« Wertheimer: McCain Can't Opt Out Until FEC Is Functioning | Main | NAFTA Bluster? The Report That's Making Waves In Canada » Natural Born28 Feb 2008 10:10 am Barack Obama or Hillary Clinton (and the Democratic Party) won't make a fuss about whether John McCain was "natural born" and thus constitutionally eligible to serve as president... but nothing prevents some mischievous group... Democrats.com? MoveOn? Judicial Watch? someone else? ... from making a federal case out of it. Barry Goldwater and George Romney would have been test cases... alas... Comments (22)
The obvious distinction is between "natural born" and "naturalized" citizens. Anyone who is a citizen by virtue of either a) being born within the United States, or b) because at least one parent was a citizen didn't have have to be naturalized, and so must be "natural born". Any other construction is simply ignorant . . . or a stupid slur playing to ignorance. 
No one would have standing. It would be like the citizens suing to have Gore in office--no standing. The only way this makes it to federal court is if McCain wins the election, Congress refuses to tally the electoral votes for him, and McCain brings suit.
I personally think this requirement has long outlived whatever nominal purpose it might once have served, and so should be amended out of the Constitution. That said, it turns out that things are a bit more complicated than wj suggests. Basically you have two rival theories about "natural born": it could refer to the place of your birth, or it could refer to your lineage of birth, and at least some people have argued that the place of birth theory was dominant at the time of the ratification of the Constitution. Incidentally, note the 14th Amendment explicitly adopts the place of birth conception of citizenship (regardless of lineage, you are a U.S. citizen if you are born within the U.S.). Conversely, lineage citizenry has largely been a matter of statute, and the rules have changed over time. In that sense, with respect to lineage citizenry, there has not been a consistent set of rules about who would or would not require naturalization, which somewhat undermines the notion that naturalization is a good measure of who qualifies as "natural born" for Constitutional purposes. But anyway, this is a stupid requirement.
This is a ridiculous non-issue, and Democrats will damage their nominee severely if they push the idea that McCain is not a natural-born citizen. "Natural born" means citizen at birth, not born on the land of the United States. Any child of U.S. citizens is a citizen at birth. What's the alternative? Arizona has been represented all these years by an illegal alien? Would that invalidate any law passed by a one-vote majority, where he voted on the prevailing side? Come on!
David, Again, though, it hasn't always been true that if one of your parents is a U.S. citizen, you are automatically a U.S. citizen, and there is nothing to that effect in the Constitution (it is a matter of statute). Incidentally, all this has nothing to do with the validity of McCain's citizenship or his ability to be a Senator. This is a special requirement for the President alone, which limits the Presidency only to a limited (and regrettably ill-defined) subset of citizens. Which, again, is a stupid requirement and should be dropped. And hopefully no one will make a big deal out of it in this case, but if you take the requirement seriously, it turns out to be not at all obvious whether McCain qualifies.
DTM, agreed that it's a stupid requirement that has long since outlived its (marginal) usefulness. The sooner it is junked, the better. But I cannot remember ever having heard of a category of citizen beyond "natural born" and "naturalized". And, since McCain is clearly a citizen (he's allowed to vote, after all), and never went thru the naturalization process, what else could he be? Have you ever heard of a third category of citizen? If so, what was it called, and were did you hear of it? I'd love to know.
wj nails this. Either McCain is a natural born citizen or else he is not a citizen at all since he never went through a naturalization process. There's a specific law that applies to persons born in the Panama Canal Zone: (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. Note that this doesn't explicitly confer the status of "natural-born" but the logical thrust unambiguously points in that direction.
Funny how all those who wanted strict constructionist judges, would not trust the judges they appointed to decide. I think that the courts should decide this not some upset right-wingers.
A non-issue, and anyone who tries to make it one with a lawsuit will hurt their candidate far more than they help. The intent of the law is clear. Any suggestion that we're going to start downgrading the citizenship of children born to armed service members, state dept employees, journalists, aid workers, etc, is best stuffed back into its trunk.
ok. again, let me say that i think this is really silly, but, according to US Law, John McCain is a US citizen, but not a natural born US citizen. you have to be born in US territory for that.
deborah: unfortunately, just because you think its ridiculous doesn't make it less US law. unfortunately, while i think (and i'm sure most americans think) you are right (i am one of them) that it is crazy that mccain would not be eligible, THE LAW says he isn't. do some research. after the NYT article broke last night i spent 4 or 5 hours reading about the canal zone, US Law, SCOTUS cases that talked about 'natural-born' qualifications, etc.
