Is John McCain a ‘Natural-Born Citizen’?

John McCain was born on a U.S. Navy base overseas. The NYT’s Carl Hulse has an interesting article about whether McCain is Constitutionally eligible to be president.

Mr. McCain’s likely nomination as the Republican candidate for president and the happenstance of his birth in the Panama Canal Zone in 1936 are reviving a musty debate that has surfaced periodically since the founders first set quill to parchment and declared that only a “natural-born citizen” can hold the nation’s highest office.

Almost since those words were written in 1787 with scant explanation, their precise meaning has been the stuff of confusion, law school review articles, whisper campaigns and civics class debates over whether only those delivered on American soil can be truly natural born. To date, no American to take the presidential oath has had an official birthplace outside the 50 states.

The short answer is that most legal scholars presume someone who was born a citizen, regardless of location, qualifies. But the question has never been tested in court.

That it’s even an issue at this stage is silly. The Founders had a not unreasonable concern in 1789 that the fledgling nation be led by someone with unquestioned loyalty but they made a mistake enshrining that in the Constitution. Now, though, the idea that an Arnold Schwarzenegger or a Henry Kissinger or John Shalikashvili shouldn’t be eligible to run for president is absurd.

UPDATE: Jim Lindgren has a detailed discussion of the common law meaning of “natural born” demonstrating that McCain would, of course, qualify. Of particular interest is this passage from Blackstone:

When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the embassador.

To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

That has always been my understanding as well. The distinction is between bithright citizens — i.e., those who were citizens at the time of birth — and naturalized citizens, who who born citizens of another country and have to apply and be admitted to American citizenship, renouncing their former allegiance.

FILED UNDER: Campaign 2008, Law and the Courts, US Politics, , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Triumph says:

    We are on the brink of a disaster for this country. Next January will mark the first time we have a foreigner as President.

    Voters are going to be asked to choose between an African Muslim or an illegal Mexican.

    Nader is looking more promising day by day–except he’s a Communist!

    With choices like these, we need Bush to step in and extend his term until the parties get this thing straightened out.

  2. G.A.Phillips says:

    I’m with Triumph, BUSH RULES!!!! or should.

  3. yetanotherjohn says:

    If I remember correctly, the last time this came up was when a candidate was born by C-section. At least that had Shakespeare to claim that it wasn’t “natural”.

  4. rodney dill says:

    Wasn’t Hillary hatched? At least thats what they say.

  5. I caught the meme running around the left-o-sphere a few weeks ago, surprised it took so long to get into the Credentialed Media, but, hey, they had that whole “did McCain have an affair?” thing going.

    I looked it up, and, it basically boils down to the fact that the law states that anyone born in a US Territory, except to foreign diplomatic staff, is considered a natural born citizen. The Panama Canal Zone, where McCain was born, was one till 1979, when Carter so brilliantly gave it away.

    Interestingly, if Obama was born 2 years earlier, we would have the same discussion about him. But, Hawaii was a Territory, too.

  6. Paul Lambert says:

    The question is insulting. On a personal level it’s insulting because my mom was born in the Canal Zone to parents who moved from Pennsylvania to work on the Canal. McCain’s parents moved there to defend our country.

    And speaking of defending our country, McCain’s father was a top Admiral in WWII, retiring as a 4-star. His grandfather was also a 4-star Admiral. All were graduates of the US Naval Academy at Annapolis.

    And John McCain sat in prison for the better part of a decade while in the uniform of our country.

    Let’s talk about whether he has the skills to do the job, but questioning his citizenship is an insult to his family, to every person who has worn the uniform, and I think to any decent American.

  7. KJ says:

    If you can’t deal with the message…Kill the messenger.

    What an enlighten approach to our future.

  8. John425 says:

    “Now, though, the idea that an Arnold Schwarzenegger or a Henry Kissinger or John Shalikashvili shouldn’t be eligible to run for president is absurd.”

