McCain's extraterritorial birth

February 28, 2008 8:00 AM

Is John McCain eligible to become president of the U.S.? He was born on a military base in the Panama Canal zone, which was not sovereign US territory. The Constitution 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. Is McCain a natural born citizen?
posted by caddis (214 comments total)

yes. next
posted by langedon at 8:02 AM on February 28, 2008 [16 favorites]

"His campaign advisers say they are comfortable that Mr. McCain meets the requirement and note that the question was researched for his first presidential bid in 1999 and reviewed again this time around."

Next.
posted by roomthreeseventeen at 8:03 AM on February 28, 2008

Military bases aren't US territory?

You have to admit, though, that an (illegal?) immigrant from south of the border would make a pretty mavericky President.
posted by DU at 8:04 AM on February 28, 2008 [2 favorites]

Wasn't he around at the adoption of the Constitution?
posted by kuujjuarapik at 8:04 AM on February 28, 2008 [11 favorites]

30 seconds of research:

Birth Abroad to Two U.S. Citizen Parents in Wedlock: A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA). One of the parents MUST have resided in the U.S. prior to the child's birth. No specific period of time for such prior residence is required.
posted by exacta_perfecta at 8:04 AM on February 28, 2008 [5 favorites]

Now if it had been Guantanamo that would be super awesome.
posted by Artw at 8:05 AM on February 28, 2008 [3 favorites]

Long story short, somewhat ambiguous wording, but no one will challenge it.

See the WP articles on natural born citizen and native born citizen
posted by stbalbach at 8:05 AM on February 28, 2008

It's not that straightforward. There's no question he's a citizen but that's not the requirement. The requirement is that he be "natural born". It seems likely to me that being born of U.S. citizens abroad would meet this requirement but I am not a lawyer.
posted by rdr at 8:07 AM on February 28, 2008

30 seconds of reading article: being a citizen is not the requirement.
posted by patricio at 8:08 AM on February 28, 2008 [2 favorites]

You could make an equally compelling argument that anyone born via C-section is disqualified. Which is to say, not compelling at all.
posted by stevis23 at 8:08 AM on February 28, 2008 [16 favorites]

Chester A. Arthur had to go through this rumor, too, and it just made him a stronger man.
posted by The Bridge on the River Kai Ryssdal at 8:09 AM on February 28, 2008 [1 favorite]

Oh my God, if you're saying what I think you're saying--and I think you are--does this mean McCain might be a covert Muslim terrorist who is blowing America away with his passion and his vision, yet plans to don a turban at the Inauguration, get sworn in on a Koran, and cackle victoriously, thereby ending America and democracy as we know it?
posted by turaho at 8:14 AM on February 28, 2008 [9 favorites]

I think there's a stronger (but equally appalling) case to be made that Hillary Clinton can't be president until there's a constitutional amendment. The constitution repeatedly refers to the president as "he". When we ask ourselves whether the founding fathers intended it to imply "he/she", the answer is an obvious no.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 8:17 AM on February 28, 2008 [7 favorites]

WCityMike, honestly, running for president isn't applying to work at McDonalds. I'm sure McCain has whatever kind of "permission" he needs.
posted by roomthreeseventeen at 8:18 AM on February 28, 2008

...running for president isn't applying to work at McDonalds.

Because at McDonald's, they ask about prior felonies.
posted by DU at 8:22 AM on February 28, 2008 [29 favorites]

Friends call McCain "Panama Jack." He hates that.
posted by octobersurprise at 8:25 AM on February 28, 2008 [2 favorites]

This is dumb. I was born in an Army hospital in Tokyo, and I'm qualified to be president. (If nominated, however, I will not accept, and if elected I will not serve.)
posted by languagehat at 8:27 AM on February 28, 2008 [9 favorites]

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution,

I just figured this was another slam at him being really old.
posted by quin at 8:27 AM on February 28, 2008 [5 favorites]

Military bases aren't US territory?

they are not
posted by caddis at 8:27 AM on February 28, 2008

I hope no one actually raises this challenge. Can you imagine the sympathy and support McCain would gain as a result? It would be like the NY Times article times 100.
posted by brain_drain at 8:31 AM on February 28, 2008

kuujjuarapik writes "Wasn't he around at the adoption of the Constitution?"

