For American history buffs, read Jonathon Turley’s post about the potential issues facing John McCain should he win his campaign for the presidency. What problems, you ask? Why, the problem posed by Article II, Section 1 of the United States Constitution:
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.
So what does this have to do with McCain? It seems that John McCain was born in Panama, not in the United States. Well, you say, then that’s that. Not quite.
McCain was born in 1936 in the Panama Canal Zone while his father was stationed there as a naval officer. In 1787, however, the framers insisted that any president be natural born — that is, born within the United States.
Clearly, there is an immediate reaction that it would patently wrong and unfair to disallow a McCain presidency because he was born while his father was serving his nation in the military on a foreign assignment. Certainly this would offend the sensibilities of anyone, regardless of whether you are McCain supporter or otherwise. It’s just wrong.
But this isn’t about fairness. This is a straightforward issue of constitutional requirements. The language is clear. The intent of the framers is clear. The originalist interpretation of the Constitution leaves little doubt as to what the outcome should be. Flagrantly wrong in terms of fairness, but clear in terms of a Constitution that does not change to accommodate circumstances not anticipated by its authors.
Nor is this the first time that Article II, Section 1, has been at issue. Turley provides recent examples of the problem:
The last time that we faced this question in a serious candidate was Barry Goldwater, who was technically born while Arizona was a territory in 1909. Other such questions were raised by Mitt Romney’s father who ran in 1968 despite his birth in Mexico and former Sen. Lowell P. Weicker Jr., who was born in Paris.
The Barry Goldwater situation is particularly interesting, as it is unlikely that our founding fathers thought about a person born in a territory that would be given statehood in the interim who would thereafter run for President. As for Lowell Weicker, the issue is lessened by the fact that Paris is considered a part of Connecticut by local standards.
Turley also provides an interesting insight into the reason for this clause. It seems that the ongoing dispute between Alexander Hamilton and just about everyone else, based upon Hamilton’s strenuous support for a federal government with nearly unlimited powers (he put the elastic in the “elastic clause”) gave rise to great fear that he would anoint himself king given half a chance.
It is clear that the Framers consider natural born to refer to a birth on U.S. soil. Indeed, Alexander Hamilton was viewed as ineligible due to his birth in the West Indies. It has often been suggested that the provision was written in part to block Hamilton by his detractors — though this may be apocryphal. It seems more likely that people like Jay were concerned with a preference among some to have a King, including some foreign princes who might rule the nation.
So basically, this clause was included to make sure that Hamilton could never be President, much to Arnold Schwarzenegger’s consternation.
The surest answer to this problem would be for the courts to hold that a United States military base on foreign soil is still America, like an Embassy. But this is where the law of unintended consequences comes into play.
The zone was a foreign military base like Guantanamo Cuba. Ironically, the Bush Administration has been arguing for years (with Senate support) that U.S. laws and jurisdiction do not extend to Cuba in the cases of the detainees. If such bases are now treated as U.S. soil, it is unclear how that would affect this long-standing claim that it is not for purposes of civil liberties.
Either it is or it isn’t. It can’t be American soil for one purpose and not for another. For those who might be inclined to argue this point, this is because we can’t redefine everything to produce a desired result unless we remove any pretense of legitimacy from our legal system. This may be fine with you (and may be fine with the courts, for all I know), but it will produce an inherent integrity issue.
American history really is quite fascinating, no?
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“It can’t be American soil for one purpose and not for another.”
And you call yourself a lawyer…
Fascinating question though. McCain was clearly a citizen on the day he was born, but was he a presidential-quality citizen under the constitution?
It seems unlikely that the founding fathers—many of whom were world travelers—could have intended for the citizenship of a child of citizens to depend on whether or not they were in the U.S. at the time of the birth.
Then again, there are a lot of unlikely things that are nevertheless the law…
Hey Windy,
This is a bit of lawyer nuanced stuff, but it’s got nothing to do with citizenship, but about being “natural born.” Turley suggests that they meant exactly what they said, “natural born” means born on good old US of A soil, and that was exactly their intent.
Hmm… so I guess the conservative originalists are feeling not so originalist right now.
Yeah, that’s what I figured. Kind of like the census being determined by “enumeration” even though some modern statistical methods would be more accurate.
This is an important issue: if John McCain can’t be president, then neither can I!
I hate to be the one to break this to you, but that’s not the only reason why you can’t be president.
