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"'Natural Born Citizen' and McCain: Two Papers and a Comment":

Prof. Larry Solum, of the excellent Legal Theory Blog, links to and excerpts two papers on the subject.

UPDATE: The papers are forthcoming later this month in the Michigan Law Review's online companion, First Impressions.

Boyd G (www):
Oh, you law guys and your complicated thinking!

For this layman, it boils down to the answers to two specific questions:

1) Is John McCain a citizen of the United States?

2) Presuming a "Yes" answer to Question 1, was he ever naturalized?
9.5.2008 1:50pm
J. Aldridge:
If McCain's father was an American citizen then it doesn't matter where he was born. America had adopted Natural Law and not English Common Law (see Declaration of Independence) of birthright. Virginia by statute only recognized citizenship by birth where the father was already either a citizen of the commonwealth or of the United States.
9.5.2008 1:51pm
Hoosier:
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.

So this is what you law profs do all day!


I read the information on the site, but did not read the linked articles. Forgive me, then, if I am amaking an argument based on this ignorance. But it seems to me the answer re McCain is "Who the Hell knows? And we have no way of knowing."
9.5.2008 1:51pm
J. Aldridge:
P.S. Congress opted to amend the law to specifically grant American citizenship to children born abroad was because this was the only area Congress had such jurisdiction on the subject beyond state jurisdiction.
9.5.2008 1:57pm
some dude:
Was he or was he not a citizen at 1 hour old? Is the question that hard?
9.5.2008 2:02pm
Hoosier:
Q: To what extent is international law a relevant issue?

Why I ask: I assume from the post that if the Canal Zone were sovereign American territory--even though extra-territorial--this would not be an issue.

IANAL--OK. But matters of practice, as oopsed to written law, tend to contribute greatly to the international jurisprudence. This may be relevant, because there can't be any question that the Zone was, de facto, sovereign American territory. If the issue (on the narrow question pertaining only to JSM, which is the reason we're discussing this issue) is whether the territory on which one is born falls under the sovereignty of the nation in question, would an international lawyer be able to make a case that the Canal Zone did in fact do so? That the nations of the world, including Panam and the US, acted under this assumption?

The Hay-Bunau Varilla Treaty anticipates this state of fact, if this is any help:

The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement, and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise, if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority.
9.5.2008 2:04pm
Hoosier:
Sorry, should have added: There was a soveriegn over the Zone. As a matter of law, (see above), it was not Panama. Who was it?
9.5.2008 2:06pm
J. Aldridge:
Vattel: "The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate Itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.

Marshall was known to quote Vattel.
9.5.2008 2:07pm
Jon Roland (mail) (www):
There has been lively discussion on this in Wikipedia.

Also see this on Hiram Revels.

There is a critical distinction between being "natural born" on (incorporated) U.S. territory, and being statutorily naturalized at birth. Naturalization, even at birth, is clearly distinguished in the first sentence of the 14th Amendment from natural birth (on incorporated U.S. territory). Therefore Sen. McCain does not qualify no matter when the statute was adopted, because that statute only naturalized at birth. It didn't incorporate the Canal Zone as part of the U.S., either then or retroactively.

From 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;


Now, what set were the Framers attempting to define with those words? First, it was a subset of the set of "persons". Second, it examined the subsets of "citizen". It includes citizens who were citizens by natural birth on the territory of the "United States. Historical usage shows that is what "natural born citizen of" meant. It also includes citizens not born there but who had established citizenship by 1789. What does that leave out? Citizens not born there who had not established citizenship by 1789, but who were naturalized later. The debates show the concern was that someone who had not been born in the U.S. or gone through the revolutionary experience could not be trusted for the office of president.

Keep in mind that in that era "naturalization" was a somewhat informal process. It was under the control of states or localities. The federal Congress was delegated the power to establish a "uniform rule" of naturalization, but not to do naturalization, at least not exclusively. "Naturalization" often consisted of nothing more than someone immigrating to U.S. territory, declaring himself a citizen, and participating in militia duty.

So what was the "United States" at that time? The territory of the states, of course, but also the territory that was intended to become future states, the Northwest and Southwest Territories. In later times we would call such territory "incorporated", after 1898 when the U.S. came into possession or trusteeship of other territories that were not intended to become states. U.S. law makes people born on some of those territories citizens at birth, by statute, but the statute is a naturalization statute, stemming from the Revised Statutes §1993, adopted in 1855, and presently codified by 8 USC 1431 which is in Part II, Nationality through Naturalization, none of which is about natural born citizenship.

