Wednesday, February 27, 2008

Natural born citizen

Now the New York Times is questioning Senator John McCain's eligibility to be President of the United States.

Yes, the same John McCain that previously ran for President in 2000. But he wasn't the GOP front-runner then.

And it was raised by the same New York Times that made unfounded allegations of an "inappropriate relationship" between the Senator and a lobbyist.

And the eligibility question despite Congress declaring in 1790 that "The children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural-born citizens of the United States."

In case you're not familiar, the United States Constitution sets forth the requirements for President and Vice President. And, yes, they are the same.

Article II, Section 1 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.

Okay, that should be easy. "Natural born citizen." And Congress says that includes "children of citizens of the United States that may be born beyond sea, or outside the limits of the United States."

And that includes John Sidney McCain, III. Son of John Sidney McCain, Jr. and Roberta Wright McCain. John III was born at the Coco Solo Air Base in the Panama Canal Zone. And followed his father and grandfather's footsteps into the United States Navy.

Of course, if the New York Times can get anyone to put effort into defending silly questions about Senator McCain, they get an easier time pushing their liberal candidates and agenda.

Pathetic, isn't it.


  1. This is just ridiculous. The Times, you know it.

  2. First of all, the Congress, whether in 1790 or today, has no power to amend the Constitution. It can, and did, declare who becomes a citizen "at birth", but it can't make them "natural born" citizens. The Fourteenth Amendment makes it Constitutionally clear that a citizen is either " the United States" or "naturalized". So the question simply becomes one of whether or not the Canal Zone was the United States when McCain was born, and the law of 1790 is inapplicable. Clearly McCain became a citizen when he was born, but was it because he was born in the United States, or because Congress passed a statute granting U.S. citizenship to certain children born in the Canal Zone?

    There are good reasons to believe both outcomes, and no court has addressed the issue in the context of qualification to be president. The Canal Zone at that time was under U.S. sovereignty, but Congress did not allow everyone born in the Canal Zone during that period to be considered a U.S. citizen. Anyone born in the United States, whether legally or illegally, is entitled to U.S. citizenship under the 14th Amendment, and the fact that natives of the Canal Zone were not considered citizens is the strongest argument that the Canal Zone was not considered to be the United States.

    There is a bill before Congress now to resolve the issue--one introduced by a Democrat--but this is a matter of constitutional interpretation, and those issues are either left to the judiciary or resolved through the amendment process.

  3. Allen: The 14th Amendment says "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

    It does not use the term "natural born citizen," rather it makes clear that those born here are citizens and entitled to rights as citizens.

    The 13th amendment abolishes "slavery (or) involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted."

    While the 13th abolishes slavery, it took the 14th to guarantee rights to those that would have or could have otherwise previously been slaves.

    It does not define what a "natural born citizen" is.

    You've sorta got it backwards. It's the Constitution -- the 14th Amendment -- that declares someone a citizen "at birth," and NOT Congress, as you said.

    What Congress did in 1790 was define what "natural born" meant. What the 13th and 14th did was say that this meant everyone, regardless of race.

    Now, did Congress attempt to modify the Constitution with the 1790 law?


    Congress was fulfilling its role as defined in Section 8: "The Congress shall have power to ... establish a uniform rule of naturalization ..."

    The 1790 law said that "children of citizens of the United States that may be born beyond sea, or outside the limits of the United States" were natural born citizens, and didn't need to be covered by naturalization laws.

  4. The statute of 1790 was itself a Section 8 naturalization law (it is titled, "An Act to establish a uniform Rule of Naturalization"), and it did not declare, and the Congress has no power to unilaterally declare, that the class of people it addressed were "natural born citizens" under the Constitution. This naturalization legislation (repealed in 1795, incidentally) provided only that, subject to certain exceptions, children born overseas to U.S. citizens "shall be considered as natural born citizens", a phrase that can be reasonably interpreted to mean "treated the same as natural born citizens". Significantly, though, the statute goes on to exclude children of U.S. citizens born abroad "whose fathers have never been resident in the United States". Clearly, then, within one year of the effective date of the Constitution, Congress understood that a child born outside the United States was not entitled to citizenship just because his parents were citizens. It required an act of Congress--a naturalization act--to make them citizens. Natural born citizens require no such law, deriving their right of citizenship from "jus soli" the right to be a citizen of the country whose soil one is born on.

    The statute of 1790, like all naturalization acts, can define who is and who is not a citizen of the United States for all purposes except one--who is a "natural born Citizen" as that term is used in Article II of the Constitution. That power resides solely in the judicial branch, and one day it may be called upon to decide whether in 1936 the Canal Zone was "in the United States" as that term is used in the 14th Amendment.

  5. Allen: Volokh answers it much better than I ever could.

  6. I agree, Basil--the reasoning Volokh cites is highly persuasive and supports both a satisfying result and a technically satisfying approach.

    Incidentally, Article II specifically makes those who were citizens at the time of the adoption of the Constitution eligible to president, so contrary to Volokh's closing observation, they qualified. McCain just misses being qualified on that same criterion. :)

    Good discussion--thanks!

  7. Yeah, how they overlooked that part if beyond me.


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