ONCE AND FOR ALL: John McCain's citizenship status!!!

There has been a lot of nonsense around the internet, and the mainstream media unfortunately, in the past few weeks about the status of John McCain's citizenship as a "Natural Born" citizen under Article II of the Constitution.

Being a lawyer, and being that I just love doing legal research, and being that my bosses are out of the office today and not looking over my shoulder, I decided to see what I could find.

Hopefully this will shut up the idiots.

For reference, here is the langauge of Article II:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

The First Naturalization Act was enacted on March 26, 1790 (1 Stat. 103).  It reads in relevant part:

And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as Natural Born Citizens. [emphasis mine]

The 1790 Act was repealed in full by the Naturalization Act of January 29, 1795 (1 Stat. 414).  However, the above language was basically preserved in Section 3 of the Act.

and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided That the right of citizenship shall not descend to person, whose fathers have never been resident in the United States:

The term "Natural Born" is not explicitly used in the 1795 Act, but the implication is clear.  The rest of the Act concerns what is necessary for one to become "Naturalized" as a citizen, but the children of citizens born outside of the United States SHALL be "as citizens".  No naturalization necessary.

This language was slightly modified and expanded, although not significantly, under the Act of April 14, 1802, which repealed the 1795 Act.  Section 4 of the Act reads:

and the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States

No later Acts that I can find have repealed this language.

IN SUMMARY, John McCain is a NATURAL BORN CITIZEN of the United States NOT because he was born in a US Territory, and NOT because he was born on a US Military Installation, but because HIS PARENTS WERE CITIZENS OF THE UNITED STATES.

My good friends who had their first child in Poland while he was assigned there for a year on business will be quite pleased to know their daughter may some day become President of the United States.

•  Tips and PLEASE rec

  Please rec this diary, so maybe we can get it up top and we don’t get any MORE of these crap diaries.  Book mark it, and paste it into future crap diaries on this topic.

  Thank you.

  by punkdavid on Fri Feb 29, 2008 at 09:38:32 AM PDT

  •  Except that your conclusion is incorrect

    McCain is a citizen both because he was born on U.S. territory (the Canal Zone at the time he was born was considered as such) and because he was born of U.S. citizen parents. Either fact would be sufficient to establish his citizenship. He'd have been a U.S. citizen (and considered natural-born) if he'd been born in the Canal Zone to Panamanian parents (Fourteenth Amendment), or if he'd been born to U.S. citizen parents on an ocean liner in the middle of the Pacific, in Antarctica, or anywhere else.

    by musing85 on Fri Feb 29, 2008 at 09:55:16 AM PDT

    •  Ok, well I did my research

      You post yours to support your conclusion.  I don't doubt you're correct, but the purpose of this diary was to put the issue to rest, and to give legal CITATIONS to end discussion flat.

      by punkdavid on Fri Feb 29, 2008 at 10:07:11 AM PDT

      •  As Rimjob

        pointed out here,  there's a statutory grant of U.S. citizenship to anyone born in the Canal Zone after 1904 to citizen parents. As long as the territory is considered U.S. soil, the Fourteenth Amendment should normally apply, which establishes citizenship by ius soli.

        by musing85 on Fri Feb 29, 2008 at 10:41:42 AM PDT

    •  I am not quite sure about that

      ALthough I cannot say that you are incorrect, I am not sure that the same citizenship rules apply to people born in territories as apply to those born in the US proper.

      by Drgrishka1 on Fri Feb 29, 2008 at 10:32:57 AM PDT

      •  It depends on the status of the territory

        in question. If it's something we explicitly claim as U.S. territory (as was the case with the Canal Zone), persons born there are citizens by ius soli. If it's effectively a possession we manage (as with American Samoa), persons born there are U.S. nationals, but not U.S. citizens.

        by musing85 on Fri Feb 29, 2008 at 10:46:56 AM PDT

        •  But persons born in Guam

          were not US citizens until the passage of a relevant Act.

          by Drgrishka1 on Fri Feb 29, 2008 at 11:02:22 AM PDT

          •  Exactly

            It was a territory that we were managing. Then we changed our mind, and residents of Guam are now citizens. (Though without representation in Congress.)

            by musing85 on Fri Feb 29, 2008 at 11:12:49 AM PDT

            •  Right... so the citizenship depends not on the

              14th Am, but on Congressional Act.

              by Drgrishka1 on Fri Feb 29, 2008 at 11:29:37 AM PDT

              •  In that specific instance, yes

                Because until the statute takes effect, the territory in question isn't considered part of the United States.

                by musing85 on Fri Feb 29, 2008 at 11:54:10 AM PDT

  •  Thank You!