In the 14th Amendment we have

Section. 1. All 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.

The word "or" is important here. One is either a born citizen or a naturalized one. It does not use the term "natural born", but clearly the word "born" refers back to Art. II, and one suspects the meaning of that word had not changed much from 1787.

So naturalization does not confer "natural born" status, even if the effective date of it is the date of birth. The only legislation that could have that effect would be legislation incorporating the territory and putting it on the path to statehood. A person born on it would be a natural born citizen of it, and if it were incorporated, it would become part of the United States for the purposes of Art. II, even though the Constitution does not expressly cover the eventuality of the United States acquiring new incorporated territory between the time someone is born on it and the time he might take the office of president.

Now some have argued that it could not have been the Founders' intent to exclude the children of military personnel stationed abroad. No doubt if someone had brought up that contingency they would have provided for it, but the simple fact it that they didn't think of it. The Framers are responsible for their words, and if the words they chose conflict with their intent, perhaps from neglect of all the contingencies, it is the words that have to stand as authoritative. They knew there were flaws in the Constitution that would have to be corrected by amendment. This appears to be one of them. But the way to fix it is to amend the Constitution, not to ignore it.

I think the Founders would have responded that while there is an equitable right to become citizens there is no such right to serve as president or have some particular person available as a qualifying candidate to be voted for. Otherwise, one could make a similar argument against excluding persons under the age of 35. The Framers undoubtedly contemplated that some naturalized citizen someday would make an ideal candidate for president, but they wanted to exclude the scenario of a foreigner being imposed on them and claiming legitimate authority. Today we might consider that an unlikely contingency, but it made sense to them.

Remember that the notion of "substantive due process", although it has some merit, is a judicial doctrine developed much later, arising, interestingly enough, from the Dred Scott decision, which erroneously restricted the rights of personhood to "citizens" (and which the 14th Amendment was intended to overturn by the somewhat awkward device of defining persons and citizens to be almost the same set). As a right it attaches to personhood rather than to citizenship. As a person one has a substantive due process right to be treated like other persons for a determination of whether one is a citizen, but not for a determination of whether a citizen is qualified to serve as president.

There is contained in the argument, however, a logical fallacy: That if an omission in the Constitution results in inequity, therefore either the Constitution must be read to correct the omission, or ignored and the omission supplied by some extraconstitutional (or even contraconstitutional) political or judicial decision. No law or constitution can contemplate all the contingencies under which it can result in an inequitable outcome. With a little thought most readers can probably come up with examples of unjust and unanticipated consequences of laws. But a law is not mainly about justice. It is about a decision rule, one that wise lawmakers may hope will be just in most circumstances, but which they know sometimes will be unjust. In such cases, the solution is not to ignore the law but to change it, even if that is difficult to do.

The notion of "circumstances of his birth" indicates a key point. Such circumstances do not include status conferred by statute, which may be removed by statute. The 1787 notion of "citizenship", which has its basis in a constitution of government, encloses a more fundamental notion of "denizenship", which has its basis in a pre-existing constitution of society. Denizenship is defined by the place of one's birth, and entails the rights to remain and to return if one leaves. Citizenship is layered over that and adds the privileges (not rights) to vote and hold office. (See previous thread on whether voting is a fundamental right.) See Tucker's Blackstone, Book II, Chapter 10 (with apologies for not having completed the reformatting), from which these distinctions are mainly derived. You will see from this that the territories now called "unincorporated" are not regarded as "part" of the dominion of the United States, but rather have the status of "occupied territory", even if occupied for a very long time, and unless naturalized, its citizens "aliens".

To understand the words of Art. II we need to consider the kind of scenario they feared: A foreign fleet, say of Spain, sails to the Potomac River, and Spanish troops seize the capital and members of Congress. With bribery or intimidation, the Spaniards compel members of the House to "recognize" the election to the House of the Spanish Viceroy (born in Madrid), then elect him as Speaker, then they arrange the president and vice-president to die in "accidents", making the Speaker "president".

The words in Art. II were intended to make sure that everyone would refuse to obey such a "president", and that any of his "official acts" would be void. Not only because of the corrupt or usurptive ways he might be installed, but also because he was not born on the soil of the United States. They realized that foreigners might be able to install some kind of Quisling, but considered a natural born citizen to be less likely to agree to play such a role. (It also would not work for Congress to vote Spain to be part of the territory of the United States, since it obviously would not be, and it was substance, not labeling, that mattered.)

