizen by virtue of his birth to citizens of the United States and is eligible to be President.

  9. I feel I would be remiss in expressing delight, seasoned with trepidation.

    First, this is another example of some Constitutional neglect by our leadership. This living document needs a little dusting and cleaning. The danger of course is the manipulation of our Nation’s Core Value Statement, by nefarious ideologues. My understanding is that this is where many Constitutional Scholars, as you JT, fear the tidying up, as it could likely open the door to very dangerous consequences.

    Second, somehow or another, I’m reasonably sure the arguments on behalf of any amendment to the Constitution for clarification will carry with it a great price – that will likely be levied on immigrants along our Southern border. While we do have a problem with a porous border and potential security issues – I can just see the National ID folks jumping in on this bandwagon and forcing that into a Senate Bill aimed the citizenship clarification.

    My comfort is that there are Constitutional Scholars, Civil Libertarians and motivated citizens watching these issues carefully. Perhaps though, JT, while this isn’t your dream case, it would certainly serve Americans in greater way if your head were in this game as it slowly moves towards our current Supreme Court Improv Theatre of Justice.

    I know I’m rude and cynical but I’ve been watching this court re-construct the 3 fifths compromise into a 7 fifths compromise when it comes to corporations. It doesn’t seem such a long-shot that the Alpha team will meet with the secret handshake in Pat Robertson’s barn and get them Ah-mur-cuns busy figuring out how to keep them fur-ners out, even if John McCain has to be one of them.

  10. JT “Another lawsuit I do not need in my life. ”

    Well, call up Ralph Nader. He will sue anything these days. Or ask my onetime torts prof Banzhaf to Sue the Bastards.

  11. The District of Columbia is a federal enclave but it is US soil by any definition. There was never a question. The Constitution does not refer to “states” in this provision.

  12. Actually, it has been noted elsewhere in the blogosphere that Gore was born in DC [not a state, but a district or territory]. He served as VP [an office barred to anyone constitutionally ineligible for President]. An individual not born in one of the 50 states served in national constitutional office! The earth still turned. The nation stood. Starbucks still served coffee.

  13. RCampbell:

    I am afraid that type of review would be viewed as an advisory opinion. Vince’s idea of challenging a ballot is an interesting one. Otherwise, it would not be ripe until after the general election and before the swearing in — assuming he won of course.

  14. Vince:

    Another lawsuit I do not need in my life. However, it would be interesting who has standing to bring the action. Historians are divided on this issue, though some do support the parentage theory. It is simply not clear either way.

  15. My head is spinning over this issue. As I posted recently, my first instinct is that I might actually enjoy sitting back and watching the GOP get twisted in knots if John Sidney McCain was declared ineligible to run at this stage of the campaign. This was getting good.

    Then my blood pressure got elevated when I saw it was a Democrat, Clare McCaskill, who introduced a bill to try to clarify the wording to assure John Sidney McCain’s eligiblity. This was not so good.

    Next I saw this morning that Sen. Obama has agreed to co-sponsor the McCaskill bill. Sen. Obama acted immediately, unilaterally and, most importantly, in a statesman like manner that presages his character as President. This was a classy move across the aisle. This was very good.

    All of that happened and then I read the good professor’s article to learn that the problem and its solution may be quite a bit more complicated than would appear on the surface.

    I wonder if it’s permissable for the Supreme Court to review this issue and/or the PENDING legislation as the guardians of the Constitution to determine exactly what is or is not the proper path to resolution?

    By the way, I saw a post on a different site that raised the “natural born” question vis a vis children born to diplomats stationed in foreign countries and whether this bill would cover them.

  16. To repeat, the term natural born in the Constitution seems to mean born on US soil or born abroad of US citizens, but not naturalized.

    Clearly, Congress cannot rewrite a provision of the Constitiuon by mere legislation.

    But, the First Congress did not seem to try to REdefine this term. They seemed to try to enact the general understanding of the time into law in order to clarify any misunderstanding.

    Now, everyone please think about this. George Washington presided over the Constitutional Convention in Philadelphia where the clause was adopted. Then, as first President, he SIGNED the 1790 law. Would he have signed a law that sought to rewrite the Constitution he had just framed? Would George have lied to us?

    Also, many framers sat in that Congress. Nowadays, courts discount so-called post-legislative history and disregard statements made by legislators after enactment.

    But that is just an arbitrary canon of construction. As historians, we can infer that an enormous amount of knowledge about the intent and meaning of the brand new Constitution circulated orally among the framers, making it unlikely in the extreme that Members of the First Congress would have misconstrued the general, contemporary understanding of the term natural born.

    Finally, look to the evil they feared. Were they worried about infants born overseas growing up to be President? There is no evidence of this. Were the worried about the new nation turning its fortunes over to a foreign prince or general in some dire straits in the future? There is evidence of this. By interpreting natural born citizen to mean a citizen who was not naturalized, these purposes are fulfilled.

    It is good for McCain that this issue is coming out now and not later, so that it can be aired out and settled.

    Professor Turley, to get a decision for all of us, please sue the Virginia Secretary of State to strike McCain from the Presidential ballot.

Comments are closed.