    The Founding Fathers perhaps took the long view andd thought that a single generation wouldn’t sufficiently imbue a President with a solidly American loyalty. Don’t forget that quite a lot of colonials were loyal to Britain.

    The children of US citizens are also citizens, no matter where they are born. To suggest less is to dishonor millions of military families over the centuries, and for good measure-the American Embassy families with children born overseas.

    It is bad enough that leftist Europeans think they should have a say in who the American President is. Wanna let them vote on it? After all, they aren’t citizens, either.

  9. Anderson says:

    Anyone listen to NPR this morning?

    Some evangelicals in a singles group were saying how a man should lead the country, and the singles pastor — a man, no less — said of McCain, “he’s a stud.”

    WTF??? Anyone else hear that?

  10. Anderson says:

    but questioning his citizenship

    No one questioned his citizenship. Did you read the post? The issue is what *kind* of citizen he is, for purposes of an obscure Constitutional clause.

    — Triumph, quit smirking.

  11. hobermallow says:

    slow news day, intellectually amusing question entertains us. no doubt mccain is fine.

  12. Triumph says:

    — Triumph, quit smirking.

    What? And let the terrorists win???

  13. John Burgess says:

    John425: Sorry, but children born to US diplomats, outside the US (including its territories) are not eligible to be elected President. This is something I researched through State Dept’s legal office when I was assigned to Syria with my then-pregnant wife.

    Had our son been born in Syria, the White House could be cleanly scratched from his future career plans. Instead, we made sure he was born in the US. In DC, actually, not one of the 50 states, but close enough for election purposes.

  14. PatHMV says:

    That’s not correct, John Burgess, and oddly enough, the State Department is not the authoritative source on Constitutional interpretation.

    I explain why this isn’t even that difficult an issue at Stubborn Facts. Here’s the short version:

    It is well established that when the Framers used a term of legal art in the Constitution, they are presumed to have intended to assign to that term the same definition which the term had in the common law of England. As we learn from Blackstone’s Commentaies (relied upon by the Framers as an authoritative summary of the common law), under the English common law, the children of ambassadors were “always” considered “natural subjects” (in context, this meant “natural born” subjects/citizens) of their parents’ country. Thus, the phrase “natural born citizen” in the Constitution would include those born in the country as well as those born of ambassadors for that country, even when born abroad. There are also a few other exceptions.

  15. bains says:

    The NYT’s Carl Hulse has an interesting article about whether McCain is Constitutionally eligible to be president.

    Interesting? It is insulting, politically motivated, and intellectually sloppy. Insulting because Hulse just insinuated that I, and millions of my fellow foreign born US citizens, are second class. (Born in Frankfurt a.m., both parents US citizens, father active duty – I have birth certificates from both the USA and BDR, plus the obligatory US passport when we came home two years later.) Politically motivated because while posed as a quasi-intellectual question, it only serves to throw more tacks on Sen. McCain’s road to the Presidency. And intellectually sloppy because it tries to raise an inane and indefensible definition for “natural-born.” The implication of Hulse’s article/argument is that a US-born child of illegals is somehow, more natural than I.

    You are right James, it hasn’t been tested in court… because it’s too frickin stupid a proposition to even reach court.

  16. Dunk says:

    I am in the same boat as Bains. I was born on Airbase 105 in Normandy, prior to the French kicking us out. I have a French birth certificate and remember going before a judge when I was six or so to become naturalized. I always assumed I was ineligible to run for the Presidency.

    The only complication I have ever encountered was when I took my wife to France in 1989, to set her up for a year studying in Paris. We took a ferry over from the U.K. Two laugh riot French border guards thought it was real funny when they read my US passport which clearly shows I was born in occupied Normandy. “I see, you have not done your national service, my friend. Please come with us. You will have the choice of the navy or paratroopers today.”

    Until this day, I still do not know if they could actually have thrown me in the clink. But we all had a great laugh about it.

  17. 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