by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Today I will discuss an obscure and seldom-interpreted provision in the Constitution that could have serious implications in today’s presidential race: the “natural birth” clause. Specifically, this clause might prevent Senator John McCain, the likely Republican candidate, from becoming the 44th president.
Article II of the Constitution defines the Executive Branch, which basically means the president. Article II, Section 1 provides:
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.
The important phrase here is “natural born.” This phrase was added in response to a letter written by the first Chief Justice of the United States, John Jay, to the first president of the United States, George Washington. In that letter, Jay wrote: “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.” The natural born clause was added to the Constitution without debate.
The reason this is important is that John McCain was born on U.S. military base Coco Solo in the Panama Canal Zone to U.S. parents. Does that make him a “natural born Citizen?”
The Fourteenth Amendment provides that, “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.” This gives rise to the notion that there are two kinds of citizens: born and naturalized. So, the question becomes, was John McCain effectively born in the U.S., or did some law make him a citizen, rendering him naturalized?
First, it is important to note that John McCain is definitely a “Citizen” of the United States. Under 8 USC 1403(a), a part of the Immigration and Naturalization Act of 1952, “Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.” (emphasis added)
But, that does not answer the more precise question of whether he is “natural born.”
Proponents of McCain’s eligibility argue that McCain must be a natural born citizen because he was born a citizen by virtue of his parents being citizens and the birth occurring on a military base. They would argue that the framers of the Constitution only feared a foreigner, that is, someone who was a citizen of another country first, becoming president. Someone born to U.S. parents while on active duty defending the U.S. is not a foreigner.
Opponents of McCain’s eligibility would point to the dichotomy between being born a citizen, and being declared a citizen. If, under the language of the Fourteenth Amendment and Immigration and Naturalization Act of 1952, a person is “declared” to be a citizen, then the person was not a citizen at the moment of birth. The law “declared” him to be a citizen, and so the person was naturalized, not naturally born. Indeed the Act of 1952 was passed after John McCain was born, and effectively made him a citizen. If he were a citizen at birth, and naturally born, then this statute would not be needed. Last, current State Department policy reads: “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.” Again, this supports the theory that a child born on a military base only becomes a citizen because of statutes, and is not a citizen by virtue of birth.
Two other candidates for president faced similar concerns: Barry Goldwater and George Romney. Goldwater was born in Arizona when it was still a territory, and Romney was born in Mexico. Neither candidate was successful, so their status as “natural born” was never tested.
In the end, a group challenging McCain on this ground might face a backlash. McCain was a prisoner of war, and was born outside the physical boundaries of the U.S. only because the government ordered his parents there. He does not seem to be the problem that the original framers envisioned: a foreigner without current allegiance to the newly-founded United States. McCain, a longtime senator, does not seem to really fit this problem. But, as with so many legal questions, we will just have to wait and see what happens.
Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.
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