Olson and Tribe Argue that McCain is Natural Born

Former Solicitor General Ted Olson, a Republican backing McCain, and Harvard Law Professor Laurence H. Tribe, a Democrat backing Barack Obama, have issued a paper finding that John McCain is “natural born” under the Constitution.

As this column discusses, there is a serious question over whether McCain truly qualifies as “natural born.” I am still trying to locate a copy of that report. Clearly, there is support for each side in such a debate. If it is treated as a territorial (rather than a parentage) question (as suggested by McCain himself), the question is a close one. There is not a great deal of historical material to clearly establish the answer and academics have debated the question for decades without resolution.

For the full story, click here.

33 thoughts on “Olson and Tribe Argue that McCain is Natural Born

  1. It is an interesting question. Tribe is a brilliant constitutional scholar (I still think he was dead right about Bush v. Gore). I have never looked into the question of territories, but since the Constitution allows for their creation, and federal law governed, it makes sense that one born there should be considered “natural born.” I realize once legal scholars get involved, it gets more complicated. And with a clearly partisan court (not that it acts in partisan ways all the time), it could prove an interesting case. It would be a shame to have a presidential nominee disqualified at this point, although I am a believer in the non-foreign born principle. Many dictatorships in modern history have occurred in which the leader was foreign-born: Napoleon, Hitler, Stalin. I don’t think McCain fits that at all.

  2. Howard Dean 2004: The Medals Matter
    March 28, 2008 9:32 PM

    Sen. John McCain, R-Ariz., launches a biography tour next week, which looks to tell the American people about his days as a POW in Vietnam, at least based on his new TV ad (watch HERE) introduced today in New Mexico.

    In response, Democratic National Committee chairman Howard Dean issued a statement, saying, “John McCain can try to reintroduce himself to the country, but he can’t change the fact that he cast aside his principles to stand shoulder-to-shoulder with President Bush the last seven years. While we honor McCain’s military service, the fact is Americans want a real leader who offers real solutions, not a blatant opportunist who doesn’t understand the economy and is promising to keep our troops in Iraq for 100 years.”

    The Republican Party has seized upon the term “blatant opportunist” to suggest that Dean is implying McCain is an opportunist for including his POW information in his TV ad.

    RNC Deputy Chairman Frank Donatelli said, “Howard Dean owes John McCain an immediate apology and both Sens. Clinton and Obama should unequivocally denounce this disgraceful attack.”

    That’s all noise. What’s more interesting are the Dean quotes from 2004 that may come back to haunt him this year.

    “The real issue is this,” Dean said in March 2004, when endorsing formal rival Sen. John Kerry, D-Mass., “Who would you rather have in charge of the defense of the United States of America, a group of people who never served a day overseas in their life, or a guy who served his country honorably and has three Purple Hearts and a Silver Star on the battlefields of Vietnam?”

    McCain, by the way, has been awarded the Silver Star, the Legion of Merit, two Bronze Star Medals, a Purple Heart and the Distinguished Flying Cross.

  3. It would certainly help if Olson and Tribe would post their memo on the web.

    Since a lawsuit has been filed, now would be an opportune time to chime in with an amicus brief. If the question is that important, these arguments should be raised in the court of first impression so that the issue can be focused and sharpened.

    Why would the question not be “ripe” now? The time to challenge an unqualified candidate is before the ballot is printed. A foreign born citizen is no more entitled to a ballot spot than 25-year-old. The appeal could certainly be expedited through the 9th Circuit, and the Supreme Court would be inclined to grant cert if the Solicitor General weighed in on the importance of the issue.

    I have posted before that I think McCain was born of US citizens, and is thus natural born, but you are correct that the question has never been finally resolved by the Supreme Court. But the drafters of the Constitution did sit in the First Congress, and did say that sons born beyond the seas were natural born, in a law signed by Washington himself. It is very unlikely that they got it wrong.

    As noted earlier, the perceived evil was the danger of foreign princes or tin-pot Napoleons waltzing in and offering themselves to America as saviors. This evil is not present when infants born of US citizens overseas are allowed to grow up to be President.

