Is John McCain eligible to serve as President of the United States? Here are two new papers on the McCain's eligibility under natural born citizen clause:
Stephen E. Sachs, John McCain's Citizenship: A Tentative Defense:
Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be "natural born."
Even assuming, however, that McCain's citizenship depended on this statute - and ignoring his claim to citizenship at common law - Chin's argument may be based on a misreading. When the statutory language was originally adopted in 1795, it was apparently read to address all children born outside of the United States proper, which would include those born in the Canal Zone. Patterns of historical usage, early interpretations of the citizenship statutes, contemporaneous expressions of the statutes' purpose, and the actual application of the statutes to cases analogous to McCain's all confirm this understanding. More recently, the acquisition of America's outlying possessions lent plausibility to new interpretations of the law. But because the key language was never altered between 1795 and 1936, its original meaning was preserved intact, making John McCain a U.S. citizen at birth.
Lawrence B. Solum, Originalism and the Natural Born Citizen Clause:
The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.
What was the original public meaning of the enigmatic phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of settled meaning. Anyone born on American soil whose parents are citizens of the United States of American is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of "naturalization" is not a "natural born citizen." John McCain's citizenship was conferred by statute--perhaps before, but perhaps after his birth. That leaves John McCain in a twilight zone--neither clearly naturalized nor natural born.
This Essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the Essay explains the relevance of originalist constitutional theory to the controversy with special reference to the New Originalism--the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism--the phrase "natural born citizen" may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a "term of art," in particular, the idea that the meaning of "natural born citizen" derives from the English concept of a "natural born subject." Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory.
I highly recommend Sach's paper--which is very fine indeed. On the constitutional issue--Sach's states the following:
I assume that “a natural born Citizen” is someone who was a citizen of the United States at the moment of his or her birth, under then-current law.10 This definition includes citizens born outside the United States, as the First Congress recognized in 1790.11
This assumption is shared by much of the writing about the clause, but I am no longer sure that it is correct.
Existing scholarship does not reveal extensive usage of the phrase “natural born citizen” in the founding era, but it seems clear that it was derived from the related phrase “natural born subject, which had a technical meaning in English law and constitutional theory. Those learned in the law in the framing era would have been familiar with Blackstone’s Commentaries, which James Madison described (in the Virginia ratifying convention) as “a book which is in every man's hand.” Blackstone wrote as follows: The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it." Blackstone’s understanding derived from the common law, and seems to have its origin in Calvin’s Case, a decision of the Court of Common Pleas, reported by Lord Coke in 1608. Writing in 1914 in an English law journal, F.B. Edwards summarized the complex and difficult opinion as follows:
The question before the Court [in Calvin’s Case] was whether Robert Calvin, the plaintiff, a Scottish Subject of King James I., who was born after James’s accession to the English throne, was an alien; the unanimous finding of the judges was that he “was no alien . . .”
* * *
It is important to remember that at the time when that case was decided the feudal or territorial conception of nationality was practically universal throughout the world; or, at least, that that conception was operative in both England and Scotland as far as the acquisition of the local nationality at birth was concerned. The fundamental premise of the judges was the concept of allegiance to the sovereign at birth (as noted by Blackstone).
What conception of territory underlies the English conception of a natural-born subject? Edwards’s answer to this question suggests that such territories are limited to the “sovereign’s dominions”:
There is little difficulty in deciding whether any particular territory forms part of the King's Dominions. It is quite clear that British Protectorates, whether ordinary or colonial, and spheres of influence are not included within the King's Dominions, and that a right to occupy and administer vested in the British Government does not make British the territory affected. Nor do the Indian allied states come within the boundary of the British Empire. There seems, however, no reason, beyond a purely technical one, why territories held by the British Crown under what either is, or practically is, a lease in perpetuity, should be excluded from this limit. The pro- position that British Protectorates, and consequently any less interest of the Crown, should be excluded from our definition of the King's protection, is supported by Sir William Anson, who declares that birth within such a region is not sufficient to found a claim for British natural-born status. The real test of whether a given territory is part of the British Dominions is that it must have passed openly, completely, and unequivocally into the possession of the Crown.