Puerto Rico is one such unincorporated territory. By statute persons natural born on its territory are also U.S. citizens, but they would not be "natural born" for Article II purposes at this time. If it became a state, they would all become "natural born". On the other hand, if they decided to abandon their "commonwealth" status and become a sovereign nation, the statute naturalizing its citizens as U.S. citizens would cease to apply to them, and all of them would be denaturalized.

In either interpretation, however, as Jack Chin has pointed out, McClain was not a citizen at birth. He was naturalized by statute later, and could be de-naturalized by statute.
9.5.2008 2:20pm
pluribus:
Jon Roland:
An interesting argument, but not one that persuades me. At the outset, it seems to me that you are changing the plain words of Article II, which requires that the president be a "natural born citizen . . . OF the United States" to a requirement that the president's citizenship be by virtue of natural birth "IN" the United States. It is conceded that McCain was natural born. Assuming (but not conceding) that the Canal Zone does not qualifiy as "IN" the United States does not persuade me that he was not a "natural born citizen . . . OF the United States."
9.5.2008 2:43pm
J. Aldridge:
UPDATE: I was not being as clear as I could have considering it's still early morning for me... Under natural law the fathers natural condition of citizenship also makes this condition the same for the child. (Vattel sections 213, 215) In other words, if your father is a natural born citizen you are also a natural born citizen regardless where you are born in the world.
9.5.2008 2:57pm
some dude:
Was he or was he not a citizen at 1 hour old?
No answer? I must assume McCain is ineligible.
9.5.2008 2:58pm
Robert West (mail) (www):
Jon Roland, would you also hold, then, that Barry Goldwater was not a natural born citizen?
9.5.2008 3:00pm
Jon Roland (mail) (www):
Barry Goldwater was a natural born citizen because Arizona was incorporated U.S. territory. When the Constitution was written it was understood that the "United States" consisted of the states plus the territories, which were organized under the Northwest Territories and Southwest Territories ordinance. They were on the path to statehood, and birth on them made a person a "natural born" citizen of the United States. We had no protectorates or leaseholds then, so the subject didn't arise. Later, when we acquired them, the term "incorporated" territory was introduced to distinguish them.

A leasehold or protectorate does not qualify. However, by the law of nations there can be treaty exchanges of territory for the grounds of diplomatic missions. So someone born on embassy grounds would be natural born, while someone born on a U.S. military base abroad would not be, even if naturalized at birth. Note that the statute on the subject is a naturalization statute, not a natural birth recognition statute.

Note that the incorporate territory extends to coastal waters and U.S. flag vessels at sea. Pregnant persons stationed abroad who want their kids to become president should either drop in to a U.S. embassy or hop on a boat, preferably a U.S. Navy vessel, which is more likely to have medical capabilities.

Here are some links omitted from the previous post:

§1993, adopted in 1855, and presently codified by 8 USC 1431 which is in Part II, Nationality through Naturalization.

Tucker's Blackstone, Book II, Chapter 10.
9.5.2008 3:19pm
Jon Roland (mail) (www):
If this issue gets litigated, and it very likely will be, I expect the SC may very well have to find McCain is ineligible. In that case, Palin may ascend to the presidency sooner than expected, and will be able to serve most of 12 years, since the 22nd Amendment only restricts the number of times a person can be elected to the presidency to two terms, not how many terms she may serve.
9.5.2008 3:26pm
Hoosier:
Jon Roland--Ten years max in the presidency.

and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected

Now, will someone please answer my question: What nation was actually sovereign over the Canal Zone when McCain was born?
9.5.2008 3:36pm
Grover_Cleveland:
Out of interest, what would McCain's status have been if he had been born at the naval base at Guantanamo Bay, Cuba, instead of in the Panama Canal Zone?
9.5.2008 3:42pm
PersonFromPorlock:
Jon Roland:

From 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;


Reading this closely, the comma between "United States" and "at the time of" becomes critically important. It appears that every eligible person is now dead, including those who were natural born citizens at the time of the adoption. ;^)
9.5.2008 3:49pm
Der Hahn (mail):
Jon Roland Palin may ascend to the presidency sooner than expected, and will be able to serve most of 12 years, since the 22nd Amendment only restricts the number of times a person can be elected to the presidency to two terms, not how many terms she may serve.

