Technically, I suppose it is. After all, it hasn’t been tested in court. But by all the laws of common sense, McCain is a natural born citizen, and I can’t imagine any court ruling otherwise.
Richard Parker’s hypo, on the other hand, I could imagine a court ruling otherwise. Don’t know that they would, but I could see it.
Well, what the hell else would it be?
I’m not even sure what you’re pressing me on. Surely, you don’t think this issue is merely an amusing academic exercise that just happened to coincide with McCain’s running for president.
I say this all as a friggin’ contributor the liberal blogosphere.
Heh. I’m sorry I haven’t been clearer. I don’t see liberals raising this in order to try to paint McCain as unamerican. I see them raising it as an interesting and timely discussion topic which no one thinks has any real relevance. I really haven’t seen it in the context of an attack. Not saying its not out there, just that I’ve seen no evidence of it.
I thought it was a joke, along the lines of “Don’t be an idiot; of course Obama’s a native-born citizen. But look at this little factoid about McCain. Born in the Canal Zone. Better check the rule book…”
Do the righties understand that it is generally the woman who gives birth, not the man? So unless they can demonstrate that Obama’s mama (ha!) was actually in Kenya or Indonesia at the time of Barack’s birth, this is really a silly obsession.
What is the “evidence” that he was born in Kenya? I spent half an hour Sunday trying to convince someone that this wasn’t so, but it fell to deaf, beligerent, ears.
Well, I was on a cruise once where the folks on the big boat wanted to know if you needed a passport to in Hawaii…and whether they took ‘American money’. No joke.
So…perhaps there IS some question about Obama’s citizenship after all…
-XT
being born in Kenya is irrelevant to the discussion, anyway. Obama’s mother was clearly a U.S. citizen, so he is a citizen by birth, just as George Romney was elegible to run for president in 1968, despite being born (to U.S. citizens) in Mexicao.
What, you mean that every college freshmen who finds herself unexpectedly pregnant by a foreign student doesn’t have the overwhelming urge to travel half-way 'round the world to have the baby in her new husband’s homeland?
Seriously, all the “evidence” I’ve seen is based on Obama’s grandmother and half-sister allegedly swearing he was born in Kenya. The problem is, they haven’t. Both are on record as saying they first met Barack when he was a young adult, on the trip he wrote about in one of his books. (And his half-sister, in any case, would have been a toddler herself when Baby Barack was born…)
Circumstances make the claim easier to keep out there, though. Both Obama’s parents died fairly young, his maternal grandfather is also deceased, and his maternal grandmother is an elderly lady who has avoided media attention as much as possible. So nobody is really fighting back against this false claim, which some people choose to interpret as evidence that the claim is Really True rather than as evidence that no one involved sees it as worthy of attention.
And to whoever said Hillary Clinton would have brought this up if there had been any evidence in support: Oooooh yes. You bet your sweet bippy she would have. And she’d be the Democratic Presidential candidate right now - if there had been a shred of evidence.
Ridiculous? Perhaps. So what? The question is not what the law should be. The question is what the law is. The term “natural-born citizen” has not been tested, as far as I know, but it seems to me that it means someone who has always been a citizen of the U.S. from the moment of his birth. That is, a citizen, born a citizen, and not made a citizen through other process.
At the time of McCain’s birth, it was not clear that children born to citizens serving in the Canal Zone were citizens. The relevant law at the time, as I’ve seen it quoted, was that chidren born to citizens “out of the limits and jurisdiction of the United States” were nonetheless U.S. citizens at birth. The Canal Zone was not part of the United States, but neither was it outside the jurisdiction of the U.S. Ergo, arguably, at the time of McCain’s birth, he was not a citizen – he was not born on U.S. soil and therefore was not a citizen by operation of the 14th Amendment. Nor was he born outside the “limits and jurisdiction” of the U.S., and therefore the statute didn’t confer citizenship on him due to his parents’ citizenship (as it would have if he’d been completely outside U.S. territorial control – like in Kenya, for instance).
This is buttressed by the fact that a year later, Congress passed a law specifically to close up this gap, and to grant citizenship retroactively to those who fell through the crack – including young John Sydney McCain III. It’s a longstanding canon of statutory construction that Congress doesn’t typically pass laws to maintain the status quo. Absent good evidence to the contrary, you assume that if Congress makes someone born in these circumstances a citizen on date X, it’s because they weren’t a citizen under the law that existed before the Act.
McCain is certainly a citizen of the U.S. But under my reading of the laws as they existed at the time, *he wasn’t a citizen *until the '37 Act, and therefore he was not a natural-born citizen. Congress can determine, within the confines of the 14th Amendment, who qualifies for citizenship. They cannot, however, say later that someone was a citizen on the date of their birth when an observer doing the analysis at the time would have found the opposite. The natural-born citizen requirement is a constitutional one. Therefore Cognress cannot waive it, and the '37 Act would not have been effective for the purposes of making McCain eligible for the presidency even though it did make him a citizen. (Not that Congress even tried in '37 – the Act declares children of the gap citizens; it doesn’t declare that they were always citizens.)
The Senate resolution stating that McCain is eligible is irrelevant. First, the Senate can’t make law on its own through resolution – laws have to be passed by both Chambers and signed by the president. This was merely passed in the Senate alone. Furthermore, even if they’d passed a law saying McCain is eligible, it would not have effect. As noted in the preceeding paragraph, this is a constitutional requirement. Congress does not have the power to waive or modify it, and their opinion of what it means is just that – an opinion.