OK, that was late-night-monologue-class humor, but it made me laugh.
posted by krinklyfig at 8:31 AM on February 28, 2008

::yawn::

read the constitution again.
posted by tarheelcoxn at 8:34 AM on February 28, 2008

"Natural Born Citizen" does not mean born within a US State. It means, if, when one was born, they were automatically a citizen (however the laws were at that time), then they are eligible.

What a stupid non-issue.
posted by chimaera at 8:34 AM on February 28, 2008 [7 favorites]

Why does this question keep coming up? His parents were American citizens. That's all you need to know. He's a full-fledged citizen by law.
posted by etaoin at 8:35 AM on February 28, 2008 [1 favorite]

Meaning the NYT article about the lobbyists et al., not the NYT article in the post.
posted by brain_drain at 8:35 AM on February 28, 2008

Y'all know his middle name is "Kaddafi", right?
posted by jalexei at 8:36 AM on February 28, 2008 [2 favorites]

Nobody made much fuss about the fact that Bush and Cheney were both from Texas, which is also against the rules, strictly speaking; all Cheney had to do is pretend he was actually from some other state.

I suspect McCain's birthplace will be even less of an issue.
posted by ook at 8:37 AM on February 28, 2008

"Natural Born Citizen" does not mean born within a US State. It means, if, when one was born, they were automatically a citizen (however the laws were at that time), then they are eligible.

prove it.
posted by caddis at 8:38 AM on February 28, 2008

I'm simultaneously delighted by the exercise in fine parsing and dismayed that I'm going to hear about it like a goddam conspiracy theory from who knows how many random watercooler people between now and at least the general election.

(If nominated, however, I will not accept, and if elected I will not serve.)

And if serving after all for some unforeseeable reason, he will be pretty laidback and just, like, wevs about the whole thing. Totes.
posted by cortex at 8:38 AM on February 28, 2008

I think there's a stronger (but equally appalling) case to be made that Hillary Clinton can't be president until there's a constitutional amendment.

See here for irrelevant but neat discussion of that (I believe correct) notion. A similar case as McCain's might have been made for Obama, had he been born a few years later, in pre-statehood Hawaii.

Also, I believe that overseas military bases are, indeed, not considered territory of the parent nation, at least nominally.

So yeah, it's nice to speculate and pontificate on the intricacies of the US constitution, but ultimately, no-one is going to challenge this. (Although as EMRJKC'94 points out, I for one would like to see what Scalia would make of it.)
posted by goodnewsfortheinsane at 8:41 AM on February 28, 2008

steveis23- McCain was from his mother's womb untimely ripp'd.
posted by MNDZ at 8:44 AM on February 28, 2008 [4 favorites]

I would like to see Ron Paul challenge him. ;)
posted by caddis at 8:44 AM on February 28, 2008

This is one of the stupidest political arguments I've ever seen, and I lived through the 90's.
posted by Pope Guilty at 8:45 AM on February 28, 2008 [2 favorites]

Nobody made much fuss about the fact that Bush and Cheney were both from Texas, which is also against the rules, strictly speaking; all Cheney had to do is pretend he was actually from some other state.