    The ignorance over this basic issue of "who is a citizen" has stunned me.  I could not believe it when I even heard a lawyer try to argue that McCain isn't a citizen by birth (assuming, as I do, that his parents made the necessary notification to the feds of him entering the world, which is all that has ever been necessary so far as I know.)

    by shanikka on Fri Feb 29, 2008 at 10:04:38 AM PDT

  •  Jus Sanguinas complications...

    A non-resident US Citizen parent must have lived in the US for at least 5 years, two of which after the age of 14, in order to be eligible to pass on their citizenship to a child. [8 U.S.C. 1433]

    The much simpler 8 U.S.C. 1431 only applies if the child and parents are permanently resident in the US when the child is born elsewhere. (e.g. "Oops! I gave birth on vacation!")

    Many Filipinos are not citizens even though they are decedents of jus soli US citizens (born when PH was a US colony), but some are. Weird stuff that happens as countries come in and out of US sovereignty (including some people being stripped of citizenship while others are not).

    Conclusion: We need more information about The Maverick's parents before we can be certain that he qualifies as a jus soli US citizen at birth. That his parents were citizens when he was born is not enough.

    P.S. There's also the issue of Nationality without Citizenship, as is the right of native of Guam and many other US territories, but does not appear to be relevant in this case.

    by opendna on Fri Feb 29, 2008 at 10:59:32 AM PDT

•  Tipped and rec'd

  ... as per your request :-)

  It's always good to remove those distracting bright shiny objects from the field of view.

  by DBunn on Fri Feb 29, 2008 at 09:42:55 AM PDT

•  Barry Goldwater

  Barry Goldwater was born in the territory of Arizona but he too was eligible to be president for the same reason quoted above.

  by se portland on Fri Feb 29, 2008 at 09:43:41 AM PDT

•  this was always a silly argument

  because even if there was some technical invalidation of his citizenship, do we really want to be arguing that the children born of military personnel serving overseas are not citizens? it's an ugly argument. thanks for researching the facts.

  by Turkana on Fri Feb 29, 2008 at 09:44:59 AM PDT

  •  I'm one of those

    children.

    Does that make me some kind of bastard?  Or does my disposition take care of that...

    by jre2k8 on Fri Feb 29, 2008 at 09:49:25 AM PDT

•  This Is NOT A Line Of Debate

  where we should engage. It doesn't make sense on about 100 different levels. The first of which is a person serving his nation and having a child while in another country is an American born citizen. Period.

  As an Air Force brat we stayed in the COTUS. But I bet about half of the folks I went to high school with were either born in another nation or spent time living abroad. It is just a fact of military life.

  by webranding on Fri Feb 29, 2008 at 09:45:03 AM PDT

•  Thanks for the facts

  However counselor, idiots wouldn't be called idiots, if facts would shut them up.

  by Sam Wise Gingy on Fri Feb 29, 2008 at 09:45:32 AM PDT

•  I was born outside the States

  And I have a certificate from the State Department along the line of "Notification of Foreign Birth of a United States Citizen."

  Seems pretty cut and dry.

  I also like to point out that the Immigration and Naturalization Act of 1790 was the fifth piece of legislation ever passed by Congress.

  by internik on Fri Feb 29, 2008 at 09:50:50 AM PDT

•  He's Also Covered By....

  U.S. Code: Title 8, Section 1403:

  (a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.

  (b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.

  Interesting enough though, it's technically possible to be born on American territory and not be covered by the 14th Amendment's birthright citizenship guarantee. American Samoans are "United States Nationals" but not United States Citizens. The guarantee of citizenship was extended to the people of Puerto Rico, Guam and the U.S. Virgin Islands through the passage of Organic Acts.

  by Rimjob on Fri Feb 29, 2008 at 09:53:39 AM PDT

  •  There we go

    That's what we need in this thread.  All the facts in one compact place.  Thank you for the citations.

    by punkdavid on Fri Feb 29, 2008 at 10:09:03 AM PDT

•  Can this be right?