There are a lot of caveats here. First, I’m mostly building this argument off secondary sources, as I don’t have complete access to historical statutes. So if the law as it existed in 1936 was quoted or discussed incorrectly there, it could affect what I’ve written. Second, the term “limits and jurisdiction” is fuzzy, although I think my analysis is the better one – and moreover, the Congress of 1937 appears to agree with me, which I think is very good but not conclusive evidence on my side of the ledger. Finally, as noted, the term “natural born citizen” has not been tested in a court, but I for one do not see any reasonable alternative meaning for the language.
Moreover, I am not making the claim that this is a just result – it’s not. As I mentioned in my earlier post, I think the requirement for presidential candidates to be natural-born citizens is stupid and unjust as it is; it’s even more obviously wrongheaded in this situation. There should not be two classes of U.S. citizenship – only one of which qualifies for the presidency. But there are. We don’t get to pretend the law is what we wish it were.
Nor will this ever be tested – no court would take this case, claiming it’s an inherently political question. I think that’s wrongheaded too, but it’s what would happen.
Finally, I’m not saying this to get people not to vote for McCain. I think this is, by itself, a good enough reason not to vote for him, but there are several billion other reasons as good or better. And I recognize that, were the shoe on the other foot (at least if it were in a close race), I would probably ignore this analysis on election day, although it would gnaw at me. But at the end of the day, this is not a ridiculous question, even if it might be a close one. And I do think there is cost to ignoring the constitution instead of going ahead and fixing it when it leads to unjust results. But to everybody who just declares that this isn’t the rule because they think it shouldn’t be the rule – that is not an appropriate analysis in a society of laws.
–Cliffy
I posted a link (well, okay, a link one removed) above.
Thanks for that, Cliffy. I do admit I want to have a chat about this to my very-textualist, very-Republican friend, and see how the tries to hand wave it away.
That’s what I find amusing about the whole McCain citizenship thing - not that it will (or necessarily should) prevent him from serving if elected, but to see whether those who support a particular view of constitutional interpretation once again back away from that view when the results don’t suit them.
Thank you, Cliffy, for that excellent post.
We live in the UK. When our daughter was born (here), we took her to the US Embaassy to get her birth registered, passport, SSN, etc. Along with the various other documents the Embassy gave us a little piece of paper which essentially said the above: it has not yet been determined in a court of law one way or the other whether someone born outside the US to American parents, although legally a citizen from birth, can be classified as a “natural born citizen” with regard to running for President someday. So that what the State Department are telling people.
Not that I’d really want my daughter to grow up to be President, mind you. It’s a crappy job.
The discussion we had at work yesterday was about the difference between “natural born” and “naturalized”
What I’m seeing here and in other reading is that the term natural born has no clear legal definition. Is that correct?
Obviously in practice we have allowed presidential candidates that were not born on American soil and there have been laws passed to address citizenship,but apparently those laws do not specifically address whether that citizen qualifies as a “natural born citizen” Is that also correct?
According to Wikki [URL=“Natural-born-citizen clause - Wikipedia”]
naturalized citizen implies someone who previously held other citizenship, which would not be the case for those who are citizens at birth, even if not on American soil.
In the Act of 179o there’s this
“And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens.” although five years later the Act of 1795 removed the natural born wording and replaced it with just " are citizens"
So, I guess after 200+ years we still have no clear definition of what defines “natural born citizen” Interesting.
I have five bucks on this 
The term hasn’t been defined in a court of law, no, although I for one don’t think there’s much ambiguity in it.
Generally true. Also, as alluded to in my above post, I don’t think Congress really has the power to define what is a natural-born citizen, although what Congress thinks the term means is valuable.
I think that’s imprecise. A naturalized citizen is someone who wasn’t a citizen who is later made a citizen. He didn’t have to be a citizen of somewhere else. Some people aren’t citizens of any nation.
Also somewhat imprecise. Someone might be a citizen of the U.S. at birth and also a citizen of another country – for instance, if a British couple not employed by the Crown were vacationing in the U.S. and their child is born in Illinois, that child would be a citizen of the U.S. and the UK at the moment of her birth.
–Cliffy
“The term “natural-born citizen”…”
Well, from an OB-GYN perspective, I think it means ‘Was either candidate born vaginally or via cesarean section?’
(OK, I’m leaving now. Sorry)
You’re saying natural born clearly means born an American citizen rather than made a citizen through a later legal process? That would be those born on American soil and those born to American parents while abroad correct?
btw , I appreciated your previous post. Very helpful. My co-worker is saying that, constitutionally, natural born means born on American soil , period. In that case McCain is not and Obama is, I guess.
The problem with this interpretation is that it would allow Congress complete discretion in determining who is a “natural born citizen.” Congress could decide, for example, that anyone with an American ancestor is a citizen at birth. Some of these potential definitions would be in clear contrast to the purpose of the “natural born” limit. So there must be SOME daylight between who Congress deems a citizen at birth and who is a “natural born” citizen under the Constitution. To put it another way, there is no point having a Constitutional provision if Congress is able to define all of its terms by statute.
Even if that were a good reading of the term, it wouldn’t necessarily exclude McCain. If I recall the facts correctly, you would still have to establish the base on which he was born does not count as American soil.
So you’re saying that MacDuff was not a natural born Scotsman because he was from his mother’s womb untimely ripped?
And yet they still let him become Thane. Go figure. 