Is McCain Natural Born?

The New York Times  published an interesting but rather silly article  today entitled “McCain’s Canal Zone Birth Prompts Queries About Whether That Rules Him Out”.  The article asked whether Senator McCain is really eligible to become President since he was born outside of the United States.  (I do not believe the Times was seriously trying to undermine McCain’s candidacy with this article, but just thought the topic was interesting.)  At issue is what the framers of the U.S. Constitution meant by the words “natural born” when they wrote “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.” The article in the Times indicated that this question has been debated in law school review articles and civics class debates almost since the Constitution was written.  It also indicated that the eligibility of previous Presidential candidates including Barry Goldwater, George Romney, and Lowell P. Weicker has also been questioned in connection with the same clause.

While the article was interesting, there is a very easy way to interpret what the Founding Fathers meant by “natural born”.  The article and political pundits on the cable news networks seem to assume that “natural born” has something to do with where a person was born, in particular whether or not they were born inside the United States itself.  If that interpretation were correct, then the eligibility of people like Senator McCain and past candidates would hinge on what “inside the United States” meant.  For instance, Barry Goldwater was born in the Arizona territory before it became a state.  Would that count as being born inside the United States?  John McCain was born in a U.S. military base in the Panama Canal Zone to American parents.  Is a U.S. military base “inside” the U.S.?  What about a person born to American parents in a U.S. territory such as Guam?

Those are all tricky questions that would probably have to be resolved by the Supreme Court or addressed through a constitutional amendment.  But I believe that the above interpretation of “natural born” is off base.  I think “natural” in “natural born” is clearly related to the word “naturalization” as in the U.S. Immigration and Naturalization Service (INS) (which was renamed the U.S. Citizenship and Immigration Service (USCIS) in 2003).  The website of the USCIS has an FAQ  about Naturalization that says the following about U.S. citizenship: “A person may become a U.S. citizen (1) by birth or (2) through naturalization.”  The FAQ also states: “If you are not a U.S. citizen by birth or did not acquire U.S. citizenship automatically after birth, you may still be eligible to become a citizen through the normal naturalization process.”  These definitions makes it clear that somebody who is born a U.S. citizen cannot be naturalized since they are already a citizen — they are already “natural”.   A much more likely interpretation of “natural born citizen” is therefore “born a U.S. citizen” rather than “born inside the U.S.”  Under this interpretation, Senator McCain who was born a U.S. citizen is clearly eligible to become President.

In case this is not enough to convince you, consider that the first Congress enacted a citizenship law (Act of March 26, 1790, Chapter 3, Section 1, Statute 104) that stated “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.”  This gives clear evidence that the framers of the Constitution, some of whom served in the first Congress, understood “natural born citizens” to be those people who were born U.S. citizens regardless of where they were born.

One more note on this: another interpretation of “natural born” (although obviously not meant in the Constitution) would be “born through natural means”.  So, maybe someone born through in vitro fertilization will run for President some day and have their eligibility challenged on that basis.  I hope that doesn’t happen, but won’t be surprised if it does.

For more on this topic, see my post “McCaskill’s Natural-Born Proposal is Flawed”.

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5 Responses to “Is McCain Natural Born?”

  1. scottwww Says:

    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:

    http://idacres.com/politics/mccain/natural_born_Citizen.html

  2. rberlind Says:

    But the whole question is what the framers of the Constitution meant by the term “natural born citizen” or lacking knowledge of that, what a reasonable way to interpret it is. My argument is that “natural born citizen” means a citizen by birth rather than one who was naturalized later. Under this interpretation, McCain is natural born if he is viewed as a citizen at birth. The website you referred to along with the Ron Paul website it refers to do raise an interesting point about whether the laws that granted McCain citizenship made him a citizen at birth retroactively or effectively naturalized him when he was 16.

    I don’t think the case you cited in your comment has any bearing on my argument since McCain is not naturalized. I do think it is unfortunate that this decision by the Supreme Court does confound “native born” and “natural born” by using both phrases in the same paragraph. But they did not go so far as to officially interpret “natural born” as meaning “native born”. Depending on the issues that were at stake in the Schneider v. Rusk case, the Court might not have really focused on this distinction clearly and this would not count as a precedent about the meaning of “natural born”.

    I think the http://www.dailypaul.com/node/37509 post (from Ron Paul’s website) is choosing to interpret “natural born” in a way that benefits Ron Paul and does not provide sufficient proof that “natural born” is equivalent to “native born”. In fact, the post also mentions the 1790 Law that I did. Even if that law is no longer valid, it still is useful to shed light on what the writers of the Constitution probably meant by “natural born”.

    With regard to the 14th Amendment, it states that certain people are citizens of the United States, but it does not say that these are the only citizens. The point of the 14th Amendment was to give African Americans citizenship; it was not to define explicitly the exact criteria for people to be citizens.

