"The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty":
This is the Yale Law Journal Note cited in the New York Times article on the subject; the Journal has just put the Note on its Web site.
Related Posts (on one page):
- Lawsuit Seeking to Challenge Sen. McCain's "Natural-Born Citizen" Status:
- "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty":
- McCain's birth, Russian language version:
- The meaning of "natural born."
- "Natural-Born Citizen":
(2) But in any event, my sense of the historical evidence is that "natural-born citizen" meant "citizen who is born a citizen," which includes citizens who at birth were the children of U.S. citizens even when the citizens were entirely overseas. If McCain had been the son of Americans stationed in Paris (whether as embassy staff or as soldiers), he would still be a "natural-born citizen."
Citizens at birth under Congressional statute as it existed when Article II was adopted or under Congressional statute as it existed when the individual was born? What about a person who qualifies under one, but not the other?
I think we all agree that McCain counts, but my determination that he counts is, admittedly, a rather seat-of-the-pants one.
New word: Foottext. You read it here first.
But the First Congress, on March 26, 1790, approved an act that declared, “The children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural-born citizens of the United States.”
(Well, my *exact* thought was: Wow! I forgot how much law schools LOOOOOOVE the footnote. But I agree with you completely in spririt.)
In my field (History), one can perceive a grass-roots rumbling against the obligatory "bucket-footnote" on the first page of any academic journal article. You want to find everything that's ever been written on a topic, in reverse chronological ordrr? That's what dissertations are for!
But since lawyers get their LL.B.'s (Oops! "JD's") without writing a dissertation, I suppose they need the notes in journals.
This is true, but it doesn't help McCain much. The Insular Cases make distinctions among the various territories for purposes of deciding which Constitutional provisions apply to them. It would be hard to argue that a territory in which the 5th Amendment doesn't apply is one in which the citizens can grow up to be President. Does anyone believe, for example, that citizens of the Philippines were eligible to become President prior to 1946?
McCain's status as a citizen has to rise or fall with whether "natural born" includes the the children of US citizens born overseas.
Which leads inevitably to the great point I made in the earlier thread. Under current federal law, not every person born abroad to two U.S. citizen parents is himself (or herself) a citizen, which means such a person could be a "natural born citizen" for purposes of Article II and thus eligible for the presidency without actually being a citizen of the United States.
clearly as a child of space aliens, he is not qualified to be president.
Jeeze! Just amend the Constitution to make anyone who has been a citizen for 35 years eligible for the presidency, and be done with it already!
Is the meaning of the phrase "natural born" relevant to any other issue in American law?
But the ODD thing that I note is that it did seem to matter to the Court that these are *insular* cases. That is, that these are *island* territories. See, eg., Downes. And the Canal Zone was not an island.
I don't know *why* that should have mattered, but at least some justices seemed to think that it did matter quite a lot. Am I missing something? Why would extra-territoriality jurisprudence be affected by how many sides of a given territory were wet?
I'm no expert in the law in this area, but I seem to recall someone quoting the statute in the earlier thread and I read it as saying that you could in some circumstances have a person born abroad of two natural born US citizens without the child himself being a citizen. This is in the situation where four Americans go abroad, the two couples each have a child, both children are US citizens who then grow up and have a child abroad without ever having lived in the US. As I read the statute, that child (who is the grandchild of the original four) will NOT be a US citizen, despite being born of two people who were citizens at birth.
Anyway, even if the statute today encompasses everyone who would have been swept in under the applicable statutes from 1789 to today it's still easy to construct a hypothetical in which Congress narrows the statute to exclude certain persons born abroad. There's no constitutional obligation to grant citizenship to people born abroad in all circumstances the way there's an obligation to persons born here under the 14th Amendment.
I think these references were euphemistic. What they really wanted was to avoid giving rights to people of a different color. All those cases, after all, came in the Plessy era.
But Blackstone says that someone born in a king's dominions owes "naturally" allegiance to that king: is a natural-born subject of that king. Yes, there's a saving paragraph at the end which says that the offspring of two citizens, even if born outside the jurisdiction, is natural-born "to all intents and purposes." But natural-born to all intents and purposes is not the same as natural-born. In fact it means "not natural-born, but we choose to overlook the fact."
But the really interesting question, to my mind, is: How could this come to a judicial determination? Suppose McCain wins the election. By what mechanism can someone who believes him constitutionally disqualified get his day in court? Surely a lower court cannot issue a writ of mandamus against the Chief Justice compelling him to not swear McCain in.
[/sarc]