What are you talking about?
posted by Kraftmatic Adjustable Cheese at 8:47 AM on February 28, 2008

and I lived through the 90's

I was about to point out didn't we all, but then I thought maybe McCain was frozen and dethawed Demolition Man style right before 2000. I don't recall seeing him during the 90's.
posted by cashman at 8:48 AM on February 28, 2008 [1 favorite]

It's worth remembering that McCain was born on a military base in the Panama Canal Zone, which was American territory at the time, like, I suppose, Guam or American Samoa today. Of course I don't know the legalities, but it seems like that's a different situation from being born in a military base in Germany.
posted by dd42 at 8:49 AM on February 28, 2008 [1 favorite]

Under these outrageous limitations, are we saying that one of virgin birth could also not be eligible? Do we really mean to go down that road? I don't think so!
posted by stupidsexyFlanders at 8:52 AM on February 28, 2008 [3 favorites]

Not that it matters but I don't think US military bases are US territory in the same sense that US embassies are US territory.
posted by aerotive at 8:52 AM on February 28, 2008

It's worth remembering that McCain was born on a military base in the Panama Canal Zone, which was American territory at the time, like, I suppose, Guam or American Samoa today. Of course I don't know the legalities, but it seems like that's a different situation from being born in a military base in Germany.

Not for this. If he was born while his parents were on a year-long vacation to Canada he was still born an American citizen.
posted by TheOnlyCoolTim at 8:53 AM on February 28, 2008

I don't think anyone's questioning whether he's a citizen, but whether he's a "natural born citizen" and what the hell that even means.
posted by zerbinetta at 8:56 AM on February 28, 2008

The intention of the wording is to keep people who are originally from other countries from being president. Unfortunately, McCain couldn't be more American.

Nobody made much fuss about the fact that Bush and Cheney were both from Texas, which is also against the rules, strictly speaking; all Cheney had to do is pretend he was actually from some other state.

I totally forgot about that.

Kraftmatic Adjustable Cheese: Amendment XII

The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;

Cheney changed his residency from Texas to Wyoming to get around this.
posted by Tehanu at 8:57 AM on February 28, 2008

It's worth remembering that McCain was born on a military base in the Panama Canal Zone, which was American territory at the time.

US military bases in foreign lands are not sovereign US territory. Neither was the Canal Zone. The Hay-Bunau Varilla Treaty gave the US broad rights, but not sovereignty.
posted by caddis at 8:59 AM on February 28, 2008 [1 favorite]

The line in questions says "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." Doesn't the part saying "or a citizen of the United States" mean that regardless of the issue of being born in Panama, the fact that he is a citizen of the United States qualifies him to run for president?

This is a great argument by the way.
posted by bDiddy at 8:59 AM on February 28, 2008

...running for president isn't applying to work at McDonalds.

Because at McDonald's, they ask about prior felonies.

Was he born in a McDonalds down there ?
posted by Webbster at 9:02 AM on February 28, 2008

bDiddy, I think that's a matter of interpretive punctuation; I'd argue that the intended meaning there is this:

"No person except
(a) a natural born Citizen, or
(b) a Citizen of the United States, at the time of the Adoption of this Constitution
shall be eligible to the Office of President."

That is, grandfathering in any recently naturalized folks at the point of adoption.

Which is not to suggest that the interpretation of a comma isn't a potential Supreme Court matter, of course.
posted by cortex at 9:04 AM on February 28, 2008 [2 favorites]

United States territory | Territories of the United States
WP: The Panama canal, and the Canal Zone surrounding it, was territory administered by the United States until 1999, when control was relinquished to Panama.

I'm from the Zone, and had this argument with my grade-school teachers.
posted by psyche7 at 9:04 AM on February 28, 2008

bDiddy writes "The line in questions says '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.' Doesn't the part saying 'or a citizen of the United States' mean that regardless of the issue of being born in Panama, the fact that he is a citizen of the United States qualifies him to run for president?"