  It certainly looks like the 1790 law purports to extend "natural born" to include people born elsewhere, but surely it must therefore be unconstitutional? There must be limits on the extent to which statute law can change the meaning of words in the constitution, or it becomes meaningless. Compare: Congress passes a law that says in the context of the Second Amendment, "arms" means water-pistols. Hey presto, no right to bear, well, actual weaponry.

  by keepwe on Fri Feb 29, 2008 at 09:53:46 AM PDT

  •  The Constitution offers no definition

    of "natural born."

    It just says a person must be "natural born" to be eligible for the presidency. It's within Congress' pervue to make and change the definition anytime that suits it.

    by internik on Fri Feb 29, 2008 at 10:00:18 AM PDT

    •  The constitution defines only a fraction

      of the words it uses. There was presumably some fact of the matter as to what the drafters meant by it, and to the extent it was a bit vague, it's the SC's job to decide, not the Congress.

      by keepwe on Fri Feb 29, 2008 at 10:10:41 AM PDT

      •  Seeing that the Supreme Court

        has accepted the 1790/1795 definition for 213+ years, I'd say the matter is settled. For now at least. Congress can always change the legal definition via statute and the Court would be free to strike down.

        I pointed out upthread that the 1790 act was the 5th piece of legislation passed by Congress. A good number of congressmen in that first session had a hand in designing the Constitution in the first place.

        by internik on Fri Feb 29, 2008 at 10:24:26 AM PDT

        •  Has it?

          AFAIK, the issue has never been tested. In any case, I don't accept the original poster's claim that the implication is clear. The 1795 version repeals and supercedes the 1790 version and eliminates the earlier attempt to define/clarify "natural born". Maybe the 1795 Congress took for granted that "natural born" = "citizen by birth", but maybe they recognized that "natural born" was intended to be a narrower, more paranoid category and backed off the earlier attempt to redefine it by statute.

          Mind you, I'd be entirely sympathetic if the SC decided by fiat that they were to be the same, and I'm entirely sure this current SC would, to help St John, but I don't think it's obvious.

          by keepwe on Fri Feb 29, 2008 at 12:01:43 PM PDT

    •  A shame the FF didn't say "by birth"

      ...but there are a limited number of ways of saying what they were saying.  The simplest explanation of "natural-born citizen" seems to be as an expression of "citizen by birth".  When you look at how idioms develop, the addition of "natural" before born serves the dual roles of emphasis and grammatical/stylistic "adapter" to make "born" fit smoothly in the position where it is used.  You could say "a born citizen" but it is awkward and begs for either rephrasing as "citizen by birth" or the addition of some prefix like "natural-[born]".  (All citizens and non-citizens alike are born, after all.  Of course natural-born does invite contrast to born by caesarean.  But I don't believe that was widely practiced in the Colonies.  It would have been almost invariably fatal to the mother, and besides, most births were not attended by doctors.)

      by Alden on Fri Feb 29, 2008 at 10:45:18 AM PDT

  •  Not quite the same

    Yes, there are some limits on what Congress may do in this regard (i.e., it can't call those who naturalized "natural born).  However, it has always been deemed the right of every nation (and consequently its elected government) to decide who is and who is not a citizen, and what conditions fulfill the citizenship from birth requirements.  Thus, it is within Congress' power to define what conditions need to be fulfilled to be classified as a citizen from the moment of birth.

    An example will illustrate this.  Suppose we did not have the 14th Amendent.  The Constitution then would not define who is a citizen by birth at all.  Congress then could enact a statute a la all of EU, where citizenship is granted solely to children of those legally AND permanently present in the US.  If Congress could so narrow the definition (and there is no question that it could) it can also expand it.

    Finally, given the fact that the Act was passed by the very first Congress, that had a number of the drafters of the Constitution in it, it is a pretty good indication about what they thought "natural born" language meant.

    by Drgrishka1 on Fri Feb 29, 2008 at 10:39:27 AM PDT

•  Why is this even an issue?

  I think we covered this in the sixth grade.

  by Grassroots Mom on Fri Feb 29, 2008 at 09:54:26 AM PDT

  •  It's One Of Those Issues in The Same Vein As

    Hillary's "Reject and Denounce" and Right Wingers who say "Obama's not wearing a flag lapel pin, he's not patriotic" then they don't wear a flag lapel pin.

    This is the kind of stuff that the dumbed downed America citizenry uses to decide who to vote for.

