I suppose I shouldn’t be surprised when frivolity goes mainstream. This morning’s New York Times carries an article raising the issue whether John McCain, born in the Panama Canal Zone while his father, a Navy admiral, was stationed there, is a “natural born citizen” under Article II of the Constitution and therefore eligible to be president. Of course he is. I spent a weekend a while ago in an intermittent e-mail debate with a few other constitutional law scholars on this question, and I was amazed at how such a simple question could be made so needlessly complex. The last line of the Times article, quoting the author of a long-ago law review article, is that “it is certainly not a frivolous issue.” I think that’s just what it is, Ptolemaic epicycles of abstruse constitutional reasoning to the contrary notwithstanding. Herewith some thoughts:
1. The Times mentions a 1790 act of Congress–the first naturalization act–that declared that the offspring of citizens overseas would be considered “natural born” citizens. Reporter Carl Hulse says “that law is still seen as potentially unconstitutional,” though by whom he does not say. Yet while it is true that subsequent naturalization acts omitted this language, it is a mistake to see the 1790 act as adding to the class of “natural born citizens” beyond those already indicated by Article II (or to read the subsequent acts as repudiating that inclusion by their later omission of it). Such addition would have been unconstitutional, and it would not have occurred to the First Congress to attempt it. The language is instead an instance of congressional interpretation of the language of the Constitution. It does not confer a statutory “natural born” status, but recognizes a constitutionally conferred status. While the views of the First Congress, including many of the framers and ratifiers of the Constitution, are often given great weight in interpreting its meaning, those views should not be considered binding on us today. The question is whether that Congress was right to read Article II as including foreign-born children of U.S. citizens. It was.
2. Sen. Lindsay Graham, taking McCain’s side, notes that McCain’s father “was posted [in Panama] on orders from the United States government.” (One might also argue that the Canal Zone was not truly “foreign” as a U.S. possession at the time, but we can leave that out of the analysis.) But this should not be dispositive. Whether U.S. citizens are overseas on military or diplomatic assignment, or on private business, or merely tourists; whether their children are born on embassy or military grounds considered “U.S. soil” for some purposes, or are born unquestionably on foreign soil–these cannot be the considerations that dispose of the question. It is their parentage that matters. The laws of nations differ as to citizenship, and while some countries will recognize children born on their soil of sojourning parents as citizens, others will not. Would we say that the child born of U.S. parents in a country according that child no citizenship is not a U.S. citizen either, and is therefore a citizen of no country at all? That is an absurdity that cannot be imputed to the Constitution. While the framers may not have anticipated significant numbers of American military and naval forces on extended foreign assignments, with whole military families stationed overseas and children being routinely born, it is inconceivable that they could have intended that a) U.S. diplomats’ children be ineligible for the presidency due to the accident of overseas birth, or even that b) the children of private citizens travelling abroad be likewise ineligible.
3. The argument is sometimes made that such children have no constitutional status as citizens, but only statutory citizenship by virtue of naturalization. But while special circumstances such as illegitimacy may complicate the question (see Tuan Anh Nguyen v. INS, 2001), and require statutory settlement, it makes no sense to suppose that the legitimate children of U.S. citizens, if born overseas, would be left in limbo in the absence of Congress’s exercise of its power over naturalization.
4. Some of the confusion stems from remarks made by Justice Horace Gray in U.S. v. Wong Kim Ark (1898), the case that held that under the first sentence of the Fourteenth Amendment, children born on U.S. soil to immigrant parents are U.S. citizens. Gray wrote that the Constitution
contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.
Gray’s error, repeated by some people today, is to consider the location of birth the only relevant consideration in determining citizenship under the Constitution, and to rule out the possibility that parentage is relevant. The Fourteenth Amendment rendered parentage irrelevant for the child of immigrants on U.S. soil (though some still raise questions about the children of illegals under the “subject to the jurisdiction thereof” language of the amendment). But it did not thereby render parentage irrelevant for the children of U.S. citizens, as Gray seems to suppose when he erroneously refers to those born abroad as “naturalized” under congressional “enactments.” And this conclusion in Wong Kim Ark is the purest obiter dicta, unnecessary to settle the case Gray was considering. Parentage alone can confer citizenship by “birth” no less than can the location of birth.
5. Speaking of illegal aliens, is it not preposterous on its face to suppose that their children are eligible to the presidency of the United States–or that Yaser Esam Hamdi is–while John McCain is not?
6. The Times article contains a fair amount of handwringing over the fact that there has been no authoritative Supreme Court ruling on this presidential eligibility issue–though near the end it recognizes the difficulty of determining who might have “legal standing” to raise the issue in a court of law. This is the simplest question of all. No one has standing. This is a quintessentially political question, to be settled outside the judiciary by the constitutional authorities responsible for choosing presidents. If, next January, the joint session of Congress, presided over by Vice President Cheney, determines that John McCain is to be president by virtue of a victory in the electoral college, and either assumes silently or addresses openly (in case of a member’s objection) the question of McCain’s U.S. citizenship eligibility and holds in his favor, that will be an authoritative settlement of the matter–at least as far as McCain is concerned. No court of law could possibly have authority to gainsay such a decision. It never ceases to amaze me, though, how many otherwise sharp legal analysts consider constitutional questions to be unsettled until the Supreme Court has something to say on them.
Perhaps the oddest thing about the Times article is its lead: “The question has nagged at the parents of Americans born outside the continental United States for generations: Dare their children aspire to grow up and become president?” Actually, I doubt very much that this has ever nagged very many of them at all. Dear overseas American moms and dads: if you haven’t been worrying about this, don’t start.
CORRECTION: I refer to McCain’s father above as a “Navy admiral,” which he was in later life, but not of course when Sen. McCain was born in 1936. I’m not sure what rank he was then, but it should read “naval officer” instead.