No, it refers to the fact that, at the time the Constitution was ratified, there would be many citizens who had never been born here. If you were not born in the US, or a citizen when the Constitution was adopted, then you are disqualified. Of course, citizenship is slightly different today, and McCain being born to US parents while in a US territory would qualify him (as he is a "natural born citizen," not someone who later became a citizen who was not one originally).
posted by krinklyfig at 9:06 AM on February 28, 2008

One more reason to never immigrate to USA. I mean, why go if I can't run for president?
posted by Memo at 9:06 AM on February 28, 2008

The article focuses on McCain's place of birth as disqualifying him from being a True American Republican God-Fearing Veteran Maverick, but I would like to offer a different piece of evidence: He has a black baby.
posted by DU at 9:09 AM on February 28, 2008

cortex's reading is correct -- otherwise, you would have to be 200+ years old to be president.
posted by brain_drain at 9:10 AM on February 28, 2008

This is where the strict constructionists the Republicans have put on the Supreme Court will come back to haunt them.
posted by dances_with_sneetches at 9:14 AM on February 28, 2008

cortex's reading is correct -- otherwise, you would have to be 200+ years old to be president.

Exactly. Which would reduce the candidate base to ancient crypto-cryo Illuminatus vampire-mage honchos.

Oh. Waaaait a minute...
posted by cortex at 9:16 AM on February 28, 2008 [3 favorites]

Barack Obama, who taught constitutional law at the University of Chicago Law School, is fully aware of McCain's ineligibility and is patiently waiting to spring this fact on the Ameircan public. He will launch the ineligibility assault by jumping out of a huge cake at the Republican convention Trojan horse style immediately before beginning his PowerPoint presentation. Be sure to TIVO the convention so you can watch it again and again! Barack wishes you guys would stop mentioning this before the cat gets out of the bag. October surprise!!!
posted by Daddy-O at 9:16 AM on February 28, 2008 [6 favorites]

Barack was born in Hawaii in 1961--two years earlier and he would be ineligible, too, since Hawaii didn't achieve statehood until 1959. This is fun. Can we just eliminate everyone else fand elect a Native American instead?
posted by misha at 9:17 AM on February 28, 2008

fand=and. Grrr.
posted by misha at 9:17 AM on February 28, 2008

cortex's reading is correct -- otherwise, you would have to be 200+ years old to be president.

Looking forward to the Dracula/St. Germain debates.
posted by robocop is bleeding at 9:19 AM on February 28, 2008 [2 favorites]

If one of your parents is a citizen at the time of your birth, you are a natural born citizen. There is no question whatsoever about McCain's eligibility. Sadly.
posted by spaltavian at 9:25 AM on February 28, 2008

I'm going to start hanging GOOGLE ADAM WEISHAUPT banners off of overpasses.
posted by cortex at 9:25 AM on February 28, 2008 [11 favorites]

Barack was born in Hawaii in 1961--two years earlier and he would be ineligible, too, since Hawaii didn't achieve statehood until 1959.

Even if Obama's parent's weren't citizens at his birth, he still would have been fine. Hawaii was still sovereign US territory before 1959. Statehood isn't the issue. The Panama Canal Zone was never given to the US, and was still part of Panama. The issue is moot because McCain's parents were US citizens.
posted by spaltavian at 9:28 AM on February 28, 2008

Damn, I misread the title of the FPP, and thought it was "McCain's extraterrestrial birth" for a moment.

Now THAT would be interesting, unlike this non-issue.
posted by malocchio at 9:28 AM on February 28, 2008 [1 favorite]

What are you talking about?

Kraftmatic Adjustable Cheese, I'm pretty sure it's unconstitutional for anyone from Texas to be elected to anything, for any reason. I may be misremembering it slightly.
posted by ook at 9:31 AM on February 28, 2008 [4 favorites]

steveis23 & MNDZ: MacDuff for President!
posted by papakwanz at 9:32 AM on February 28, 2008

Dammit, I just came in here to say "McCain, McCain, McCain, beware MacDuff!" and everyone's already beaten me to the punch.
posted by Krrrlson at 9:34 AM on February 28, 2008

Natural born citizens? Strictly speaking, children born by Caesarean don't qualify either. Maybe we need to write the NYT.
posted by dances_with_sneetches at 9:34 AM on February 28, 2008

The tinfoil hat in me is wondering if this is all a ploy to get the natural born clause out of the constitution to open the way for a Schwarzenegger '12 campaign.
posted by bunnytricks at 9:35 AM on February 28, 2008 [2 favorites]

Here is a novel idea. Lets not act like we are scared of them and think that we have to beat them through weird legal minutia or rumors of affairs. Lets just fucking beat them fair and square. Here are our ideas. They make sense. Here are their ideas. They are terrible. Make a choice.
posted by ND¢ at 9:35 AM on February 28, 2008 [8 favorites]

I'm going to start hanging GOOGLE ADAM WEISHAUPT banners off of overpasses.