If the American conception of “natural born citizen” were equivalent to the English notion of a “natural born subject,” then it could be argued that only persons born on American soil to American parents would have qualified. This might lead to the conclusion that McCain would not be a constitutional natural-born citizen, because the Panama Canal Zone was not the sovereign territory of the United States, but was instead merely subject to its administrative control. On the other hand, the notion of a natural born subject might have been more flexible, encompassing all those who acquired citizenship at birth (as opposed to those whose citizenship was conferred after birth by “naturalization”).
Does the substitution of the term “citizen” for “subject” alter the meaning of the phrase? And if they did recognize a difference, what implications does that have for the meaning of the natural born citizen clause? The language of the Constitution recognizes a distinction between the terms “citizen” and “subject.” For example, in Article III Section 2, which confers “judicial power” on the federal courts, “citizens” of the several states are differentiated from “citizens” or “subjects” of foreign states—corresponding to the distinction between diversity and alienage jurisdiction.
In the framing era, these two terms reflected two distinct theories of the relationship between individual members of a political community and the state. For example, Justice James Wilson’s opinion in Chisholm v. Georgia. noted that with the exception of Article III, the Constitution refers to “citizens” and “persons,” and not subjects: “[t]he term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet ‘foreign’ is prefixed.”
This conceptual distinction may be relevant to the original understanding of the phrase “natural born citizen” which was used instead of “natural born subject,” the phrase that served as a term of art in English legal usage. The notion of a natural born subject may reflect a feudal understanding of political obligation: those born in the kingdom owed a natural duty of allegiance to their king and were his natural subjects. Given a republic theory of popular sovereignty, citizens are sovereign and the notion of a “natural born subject” would be anathema. This leaves a gap in the theory of citizenship—a gap that the Constitution fills with the concept of a natural born citizen. One interpretation of the new term of art, “natural born citizen,” is that its content is identical to the content of the old phrase, “natural born subject,” with the purely nominal difference in the term (“citizen” versus “subject”) used to refer to members of the political community. This could result in the interpretation suggested above—which would limit “natural born citizens” to persons born of American parents on American soil.
There was, however, another aspect of the concept of “natural born subject” as that term was understood by those learned in English law. Children of the sovereign were “natural born subjects” wherever their birth might occur. The issue of the king (like the children of ambassadors) owed a natural obligation to their father. But in republican theory, the people are sovereign and this suggests that the republican conception of natural born citizens would naturally treat the children of citizen-sovereigns as equivalent of the children of a monarchical sovereign or king. This understanding may have been reflected in the first naturalization act, enacted in 1790, which provided “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.” Arguably, this enactment by the First Congress reflected the original understanding of “natural born citizen” as encompassing those born of the citizen-sovereigns on foreign soil. On this interpretation, John McCain would be a “natural born citizen” of the United States (at least for the purposes of eligibility for the presidency) because the original meaning of that phrase includes all persons born to American citizens.
On the other hand, the language of the 1790 Act might be interpreted differently. The statute is not explicitly phrased as a declaratory: the phrase “shall be considered as natural born citizens” might have reflected the understanding that the children of American citizens on foreign soil were not “natural born” but could be treated as if they were by granting them a legal status that was otherwise identical to that held by those who were “natural born.” On this interpretation, McCain would not qualify as a natural born citizen even if a statute had conferred citizenship upon him at birth: at least this would be so on the conventional assumption that Congress lacks power to change alter the meaning of the Constitution through legislation. From the point of view of originalist method, the question is how to resolve the conflict between these two interpretations of the clause.
These issues are addressed in greater depth in Originalism and the Natural Born Citizen Clause.