Archive for the ‘Constitutional Issues’ Category

McCaskill’s Natural-Born Proposal Is Flawed

March 1, 2008

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.

Is McCain Natural Born?

February 28, 2008

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”.