    I know it's pathetic, but that is the way it is.

    by kerplunk on Fri Feb 29, 2008 at 09:59:40 AM PDT

    •  Now Hillary had to both reject and denounce

      ...the comments of that Hispanic advocate commenting on how blacks hadn't been very sympathetic.  Made her sound pretty silly.

      by Alden on Fri Feb 29, 2008 at 10:49:01 AM PDT

•  My Right Winger Friend Wants To Know If This

  means John McCain will get amnesty and not have to be shipped back to his homeland Panama?

  Is this why he wants amnesty for immigrants?

  by kerplunk on Fri Feb 29, 2008 at 09:56:36 AM PDT

  •  Your poor right winger friend

    Obviously hates McCain. Who's s/he gonna vote for?

    by Catte Nappe on Fri Feb 29, 2008 at 10:06:07 AM PDT

•  Don't My Fellow Liberals Get

  this is a perfect example of why the right beats us bloody over military service. Given our elected leaders tend to serve more then they do. Given we are more pro-military then they are (like not getting them killed for a false war). But this is the exact little, non-issue they will make an issue to show we don't care about the military. Could we stop helping them?

  by webranding on Fri Feb 29, 2008 at 09:59:53 AM PDT

•  Good job

  But I must disagree about one point in your title -"Once and For All".  We need a pool on just how many more diaires are going to worry this issue between now and November.

  by Catte Nappe on Fri Feb 29, 2008 at 10:07:53 AM PDT

  •  Like I said

    Bookmark this diary and repost the link to it in all future dumb diaries, until they get deleted by mods, that is.

    by punkdavid on Fri Feb 29, 2008 at 10:10:19 AM PDT

•  McCain is eligible to be elected President.

  The "controversy" has been ridiculous, and offensive to those who serve in the military.

  I don't want McCain elected President, but the man is eligible, for God's sake.

  by chumley on Fri Feb 29, 2008 at 10:16:29 AM PDT

•  Gosh, I didn't know there was a controversy..

  I still would not VOTE for him...

  by gdwtch52 on Fri Feb 29, 2008 at 10:26:02 AM PDT

•  I for one don't agree with this...

  ...and I'm quite surprised at the lack of sophistication in the comments.

  First, to the several commenters yelling that "of course he's a citizen":  There's no question that McCain is a citizen. Nobody is arguing otherwise. According to the Constitution, however, it's not enough to be a citizen. You must be a natural born citizen. So the question becomes: Is McCain a natural born citizen, or just a citizen? Pointing to laws or precedents that prove his citizenship is beside the point.

  The original poster brings up various laws that certainly prove (a) that McCain is a citizen, and (b) that he was a citizen from the moment of his birth. He then leaps to the conclusion that he is a therefore natural born citizen. His unstated assumption is that "natural born citizen" means precisely "anyone who was a citizen at the instant of birth". That is, a citizen who wasn't "naturalized" is by definition "natural born".

  But there is no precedent for this definition, as I understand it. The matter has simply never been tested.

  Although defining "natural born citizen" as identical with "citizen from birth" certainly has its appeal, there's no reason on earth that this must be the case. Perhaps some people are citizens from birth, but even so not "natural born citizens", possibly because the word "natural" here in some way implies "born in the USA". Again, AFAIK, no court has ever ruled on this question, so the definition of "natural born citizen" cannot be taken as unquestionably settled.

  Indeed, here's a counterargument: The Act of 1790 explicitly declared a class of people (including McCain) to be "natural born citizens". If that act stood, there would be no doubt of the matter. But that Act was repealed! The Acts that replaced it declared these people "citizens" and omitted the words "natural born". Why not conclude that this omission was deliberate---that part of the intent of the law was to remove from this class of people the "natural born" attribute, i.e., to make clear that these people are "citizens" (as stated) but not "natural born citizens" (as repealed)?

  Let me make clear that I don't myself agree with this. If I were asked to judge, I'd probably agree with the original poster's definition, though not without stating and justifying my assumptions. And certainly I think this is a stupid point to pursue with respect to McCain; it will win nothing and gain no friends or votes, and will enable the Right to beat us over the head for disrespecting the military. We should definitely stop raising it as an issue.

  But to say that there's no possible question here is just silly.

  by ends with space on Fri Feb 29, 2008 at 10:40:57 AM PDT

  •  These are solid arguments that I considered

    There is certainly a possible implication that the later omission of the term "natural born" in the statutes was meant to exclude the described personas from that class.  However, if that were the intent, it would have been prudent, and easy, for the drafters of those laws to add another "Provided" sentence to make clear that while those children are "citizens" they are not "natural born" citizens.