Who could possibly have standing under SCOTUS's current doctrine to even raise this issue? About the only person who might have the required particular interest in the outcome would be a defeated opponent. While a prospective opponent might also have standing, the case would fail the ripeness requirement.
bipolar bear, 'Natural-born citizen' equals person for whom US citizenship is conferred at birth, right? US citizenship law provides for the circumstance of the persons born to US Citizen parents traveling or living outside of the United States. It clearly says that if you're born outside the US or US territories to US citizen parents with at least one US residence between them, then you are a citizen at birth: ยง 1401. Nationals and citizens of United States at birth This one of a few circumstances in which children born outside the US or US territories to at least one US citizen parent are conferred citizenship at birth. McCain's Panama Canal Zone birth location aside, the fact that his parents were US Citizens at the time of his birth should have conferred on him, on birth, US citizen status. Are you saying that 'natural born' has some other meaning?
This is a non issue becuase McCain likely can avail himself of subsequent langage from Article II. Under this provision, anyone who was a citizen "at the time of the Adoption of this Constitution" is eligible to serve as President.
DTM, as wj points out, it's not just a special requirement for being president. You have to be a citizen to vote. Has McCain been breaking the law all these years by voting? What a completely ridiculous idea. I suspect this whole subject is a Republican dirty trick, to make it look like Democrats are questioning the citizenship of a war hero like McCain. Or else some diehard Romneyites are throwing anything against the wall to see what sticks. In the unlikely event that any kind of lawsuit is ever instituted by anybody to test this theory, the Democratic Party and its presidential nominee should immediately file an amicus brief in support of McCain's full citizenship.
dry-fish, Actually, that is precisely the problem. The legal contrast class to "naturalized citizen" is "citizen at birth", not "natural born citizen", and the problem is that it is not at all obvious that all "citizens at birth" are "natural born citizens." Indeed, note you are looking at a statute, not the Constitution. If you look at, say, the 14th Amendment, you get a different approach to citizenship. wj, As I noted above, one other relevant term is "citizen at birth", which may apply both to natural born citizens as well as other citizens at birth. In fact, there is a little legal-Latin which has been used to describe the two different possible kinds of citizens at birth: "jus soli", which would apply to citizens at birth because of place of birth, and "jus sanguinis", which would apply to citizens at birth because of lineage. So another way of putting the question is whether "natural born citizens" only applies to "jus solis" citizens, or also "jus sanguinis" citizens. David, Again, no one is question whether McCain is a citizen. The specific question is whether he is a "natural born citizen" within the meaning of the Constitution. He can still be a citizen without that be true.
Weren't the Republican candidates asked at one of their debates about emending the Constitution to let non-birth citizens like Schwarzenegger run? What did McCain say?
Isn't the only venue to make a challenge to someone's eligibility to serve as president in congress after he has won the election. The Democratic leadership would never support such a challenge. Maybe some Ron Paul delegates might try to raise this as an issue at the convention.
Mike, Yes, the idea this could ever get into court is extremely far-fetched. The only real issue is whether people might push this idea during the campaign, or indeed even afterward if McCain is elected. By the way, the only thing I will say in favor of raising this issue is that it helps to underscore the stupidity of this requirement, so maybe we will get a real movement to have it amended out of the Constitution. For example, I have seen people noting how stupid it would be for someone whose parents were U.S. citizens serving in the military and based overseas to have to wonder if their children born overseas could one day be President. Well, it seems equally obvious to me that it is stupid for an American citizen who is serving in the military to have to wonder if he or she could one day be President (e.g., because that person is a naturalized citizen and was not born a U.S. citizen). Unfortunately, the roadblock to such an amendment has been the perception that at any given time, it would favor one particular party. But maybe we can get past that issue and come together around eliminating this requirement.
1. The best thing about this dicussion is that it has people reading the U.S.Constitution, probably for their first time.
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Making a test case of this would be totally stupid. Making a test case of Bush and Cheney being allowed to run on the same ticket would have been more appropriate.
Posted by John | February 28, 2008 10:29 AM