Go ahead, throw your vote away!

DRACULA/LIEBERMAN 2008!
No More Blood For Oil! We must conserve it for our thirsty, thirsty leader!
And also conserve fetal spinal fluid for our vice-leader!
posted by robocop is bleeding at 9:36 AM on February 28, 2008 [4 favorites]

Would the fact that John McCain may or may not be an American citizen influence your vote in any way?
posted by Dave Faris at 9:38 AM on February 28, 2008

Umm... Hawaii was still U.S. territory for about 60 years before attaining Statehood...
posted by Navelgazer at 9:38 AM on February 28, 2008

ND¢ is a witch! Burn him!
posted by elwoodwiles at 9:42 AM on February 28, 2008

malocchio: I read it the same way and felt a tremendous sense of clarity.
posted by inconsequentialist at 9:49 AM on February 28, 2008

If he's not a "natural born citizen," it means that either he became a citizen sometime after being born or that he's not a citizen. Those things aren't true, so he's eligible. I'm perfectly happy to see McCain defeated by legitimate means.
posted by aaronetc at 9:50 AM on February 28, 2008

And, did you know Obama's middle name is Hussein?!?!?!?!?

Makes you think, don't it!
posted by JHarris at 9:52 AM on February 28, 2008

Has there been any point in John McCain's life where he was not a U.S. citizen? No? Then he can be President of the United States.
posted by oaf at 9:58 AM on February 28, 2008

Is someone born in Puerto Rico eligible to be president?
posted by Tehanu at 9:58 AM on February 28, 2008

Flagged for idiocy.
posted by The Light Fantastic at 9:59 AM on February 28, 2008 [1 favorite]

it's a non issue, unless the "liberal" media and some particularly dumb Democrats really want to insist on arguing the legal point that children of America's military personnel stationed abroad must necessarily lose their right to run for President. I'd love to see this be examined by the courts just to enjoy the political shitstorm -- the kind of shit Kerry got for somewhat calling the troops dumb (OK, OK; he didn't really mean that) would be nothing compared to headlines like "Democrats Say Sons And Daughters Of Military Personnel Unfit To Run For President, Sue McCain"
posted by matteo at 10:06 AM on February 28, 2008

"Natural Born Citizen" does not mean born within a US State. It means, if, when one was born, they were automatically a citizen (however the laws were at that time), then they are eligible.

prove it.
posted by caddisPoster at 11:38 AM on February 28

better idea: you prove that's not what it means.
posted by shmegegge at 10:08 AM on February 28, 2008

Suddenly, Drew's blog post is strangely relevant.
posted by The GoBotSodomizer at 10:08 AM on February 28, 2008

Chester A. Arthur had to go through this rumor, too, and it just made him a stronger man.

What does Chester A. Arthur have to do with this? Was he President or something?
posted by Pollomacho at 10:12 AM on February 28, 2008

I'm going to start hanging GOOGLE ADAM WEISHAUPT banners off of overpasses.

Thanks, jerkface. I googled him and now I've lost memory space on it. A nice day I had in the fourth grade. Gone forever.
posted by Cool Papa Bell at 10:12 AM on February 28, 2008

Puerto Ricans cannot run for President of the USA. This is constantly reminded to children in elementary schools in the island
posted by octomato at 10:14 AM on February 28, 2008

I would vote for Languagehat.
posted by Blazecock Pileon at 10:14 AM on February 28, 2008 [1 favorite]

Good FindLaw article on the "natural-born citizen" clause here.

