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Saturday, July 12, 2008

John McCain and Natural Born Citizenship

So it turns out John McCain was not a citizen at birth, and therefore is not a natural born citizen.  My analysis is in this essay, reported on by Adam Liptak in The New York Times.  The essay responds to the 0pinion of Professor Laurence Tribe and former Solicitor General Theodore Olson that Senator McCain was a natural born citizen, both 1) by statute, and 2) by birth under the allegiance and loyalty of the United States.   The second argument seems to have been an oversight of some kind.   People whose sole claim to citizenship is birth in the Canal Zone are regularly deported from the United States, so this argument is not consistent with existing law.  It was apparently not pressed when they spoke with Adam Liptak.

People born to U.S. citizens in the Canal Zone in 1936, as was Senator McCain, were not covered by Revised Statutes S. 1993, the only statute granting citizenship to persons born out of the territorial United States then in effect.  By its text S. 1993 applied only out of the "limits and jurisdiction" of the United States.  The Zone was out of the "limits" but in the "jurisdiction" of the United States.

In 1937, Congress passed a specific statute granting citizenship to those born in the Canal Zone since 1904 to U.S. citizen parents.  The New York Times article states: "The 1937 law, Mr. Olson said, was not a fix but a way to clarify what Congress had meant all along."  The legislative history does not support the view that the 1937 Act was a clarification of S. 1993.   Instead, House Report 75-1303 from the House Committee on Immigration and Naturalization explains that the law was necessary because under S. 1993, "[e]ven children born within the limits of the Zone which is under the jurisdiction of the United States are not citizens.  .  .  .  Children of American parents in the Canal Zone are not outside the jurisdiction of the United States, nor are they within the limits of the United States."

However, the Committee wanted to grant this class citizenship; as most were children of U.S. workers "they are citizens in every sense except as a matter of law."  (This was a crib from Secretary of Labor Frances Perkins).  As Rep. John Sparkman explained on the House  floor, "The Canal Zone is a 'no man's land.' Every place in the world except the Canal Zone has been covered by either the law of 1855 [S. 1993] , which applies to foreign countries, or by the fourteenth amendment."  81 Cong. Rec. 7769 (1937).  In the Senate, Senator Clark said that under the bill's terms, "existing law is changed."  The 1937 Canal Zone act was not confirmatory.

Professor Tribe was quoted as saying that "Reading the 'limits and jurisdiction' clause as Professor Chin does, Professor Tribe said, 'is to attribute a crazy design to Congress' that 'would create an irrational gap.'”  But this language in S. 1993 was unchanged from the original version of 1855,  before there was a Canal Zone or any other large overseas territory not incorporated into the United States.  Just as it would be plausible that an 1855 transportation statute might not cover Segways, it is not crazy or irrational that an 1855 citizenship statute failed to account for overseas land holdings that not only did not yet exist, but were not even imagined.   In addition, as the American Bar Association Journal reported in 1934, "Probably no branch of the law in this country is more open to criticism on the grounds of instability, inconsistency and irrationality than that governing nationality, or citizenship." 20 ABA J 780, 780.  Bad drafting was Congress's specialty.   

Professor Tribe and Mr. Olson, like many others, contend that "the Framers did not intend to exclude a person from the office of the President simply because he or she was born to U.S. citizens serving in the U.S. military outside of the continental United States," so they must be natural born citizens.  But this idea is, again, not consistent with the actual actions of Congress.  The 1790 citizenship statute made overseas-born children of citizen fathers "natural born citizens."  The 1795 statute repealed the 1790 statute and made them "citizens", for some reason removing the natural born designation.  The 1802 statute repealed the 1795 statute and made them aliens.   As Montana v. Kennedy, 366 U.S. 308, 311 (1961), explains, under the 1802 law passed by the 7th Congress, which included several Framers,  "Foreign-born children of persons who became American citizens between April 14, 1802 and 1854, were aliens."  For the offspring of female U.S. citizens (including, e.g., U.S. Army and Navy nurses serving overseas in WW I) who had children with aliens, the no-citizenship policy remained in effect until 1934.  It is not merely that Congress did not want such children to be eligible to the presidency, Congress determined that they would not be citizens at all, not even if a parent was in the military or other government service.  The 1937 House vote to  grant citizenship to children of U.S. citizens in the Canal Zone was 146 aye-144 nay--the bill came within one vote of failing because of a tie.  That is, almost half of the House voted to leave John McCain and other children of U.S. citizens born in the Canal Zone without citizenship (knowing they could make individual application under the general naturalization laws).   These harsh provisions are inconsistent with what we might imagine a just Congress should have done, but in fairness to Congress, much of this legislation is entirely consistent with the suspicion of foreigners embodied in the natural born citizen clause.