22nd Amendment...no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. (emphasis added)

I guess you're technically right, since the ten years (maximum) she could serve is 'most of 12', and it does say she could only be elected once if McCain was forced out before completing at least two years, not serve only one term.

It sure doesn't inspire confidence in the rest of your "analysis", however.

(I see Hoosier beat me to the max of ten years but I have dibs on recognizing 'only restricts the number of times a person can be elected to the presidency to two terms')
9.5.2008 3:50pm
jrose:
John Roland: it [natural born citizens] includes citizens who were citizens by natural birth on the territory of the United States. Historical usage shows that is what "natural born citizen of" meant.

Why then in 1790 did Congress pass legislation that said, "[a]nd the children 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."

Even though Congress removed the reference to "natural born" in 1795, doesn't the 1790 law demonstrate controversy over what was meant by "natural born" in the Constitution?
9.5.2008 3:51pm
Jerome Cole (mail) (www):
@Roland: You are a quack. A natural born citizen is one who acquires citizenship at birth. See the first comment and complete the two steps. This is paint by numbers easy.
9.5.2008 4:03pm
bellisaurius (mail):
What I don't understand is how can a flag bearing vessel, or diplomatic embassy be sovereign US territory, but the uterus of a female citizen of the US not be?

I mean, I know there's a historical argument about whether citizenship passes through men or women (boyd's point; or from a jewish perspective, through the woman, as there's rarely a question to maternity -blond jokes aside), but being a biological derivative of parts that were most certainly citizens, I'd have trouble considering anything less than saying a person was a "natural born" (which I think could without too much effort be read to say "born to a citizen", which would be a common sense definition).
9.5.2008 4:09pm
pluribus:
Jon Roland:

If this issue gets litigated, and it very likely will be, I expect the SC may very well have to find McCain is ineligible. In that case, Palin may ascend to the presidency sooner than expected. . . .

You analysis leaves something to be desired. Amendment XXV, Section 1, provides that, “in case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” If McCain was never eligible to be present, he could not become president, and Palin could not succeed him. Under your fact scenario, he wouldn't have resigned, died, or been removed. It would simply be declared that he never became president. I assume that if anybody is serious about challenging his eligibility to be president, they would seek a declaration before he takes the oath of office, to avoid the horrific mess that might result if they waited until after.
9.5.2008 4:20pm
Jon Roland (mail) (www):
The question of whether someone ineligible to serve in an office, but assumes the office before the eligibiliity is successfully challenged, has come up in some quo warranto cases (and a challenge would properly be a quo nwarranto proceeding). The precedents that shape understanding of the original public legal meaning are that once one is installed in an office, the remedy is no longer merely to void the election, but order removal, so it would be "removal" for purposes of the amendment.

As for how long Palin might serve, I was presuming that while a trial court might rule McCain ineligible by January 21, appeals to the Supreme Court, together with influence on the SC to delay its ruling until Jan. 21, 2011, would enable Palin to run twice for the presidency after serving out the remainder of McCain's first term. In the meantime, while the case was on appeal, I can see McCain having to, essentially "recuse" himself and turn over the duties of the presidency to Palin, so she could serve as "acting" president for two years, then assume the title and run two more times.
9.5.2008 4:52pm
pluribus:
A suit was apparently filed in Philadelphia on August 23 claiming that Obama is not a natural born citizen. The claim is that he was born in Africa, not in the U.S. However, copies of his Hawwaiian birth certificate have been posted on the internet. The suit is Berg v. Obama.
9.5.2008 4:52pm
dearieme:
"Lawrence B. Solum....
The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism
": why should I pay attention to this fellow's attempt to infer the meaning of the Constitution when he's so weak on the meaning of "contemporary"?
9.5.2008 4:55pm
Jerome Cole (mail) (www):
@Roland: Please give me your dealer's contact info. I want whatever you are smoking. Your comments are just getting wilder and wilder.
9.5.2008 5:00pm
Jon Roland (mail) (www):
For more on quo warranto cases see http://www.constitution.org/writ/quo_warranto.htm

Now for the question raised by Bellisaurius:

What I don't understand is how can a flag bearing vessel, or diplomatic embassy be sovereign US territory, but the uterus of a female citizen of the US not be?

See the treatises on the law of nations by Grotius, Pufendorf, Vattel,
and Bynkershoek. Basically, territorial boundaries are defined by the rules o f the (common) law of nations together with boundary treaties. Flag vessels are covered by both law of nations tradition and international treaties establishing them as what we today term "ioncorporated" national territory. Embassy grounds are also, essentially, established under boundary treaties. Leaseholds and protectorates are not the functional equivalent of boundary treaties, since the administration is deemed temporary.