Jonathan Turley claims, “It is clear that the Framers considered natural born to refer to a birth on U.S. soil.”
However on March 26, 1790 the First Congress, including a number of the Framers, passed the first naturalization law: “And 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.” Their intent was clear and Mark still has a chance.
Wow, that’s interesting. I wonder why Lawprof Turley doesn’t know about this. Thanks Clark.
As for Mark still having a chance, let’s just say that this won’t be his biggest hurdle.
Given the apparent absence both of case law and of contemporaneous remarks or records by the Founding Fathers on this point, and following up on Mark’s Dad’s point, I see nothing in the plain meaning of the phrase “natural born Citizen” or in the “originalist” approach to constitutional interpretation that precludes the construction that the “natural born Citizen” requirement means that a president must have been a citizen at birth rather than having been naturalized later. Thus instead of looking to the happinstance of location of birth, we would look to another happinstance, the state of the laws of citizenship in effect at the date of birth. Of course this view would have barred Sen. Goldwater from office. Alternatively, perhaps the Founding Fathers just wanted to ensure that we never had a test-tube baby president.
I give the founding fathers an awful lot of credit for creating a Constitution that is remarkable in its adaptability, but even I don’t go far enough to think this was a scheme to preclude test-tube babies. Clones maybe (that would be on Franklin’s side).
I think that Mark’s Dad has offered a better insight into what was meant by the phrase “natural born” citizen, intended to distinguish the person from a “naturalized (another curious choice of words, I might add) citizen” and Turley may have assumed too much by saying that the intend was clearly to mean born on United States soil.
Wow, wait ’til Cunningham hears about this!
If by “it is clear that X” he means “I have no evidence for X, but choose to believe it anyway,” I suppose so.
The passive is a nice, weasely way of avoiding any real documentation. Who believed Hamilton to be ineligible? Anyone he can name? Bueller?
“May be” is a gross understatement. Try “clearly is.” If the framers of the Constitution had intended to freeze out Hamilton or anyone else, they wouldn’t have grandfathered in all individuals who were citizens at the time of ratification, whether “natural born” or not.
Can just anybody be a law professor these days?
I’ve allowed this comment, despite the fact that you’ve gone anonymous and failed to provide an email address, and absent my permitting it, this comment would never have seen the light of day. My reason is to make this point, yet again. It’s a perfectly reasonable comment, although what an anon commenter supposes is inconsequential since you fail to provide any basis for your knowledge.
But the more important point is that if you’re going to go after Jonathon Turley’s argument (and I agree that it’s largely assumptive and has since been shown to be highly dubious at critical points), then you should not hide behind anonymity. You don’t get to attack while cowering in the shadows. Either stand behind your comment or don’t bother.
With all due respect, I did not “fail to provide” my email address. When I posted the last comment, like this one, I included my email address (xrlq at xrlq dot com) the the appropriate field. That you chose not to use it to verify the post is a failure on your part, not mine.
Oh, please. Arguments stand or fall on their merits, not on whether or not someone you’ve never heard of affixes a legal name, a pseudonym, or neither to their comment. If you aren’t sure whether or not to believe my assertion that Article II, Section I grandfathered individuals like Hamilton who were citizens at ratification, look”>http://caselaw.lp.findlaw.com/data/constitution/article02/“>look it up. I don’t claim to be an author of the Constitution myself, or to have any special “insider” knowledge that would make my identity remotely relevant to the merits of either Turley’s argument or mine. Thus, your whiny point about pseudonymity is not taken. I’ve been blogging under the same pseudonym for over five years now, and I’m not going to change that just to satisfy the idle curiosity of one identity fetishist.
While I hate to engage with jerks, this is worth the effort.
Given your vast blogging experience, you should be aware that the program verifies the email, not me. To come here and attack, in light of your vast experience, is foolish and offensive.
The idle curiosity of one identity fetishist? You come to my blawg and post something this bizarre? I didn’t go to your blog, nor do I plan to. For anyone wishing to see this commenter’s blog, apparently dedicated to neo-con politics, here it is. Now what would possibly make you think that you get to come here and make up your own rules? And call me names in the process?
So here’s the deal. Since you have decided that you are going to do things your way and broken my one rule, then you are not welcome here. Not for your content, but your offensiveness. I realize that this will undermine your neo-con sensibilities, where you have the absolute right to spew wherever you want, but I will have to suffer without you.