As David Freddoso noted on The Corner on Wednesday evening, and Gerry Bradley remarked here yesterday, the Senate passed a resolution by unanimous consent two days ago declaring its opinion “[t]hat John Sidney McCain, III, is a ‘natural born Citizen’ under Article II, Section 1, of the Constitution of the United States.” McCain is the natural child of U.S. citizens, his father a naval officer at the time, assigned to duty in the Panama Canal Zone in 1936. As I noted here two months ago (see here and here), this isn’t really all that hard a question.
Yet today the Washington Post, in an article by Michael Dobbs, continues to treat this matter as though it were actually complicated or difficult. There might be circumstances in which it would be complicated–e.g., if a person were the offspring born abroad of an American parent and an alien parent who never married and never lived together in the U.S.–but in McCain’s case there is actually nothing so interesting. Dobbs has just one source, law professor Sarah H. Duggin of Catholic University, for the proposition that the matter is (in her words) “not so simple.” Duggin has co-authored, on this subject, one of those 100-page articles that seem de rigueur in law reviews. Naturally something one has labored to discuss for 100 pages is not simple!
But really it is, in McCain’s case. One is a citizen either by birth or by naturalization. The “natural born” clause of Article II refers to the former status. Is the child born abroad to American parents a citizen of the country in which he is born? Maybe yes, maybe no–it would depend on the laws of the country in question. If the answer is no, then either the child is a citizen by blood (jus sanguinis) of the U.S., or he is a citizen of no place at all, until and unless naturalized in and by the United States. But we do not undertake the naturalization of the foreign-born children of our citizens. The reason is obvious: we do not consider it necessary to naturalize them because we consider them citizens without our bothering to do this. If this is wrong, then countless people who have thought themselves American citizens (and enjoyed all the rights and privileges appertaining thereunto) have actually been men and women without a country.
Dobbs also makes a serious misstep when he writes that “[t]he key constitutional issue is whether the Canal Zone was part of the United States at the time of McCain’s birth.” Nope. McCain’s mother could have given birth to little John on the Marrakesh Express and it would have made no difference. Dobbs talks with Laurence Tribe, who he reports “looked into the case at the McCain campaign’s request . . . along with Theodore B. Olson.” But he seems not to have read the Tribe-Olson report, reproduced in the April 30 Congressional Record (pages S3645-46). In their few cogent paragraphs, Tribe and Olson establish McCain’s eligibility on the basis of jus sanguinis alone, and consider the location of his birth a “second and independent basis,” or in other words, icing on the cake.
But Dobbs is in thrall to Professor Duggin, who keeps telling him matters are “more complex” and who says (in Dobbs’s words) that “the matter can be fully resolved only by a constitutional amendment or a Supreme Court decision.”
Oh, please. If we want to permit immigrants to run for president, by all means let’s amend the Constitution. But it’s not the least bit necessary for clarifying the principle at work in Article II, if we wish to leave it alone. As for a Supreme Court decision, the notion that one is a) necessary, or b) even possible is a sign of the law professor’s reflexive allegiance to judicial supremacy. There are a few cranks attempting to gin up lawsuits on this question, including “New Hampshire resident Fred Hollander,” but as Professor Duggin notes (again in Dobbs’s words), such “plaintiffs are likely to have a hard time establishing their own eligibility, or legal standing, to challenge McCain.” You bet your bippy they’d have a hard time. This is a perfect textbook example of a constitutional question in which no one has standing because no plaintiff can show a concrete particularized injury. It’s also a textbook “political question,” on which courts of law properly have nothing to say. Yet with entirely unnecessary anxiety, Duggin says (her own words this time) “Imagine what would happen if the courts were to overturn an election simply based on eligibility.”
Somebody needs to stop worrying here. If McCain wins in November, the declaration of his victory in the electoral college in January, by the joint session of Congress over which Vice President Cheney will preside, will be the authoritative constitutional settlement of the matter. The Senate’s resolution the other day may not have the force of law, but it certainly forecasts the undoubted outcome in both houses if this matter bothers anyone in January.
Professor Duggin says that “Congress cannot legislatively change the meaning of the Constitution.” That’s true. Somehow it never seems to occur to most law professors that neither can the Supreme Court judicially change the meaning of the Constitution. Yet so often the Court has presumed to do just that, and gotten away with it. And the professoriate’s faith in judicial supremacy remains unshaken.