Of course, it is silly that John McCain is caught up by bizarre technicalities of immigration policies afflicted with racial and religious biases; as I explain in the essay, fear of granting citizenship to "half-breeds" and "negroes" in the Canal Zone apparently delayed legislation that would have made him a citizen at birth.   The natural born citizen clause should be repealed, and people who become citizen after birth should be eligible to the presidency.  But the natural born citizen clause remains part of the Constitution that we have, and Senator McCain does not satisfy it.  I reject the idea that provisions of the Constitution can be ignored if one concludes that 1) they no longer make sense and 2) one can get away with violating them.

Posted by Marc Miller on July 12, 2008 at 01:28 PM in Legal Theory | Permalink


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When I first raised this issue to Professor Chin, before he wrote his
article,it missed several points, First the parents of John McCain never
were married at or prior to his birth. John McCain III was not born in the
Canal Zone, nor was his mother employed by the United States Government or the Panama Railroad Company. John McCain was born at the Colon Hospital on Colon Island in the Republic of Panama. Therefore, he did not fall within the class of persons naturalized under the Act of August 4, 1937.

Now we have United States Senator "Ted" Cruz of Texas who was born in Calgary, Alberta, Canada who may want to run in 2016 for POTUS. At his
birth his father was a citizen of Cuba. He does not see MINOR v. HAPPERSETT, 88 U.S. 162, 167-168 (1874) or UNITED STATES v. WONG KIM ARK,
169 U.S. 649, 702-703 as a problem in a run for POTUS.

Sincerely, Mark Seidenberg,
Chairman, American Independent Party of California

Posted by: Mark Seidenberg | Jan 8, 2015 2:03:48 AM

Obama admits he was a dual citizen at birth because of his website http://fightthesmears.com/articles/5/birthcertificate

Mccain is not even a citizen but an alien?

The 1790 citizenship statute made overseas-born children of citizen fathers "natural born citizens." The 1795 statute repealed the 1790 statute and made them "citizens", for some reason removing the natural born designation. The 1802 statute repealed the 1795 statute and made them aliens.

So we had a dual citizen and an alien running for president in 2008?

Obama admits he is a dual citizen and Mccain thinks he is a citizen but is not according to law.

Let me define what a natural born citizen is. A natural born citizen is a citizen born in this country to parents who are US citizens. Its that simple. Anything else means you are not a natural born citizen and therfore cannot be president of the US according to the US Constitution article 2.

The American public has been duped by the national,local news media, Mccain and Obama.

We have Obama who I think is a citizen because as he said his kenyan citizenship expired when he qas 21. Citizen but not natural born citizen which is only a requirement to be president of the US.

We have Mccain who I think is an alien and doesn't know it or won't admit it.

We have the US Senate that is a club that backs Mccain and Obama.

I think the cards are stacked against the American people.

Lets not forget we have people who don't care if Mccain or Obama are natural born citizens.


Posted by: Bill | Dec 1, 2008 11:30:38 PM

John McCain's Citizenship: A Tentative Defense
Stephen E. Sachs

Apparently it all hinges on the meaning of the word "and", in "limits and jurisdiction"!

A lot of evidence there, Prof, that the 1855 Act doesn't mean what you think it does. But since your construction of the phrase "out of the limits and jurisdiction of the United States" [with it's implied insertion of the word "both"] would have conferred citizenship of fewer people than Mr. Sach's construction, do you still think that the Courts would construe it in favour of the US?