So to answer the question above, the Canal Zone was sovereign Panamanian territory, and a person born there would be a natural born Panamanian citizen, as most were so considered by Panamanian law. Likewise, Guantanamo is Cuban territory and a person born there would be a natural born Cuban, even if naturalized at birth as a U.S. citizen.
9.5.2008 5:11pm
Greg S. (mail) (www):
Why would a court become involved? Shouldn’t this be considered a political question?
9.5.2008 5:12pm
Jon Roland (mail) (www):
Jerome Cole:

Please give me your dealer's contact info. I want whatever you are smoking. Your comments are just getting wilder and wilder.

Just smoking primary sources of law. My findings only seem wild to you because current jurisprudence and legal education has deviated so far from its origins. When this country was founded a strong grounding in legal history was considered essential for lawyers. Today it is not, and us legal historians get some good laughs at "law office history".
9.5.2008 5:19pm
Jon Roland (mail) (www):
Greg S:
Why would a court become involved? Shouldn’t this be considered a political question?
The Court might duck it, and invoke "political question" as an excuse, but it is definitely a legal question.
9.5.2008 5:25pm
bellisaurius (mail):
I see your point on the agreed upon rules of international law, roland. I'm sure most would agree about where national sovereignty exists between the nations themselves (Or at least acknowledge a tacit concurrence).

Inasmuch as US citizenship is concerned however, I think if one starts down the statutory citizenship argument, then embassies and ships would seem to become statutory as well (my understanding is that treaties have the bearing of statutory law). If that's the case, then the law is either strictly interpreted, or it's more broadly and informally done. I think that's why I find the argument intriguing (although I find the 14th amendment, natural birth, and abortion one kinda cool too), because it could probably be argued very well that McCain isn't a proper citizen, just that I think I couldn't in conscience say he wasn't.
9.5.2008 5:32pm
Greg S. (mail) (www):
Jon Roland:
If this is a legal question what would be the remedy? Should the court order the Senate not to count votes for McCain? Should the court order McCain not to take the oath of office? If he is already in office should the court order the president to resign or order congress to impeach and remove? It would seem to me that all possible remedies would run into powers granted to other branches. I think the proper remedy for a person not eligible for the presidency would be for the senate not to count the votes for that person and for the courts to respect that power.
9.5.2008 5:33pm
Jerome Cole (mail) (www):
@Roland: Please tell me more about this "legal history" of yours. Was any of it written by Harry Turtledove?

Right now, you are just digging a deeper and deeper hole for yourself. Anyone who reads this section of the constitution can figure out what it means in about minute. Your rambling commentary is directly at odds with the text of the constitution.

Moreover, your entire argument rests on the idea that the children of American citizens born abroad are naturalized American citizens. That is rather extraordinary claim and I think it requires some extraordinary evidence. Unless, you can come up with something a lot better than what you have posted so far, I just have to assume that you are either baked and/or trolling.
9.5.2008 5:37pm
Hoosier:
It is obvious that Jon's "reasoning" is based on spooking the naive voter about 'President Palin Subito.'
9.5.2008 6:54pm
FWB (mail):
Congress may not define the term "natural born citizen" for if Congress may define that term, Congress may redefine every term in the Constitution and the Constitution would be moot. Thus one must refer to the debates for the sole determination of the meaning of "natural born citizen".
9.5.2008 6:54pm
Hoosier:
"So to answer the question above, the Canal Zone was sovereign Panamanian territory, and a person born there would be a natural born Panamanian citizen, as most were so considered by Panamanian law"

How can you assert this in light of Hay-Bunau Varilla, Sec. III?
9.5.2008 6:55pm
mlstx (mail):
All this focus on the natural born citizen clause might be irrelevant — check out The Presidency and the Meaning of Citizenshipat 2005 BYU L. Rev. 927. [I tried to include the link, but html got the better of me -- google will get you to it). I argue there that the natural born citizen clause has been repealed by implication with the adoption of the 14th Amendment. (Read it before you tell me I'm crazy!)
9.5.2008 6:55pm
Hoosier:
Once again, Jon: "to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority." Seems clear that whoever was sovereign in the Zone, it was /not/ Panama.
9.5.2008 6:57pm
David Schwartz (mail):
The treaty grants the United States the right to act as if it were sovereign and Panama agreed not to exercise any of the powers of sovereign. If Sovereignty is different from the rights and powers of a Sovereign, I don't see how.
9.5.2008 8:03pm
jrose:
FWB: if Congress may define that term, Congress may redefine every term in the Constitution and the Constitution would be moot. [...] one must refer to the debates for the sole determination of the meaning of "natural born citizen".