Executive summary for the TL;DR crowd:

No one knows exactly what the nation's Founders had in mind when they wrote that "No person except a natural born Citizen … shall be eligible to the Office of President." [...] However, the "natural born" Clause's origins have been traced to a July 25, 1787 letter from John Jay to the presiding officer of the Constitutional Convention, George Washington. 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 hint clearly made sense to General Washington. While there was no debate, this presidential qualification was soon introduced by the drafting Committee of Eleven, and then adopted without any discussion by the Constitutional Convention.

[...]

[T]here are conflicting holdings that only further compound the problem of understanding this clause. United States v. Wong Kim Ark(1898) indicates that foreign born children of Americans are not natural born. But in contrast, Weedin v. Chin Bow (1927) holds that "at common law the children of our citizen born abroad were always natural born citizen from the standpoint of this government."

It is the consensus of scholars, however, that foreign born children of Americans are natural born citizens. And that would mean that Romney and McCain would certainly qualify.

There is also general agreement that no foreign-born person who becomes a "naturalized" citizen can become president under Article II, unless it is amended. This consensus means that Schwarzenegger and Granholm are out.

The article also gets into the interesting question of whether the 'natural-born' requirement ought to prohibit naturalized citizens from serving in roles that could result in them ending up as President through the line of succession. It points out that there have been several SecStates who were naturalized citizens -- what would have happened if they'd been called on to serve as acting President (in the event of death or incapacitation of those above them on the list) isn't clear.

But based on those two cases, the more recent of which was in 1927, McCain is pretty safe.
posted by Kadin2048 at 10:15 AM on February 28, 2008

This thread is further proof that it's more fun to snark, bitch and yell than it is to do even the tiniest bit of research.
posted by mosch at 10:17 AM on February 28, 2008

Is someone born in Puerto Rico eligible to be president?

better idea: you prove that's not what it means.

Downes v. Bidwell.
posted by spiderwire at 10:24 AM on February 28, 2008

better idea: you prove that's not what it means.

I can't, but neither can you. That is what makes this sort of geeky fun. If it was clear then it wouldn't be nearly as much fun.
posted by caddis at 10:26 AM on February 28, 2008

This thread is further proof that it's more fun to snark, bitch and yell than it is to do even the tiniest bit of research.
From your snarky link: "...the U.S. Supreme Court has never specifically addressed the meaning of "natural born citizen..."

It's pretty clear that McCain is eligible for the Presidency, but this is a discussion worth having based on the laws and cases on the books.
posted by dirtdirt at 10:30 AM on February 28, 2008

Also, from Kadin's Wikipedia article:

"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."

Strictly speaking, the 14th Amendment really does muck up this distinction (re: "natural-born") and it is a debatable issue, despite what a lot of people here seem to believe.

As with Cheney's citizenship, it's unlikely to make a difference as far as McCain's eligibility, simply for practical reasons. However, it may play out interestingly in the immigration debate...
posted by spiderwire at 10:31 AM on February 28, 2008

*plans to write in languagehat, hopes he is considerably younger than too old McCain*
posted by Cranberry at 10:32 AM on February 28, 2008

wasn't this a plot point in frisky dingo a few months back :)

soon, he'll just decide that, if he can't be president, he'll destroy THE WORLD!

i'm surprised that noone's decided to ask the Manchurian Candidate question about mccain. of course, that's pretty non-pc, but....
posted by mrballistic at 10:33 AM on February 28, 2008

Sorry, mosch's link. And as dirtdirt and caddis say, this really is a live question.
posted by spiderwire at 10:33 AM on February 28, 2008

Under this rule, Cheney is also ineligible. I'm pretty sure "natural-born" and "spawn of Satan" are different categories.
posted by Killick at 10:34 AM on February 28, 2008

Not only is he a natural-born citizen, but they're still cleaning up Nakitomi Plaza after that mess he made on Christmas a few years ago.
posted by ten pounds of inedita at 10:35 AM on February 28, 2008 [3 favorites]

spiderwire, for the record, I wasn't referring to the puerto rican thing when I told caddis to prove his claim.
posted by shmegegge at 10:35 AM on February 28, 2008

spiderwire, for the record, I wasn't referring to the puerto rican thing when I told caddis to prove his claim.