Posted by: RodCrosby | Sep 3, 2008 1:19:52 PM

According to John Westlakes 1904 book on International Law. Childern born on foriegn soil to English soldiers were NOT "natural born." If the U.S. constitutional recognition of "natural born citizens" is an extension of the accepted English common law definition of "natural born subjects," it would seem that John McCain is not qualified.



Posted by: Jimm Johnson | Jul 20, 2008 11:21:28 PM

Professor Chin:

Thank you for your fascinating article. I think your major premise--that to be a "natural-born citizen," one must have been a citizen at the time of birth, and not by any retroactive conferral of nationality (whether deemed "naturalization" or otherwise--is accurate.

I think McCain was a citizen at birth.

1. I think you are mistaken as a matter of statutory interpretation.
You are correct to note that as a matter of post-insular-cases law, a sharp distinction is to be drawn between the "limits" and "jurisdiction" of the United States, and as such, the 1934 statute could be plausibly interpreted to exclude from its benefits those persons born outside the United States but still within its jurisdiction. Still, a fact that you omit to mention is that the expression "out of the limits and jurisdiction of the United States" has its origin in the 1795 naturalization act, and was incorporated in subsequent acts until the 1940 act. In 1795, there were no "unincorporated" territories, and common-law birthright citizenship extended equally to persons born in the federal territories as to those born in the several states.

Not surprisingly, the comprehensive reform finalized in the 1940 nationality act did reflect the post-insular-cases understanding, by distinguishing between the "United States," the "outlying possessions," and elsewhere.

It seems that an interpreter of the 1934 statute would have to keep this history in mind--that the drafters of the 1934 law did not mean to incorporate new understandings into this old statutory language.

2. Even if the 1934 act did exclude from birth citizenship children born in the unincorporated territories, it is at least arguable that the Canal Zone was not such a territory, as its status is made ambiguous by the treaty with Panama, under which the Republic of Panama would retained nominal sovereignty over the zone. Therefore, it is arguable that McCain was born "outside the limits and jurisdiction of the United States."

3. But you show evidence that the 1937 law was understood to represent a change of existing law rather than clarification of that law-- a change resisted by many on racist grounds. Some of the evidence you link to suggests the opposite. The Panamanian governor, for instance, writes that the amendment will cure the "doubt" or "uncertainty" surrounding the citizenship of such persons.

More importantly, the most telling evidence against your position is the absence of evidence. There were probably tens of thousands of children born to American parents in not only the Canal Zone, but also the Philippines, Guam, and other places that, by your interpretation, were neither in the United States nor "outside the limits and jurisdiction" of the United States. Is there any record of any significant administrative or judicial challenge to the citizenship of such persons? My short search has found none.

How would a judge in 1936 have handled such a challenge? Would any judge have denied such a person entry into the United States, or the right to vote based upon this interpretation of the statute?

I could not find any such case, but the nearest case I could find concerned a comparable "gap" in our nationality laws--a gap that is still with us. Our statutes grant automatic naturalization to minor children residing in the United States but "born outside the United States" when one of their parents is naturalized. Conversely, one is made a child if born in the United States only if one is also "subject to the jurisdiction thereof" at the time of birth. So what of a child born to diplomat-parents (and thus not subject to the jurisdiciton of the United States) one of whose parents subsequently becomes a naturalized citizen? Can they not also enjoy automatic naturalization? In 1942, in the case of In re Thenault, the D.C. District Court held that a child or a diplomat, though born "in the United States," was, as a matter of law, born "outside the United States," for purposes of automatic naturalization. 47 F. Supp. 952, 953 (1942).

Similarly, I think a judge should hold that John McCain was born "out of the limits and jurisdiction of the United States" under the 1934 act, even though he was born within the jurisdiction of the United States for many other legal purposes.

4. You show significant evidence suggesting that Congress deliberately excluded from citizenship persons born to American parents in the Canal Zone, and that many opposing the 1937 revision did so because they disliked this proposed change.

I have not reviewed the relevant debates, but I strongly suspect that the opposition to the 1937 Act resulted largely from the following opinions:

(a) Opposition to the provision that exempts such children from the requirement of parental residency in the United States, in some cases, even if the child was born in the Republic of Panama proper and not in the Canal Zone. Because the 1937 provision was not abrogated by the 1940 act, that discrimination remains--children born in Panama to American citizen who have never resided in the United States (but have at any time been employed by the United States Government) are citizens, it seems, under INA 303.