    Also, I think the argument that the use of the phrase “declared to be a citizen” in section 8 USC 1403(a) of the Immigration and Naturalization Act of 1952 means that McCain was “naturalized” rather than a born citizen does not hold water. I would argue that the 1952 law that declared people like McCain a citizen meant that these people had been citizens all along from birth. I also disagree that “lex soli” is equivalent to “naturalized”. While laws do determine who fits the criteria of jus sanguinis, people who fit the criteria are citizens from birth and not naturalized. This sleight of hand is the only thing that allows the Ron Paul blog to make the argument that McCain is naturalized rather than natural born.

    I do agree that it would have been better if the law had stated that these people were “declared to be a citizen of the United States and to have been so from the moment of their birth”. Obviously, the writers of this law were probably not thinking about writing the law in such a way that would protect the rights of these people to run for President. That being said, other sections of the law (e.g., those about people born in Hawaii before it became a state and people born in Puerto Rico) did explicitly specify that certain groups of people were citizens “at birth”. Even if one did argue that the 1952 only made McCain a citizen when he was 16, that does not prevent the U.S. Congress from passing a law (as Senator McCaskill has proposed) that would retroactively declare McCain and others to have been U.S. citizens at birth (assuming one is going to make an argument based on 20th century legislation rather than on what the framers of the Constitution really meant).

    7 FAM 1111.2 does indicate that a person can be naturalized automatically or by application, so I grant that is hypothetically possible that Congress could write a law that would declare that a certain group of people meeting certain criteria are hereby automatically naturalized and citizens. But a law that makes people citizens by virture of their parentage and location of birth does not automatically mean they were naturalized unless the law explicitly stated this or gives a date for their citizenship to have been effective that is later than their birthdate. In fact, 8 USC 1402, 1404, 1405, and 1406 do declare certain groups of people to be citizens “at birth” while declaring other groups of people citizens effective as of certain dates. Also, the actual title of USC Title 8, Chapter 12, Subchapter III, Part I is “Nationality at Birth and Collective Naturalization”. So, it seems fair to say that people declared citizens on certain dates after their birthdates by this part of the code were “collectively naturalized”.

    Note that 8 USC 1401 defines people who are citizens “at birth” and that 8 USC 1401(c) as the Ron Paul post mentioned covers “a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person”. McCain is covered by this clause, but the Ron Paul post neglected to mention that this law defined citizens “at birth”. I would argue that McCain would be a citizen at birth based on 8 USC 1401(c) even if 8 USC 1403 had never been passed. I would argue that 8 USC 1403 is only needed to make someone a citizen if neither of their parents had ever had a residence in the U.S. or had not lived in the U.S. for at least one year at some point. Both of McCain’s parents were U.S. citizens, so he did not need 1403 to be a citizen at birth (unless both of his parents had never resided in the U.S. which seems unlikely).

    So, my conclusion from all this (and I appreciate your bringing the other posts to my attention) is that the determination of whether McCain was a citizen at birth or naturalized after his birth hinges on whether or not his parents met the residency criteria of 8 USC 1401(c). If they did, then the fact that he was born in the Panama Canal Zone and 8 USC 1403 are irrelevant. If not, then 8 USC 1403 is relevant and courts would have to determine whether 1403 made him a citizen at birth or naturalized him at the time of its passage. If it can be determined that he was a citizen at birth and if you accept my argument that “natural born citizen” means “citizen at birth”, then you would agree that McCain is eligible to become President.

    The bottom line here is that we ultimately need to figure out what the framers of the Constituation really meant by “natural born Citizen” and whether McCain fits the definition.

  3. rberlind Says:

    More on this:

    Interpretation 303.1 “United States citizenship acquired in the Canal Zone; Republic of Panama” from the United States Citizenship and Immigrations Services (USCIS) states that the first U.S. law concerning citizenship for people born in the Panama Canal Zone was 33 Statute 2234 passed on 8/4/1937. This law conferred citizenship on that date to people born in the Canal Zone after 2/25/1904 and before 8/4/1937 if the person’s mother, father or both were U.S. citizens at the time of birth. People born on or after 8/4/1937 were declared citizens at birth. This might seem to support the view that McCain was naturalized on 8/4/1937 and is therefore not “natural born”. However, that same interpretation also stated “Moreover, under other conditions specified in INTERP 301.1(b) , persons born in the Republic of Panama to the United States citizen parents could and can acquire citizenship at birth.” The requirements in INTERP 301.1(b) are essentially that one or both parents be citizens who had resided in the U.S. prior to the birth.

    See http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=65e397db0c22586af6fbafba41ae926a

  4. Kevin McDuffie Says:

    Let us just say that thr country is in far worse shape if McCain is denied eligibility to run.

  5. scottwww Says:

    For those who are interested in more evidence and analysis on both sides of the issue, visit http://JohnMcCain.dominates.us/forum where you may also participate in the discussion.

    rberlind makes the assumption that citizen at birth is equal to natural born citizen. I would disagree with that assumption, though this disagreement is not prerequisite for the argument to proceed.

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