McCaskill’s Natural-Born Proposal Is Flawed

Senator Claire McCaskill of Missouri proposed legislation on the Senate floor this week that would declare that any child born abroad to U.S. citizens serving in the United States military would be considered a “natural-born citizen” and therefore eligible to be elected President of the United States.  I find Senator’s McCaskill’s intentions to protect the rights of children of American military families commendable and also admire the Senator, a Democrat, for proposing legislation whose first beneficiary would be Senator John McCain, a Republican.  However, I think her proposal as currently formulated is misguided and needs modification.

As I wrote in a recent blog post, it is clear that the original New York Times article and most people who have commented about it on TV and in newspapers have misconstrued the term “natural born citizen” as having something to do with where a person is born.  Instead, I argued that “natural born” is related to “naturalization” which is the process by which someone who is not born a citizen becomes one; this suggests a much more likely interpretation of “natural born citizen”, namely a person born a U.S. citizen.  Under this interpretation, a child of military personnel born abroad the way Senator McCain was would be a “natural born citizen” and therefore eligible to be elected President.  But so would all other children of U.S. citizens born abroad.

The problems with Senator McCaskill’s proposal are that it would adopt an incorrect interpretation of “natural born” into U.S. law and could actually deprive some American citizens born abroad of the right to become President.  It would probably also violate the Equal Protection Clause of the 14th Amendment to the Constitution.  Any new legislation aimed at clarifying the Constitution’s meaning of “natural born citizen” should be sure to do so in a manner that is as inclusive as possible, giving all U.S. citizens born abroad the same right.

It’s worth noting 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.  If the above statute is still in effect, then new legislation might not really be required to clarify this issue.

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8 Responses to “McCaskill’s Natural-Born Proposal Is Flawed”

  1. 10thzodiac Says:

    You are opening a pandoras box

    Filipino and Japanese Amerasians [American G.I. babies] have been stripped of their right to become U.S. citizens. U.S. Public Law 97-359, known as the Amerasian Immigration Act of 1982. Are they any less natural born citizens ?

    If the above have no rights to claim natural born citizen, in fairness where does Panama John get his claim to be a natural born citizen if they don’t.

    Please don’t tell me, “It’s because he knows (thinks) who his daddy is” !

  2. cecile Says:

    Very good blog! I’ll come back check it out regularly.

  3. rberlind Says:

    In response to 10thzodiac: my point is that “natural born” in the Constitution should be interpreted as covering anyone who is born a U.S. citizen according to current U.S. law. Whether or not some people such as those born to American soldiers in Japan and the Philippines during World War should be considered citizens seems to be a separate question to me.

    I looked into this a little bit and see that you are correct that 97-359 did not include children born in Japan or the Philippines. However, I think the Nationality Act of 1940 does admit children of U.S. fathers born anywhere in the world between 1/12/1941 and 12/24/1952 provided a U.S. court established who their father was and that he was a U.S. citizen at the time of the child’s birth. Unfortunately, this would not help children who could not prove their paternity. I agree that the 1982 law that covered children of American soldiers born in Korea, Vietnam, Cambodia, Thailand, and Laos should have covered children born during World War II in Japan and the Philippines too. There is an online petition that you can sign to petition amendment of 97-359 at http://www.petitiononline.com/blk17nar/

  4. DGPreston Says:

    I’ll have more to say on this topic, but I’ll begin with this:
    The Act of 1790 was repealed in 1795. The Act of 1795 provided similar language, but specifically removed the words “natural born” to describe the type of citizenship conferred upon children of US citizens born outside the limits and jurisdiction of the United States.

  5. rberlind Says:

    I’m aware of the changes in the 1795 law, but still view the 1790 law as useful evidence of what the writers of the Constitution meant by “natural born”. Ultimately, what matters is not any specific law but the meaning of the Constitution as intended by the framers.

  6. Bob Says:

    Panama was not a territory of the US in 1936 when McCain was born. The US had sovereignty over the canal zone based on the Hay, Bunau-Varilla Treaty of Feb. 1904. The treaty specified that Panama receive $10 million and $250K/yr. for use (lease) of the 10 mile canal zone. Also, look up the defination of “natural born” in Black’s Law Dictionary.

  7. McCain Not Eligible Says:

    Constitutional language and intent can not be modified by the federalist legislative branch as easily as that legislature would all like everyone to believe. Like state rights issues in 1813, I’ll maintain that the intent of the 55 framers in Philadelphia in the summer of 1787 is what the U.S. Supreme Court will ultimately use and need to define “natural-born” citizenship, not a subsequent definition/manipulation of actual intent. The intent was that the executive NOT have undue foreign influences, and born on foreign soil is what I believe and will argue that is what they meant and was ratified as part of our Constitution, and which will be upheld and defended by the Supreme Court.

  8. jacob1207 Says:

    I think the most reasonable and obvious understanding of the phrase “natural born citizen” is a person who was a citizen at the moment of his or her birth. Acknowledging this would eliminate most of the fuss.

    Besides, there seems to be no good reason to suppose that the founders would have prohibited someone from becoming president if born to two American citizens abroad; the important thing is one’s legal status at birth, not the geographic coordinates thereof.

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