(b) Opposition to another ad hoc, and complicating, nationality law while at the same time there was being prepared a comprehensive reform.

5. Apart from the statutory argument, McCain may also enjoy a common-law citizenship for purposes of Article II. Under the original Constitution McCain was a natural-born citizen at common law because born within the dominions--or under the jurisdiction--of the United States. This common law was not, as you suggested, thorougly abrogated, for all purposes, by the Fourteenth Amendment as interpreted by Wong Kim Ark. To be sure, persons born under the jurisdiction of, but not "in," the United States cannot claim citizenship for Fourteenth Amendment purposes by that birth alone, but they may still enjoy the common-law citizenship for purposes of Article II.

(What that would mean, in effect, is that, for example, a person born as a national of the United States because born in the Philippines before 1946 could qualify as a "natural-born citizen" under Article II.)

Thanks again for your article. In truth, I think a stonger case against McCain's eligibility can be made on the grounds that natural-born citizenship requires birth under the jurisdiction of the United States, and that the Canal Zone was not under that jurisdiction (see point 2, above). But I seem to be in a minority in interpreting "natural-born" in that manner.

Posted by: David Upham | Jul 18, 2008 12:58:19 PM


If you agree that the Constitution defines "natural born citizen", then how could someone born outside that definition be a natural born citizen? In US v. Wonk Kim Ark, the court states that "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" and that Congress has the authority "to regulate naturalization." If McCain was born in Colon, Panama, which I believe he was, then he would be a citizen at birth due to an act of Congress, that is by naturalization. Citizenship at birth due to naturalization is not equivalent to citizen by birth.


Posted by: Fred | Jul 16, 2008 7:52:40 AM


I agree that the Constitution defines "natural born citizen" but I am not certain that a person who is a citizen at birth by statute, even if born abroad, is not a natural born citizen. Particularly in a U.S. territory, any policy justifications behind the "natural born" idea are satisfied by citizenship at birth by law. I also agree that Congress cannot make someone who is not a "natural born citizen" into one by a declaratory statute, and therefore cannot do so by a unicameral resolution. I think the most serious problem for Senator McCain is that he was not a citizen at birth, but, as the title of my essay suggests, if he had been born a citizen, I think he would likely be eligible.


Posted by: Jack | Jul 16, 2008 12:37:11 AM

I agree that your analysis is excellent. Your argument and supporting case law that those born in the Canal Zone can have their citizenship revoked confirms my position that they cannot be natural born citizens, even if they were born after 1937. I don't believe that Congress has any authority whatsoever to grant natural born citizenship as the Senate tried with their recent resolution declaring McCain a natural born citizen. Only the Constitution can define natural born citizenship and anyone who is a natural born citizen cannot have their citizenship revoked. Congress only has the authority to naturalize citizens and a naturalized citizen is not eligible to the Office of President.


Posted by: Fred | Jul 15, 2008 5:34:05 PM

Merevaudvillian, You ask if citizenship by birth in U.S. territory is really what's at issue. Two of the most important constitutional lawyers of recent decades offered that as a basis for Senator McCain's natural born citizenship. Given Professor Tribe's and Mr. Olson's stature, I thought the argument had to be addressed, both because there is reason to presume their arguments are strong, and if their arguments are not well taken, it suggests that the best thinkers have been forced to grasp at straws. (And at least Mr. Olson represents Senator McCain, so he is not free to offer his personal view if at variance with his client's position. So a weak argument is not evidence that Mr. Olson is a bad lawyer, but it is evidence that he has a difficult position.)

You mention the common-law understanding of "natural born" but the Constitution also contains the word "citizen." There are many instances where the child of a U.S. citizen military father may not be a citizen (born between 1802 and 1855; born out of wedlock; problems with the U.S. residence requirement; alien mother; etc.) Such individuals are not citizens, but might fit the common-law's understanding of "natural born." I think such individuals are not eligible to be president, because the Constitution requires that they be citizens. If Congress has not provided for citizenship for some class of persons, members of that class are not "natural born citizens."

