Gabriel J. Chin (University of Arizona James E. Rogers College of Law Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship on SSRN. Here is the abstract:
Senator McCain was born in 1936 in the Canal Zone to U.S. citizen parents. The Canal Zone was territory controlled by the United States, but it was not incorporated into the Union. As requested by Senator McCain's campaign, distinguished constitutional lawyers Laurence Tribe and Theodore Olson examined the law and issued a detailed opinion offering two reasons that Senator McCain was a natural born citizen. Neither is sound under current law. The Tribe-Olson Opinion suggests that the Canal Zone, then under exclusive U.S. jurisdiction, may have been covered by the Fourteenth Amendment's grant of citizenship to "all persons born . . . in the United States." However, in the Insular Cases, the Supreme Court held that "unincorporated territories" were not part of the United States for constitutional purposes. Accordingly, many decisions hold that persons born in unincorporated territories are not Fourteenth Amendment citizens. The Tribe-Olson Opinion also suggests that Senator McCain obtained citizenship by statute. However, the only statute in effect in 1936 did not cover the Canal Zone. Recognizing the gap, in 1937, Congress passed a citizenship law applicable only to the Canal Zone, granting Senator McCain citizenship, but eleven months too late for him to be a citizen at birth. Because Senator John McCain was not a citizen at birth, he is not a "natural born Citizen" and thus is not "eligible to the Office of President" under the Constitution.
This essay concludes by exploring how changes in constitutional law implied by the Tribe-Olson Opinion, such as limiting the Insular Cases and expanding judicial review of immigration and nationality laws passed by Congress, could make Senator McCain a citizen at birth and thus a natural born citizen.
Let me begin by saying that this is a tour de force--and deserving of the attention that it has already received. Download it while its hot!
After reading Chin & some of the prior literature, it now seems to me that there are only two serious arguments for the conclusion that McCain is a "natural born citizen."
First, McCain could have been made a natural born citizen by the operation of Revised Statutes Section 1993, which conferred citizenship on "Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother at the time of birth of such child is a citizen of the United States." Chin argues persuasively that given the conventional interpretation of the terms of the statute, the Panamal Canal Zone was (i) outside the limits, but (ii) inside the jurisdiction of the United States. There is, however, a contrary argument--roughly, that the Canal Zone should be deemed "outside the jurisdiction" of the United States (for the purposes of Section 1993 only) in order to avoid an absurd and manifestly unjust result--treating children and parentz in the Canal Zone differently than other Americans living abroad. Chin argues that this outcome could have been understood as intended, but as Chin concedes the State Department took the position that the Canal Zone was covered by Section 1993, and parents within the Zone might reasonably have relied on this interpretation. The fact that Congress later amended the statute to confirm this result does not settle the question one way or another, since the amendment can be understood as either changing the law or clarifying it.
Second, McCain might be considered a natural born citizen, because his citizenship was brought into being by his birth. The "natural born citizen" clause has never been authoritatively construed by the Supreme Court, and the precise constitutional question raised by McCain's case has not been resolved by the settled practices of any of the branches of government. The phrase "natural born citizen" is a "term of art"--it does not mean "citizens whose birth is natural." This means that the original meaning of the clause requires us to reconstruct the meaning of the phrase in the late 18th century.
The historical evidence suggests that the phrase "natural born citizen" initially included only persons born to citizens on the "native soil" (within the territory of a nation-state), but that the meaning gradually came to include persons born to citizen-parents on foreign soil. In England, "natural born citizen" status was conferred on the children of English citizens by statutes, and the first Congress passed a statute providing that the foreign-born children of American citizens would be considered "natural born citizens." Persons who citizenship was not a product of birth (e.g., "naturalized citizens") were not "natural born".
But this history actually leaves an open constitutional question between two interpretations or constructions of the clause:
(1) The at-birth reading. One interpretation of the clause is that "natural born citizens" are persons who citizenship existed at the moment of birth. If we assume Chin is correct re the meaning of Section 1993, then the at-birth reading implies that McCain is not a natural born citizen.
(2) The by-birth reading. There is, however, another possible interpretation or construction of the clause: the clause might mean that "natural born citizens" are persons who are citizens by virtue of circumstances of their birth. McCain is a citizen by virtue of the fact that he was born to American citizens in the Panama Canal Zone, and hence, he is an American citizen by virtue of the circumstances of his birth.
How should we decide which of the two readings is correct? (Parenthetically, I should note that Chin's article does not address this question--it assumes, but does not argue, that McCain would be ineligible if he was not a natural born citizen at the time of his birth.) From an originalist perspective, the question is about the technical meaning of the phrase of art, "natural born citizen," in the late 18th century. My current impression is that the historical record is ambiguous, and that it is far from clear that the concept of a "natural born citizen" was limited to those who citizenship arose at birth.
Of course, the two categories will coincide prospectively--but they diverge during the transitional period (the generation whose citizenship was created retroactively by legislation confering citizenship by virtue of the circumstances of birth). The only way to resolve this issue is by doing the necessary research, and my cursory reading of literature suggests that the question may well be an open one. For example, the statute of 1790 might or might not have retroactively conferred "natural born citizen" status on those born abroad to U.S. citizens during the period immediately preceding its enactment.
If the historical record is sufficient to answer this question, then originalist theory suggests that answer provides the rule of constitutional law. But suppose the historical record does not provide an answer. That is, suppose that the evidence leaves residual ambiguity in the meaning of the phrase "natural born citizen"--what does originalism have to say then?
Under these circumstances, I beleive constitutional construction would be required. And constructional construction will inevitably resort to explicitly normative considerations, such as constitutional principles or purposes (as Jack Balkin suggests) or deference to political processes (as Keith Whittington argues) or considerations of justice (as advocated by Randy Barnett). But whatever method of constitutional construction you endorse, it seems likely that the case for deeming McCain ineligible for the presidency is hardly clear.
In any event, read Chin!