I know; sorry for the confusion. Downes speaks to both of your points.
posted by spiderwire at 10:43 AM on February 28, 2008

Draft Languagehat, then google him!
posted by Baby_Balrog at 10:46 AM on February 28, 2008

Between this and the proof that women can't legally be president it looks like Barack Obama wins by default. Great job, guys!
posted by almostmanda at 10:51 AM on February 28, 2008

worst case : goes to Supreme Court. Guess what happens. Question: do you know why they stuck that in but do not have it for congress?
posted by Postroad at 10:58 AM on February 28, 2008

You know, just on basis of the fact that he fought for the U.S. and was held as a P.O.W. and all, I'll give him a pass on this one little issue.

I won't give him a pass on all the dumb ass shit he's voted in favor of, though.
posted by Joey Michaels at 10:58 AM on February 28, 2008

Where does it say "Men only"? Women have been elected to city,county, state and federal offices for years. If a woman can be a US Senator, why not a US president?
Misogynist mischief?
posted by Cranberry at 10:59 AM on February 28, 2008

You know what I think? I think people don't read all of the comments in these threads before posting. That's what I think.
posted by goatdog at 11:02 AM on February 28, 2008 [2 favorites]

spiderwire writes "Strictly speaking, the 14th Amendment really does muck up this distinction (re: 'natural-born') and it is a debatable issue, despite what a lot of people here seem to believe."

So, you're saying that children born to US citizens outside the US are not US citizens? I think the INS differs with that opinion.
posted by krinklyfig at 11:10 AM on February 28, 2008

Cranberry: Where does it say "Men only"? Women have been elected to city,county, state and federal offices for years. If a woman can be a US Senator, why not a US president?
Misogynist mischief?

Minor v. Happersett resolved the issue with regard to women in 1875; it holds that there is an original grant of rights to women in the Constitution, making them equal to men, that wasn't affected by subsequent amendments.

Postroad: Question: do you know why they stuck that in but do not have it for congress?

It's there for Congress too, but the requirement is different since Congressmembers don't have to be natural-born citizens. It has actually been an issue at times, e.g. when Texas joined the Union, and in the case of Hiram Revels. Southerners argued that Revels couldn't join Congress because he was a former slave and hadn't been a citizen for the requisite 9 years.

On that note, the answer as to why the "natural-born" bit is there in the first place -- or why it's a problem -- is that the whole thing was mucked up by the new citizenship provisions of the 14th Amendment, which aren't that clear on retroactivity (because of the dual path to citizenship discussed above), probably both because (a) there was reluctance to grant citizenship to slaves, and (b) the Reconstruction Amendments were a mess that were railroaded over the Southern states and it's possible that no one really thought about it much and that they couldn't change it later once the South was given back its power in Congress.
posted by spiderwire at 11:12 AM on February 28, 2008

Should he be? NO.
posted by Camel of Space at 11:15 AM on February 28, 2008

krinklyfig: So, you're saying that children born to US citizens outside the US are not US citizens? I think the INS differs with that opinion.

Again, there's no debate as to whether they're citizens. The question is whether they're "natural-born" citizens, which is required in order to be President. The problem is that the 14th Amendment grants Congress the power to grant citizenship -- hence why foreign-born children are automatically citizens -- but it's not clear that Congress has the power to retroactively declare that a person is "natural-born" if that person wasn't born within the Constitutional territory of the United States, since, e.g., that's arguably a post ex facto law.
posted by spiderwire at 11:16 AM on February 28, 2008 [1 favorite]

Amendment XII
The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;

Cheney changed his residency from Texas to Wyoming to get around this.
posted by Tehanu at 11:57 AM on February 28 [+] [!]