Marty, I agree with DB that Congress can't create natural born citizens after the fact. The (factually doubtful) policy reason for the clause must rest on the idea that those born into the constitutional community are more likely to be loyal to it, so those adopted into it are excluded. Whatever natural born citizen means, I don't think it includes citizens of foreign countries raised in foreign territory, who became citizens, perhaps in middle age or beyond, because born in a place taken by the United States by conquest or purchase. The doctrinal reason that DB's position is probably right is that I'll bet (although I can't affirm based on my own research) that the concept of natural born citizen or natural born subject referred to common law concepts or statutes applicable when the person at issue was born. That is, I'll bet the doctrine contemplated that a person was, at birth, natural born or not (except perhaps when the question was compulsory military service--then His Brittanic Majesty might have been a bit more broad-minded). Thus, the oft-repeated dicta that "Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native-born citizens", 279 U.S. at 649; I read native-born as happening at birth, or not.

Finally, I agree that there are constitutional objections to denying children of U.S. parents citizenship at birth. But it happens every day, and has since the Founding. I don't think it is consistent with the rule of law for John McCain to benefit from broad and lenient principles that are utterly inapplicable to other folks caught up in the system. If John McCain said "my dad was in the military service, so I am a citizen at birth, and every child of a service parent should also be a citizen at birth (whatever Congress may have said)" I would say terrific, that's a principle of constitutional law which fits the overall constitutional structure better than the current rules. If President, he could implement those policies by regulation; as a Senator, he could have introduced legislation to that effect. But at the moment, that is not the law; some of the most important Supreme Court immigration cases of recent years upheld denial of citizenship to children of U.S. citizen servicemen. Nguyen v. INS, 533 U.S. 53 (2001); Miller v. Albright, 523 U.S. 420 (1998). The Supreme Court has said that "Citizenship is a high privilege, and when doubts exist concerning a grant of it, generally at least, they should be resolved in favor of the United States and against the claimant." United States v. Manzi, 276 U.S. 463, 467. I am willing to discuss keeping this principle or rejecting it, but not for keeping it for certain folks, and rejecting it as to others.

Posted by: Jack | Jul 14, 2008 7:32:34 PM

Although you state, "People whose sole claim to citizenship is birth in the Canal Zone are regularly deported from the United States, so this argument is not consistent with existing law," is that really what's at issue? It seems like the "child of citizen parents" might be an even stronger claim to being "natural born."

At the founding, Blackstone noted that children of citizen parents born abroad were known as "natural-born," admittedly by statute, but that it was so common that statutory "natural-born" citizens were essentially indistinguishable from common law "natural-born."

Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.
Their rights are also distinguishable by the fame criterions of time and locality; natural-born subjects having a great variety of rights, which they acquire by being born within the king's ligeance, and can never forfeit by any distance of place or time, but only by their own misbehaviour.
But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themfelves, to all intents and purpofes, without any exception.

Thus, if, at the founding, "natural born" included the inherent connotation that children of citizen parents are "natural-born," then it seems to be a superior reading to include children of citizen parents in the definition of "natural born." While the English needed to codify it, that adopted definition in the United States, "for all intents and purposes," seems to be the superior reading of "natural born."

Posted by: merevaudevillian | Jul 14, 2008 10:00:18 AM

DB: Why do you assume the clause is designed to constrain Congress? Why doesn't it make more sense to say that the clause is intended to restrict the class of persons who are eligible to be President to (i) those that the Constitution declares to be citizens by virtue of their birth (as the 14th Amendment does); plus (ii) those who Congress deems to be citizens by virtue of their birth; plus possibly (iii) some common-law baseline of "natural-born citizens" that would antedate any constitutional or statutory designations?

So, for instance, after 1868, blacks born in the U.S. before 1868 were eligible to be President, even though (per Dred Scott) they might not have been citizens at birth.