  4. niblet:

    All this talk about military prowess giving rise to some sort of qualification for civilian office leaves me puzzled. I wonder why anyone would contend that a credential as a professional military person (with its rigid hierarchy and disdain for dissent) is the sine qua non for holding the office of President. In view of the history of failures like U.S. Grant (Gen. USA) Andrew Johnson (Brigadier general of volunteers) and to some extent, Dwight Eisenhower (Gen.of the Army USA), this seems a classic non-sequitur. While there are some notable successes like George Washington (truly an extraordinary “man for all seasons”)and T.R. Roosevelt (and Madison & Jefferson if you want to count state militias), the record of success for General or Flag Officers as President is not very impressive. Most fall into the Rutherford B. Hayes and Zachary Taylor grade of President. The point is simply that there is scant evidence that a professional military background makes one more or less qualified to lead a democracy, or as you neo-cons like to say to be able to answer that call at 3:00 a.m. in the White House.

  5. Interesting how you blather on about the “failures” of ex-military Presidents without once mentioning the far more serious and far more vast failures of those President that never served.

    It would appear to even someone without a grudge against the military like you, that there is no comparison of the abject failures of those Presidents that never had a clue about “rigid hierarchy and a disdain for dissent”.

  6. This little ditty from high school English makes ya wonder how many C-Section Presidents there have been:

    In Shakespeare’s Macbeth the Witches’ prophecy was that “…none of woman born/ Shall harm Macbeth” (IV.i). Unfortunately for Macbeth, the Scottish nobleman Macduff was “from his mother’s womb/ Untimely ripped,” and thus not naturally “born of woman” (V.vii). Macduff was the only agent capable of destroying Macbeth. He killed Macbeth in battle.


  7. “”Interesting how you blather on about the “failures” of ex-military Presidents without once mentioning the far more serious and far more vast failures of those President that never served.””

    Let me guess – this is the intro to trying to argue that Shrub is a better president than Clinton was, am I right?

  8. neblet:

    I would normally tell you that, as usual, you missed the point which is that serving in the military as a General or Flag officer is not a good predictor of success as President and that I made no assertion concerning the inverse, but why bother. It’s like arguing politics with a third grader, so let’s just concede you’re correct in every way, and send you off to bed with your cookies and milk. I will not waste one more keystroke on your inanity.

  9. “…Why would the question not be “ripe” now? The time to challenge an unqualified candidate is before the ballot is printed…”

    Here here, VT – even though I, also, am of the opinion he qualifies as natural-born.

  10. Lets talk some more about how the Government brought the WTC towers down. That really brings out the lunatics.

    Why, just last night Keith Olbermann was almost ecstatic over reporting over MSNBC Al Jazeera news reports on how Maliki’s troops were running from their mechanized armaments and abandoning them to the militias.

    Keith Olbermann was almost having an orgasm on the air as he spewed Al Jazeera propaganda. Of course, MSNBC has picked sides in the fight, anyway, and that side is not with America.

  11. If it ever goes to the top, the Supremes will rule that he qualifies on Citizenship. Other then that he has the same qualifications as myself to be President. None.

  12. Pa. top court ruling keeps McCain’s slot
    By Mike Wereschagin
    Friday, April 4, 2008

    John McCain’s place on the Pennsylvania primary ballot is safe, thanks to the state Supreme Court.

    A mental health counselor from Ingram had tried to have McCain banned from the race by alleging the two-term U.S. representative, four-term senator, 23-year Navy veteran and 66-month prisoner of war isn’t a U.S. citizen.

    Carmon Elliott’s beef isn’t with McCain’s service to his country — it’s where he was born.

    Echoing a complaint raised in late February and dismissed immediately by McCain’s campaign, Elliott says McCain’s birth at a naval air station near the Panama Canal — where his father was stationed in 1936 — disqualifies the Arizona senator for the highest office in the land.

    A bipartisan pair of lawyers said in late March that McCain qualifies as a U.S. citizen “based on the original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent,” according to The Associated Press.