Isn't it possible the framers intended to have some Constitutional terms, but not others, definable by Congress? Why did Congress define "natural born citizen" in 1790, just 1 year after ratification of the Constitution? The debates were silent on the issue.
9.5.2008 8:04pm
Hoosier:
David Schwartz--My thoughts exactly. Thank you.
9.6.2008 12:29am
domingo arong (mail):
Jon Roland--“The word "or" [in “born or naturalized in the United States"] is important here.”

The significance of the conjunction “or” lies, of course, in the fact that, if the prepositional phrase "in the United States" is to be regarded as a modifier of the word "born"; then, the same phrase, "in the United States," should also be regarded to qualify the word "naturalized," since the word "naturalized" is joined to the word "born" by the conjunction "or."

So, as in "born in the United States," a person must be “naturalized in the United States”--ONLY “in the United States”--and not anywhere else “abroad.”

But since the Panama Canal Zone was regarded as NOT “in the United States,” upon what authority did Congress invoke to “naturalize” at birth children of U.S. citizens “born abroad” in the Panama Canal Zone?

Besides, if the term “naturalization” is defined as “the conferring of nationality of a state upon a person after birth,” is Congress empowered to “naturalize” persons even “AT BIRTH”?

Chief Justice Fuller, dissenting in Wong Kim Ark, on “not naturalized in the United States”:

“In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this government. If not, and if the correct view is that they were aliens, but collectively naturalized under the acts of congress which recognized them as natural born, then those born since the fourteenth amendment are not citizens at all unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized 'in the United States.'”

Justice Blackmun in Rogers v. Bellei on “not naturalized in the United States”:

“The central fact, in our weighing of the plaintiff's claim to continuing and therefore current United States citizenship, is that he was born abroad. He was not born in the United States. He was not naturalized in the United States …”
9.6.2008 9:00am
Jon Roland (mail) (www):
bellisaurius:

if one starts down the statutory citizenship argument, then embassies and ships would seem to become statutory as well


No, but to understand why one must refer back to the law of nations, and avoid the errors of understanding that can come from lumping under the subject "international law" two very different things:

jus gentium -- the law of nations. The social constitution of the society that is considered to emcompass at least most Western nations, and perhaps all nations. The common law for that society, even though it is divided into multiple states, arising from natural law, or constitution of nature, and superior to the domestic laws or constitutions of government of each such state. Incorporated by reference into the U.S. written Constitution of government.

jus inter gentes -- Treaties. conventions, or other agreements among national governments.
9.6.2008 11:11am
Jon Roland (mail) (www):
Greg S.:

If this is a legal question what would be the remedy? Should the court order the Senate not to count votes for McCain? Should the court order McCain not to take the oath of office? If he is already in office should the court order the president to resign or order congress to impeach and remove? It would seem to me that all possible remedies would run into powers granted to other branches. I think the proper remedy for a person not eligible for the presidency would be for the senate not to count the votes for that person and for the courts to respect that power.


You are correct that the Court does not have jurisdiction to compel either Congress, the Electoral College, or the President, if they refuse to accept the declarative judgment of the Court. However, that is also true of judicial powers generally, since ultimately court orders are just pieces of paper unless people, driven by custom and consent, choose to implement them. Courts don't command armies.

What a court can always do, however, is refuse to enforce the actions of another branch. That is essentially what it does when it decides they are unconstitutional. A ruling that a statute is unconstitutional doesn't remove it from the statute books, but if the courts refuse to enforce it, it becomes a dead letter.

So if a president is found, after inauguration, to be ineligible to serve, his actions become unenforceable in the courts. Every bill he signs, every executive order, every appointment or removal, is deemed void. At that point he would either have to resign, or assume dictatorial powers in defiance of the courts.

McCain isn't going to defy an order of the Supreme Court, although I would expect him to appeal a lower court order, and remain nominal president while the appeal is pending. However, the risk that he might lose, rendering his actions legally void, would seem to require invocation of the 25th Amendment, which was designed for medical incapacity, but which could, in a stretch, be used for legal incapacity. That is why I said earlier that Palin could serve more than ten years, first as acting president, then as successor by resignation or removal, then as elected president.
9.6.2008 11:31am
Jon Roland (mail) (www):
Jerome Cole:

Please tell me more about this "legal history" of yours.