Could Congress enact a statute -- or a constitutional provision, for that matter -- that seems far afield from the (odious) purposes of the natural-born-citizen clause, such as your longitude/latitude statute? I suppose so, although it might raise Equal Protection problems. But I doubt the drafters of the clause worried that Congress would do any such foolish thing -- a prospect almost as unlikely as the legislature passing a statute saying "Anyone born anywhere in the world in the year 2012 will be a U.S. citizen," or "anyone born in Ireland from this day forward is a U.S. citizen" -- other crazy examples that Jack agrees would trigger the NBC clause. The fact that Congress could -- but will not -- make all sorts of birth characteristics sufficient for citizenship, even without any reasonable connection to the U.S., does not mean that Congress can't do so.

Posted by: Marty Lederman | Jul 13, 2008 11:33:23 PM

Professor Lederman,

Maybe the following hypothetical is too absurd to use as a test case, but I wonder whether it shows that your proposal proves too much.

Suppose that Congress really wants someone to be able to run for President but they're concerned that he wasn't a citizen from birth and that he might therefore by barred by the clause. Could they check out the candidate's birth certificate and then pass a statute that says, "Whoever was born at X degrees longitude and Y degrees latitude on [the candidate's date of birth] at [the time he was born] shall by a US citizen from birth"? That statute would, I take it, grant the candidate citizenship by virtue of characteristics of his birth and would, on your view, make him a natural-born citizen.

But that would mean that the Clause doesn't really bind Congress at all. Instead, Congress would be able to rejigger the rules to make whoever it wants eligible for the presidency. And I don't think that can be right. The point of limiting the presidency to a certain subset of citizens--viz., natural-born citizens--must be to constrain Congress. Otherwise, why not just open it up to all citizens? (Of course, I ask in an attempt to impute some plausible intent to the Clause as it is written--as a normative matter, the job really ought to be opened up to all citizens, but that's a different question.)

Posted by: DB | Jul 13, 2008 8:38:25 PM

Speculating on Adam's question: is there a possibility that a (primary/general election) candidate could challenge an opponent's eligibility? Arguably, having the allegedly ineligible candidate on the ballot causes other candidates to suffer an "injury" inasmuch as the ineligible candidate draws votes from those candidates.

Even assuming that such an argument has some validity, though, bringing a suit to disqualify an opponent might be viewed as "dirty politics," so most candidates would probably shy away from doing so. I wouldn't put it past long-shot candidates (Nader/Kucinich), though.

Posted by: Hauk | Jul 13, 2008 11:20:16 AM

I wonder, Jack, if you or someone else has a view on the standing issue. Here are two paragraphs from the NYT:

"In the motion to dismiss the New Hampshire suit, Mr. McCain’s lawyers said an individual citizen like the plaintiff, a Nashua man named Fred Hollander, lacks proof of direct injury and cannot sue."

"Daniel P. Tokaji, an election law expert at Ohio State University, agreed. “It is awfully unlikely that a federal court would say that an individual voter has standing,” he said. “It is questionable whether anyone would have standing to raise that claim. You’d have to think a federal court would look for every possible way to avoid deciding the issue.”"

Question: Assuming Jack is right on the substantive issue, is there any difference from a standing point of view between this sort of claim against McCain and a similar claim that could be made against Arnold Schwarzenegger if he ran for President of the United States (or for that matter Mahmoud Ahmadinejad)? If not, then isn't it likely that someone or some organization has standing to bring these claims? While a federal court might look for ways to avoid deciding the issue, it would seem more embarrassing to conclude that no one can challenge presidential candidates on citizenship. So even if this individual voter does not have standing, I imagine that some other entity is likely to step into the fray.

Posted by: Adam Kolber | Jul 13, 2008 7:45:34 AM

Jack: It's a great, provocative paper. But I'm not quite persuaded. To begin with, Bruce Boyden and Michael Risch make interesting observations, I think. In particular, it's not clear to me that the 1937 statute can't be read to provide citizenship retroactive to the birth of the covered persons (after all, on your theory, Congress thought it was a silly oversight or scrivener's error that that weren't citizens in the first place). You raise a constitutional objection: "I don't think it could be made retroactive for purposes of the natural born citizenship clause." I don't see why not, and I'm not overwhelmed by your arguments in the first paragraph of note 14.