    Here’s what the U.S. Constitution says:

    “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.”

    Still maintaining that McCain was born under Panamanian sovereignty, Elliott filed a petition in Commonwealth Court saying so. His petition didn’t meet legal language standards, Elliott said, so he spent a few days in the Duquesne Law School library schooling himself on legalese. He had until Feb. 21 to re-file.

    He re-filed the petition March 13. The court ruled that Elliott was 21 days too late. The state Supreme Court Thursday upheld the ruling.

    “The U.S. Constitution never did apply unconditionally in the Canal Zone,” where McCain was born, Elliott said.

    A registered Democrat, Elliott said he isn’t motivated by politics.

    “If he was born under Panamanian sovereignty, he wasn’t born under U.S. sovereignty,” Elliott said.

    A series of laws and court cases in the past century or so make it clear that McCain qualifies, according to the lawyers quoted by The Associated Press.

    Mike Wereschagin can be reached at mwereschagin@tribweb.com or 412-320-7900.

  13. Article published Mar 19, 2008
    Nashuan questions McCain’s eligibility

    Telegraph Staff

    CONCORD – Weeks after a similar case was filed in California, a Nashua man has asked the federal court to rule that Sen. John McCain can’t be president because he was born out of bounds.

    Fred Hollander, of 56 Dorchester Way, filed suit against the Arizona senator and the Republican National Committee, arguing he and other Republican voters would be “disenfranchised” if McCain becomes the party’s nominee for president.

    Hollander could not be reached for comment Tuesday afternoon. His suit, filed Friday in U.S. District Court, asks a judge to order McCain to withdraw, and the GOP to nominate someone else.A lawyer in Riverside, Calif., filed a similar suit in California’s Central District U.S. District Court on March 6, court records show. That case asks only for a “declaratory judgment” on whether McCain would be eligible to serve as president if elected.

    Notice of Hollander’s suit was mailed out Monday to McCain and the Republican National Committee, court records show.

  14. To bring it up to date (April 8), the Olson-Tribe opinion has been given to McCain, and Professor Tribe has asked them to post it, but nothing seems to have happened yet. That is perfectly ok, since any legal opinion is the property of the client, and is his to disclose or withhold.

    The McCain forces probably do not want to rekindle the issue unnecessarily at this time. Some might say that it is a lot better to get it out of the way sooner rather than later, but it is their campaign to run.

    The cases filed so far seem unlikely to get far. One failed for timeliness. The other courts could rule that the issue cannot be ruled on until after the election, or that a challenge on the floor when the Electoral College votes are counted by VP Cheney must first be exhausted. None of the plaintiffs msy have any standing to raise the issue.

    A case is only likely to go forward if the McCain forces and their Democratic allies should agree to waive all the defenses they can, and to seek an early decision.

    Meanwhile, the Paulistas are both appalled and appalling. They are arguing vociferously that McCain is unqualified, apparently hoping to open the way for their boy to get the nomination. Also, some of the postings by “Tannin” on that website dailypauldotcom noted above are despicable, and the moderator is unconcerned. They would seem to be a good bunch for anyone to steer clear of.

  15. For the folks who can get to a law library, here is a citation: The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, by Jill A. Pryor, Yale Law Journal, Vol. 97, No. 5 (Apr., 1988), pp. 881-899, 19 pages.

  16. …and she says: QUOTE ON

    While the answer is by no means clear, and many have concluded that “natural born” strictly means born in the United States, I favor the interpretation that “natural born” is a subset of “naturalized” (note the root “natural”), meaning “naturalized at birth.” A requirement that the president be a citizen from birth is not only consistent with the framers’ stated concerns that the government not be turned over to someone with greater loyalty to a foreign power, but also addresses their fear of arbitrary congressional action—expressed, for example, in their prohibitions of ex post facto laws and bills of attainder—such as the passage of a law to allow a particular person who was not a citizen from birth to become eligible for the presidency. (Such fears seem prescient in the light of publicized suggestions for a constitutional amendment to allow Schwarzenegger to run for president.)


