Legal Commentary

So it turns out John McCain was not a citizen at birth, and therefore is not a natural born citizen.  My analysis is in this essay, reported on by Adam Liptak in The New York Times.  The essay responds to the 0pinion of Professor Laurence Tribe and former Solicitor General Theodore Olson that Senator McCain was a natural born citizen, both 1) by statute, and 2) by birth under the allegiance and loyalty of the United States.   The second argument seems to have been an oversight of some kind.   People whose sole claim to citizenship is birth in the Canal Zone are regularly deported from the United States, so this argument is not consistent with existing law.  It was apparently not pressed when they spoke with Adam Liptak.

People born to U.S. citizens in the Canal Zone in 1936, as was Senator McCain, were not covered by Revised Statutes S. 1993, the only statute granting citizenship to persons born out of the territorial United States then in effect.  By its text S. 1993 applied only out of the "limits and jurisdiction" of the United States.  The Zone was out of the "limits" but in the "jurisdiction" of the United States.

In 1937, Congress passed a specific statute granting citizenship to those born in the Canal Zone since 1904 to U.S. citizen parents.  The New York Times article states: "The 1937 law, Mr. Olson said, was not a fix but a way to clarify what Congress had meant all along."  The legislative history does not support the view that the 1937 Act was a clarification of S. 1993.   Instead, House Report 75-1303 from the House Committee on Immigration and Naturalization explains that the law was necessary because under S. 1993, "[e]ven children born within the limits of the Zone which is under the jurisdiction of the United States are not citizens.  .  .  .  Children of American parents in the Canal Zone are not outside the jurisdiction of the United States, nor are they within the limits of the United States."

However, the Committee wanted to grant this class citizenship; as most were children of U.S. workers "they are citizens in every sense except as a matter of law."  (This was a crib from Secretary of Labor Frances Perkins).  As Rep. John Sparkman explained on the House  floor, "The Canal Zone is a 'no man's land.' Every place in the world except the Canal Zone has been covered by either the law of 1855 [S. 1993] , which applies to foreign countries, or by the fourteenth amendment."  81 Cong. Rec. 7769 (1937).  In the Senate, Senator Clark said that under the bill's terms, "existing law is changed."  The 1937 Canal Zone act was not confirmatory.

Professor Tribe was quoted as saying that "Reading the 'limits and jurisdiction' clause as Professor Chin does, Professor Tribe said, 'is to attribute a crazy design to Congress' that 'would create an irrational gap.'?  But this language in S. 1993 was unchanged from the original version of 1855,  before there was a Canal Zone or any other large overseas territory not incorporated into the United States.  Just as it would be plausible that an 1855 transportation statute might not cover Segways, it is not crazy or irrational that an 1855 citizenship statute failed to account for overseas land holdings that not only did not yet exist, but were not even imagined.   In addition, as the American Bar Association Journal reported in 1934, "Probably no branch of the law in this country is more open to criticism on the grounds of instability, inconsistency and irrationality than that governing nationality, or citizenship." 20 ABA J 780, 780.  Bad drafting was Congress's specialty.   

Professor Tribe and Mr. Olson, like many others, contend that "the Framers did not intend to exclude a person from the office of the President simply because he or she was born to U.S. citizens serving in the U.S. military outside of the continental United States," so they must be natural born citizens.  But this idea is, again, not consistent with the actual actions of Congress.  The 1790 citizenship statute made overseas-born children of citizen fathers "natural born citizens."  The 1795 statute repealed the 1790 statute and made them "citizens", for some reason removing the natural born designation.  The 1802 statute repealed the 1795 statute and made them aliens.   As Montana v. Kennedy, 366 U.S. 308, 311 (1961), explains, under the 1802 law passed by the 7th Congress, which included several Framers,  "Foreign-born children of persons who became American citizens between April 14, 1802 and 1854, were aliens."  For the offspring of female U.S. citizens (including, e.g., U.S. Army and Navy nurses serving overseas in WW I) who had children with aliens, the no-citizenship policy remained in effect until 1934.  It is not merely that Congress did not want such children to be eligible to the presidency, Congress determined that they would not be citizens at all, not even if a parent was in the military or other government service.  The 1937 House vote to  grant citizenship to children of U.S. citizens in the Canal Zone was 146 aye-144 nay--the bill came within one vote of failing because of a tie.  That is, almost half of the House voted to leave John McCain and other children of U.S. citizens born in the Canal Zone without citizenship (knowing they could make individual application under the general naturalization laws).   These harsh provisions are inconsistent with what we might imagine a just Congress should have done, but in fairness to Congress, much of this legislation is entirely consistent with the suspicion of foreigners embodied in the natural born citizen clause.

Of course, it is silly that John McCain is caught up by bizarre technicalities of immigration policies afflicted with racial and religious biases; as I explain in the essay, fear of granting citizenship to "half-breeds" and "negroes" in the Canal Zone apparently delayed legislation that would have made him a citizen at birth.   The natural born citizen clause should be repealed, and people who become citizen after birth should be eligible to the presidency.  But the natural born citizen clause remains part of the Constitution that we have, and Senator McCain does not satisfy it.  I reject the idea that provisions of the Constitution can be ignored if one concludes that 1) they no longer make sense and 2) one can get away with violating them.