But let's assume that Bruce and Michael are wrong, and that John McCain first became a citizen only when he was eleven months old. Still, that citizenship attached *by virtue of* a characteristic of his birth -- and not, for instance, because he had lived here for X years and passed a naturalization test.

Why isn't that enough? You claim (TAN 14) that "to be a natural born citizen, one must be a citizen *at birth.*" I don't think you've made the case for that claim, which is central to your paper. (Certainly not in the second paragraph of note 14, which if I'm not mistaken is the one place you address it.) I think the language of Article I (the use of the word "natural," in particular) is more, uh, "naturally" read to refer to citizenship *by virtue of a characteristic of birth,* not citizenship *at* birth. And all of the normative or policy-based arguments I can think of offhand to explain the clause would point in that direction, as well.

In any event, kudos for taking such an unorthodox view, for unearthing so much interesting historical stuff, and for writing such a challenging paper.

Posted by: Marty Lederman | Jul 12, 2008 4:20:46 PM

OK, I see now that the Montana v. Kennedy decision addresses at least my first comment -- the argument was that the language "who now are, or have been citizens" limited the 1802 act to children of people who were citizens no later than 1802. That seems a bit odd, but it answers my question.

The Montana court also seems to suggest that there are no other sources to consult on overseas citizenship issues than congressional statutes: "On this basis and in the light of our precedents, we hold that, at the time of petitioner's birth in 1906, R.S. § 1993 provided the sole source of inherited citizenship status for foreign-born children of American parents. That statute cannot avail this petitioner, who is the foreign-born child of an alien father." I'd still be tempted to argue that doesn't apply to situations other than the one that was under consideration (overseas-born children of U.S. mothers).

Posted by: Bruce Boyden | Jul 12, 2008 4:17:11 PM

Jack, this is a really fascinating issue you've raised, even if it does get a little metaphysical, because it sheds light on the disreputable history of restrictions on citizenship in the U.S.

I haven't read your full essay or the Tribe-Olson memo, but I have two quick comments. First you say the 1802 statute "made [overseas-born children of citizen fathers] aliens". But I don't see that. The statute you linked to says: "the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States."

Second, there's a presumption here that needs (to my mind) further support, which is that Congressional statutes in effect and the Fourteenth Amendment are the sole sources to consult for an answer to this question. As I understand the early history of citizenship law, mostly from James Kettner's excellent study, The Development of American Citizenship, 1608-1870, the mechanism by which people became "citizens", either of the state or the nation, was unclear until the 14th Amendment was adopted. There was ambiguity about who had the authority to declare people citizens -- the U.S., individual states, or both? -- and also what forms citizenship could take (e.g., could there be lesser forms of citizenship, such as "denizens"). Even the Fourteenth Amendment does not say that being born in the United States is the sole means of becoming a citizen by birth; it's sufficient, but perhaps not necessary. I don't know if it's significant, but I think it's interesting that several of the statutes do not say that "people with qualifications X Y and Z are citizens," but rather that Congress "declares" them to be citizens, which sounds to me like Congress is recognizing citizenship rather than creating it.

So my question is, assuming you are correct in your reading of the 1934 Act, why couldn't one argue (based on pattern and practice, for example) that there is "constitutional common law" throughout the 19th and into the 20th centuries that makes the overseas-born children of, at least, U.S. fathers citizens as of birth?

Posted by: Bruce Boyden | Jul 12, 2008 3:42:00 PM

Congress did not grant citizenship retroactively, as I read the statute those born in the CZ since 1904 were made citizens as of the effective date in 1937. But even if it were retroactive, I don't think it could be made retroactive for purposes of the natural born citizenship clause. Congress could provide that, say, any person elected governor of a state is declared to be a citizen at birth, and they would be deemed a citizen at birth for purposes of, say, transmission of citizenship to children. But they would not be a natural born citizen.


Posted by: Jack | Jul 12, 2008 2:07:09 PM

Query: If the citizenship was granted retroactively to 1904, can one become a natural born citizen retroactively? Or, if you don't qualify at the outset, do you never qualify?

Posted by: Michael Risch | Jul 12, 2008 1:54:18 PM

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