  17. “Resolved, That John Sidney McCain, III, is a ‘natural born Citizen’ under Article II, Section 1, of the Constitution of the United States.” U.S. Senate, Apr 2008.


    — Mrs. McCASKILL (for herself, Mr. Leahy, Mr. Obama, Mr. Coburn, Mrs. Clinton, and Mr. Webb) submitted the following resolution; which was referred to the Committee on the Judiciary:

    S. Res. 511

    Whereas the Constitution of the United States requires that, to be eligible for the Office of the President, a person must be a “natural born Citizen” of the United States;

    Whereas the term “natural born Citizen”, as that term appears in Article II, Section 1, is not defined in the Constitution of the United States;

    Whereas there is no evidence of the intention of the Framers or any Congress to limit the constitutional rights of children born to Americans serving in the military nor to prevent those children from serving as their country’s President;

    Whereas such limitations would be inconsistent with the purpose and intent of the “natural born Citizen” clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term “natural born Citizen”;

    Whereas the well-being of all citizens of the United States is preserved and enhanced by the men and women who are assigned to serve our country outside of our national borders;

    Whereas previous presidential candidates, were born outside of the United States of America and were understood to be eligible to be President; and

    Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be it

    Resolved, That John Sidney McCain, III, is a “natural born Citizen” under Article II, Section 1, of the Constitution of the United States.

    Mr. LEAHY. Mr. President, today I join Senator Claire McCaskill in introducing a resolution to express the common sense of everyone here that Senator McCain is a “natural born Citizen,” as the term is used in the Constitution of the United States. Our Constitution contains three requirements for a person to be eligible to be President–the person must have reached the age of 35; must have resided in America for 14 years; and must be a “natural born Citizen” of the United States. Certainly there is no doubt that Senator McCain is of sufficient years on this earth and in this country given that he has been serving in Washington for over 25 years. However, some pundits have raised the question of whether he is a “natural born Citizen” because he was born outside of the official borders of the United States.

    John Sidney McCain, III, was born to American citizens on an American Naval base in the Panama Canal Zone in 1936. Numerous legal scholars have looked into the purpose and intent of the “natural born Citizen” requirement. As far as I am aware, no one has unearthed any reason to think that the Framers would have wanted to limit the rights of children born to military families stationed abroad or that such a limited view would serve any noble purpose enshrined in our founding document. Based on the understanding of the pertinent sources of constitutional meaning, it is widely believed that if someone is born to American citizens anywhere in the world they are natural born citizens.

    It is interesting to note that another previous presidential candidate, George Romney, was also born outside of the United States. He was widely understood to be eligible to be President. Senator Barry Goldwater was born in a U.S. territory that later became the State of Arizona so some even questioned his eligibility. Certainly the millions of Americans who voted for these two Republican candidates believed that they were eligible to assume the office of the President. The same is true today.

    Because he was born to American citizens, there is no doubt in my mind that Senator McCain is a natural born citizen. I recently asked Secretary of Homeland Security Michael Chertoff, a former Federal judge, if he had any doubts in his mind. He did not.

    I expect that this will be a unanimous resolution of the Senate and I thank the Senator from Missouri for working with me on this.

    I ask unanimous consent that the relevant excerpt from the Judiciary Committee hearing where Secretary Chertoff testified be made a part of the RECORD.

    Excerpt of Secretary Chertoff Testimony From April 2, 2008

    Chairman LEAHY. We will come back to that. I would mention one other thing, if I might, Senator Specter. Let me just ask this: I believe–and we have had some question in this Committee to have a special law passed declaring that Senator McCain, who was born in the Panama Canal, that he meets the constitutional requirement to be President. I fully believe he does. I have never had any question in my mind that he meets our constitutional requirement. You are a former Federal judge. You are the head of the agency that executes Federal immigration law. Do you have any doubt in your mind–I mean, I have none in mine. Do you have any doubt in your mind that he is constitutionally eligible to become President?
    Secretary CHERTOFF. My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen.

