This is the second in a new series of articles examining the citizenship of American presidents and presidential candidates. In the first I demonstrated that our first president, George Washington, was a natural born citizen. Here we look at John McCain, 2008 Republican candidate for president. John McCain was born in the Panama Canal Zone in 1936 to two US citizen parents.
To forestall possible objections, the McCain campaign requested an opinion from Harvard Law Professor Laurence H. Tribe and former Solicitor General Theodore B. Olson. That opinion appears as Appendix A to an article by Gabriel Chin (Chin disagrees that McCain is a natural born citizen). The US Senate took up a resolution (S. Res. 511) that declared John McCain a natural born citizen. The resolution, sponsored by Barack Obama and Hillary Clinton, passed unanimously.
John McCain’s eligibility was challenged in a lawsuit filed by Fred Hollander (Hollander v McCain). Just before this suit was dismissed for lack of standing, Hollander introduced a fake birth certificate alleging that John McCain was born in the Republic of Panama. Hollander is the best known, but not the only lawsuit to be filed alleging John McCain was not a natural born citizen. Others include the Pennsylvania case filed by Carmon Elliott.
In the federal court for the Northern District of California, Markham Robinson filed suit against California Secretary of State Bowen (Robinson v Bowen et al) seeking to prevent McCain from appearing on the November ballot. In his order in the case, federal judge William Alsup went beyond dismissing the case for lack of standing and wrote about the underlying issue of McCains’ eligibility:
Article II states that “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.” Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828 (1970). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens. Nonetheless, subject to the floor of the Fourteenth Amendment, it has always been left to Congress to define who may be a citizen by reason of birth (or naturalization proceedings, for that matter). Id. at 829–30.
At the time of Senator McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. 1 Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.
I find this interesting both because it clearly says that natural born citizens are those who are “citizens at birth” and that natural born citizenship may be attained retroactively through statute.