McCain Not a U.S. Citizen?
posted by Deven Desai
Now wait. I am not saying Mr. McCain is evil or should not be President. Those may or may not be true statements depending on who one is. But this is a law blog and one of our former guests, Jack Chin, has an article about the legal question of Mr. Cain’s citizenship that has caught some attention. [Clarification: As a comment notes, the issue relates to the idea of natural born citizenship status]. The NY Times piece about the issue is worth the read. For one thing it cites to Jack’s paper on SSRN. And before folks think this is some new fangled attack, note that the law is old and as Jack put it “It’s preposterous that a technicality like this can make a difference in an advanced democracy, … But this is the constitutional text that we have.” On the other hand there is a lawsuit pending on the issue (it’s in the District Court of New Hampshire). So although Peter Spiro of Temple indicates that courts will not likely get near it, a few folks seem to have started their engines. Hey the Senate looked into its crystal ball (as opposed to the magic eight ball used for major decisions) passed a non-binding saying McCain is eligible to be President because as the Times put it “Its sponsors said the nation’s founders would have never intended to deny the presidency to the offspring of military personnel stationed out of the country.” Right. Regardless, the idea has tickled someone’s imagination.
On a side note here’s a tip: Rather than invoking some notion of tea-leaf reading or channeling what the founders thought, try this on for size: it is just not logical that they wanted this result. After all maybe the founders thought that being born on a military base was a problem. One could be educated abroad which could open the door to brain-washing (oh no they didn’t have that at the founding, curses!) or improper exposure to foreign blood, air, and water would be an issue. Or maybe the result, although apparently enough of a problem that statutes were passed to fill a legal gap, was, just as Jack put it, “preposterous… But this is the constitutional text that we have.”
July 11, 2008 at 2:58 am
Posted in: Constitutional Law, Politics
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Responses (5)
A.W. - July 11, 2008 at 9:21 am
The solution is very simple. you declare it to be american territory. Why? Because we had effective control. We had it, we ran it, and Panama couldn’t take it from us except by force.
Certainly it makes as much sense as the Supremes excercising control over gitmo.
Aaron Massey - July 11, 2008 at 10:42 am
Being born in an American territory didn’t prevent the questions of “natural-born citizenship” for Barry Goldwater.
Dave - July 11, 2008 at 12:21 pm
I think you should clarify that the issue is not whether McCain is a “citizen” (he clearly is that, even if one has to look to the 1937 law that made persons born in the Canal Zone citizens), but whether he is a “natural-born citizen,” which carries no other import except for the option to become the President.
As an Obama supporter, I am concerned by some of the rumors that manage to persist about him. I certainly wouldn’t want similar rumors to start floating around about McCain.
A.W. - July 11, 2008 at 4:25 pm
The other approach is to say this. the requirement is for birth to make you a citizen. that retroactive law did so, but did so retroactively. So no difference. He didn’t take a test, or apply to be a citizen. He was made a citizen at birth. As such, he is a naturally born citizen.
I am reminded of the debate that took place regarding the seating of Hiriam Revels, the first black man seated in congress. this was in 1870, and the argument the rednecks made was fairly ingenius. They said, under dred scott, Revels was not a citizen, and while the 14th A overturned that decision, that had only been 2 years ago, so revels had not been a citizen long enough to be a senator. as i telegraphed early on, revels and the non-rednecks won, and he was seated in Jefferson Davis’ old seat. i would have loved to see the look on Jeff’s face when he learned about that.
During that debate they pointed at other dubious seatings, such as the seating of congressmen from Texas even though texas was a separate country up until then. you have to think there was a lawsuit about those instances–so see how that turned out. my guess is the courts said, “its not our call” and punted the issue.
And given that the Supremes really don’t want a repeat of Bush v. Gore, i suspect that is exactly what they will do. I think that case had the right outcome, but you know they they don’t WANT to do it again.
David - July 15, 2008 at 4:05 pm
Chin’s article is fascinating, but I think he’s mistaken.
1. I think he’s mistaken in reading the holdings of Won Kim Ark and the Insular Cases back into Article II. Under the 14th Amendment, it may be true that there are only two citizenships–birth within the United States–which does not include unincporated territories, and statutory naturalization, and no longer any common-law citizenship. This definition of citizenship, however, does not necessarily eliminate all common-law citizenship for purposes of defining “natural-born” citizenship under Article II.
2. Second, even if McCain must rely on a statutory basis for claiming citizenship, I think Chin is mistaken in concluding that the most plausible interpretation of the statutory language “born out of the limits and jurisdiction of the United States” would be to exclude chilren born in the unincorporated territories of the United States. That expression, which was the statutory language first included in the 1795 Naturalization act, and copied into subsequent naturalization acts (until the Nationality Act of 1940) might not bear the distinctions between “incorporated” and “unincorporated” territories later made necessary by (1) the Fourteenth Amendment and (2) the acquisition of large territories without an intention of incorporating such territories into the Union.
A faithful interpreter of the law when confronted with a challenge in 1930 would, I think, say that the words “jurisdiction,” as used in the naturalization acts, does not have the same precise meaning as when used in the Insular Cases or various other statutes defining America’s relationship to the unincorporated territories. Why? Because the statutory language is a vestige of the eighteenth century, while the Insular Cases and post-1898 statutes reflect the more precise distinctions of a later era.
This problem in the language was no doubt understood by the drafters of the 1940 naturalization acts, who abandoned the expression “outside the limits and jurisdiction of the United States” in favor of the more precise “outside the United States and its outlying possessions,” while at the same time making different (more generous) rules applicable to children born to citizens “in the outlying possessions.”
3. On a side note, a child born in the Canal Zone, like McCain, would have a stronger claim than a child born in the Philippines, because the American jurisdiction over that zone was made ambiguous by the language of the treaty with Panama, which retained nominal Panamanian sovereignty over the area, while at the same time allowing the U.S. to govern it “as if” the U.S. were sovereign.
4. The most telling evidence against Chin’s interpretation of the statutes is the lack of evidence. For forty years (1898-1940), children born to citizens in most of the unincorporated territories, including the Philippines, were in this supposed “no-man’s land.” No doubt there were thousands of children born to U.S. citizens in these territories. Despite the apparent statutory gap, my quick search found not reported cases in which the citizenship of such persons was ever challenged.
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