    Chairman LEAHY. That is mine, too. Thank you.

  19. The New York Daily News Mouth of the Potomac reported on April 25, 2008 that the Senate Judiciary Committee passed Thursday by a 19-0 vote “the sense of the Senate that Sen. John McCain (R-Ariz.), the presumptive Republican nominee for the presidency, is constitutionally eligible to run for President of the United States.”

    “McCain, a third-generation naval officer, was born in 1936 in Panama’s old Canal Zone, which raised doubts in the minds of some (in the media) that he might not meet the Constitution’s requirements that a president be “natural born” in the U.S.

    “Asked if McCain views the resolution as some sort of political ploy by Democrats to call attention to the fact the Vietnam War hero and ex-POW was born outside of America’s borders, a campaign spokesman said legal scholars Ted Olson (Mac backer) and Laurence Tribe (Obama backer) had already determined he is “natural born.” The GOP contender has also said the late Sen. Barry Goldwater (R-Ariz.), who was born in the Arizona territory, had settled the question with his presidential run in 1964.

    “We consider this issue closed,” McCain spokesman Brian Rogers told The Mouth.

    So. The issue is closed, and the Olson Tribe research (as opposed to their well-publicized conclusion) may never see the light of day.

  20. March 19, 2008.

    We have analyzed whether Senator John McCain is eligible for the U.S. Presidency, in light of the requirement under Article II of the U.S. Constitution that only “natural born Citizen[s] ….. shall be eligible to the Office of President.” U.S. Const. art. II, §1, cl. 5. We conclude that Senator McCain is a “natural born Citizen” by virtue of his birth in 1936 to U.S. citizen parents who were serving their country on a U.S. military base in the Panama Canal Zone. The circumstances of Senator McCain’s birth satisfy the original meaning and intent of the Natural Born Citizen Clause, as confirmed by subsequent legal precedent and historical practice.

    The Constitution does not define the meaning of “natural born Citizen.” The U.S. Supreme Court gives meaning to terms that are not expressly defined in the Constitution by looking to the context in which those terms are used; to statutes enacted by the First Congress, Marsh v. Chambers, 463 U.S. 783, 790-91 (1983); and to the common law at the time of the Founding. United States v. Wong Kim Ark, 169 U.S. 649, 655 (1898). These sources all confirm that the phrase “natural born” includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance. Thus, regardless of the sovereign status of the Panama Canal Zone at the time of Senator McCain’s birth, he is a “natural born” citizen because he was born to parents who were U.S. citizens.

    Congress has recognized in successive federal statutes since the Nation’s Founding that children born abroad to U.S. citizens are themselves U.S. citizens. 8 U.S.C. §1401(c); see also Act of May 24, 1934, Pub. L. No. 73-250, §1, 48 Stat. 797, 797. Indeed, the statute that the First Congress enacted on this subject not only established that such children are U.S. citizens, but also expressly referred to them as “natural born citizens.” Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103, 104.

    Senator McCain’s status as a “natural born” citizen by virtue of his birth to U.S. citizen parents is consistent with British statutes in force when the Constitution was drafted, which undoubtedly informed the Framers’ understanding of the Natural Born Citizen Clause. Those statutes provided, for example, that children born abroad to parents who were “natural-born Subjects” were also “natural-born Subjects ….. to all Intents, Constructions and Purposes whatsoever.” British Nationality Act, 1730, 4 Geol. 2, c. 21. The Framers substituted the word “citizen” for “subject” to reflect the shift from monarchy to democracy, but the Supreme Court has recognized that the two terms are otherwise identical. See, e.g., Hennessy v. Richardson Drug Co., 189 U.S. 25, 34-35 (1903). Thus, the First Congress’s statutory recognition that persons born abroad to U.S. citizens were “natural born” citizens fully conformed to British tradition, whereby citizenship conferred by statute based on the circumstances of one’s birth made one natural born.

