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Why John McCain Needs The Living Constitution

By Jack M. Balkin

J. Rebekka Bonner
Yale Information Society Project

While delivering a graduation speech last week, John McCain stated that "the proper role of the judiciary has become one of the defining issues of this presidential election. The next president will nominate hundreds of qualified men and women to the federal courts, and the impact of these choices will reach far into the future." Contrasting his vision for America?s judiciary from that of Senators Clinton and Obama, McCain argued that he would nominate judicial candidates whose judicial philosophy and temperament are in the mold of Chief Justice Roberts and Justice Samuel Alito.

Elsewhere, McCain has argued for a "strict constructionist" philosophy of constitutional interpretation. What McCain means by "strict constructionism" is not entirely clear. A strong possibility, however, is that he is taking sides in the familiar debate between originalism and living constitutionalism; that is, he is arguing that judges should try to determine the original meaning of the constitutional text and then apply it strictly as it would have been applied at the time that it was written. This would make sense of his arguments that judges have arrogated too much power to themselves to decide what the Constitution means.

McCain?s choice of constitutional theories is particularly important because of the recurring debate about his own eligibility to serve as President. McCain was born in the Panama Canal Zone, then an unincorporated territory, to American citizens. Ironically, if we apply a "strict constructionist" philosophy of interpretation like that described above, it is likely that he would not be eligible to serve as our country?s President. Only if McCain embraces some form of Living Constitutionalism can he establish his right to run for the nation?s highest office.

The Meaning of "Natural-Born" Citizen: A Strict Constructionist Approach

The text of Article II of the Constitution states that only "natural born" citizens are eligible to serve as president. But to what concept does the phrase "natural born" refer? Taken by itself, the meaning of "natural born" is ambiguous.
Suppose we decided to be strict constructionists and sought to apply the words strictly as they would have been applied at the time of the ratification of the Constitution. How did the Founding Fathers understand the concept of "natural born"? While one letter from John Jay to George Washington dated July 25, 1787 described the clause as "a strong check to the admission of Foreigners into the administration of our national Government," the Founders failed to provide an independent definition of "natural born" at the time that they wrote the Constitution. The most straightforward argument is that "natural born" was a well recognized term of art, based upon the most commonly applied principle of traditional British common law dating from the 16th century. These distinguished between citizenship by birth and being "natural born" for purposes of such questions as the right to inherit and the right to hold certain offices. Under those common law rules children of British citizens born anywhere other than on English soil generally were eligible for birthright citizenship; however, they didn?t generally inherit their English parents? own "natural-born" status. Because of these disabilities, Parliament made occasional exceptions, granting some (but not all) of the rights of "natural born" citizens to persons born overseas.

If we applied the common law rules in force at the time of the Founding, McCain fails to meet the "natural born" requirement for the Presidency. John McCain was not born on American soil; rather, he was born at a U.S. military base in the Panama Canal Zone. State Department policy states that "[d]espite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth." Moreover, all current U.S. territories (and Panama as a formal matter) are unincorporated, which means that they are not fully part of the United States and not all aspects of the U.S. Constitution apply automatically to them. Unincorporated territories (including Guam, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands) are treated as external possessions that, under the Supremacy Clause, receive only those powers that may be extended to them by the U.S. Congress.

Strictly construing the constitutional text, and applying it the way the Framers would have applied it, we would have to conclude that McCain is constitutionally ineligible to be president. But is this the right interpretive philosophy we should use to decide this question, or for John McCain to use when selecting federal judges?

McCain?s Presidential Eligibility Saved by Living Constitutionalism

On May 1, the U.S. Senate approved an unopposed nonbinding resolution reflecting its judgment that McCain should be considered a "natural-born" citizen for purposes of presidential eligibility. Legislation introduced earlier this year by Missouri Sen. Claire McCaskill and supported by Democratic candidate Sen. Barack Obama seeks to define a "natural-born" citizen as any person born to a U.S. citizen while serving in the active or reserve components of the U.S. armed forces. This would seem to indicate that a significant political consensus exists that under the correct interpretive approach to the Constitution John McCain is eligible to be president.

That interpretive philosophy is "Living Constitutionalism," which is premised upon the notion that the Constitution?s application to changing times and circumstances should be dynamic. A Living Constitution is a document that is flexible and was designed by the Founders to reflect the evolving realities of the society that lives under it and implements it.

To apply the Constitution properly to our current circumstances, we should try to examine and understand the larger principles behind the text. We must look to the entire history of our country and how circumstances have evolved since ratification of the Constitution. Requirements for U.S. citizenship (and even the definition of it) have changed markedly since the Constitution's ratification in 1789. In 1790, the Congress first recognized the citizenship of children born to U.S. parents overseas under the first naturalization law: "[C]hildren 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." In the infamous Dred Scott case, the Court held that this act merely referred to a method of naturalization. Dred Scott, however, was overturned by the Fourteenth Amendment in 1868. The Fourteenth Amendment mentions two types of citizenship: citizenship by birth and citizenship by law (naturalized citizens): It says that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Since 1790, the Congress has continued to exercise its broad Article I discretion to confer citizenship through a series of bills. This legislation indicates Congress?s abiding belief in its power to denote who will be considered either birthright or "natural born" citizens. Existing citizenship case law illustrates the Court?s doctrinal acknowledgment of Congress?s ability to regulate conferral of citizenship beyond that birthright citizenship which is conferred by birth within the territory of the United States. Persons born in the United States, and persons born on foreign soil to two U.S. parents, are born American citizens and are classified as citizens at birth under 8 U.S.C. §1401. Current U.S. statutes define certain other individuals born overseas as "citizens at birth." Prudential arguments support the position that the best reading of the Constitutional text is one where the meaning of "natural born" is construed generously, and not strictly, to include foreign-born children of U.S. citizens. After all, John McCain?s example demonstrates that such citizens can be and are as much part of the American community as any other children born of American parents. It would not be faithful to the Constitution?s larger principles to exclude from the presidency children born abroad to U.S. military or diplomatic parents serving our country overseas while simultaneously holding that children born in the United States to alien parents would be eligible. Through a philosophy of Living Constitutionalism we can see that the best and most faithful interpretation of our Constitution is that John McCain is eligible to be President.

Conclusion: Fidelity and the Living Constitution

The irony of McCain?s defense of "strict constructionism" is that it leads to the conclusion that he isn?t eligible for the presidency. If that is the case, McCain will never have the opportunity to nominate any federal judges at all. But the strict constructionist model is the wrong one. We should decide this question, like other constitutional questions, according to the Living Constitution approach that reflects and is faithful to the document?s larger principles. McCain should keep these facts in mind when describing his vision of judges "with demonstrated fidelity to the Constitution."

Full post as published by Balkinization on May 15, 2008 (boomark / email).