I have provided some links, but you can start with the Liberty Library of Constitutional Classics page and find most of the primary sources.


Anyone who reads this section of the constitution can figure out what it means in about minute.

Probably not. You are presuming it is written in a language you know, because the words seem familiar, but it is not. The language of the Constitution is not the colloquial English of 2008, or even the legalese of 2008, but the legalese of 1787, and to understand it you have to empty your mind of what you think you know and start fresh with the things the Founders read and wrote, and be prepared to acquire a significantly different way of thinking about law. You need to treat it as a foreign language. Imagine you are a judge trying to decide a case involving a contract for international shipping written in, say, Swahili, and you can't rely on translators, but have to learn the language yourself before you can interpret the contract.


your entire argument rests on the idea that the children of American citizens born abroad are naturalized American citizens.

I have provided the support for that in links to things like the statutes, which specifically cover such situations and say that the citizenship conferred is naturalized citizenship. Go back, click on the links, and read the statutes.
9.6.2008 11:49am
Jon Roland (mail) (www):
Hoosier:
How can you assert this in light of Hay-Bunau Varilla, Sec. III?

The treaty is still a lease, despite the somewhat imprecise use of the term "sovereignty". When you lease a house, you do not convey equitable title. You are still the owner, even if the lessee has "sovereign" power to occupy and use, and to make rules for persons entering his leasehold. If the lessee breaches the terms of the lease, the lessor can reclaim the premises and evict the tenant. The lease is for a limited period of time, and full rights revert to the owner at the conclusion of the lease.

The situation should be apparent from the fact that the children of Panamanian citizens, who comprised most of the residents of the Canal Zone, were deemed Panamanian citizens. If the U.S. was the "owner" of the Zone, they would all be U.S. citizens, not just the children of U.S. citizens.

The concept of "citizenship" does indeed derive from that of "subject" in the law of nations, and from "denizenship", which is about where one is born, not who one's parents were. The law of nations is first and foremost about territory.
9.6.2008 12:06pm
Jon Roland (mail) (www):
mlstx:
check out The Presidency and the Meaning of Citizenship at 2005 BYU L. Rev. 927. I argue there that the natural born citizen clause has been repealed by implication with the adoption of the 14th Amendment.


Link provided. I'll give your article a "B" for research, but withhold an "A" for your defect in analysis that while the 14th Amendment (if, arguendo, it was ratified) and its Equal Protection Clause extends the privileges and immunities of U.S. citizens to state citizens, and makes them state citizens if they are residents (leaving it presumably to the states to decide residency requirements), it does not change the definition of U.S. citizenship, or the classes of such citizenship as they might relate to the privilege (not right) to hold various kinds of office.
9.6.2008 12:34pm
Jon Roland (mail) (www):
jrose:
Isn't it possible the framers intended to have some Constitutional terms, but not others, definable by Congress?

No. Some provisions allow some discretion in the application of a constitutional term, but not the definition of it. That is a critical distinction that seems to often be lost on the product of law schools these days, but it was well understood by the Framers, even if the legal English of the day did not support the precision of their understanding. That goes to what I said about the need to approach constitutional construction as learning a foreign language.
9.6.2008 12:46pm
Jon Roland (mail) (www):
domingo arong:
The significance of the conjunction “or” lies, of course, in the fact that, if the prepositional phrase "in the United States" is to be regarded as a modifier of the word "born"; then, the same phrase, "in the United States," should also be regarded to qualify the word "naturalized," since the word "naturalized" is joined to the word "born" by the conjunction "or."

So, as in "born in the United States," a person must be “naturalized in the United States”--ONLY “in the United States”--and not anywhere else “abroad.”


The word "in" does indeed qualify both "born" and "naturalized", but you are confused about the noun that goes with each verb, and "born" is a somewhat irregular verb, because it derives from an act of the mother, and has come to be used to mean an act of the child, but for the latter always preceded by a form of the verb "to be". In either meaning, "in" refers to either the mother or the child at the time of birth, and they are presumably colocated. However, "naturalize" is not an act of the person becoming a citizen, but of some naturalizing authority, and it is that authority, as actor, not the child, who must be "in" the United States.