    There is a second and independent basis for concluding that Senator McCain is a “natural born” citizen within the meaning of the Constitution. If the Panama Canal Zone was sovereign U.S. territory at the time of Senator McCain’s birth, then that fact alone would make him a “natural born” citizen under the well-established principle that “natural born” citizenship includes birth within the territory and allegiance of the United States. See, e.g., Wong Kim Ark, 169 U.S. at 655-66. The Fourteenth Amendment expressly enshrines this connection between birthplace and citizenship in the text of the Constitution. U.S. Const. amend. XIV, §1 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. *.*.* ”) (emphases added). Premising “natural born” citizenship on the character of the territory in which one is born is rooted in the common-law understanding that persons born within the British kingdom and under loyalty to the British Crown–including most of the Framers themselves, who were born in the American colonies–were deemed “natural born subjects.” See, e.g., 1 William Blackstone, Commentaries on the Laws of England 354 (Legal Classics Library 1983) (1765) (“Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king.*.*.* ”).

    There is substantial legal support for the proposition that the Panama Canal Zone was indeed sovereign U.S. territory when Senator McCain was born there in 1936. The U.S. Supreme Court has explained that, “[f]rom 1904 to 1979, the United States exercised sovereignty over the Panama Canal and the surrounding 10-mile-wide Panama Canal Zone.” 0’Connor v. United States, 479 U.S. 27, 28 (1986). Congress and the executive branch similarly suggested that the Canal Zone was subject to the sovereignty of the United States. See, e.g., The President–Government of the Canal Zone, 26 Op. Att’y Gen. 113, 116 (1907) (recognizing that the 1904 treaty between the United States and Panama “imposed upon the United States the obligations as well as the powers of a sovereign within the [Canal Zone]”); Panama Canal Act of 1912, Pub. L. No. 62-337, §1, 37 Stat. 560, 560 (recognizing that “the use, occupancy, or control” of the Canal Zone had been “granted to the United States by the treaty between the United States and the Republic of Panama”). Thus, although Senator McCain was not born within a State, there is a significant body of legal authority indicating that he was nevertheless born within the sovereign territory of the United States.

    Historical practice confirms that birth on soil that is under the sovereignty of the United States, but not within a State, satisfies the Natural Born Citizen Clause. For example, Vice President Charles Curtis was born in the territory of Kansas on January 25, 1860–one year before Kansas became a State. Because the Twelfth Amendment requires that Vice Presidents possess the same qualifications as Presidents, the service of Vice President Curtis verifies that the phrase “natural born Citizen” includes birth outside of any State but within U.S. territory. Similarly, Senator Barry Goldwater was born in Arizona before its statehood, yet attained the Republican Party’s presidential nomination in 1964. And Senator Barack Obama was born in Hawaii on August 4, 1961–not long after its admission to the Union on August 21, 1959. We find it inconceivable that Senator Obama would have been ineligible for the Presidency had he been born two years earlier.

    Senator McCain’s candidacy for the Presidency is consistent not only with the accepted meaning of “natural born Citizen,” but also with the Framers’ intentions when adopting that language. The Natural Born Citizen Clause was added to the Constitution shortly after John Jay sent a letter to George Washington expressing concern about “Foreigners” attaining the position of Commander in Chief. 3 Max Farrand, The Records of the Federal Convention of 1787, at 61 (1911). It goes without saying that the Framers did not intend to exclude a person from the office of the President simply because he or she was born to U.S. citizens serving in the U.S. military outside of the continental United States; Senator McCain is certainly not the hypothetical “Foreigner” who John Jay and George Washington were concerned might usurp the role of Commander in Chief.

    Therefore, based on the original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent, Senator McCain’s birth to parents who were U.S. citizens, serving on a U.S. military base in the Panama Canal Zone in 1936, makes him a “natural born Citizen” within the meaning of the Constitution.


  21. The Senate passed the resolution April 30, 2008:

    Mr. BROWN. Mr. President, I ask unanimous consent the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements be printed in the Record.

    The PRESIDING OFFICER. Without objection, it is so ordered.

    The resolution (S. 511) was agreed to.

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