    I think the more reasonable interpretation is that "natural born" is in opposition to the term naturalIZED", or that the term "natural" is redundant.  So a citizen is either born, or naturalized.  "Born or made", so to speak.

    by punkdavid on Fri Feb 29, 2008 at 10:49:55 AM PDT

    •  Now we're getting somewhere

      For you to give an interpretation of the meaning of "natural born" and to say that this interpretation is "reasonable" is, for me, a much better phrasing of the situation. As I said, I personally agree, though I'd like to hear further arguments. I would hope that any judge asked to rule on this point would agree as well. Certainly we can count on the current Supreme Court, given the circumstances!

      My objection, in case it wasn't clear, was your implication that your reasoning closes the question once and for all, so now the "idiots" (i.e., those who think there may be an open question here) should "shut up". Please do not speak this way to me.

      by ends with space on Fri Feb 29, 2008 at 11:00:07 AM PDT

  •  So natural-born doesn't have a legal meaning

    It has, however, a linguistic meaning, which is by birth.  The simplest definition of natural-born citizen, the one that requires the least rationalistic construction, is citizen by birth or citizen from birth.

    Although rather much has changed in usage since the 1700's, this doesn't appear to be such an expression.  It becomes complicated to justify any other meaning of natural-born even if you detach it from citizen.

    by Alden on Fri Feb 29, 2008 at 10:55:42 AM PDT

    •  Well, you've certainly muddied the waters!

      The simplest definition of natural-born citizen, the one that requires the least rationalistic construction, is citizen by birth or citizen from birth.

      OK, which is it?

      Suppose, for example, that only one of McCain's parents was a citizen. As a previous commenter pointed out, he would still be a citizen by U.S. Code: Title 8, Section 1403.

      I haven't confirmed this, but I believe I read somewhere that this law came into effect when McCain was already 16 years old. (And if not, assume so for a moment.) So he would not have been a citizen until that point. That is, he would be a citizen by birth, but not from birth. Is he "natural born"?

      You have also changed the ground rules slightly by adding a hyphen, BTW. "Natural-born" more clearly implies that the "natural" part has to do with circumstances of birth. But that hyphen isn't in the Constitution! As I wrote earlier, maybe "natural" can have some other meaning. Hey, maybe it means his parents had to be married!

      My point isn't to prolong the argument, though I'm doing a good job of that. My point is only that the question cannot be considered obvious and settled.

      by ends with space on Fri Feb 29, 2008 at 11:13:00 AM PDT

  •  I totally disagree. Naturalization is ok too.

       MACBETH: They have tied me to a stake. I cannot fly,
       But, bearlike, I must fight the course. What's he
       That was not born of woman? Such a one
       Am I to fear, or none.
       ...

       MACBETH: Thou losest labor.
       As easy mayst thou the intrenchant air
       With thy keen sword impress as make me bleed.
       Let fall thy blade on vulnerable crests;
       I bear a charmèd life, which must not yield
       To one of woman born.

       MACDUFF: Despair thy charm,
       And let the angel whom thou still hast served
       Tell thee, Macduff was from his mother's womb
       Untimely ripped.

       ...

       MACDUFF: Then yield thee, coward,
       And live to be the show and gaze o' th' time.
       We'll have thee, as our rarer monsters are,
       Painted on a pole, and underwrit,
       "Here may you see the tyrant."

       MACBETH: I will not yield,
       To kiss the ground before young Malcolm's feet,
       And to be baited with the rabble's curse.
       Though Birnam Wood be come to Dunsinane,
       And thou opposed, being of no woman born,
       Yet I will try the last. Before my body
       I throw my warlike shield. Lay on, Macduff,
       And damned be him that first cries, "Hold, enough!"

    Therefore "natural born Citizen" means a citizen born through natural child birth, not cesarean section.

    (hehe)

    by opendna on Fri Feb 29, 2008 at 11:05:24 AM PDT

•  Peter Griffin

  That means Peter Griffin is a natural citizen, even though he was born in Mexico. So the episode where he was a Mexican illegal immigrant isn't accurate with US law.

  by dufffbeer on Fri Feb 29, 2008 at 10:58:55 AM PDT

•  I prefered the King of the Hill episode

  Where Hank discovered he was not a "native Texan" because he was born in the ladies room at Yankee Stadium.

  by punkdavid on Fri Feb 29, 2008 at 11:13:25 AM PDT