Now, does this mean someone abroad can't be naturalized by a U.S. consul while the consul is abroad? No, because the consul is not the authority. His government is, or rather, the legislature of his government.

We need to keep in mind that at the time of the Constitution and 14th Amendment, naturalization was actually executed by states and their agents, even if they were supposed to do so under a "Uniform Rule" established by Congress. It was only later that Congress assumed (usurped) the exclusive power of naturalization. (Probably a good idea, but still unconstitutional.)
9.6.2008 1:14pm
Bill Poser (mail) (www):
For those who think that this is not a subtle legal question, I have an even simpler approach: just ask McCain to lift his shirt and show us whether or not he has a belly-button.
9.6.2008 5:41pm
domingo arong (mail):
Jon Roland --“However, ‘naturalize’ is not an act of the person becoming a citizen, but of some naturalizing authority, and it is that authority, as actor, not the child, who must be ‘in’ the United States.”

So, if the phrase “All persons ... naturalized in the United States” in the Citizenship Clause is to be read as “not an act of the person becoming a citizen, but of some naturalizing authority”--or of the performer of the act of “naturalization”--then, the appropriate preposition that precisely conveys that intent is “by” and not “in”—“All persons … naturalized BY the United States.”
9.6.2008 10:32pm
Hoosier:
Jon Roland

I'm not buying your explanation. The lease argument fails to address the issue of sovereingnty. Your own example emphasizes exactly how these cases differ:

"If the lessee breaches the terms of the lease, the lessor can reclaim the premises and evict the tenant."

Could the Panamanian government have evicted the US from the Canal Zone? How? Take the case to court in Panam City? There was no recourse if the Panamanians wanted the US out, short of negotiating a new set of treaties--which is, in fact, what happened.

My question--yet again--is this: Who was sovereign over the Canal Zone prior to the return of the Zone to Panama?

Your argument about Panamanian children may work as a case that they should have been considered Americans. But it undercuts your case further: If your reference is to actual practice in the Zone, then what was regarded as the citizenship of those babies born to Americans? I mean, it works both ways, right?
9.7.2008 2:09am
Milhouse (www):
Nobody seems to have mentioned a key point: Blackstone's definition of "natural born subject" includes an explicit exception for ambassadors' children; they are natural born subjects even if born abroad. It seems perfectly clear to me that US servicemen stationed abroad are in the same position as ambassadors for this purpose, and their children born in the country where they are stationed are natural born citizens. It further seems clear to me that children born in the USA to foreign servicemen stationed there are not natural born citizens, or 14th-amendment citizens (because they're not "subject to the jurisdiction" of the USA).
9.7.2008 5:28am
Jon Roland (mail) (www):
domingo arong:

So, if the phrase “All persons ... naturalized in the United States” in the Citizenship Clause is to be read as “not an act of the person becoming a citizen, but of some naturalizing authority”--or of the performer of the act of “naturalization”--then, the appropriate preposition that precisely conveys that intent is “by” and not “in”—“All persons … naturalized BY the United States.”

"By" would only make sense if there were only one naturalizing authority, but there were many, all in the United States. Not just the state and federal governments, but even counties and townships were naturalizing people, usually under general state statutes, but not always.
9.8.2008 2:04am
Jon Roland (mail) (www):
Hoosier:

Could the Panamanian government have evicted the US from the Canal Zone? How? Take the case to court in Panam City?

No, it would take it to the U.S. District Court for the District of Columbia, appealable to the U.S. Court of Appeals for the DC Circuit, appealable to the U.S. Supreme Court. If the Court ruled against the President, the President could pull a Jackson and defy it, but that is not likely.


Who was sovereign over the Canal Zone prior to the return of the Zone to Panama?

Panama was. The lease didn't cede territory to the U.S., only occupation and administration of it.


what was regarded as the citizenship of those babies born to Americans?

Panamanian. The fact that Congress might naturalize some of them by statute, making them dual citizens, doesn't change that.
9.8.2008 2:23am
Jon Roland (mail) (www):
Milhouse:

It seems perfectly clear to me that US servicemen stationed abroad are in the same position as ambassadors

Only if there is a treaty conferring diplomatic status on them, and there is not, for any nation. This is one of those things governed by the law of nations. Persons are appointed ambassadors, subject to acceptance by the other countries, and have command over embassy grounds that represent temporary exchanges of territory between each pair of nations.

A lay sense of things won't work here. This is a deep field of law that usually doesn't get adequately covered in law school.
9.8.2008 2:30am