Senator John McCain and Natural Born Citizenship
posted by Michigan Law Review
The Michigan Law Review’s companion journal First Impressions this week published an online symposium on Senator John McCain and Natural Born Citizenship.
Senator John McCain, the current Republican Party nominee for President, was born in the Panama Canal Zone in 1936. The circumstances of his birth raise the question of whether he is a “natural born citizen” as required by Article II, section 1 of the Constitution. The symposium contributors explore both the substance of this issue and the methods used to resolve it.
The extended post contains a more complete description of the symposium and links to the essays.
• Gabriel J. Chin of the University of Arizona argues that the citizenship statute in effect in 1936 did not grant Senator McCain citizenship at birth. A person must be a citizen at birth to be a natural born citizen. Because he was not born a citizen, he is not eligible to the office of president.
• Lawrence B. Solum of the University of Illinois Law School discusses how New Originalists would focus on the original public meaning of the term “natural born citizen.” He notes that the notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.
• Daniel P. Tokaji of The Ohio State University Moritz College of Law suggests that lower federal courts will not reach the merits of suits about Senator McCain’s eligibility because of standing requirements and the political question doctrine. These justiciability constraints dictate that the question of Senator McCain’s eligibility would be more aptly resolved in state court or by Congress.
• Peter J. Spiro of the Temple University Beasley School of Law claims that non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—have settled the question of Senator John McCain’s eligibility. The emergence of this sort of popular consensus is an acceptable method of constitutional determination.
• Yale Law School alumnus Stephen E. Sachs argues that Senator John McCain did not fall into a loophole in the governing citizenship statute. That statute made citizens of certain children “born out of the limits and jurisdiction of the United States.” The best historical evidence indicates that this phrase should be interpreted such that Senator John McCain would have been a citizen at birth.
To download a PDF of the entire symposium, feel free to click here.
Additional First Impressions content is available at http://www.michiganlawreview.org.
September 30, 2008 at 11:58 pm
Posted in: Law Rev (Michigan), Law Rev Forum
Print This Post
Leave a Reply