Just curious about the technicality - this means that you could have a ticket of people who were both from Texas, but the Texas electors (alone) would not be able to vote for both of them?


Here is a novel idea. Lets not act like we are scared of them and think that we have to beat them through weird legal minutia or rumors of affairs. Lets just fucking beat them fair and square. Here are our ideas. They make sense. Here are their ideas. They are terrible. Make a choice.
posted by ND¢ at 12:35 PM on February 28 [3 favorites +] [!]

Oddly that reflects my feelings of dread and paranoia about the Yankees (during the late '90s and early '00s), until the Red Sox finally won in '04. After the series ended I still thought there might be some technicality on which the Yanks would take it back. Since then, the fear is all gone, and when they play, it's not the same "oh god oh god" feeling. It's interesting - I have the same feeling now, that the Repubs will somehow find a way to win or steal it no matter what we do -- here's hoping it comes out the same. [NOT JINXIST] [GO SOX]
posted by LobsterMitten at 11:17 AM on February 28, 2008 [2 favorites]

Not like this will decide what actually goes down in the political realm, but this State Department document (linked by wikipedia article on Natural-Born Citizen) looks pretty interesting.

Under current law all U.S. citizens are also U.S. nationals, but not all U.S. nationals are U.S. citizens.[...]

a. The term “nationals of the United States”, as defined by statute (Section l0l(a)(22) INA) includes all citizens of the United States, and other persons who owe allegiance to the United States but who have not been granted the privilege of citizenship.[...]

c. Historically, Congress, through statutes, granted U.S. nationality, but not citizenship, to persons born or inhabiting territory acquired by the United States through conquest or treaty. At one time or other natives and certain other residents of Puerto Rico, the U.S. Virgin Islands, the Philippines, Guam, and the Panama Canal Zone were U.S. non-citizen nationals. [Emphasis added]

c. 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.

So are people born in the Panama Canal Zone still considered U.S. non-citizen nationals (as opposed to "at one time or other" were so considered)? And if McCain is a "U.S. non-citizen national", would he be eligible for election in a strict interpretation?
posted by A-Train at 11:18 AM on February 28, 2008

Ummm, and I was just going down the ius soli route. It sounds like, as noted earlier, that McCain would qualify under ius sanguinis:

(2) Jus sanguinis (the law of the bloodline ), a concept of Roman or civil law under which a person’s citizenship is determined by the citizenship of one or both parents. This rule, frequently called “citizenship by descent” or “derivative citizenship”, is not embodied in the U.S. Constitution, but such citizenship is granted through statute. As laws have changed, the requirements for conferring and retaining derivative citizenship have also changed.

So if only Arnold had had American parents at the time of his birth in Austria...
posted by A-Train at 11:23 AM on February 28, 2008

A-Train writes "So are people born in the Panama Canal Zone still considered U.S. non-citizen nationals (as opposed to 'at one time or other' were so considered)? And if McCain is a 'U.S. non-citizen national', would he be eligible for election in a strict interpretation?"

You leave out the part that McCain was born to US citizens. The distinction is important. It means that you can't gain citizenship for your child by just going to a US military base outside of the states and giving birth, the way you can by having a child on US soil, even if you're not a citizen. But if you're born to US citizens who are serving in the military on a military base outside the US proper, there is no question that you're a citizen. This happens all the time, and there is no special designation for children of military born in Panama, for instance - they're all citizens, as long as their parents are.
posted by krinklyfig at 11:25 AM on February 28, 2008

A-Train: The issue isn't whether McCain is a "U.S. non-citizen national." You're reading that document in reverse -- it's about the citizenship rights of children born on U.S.-controlled territory, and seems specifically intended to address the situation of (non-citizen) mothers giving birth at U.S. military bases and then claiming that their children are citizens. The point is that the children could be nationals but not citizens. A child whose parents were citizens, or a child born in Puerto Rico, etc., would become citizens under the current Congressional statutes.

(The (b) section you emphasize is just pointing out that in the past, citizenship in the Territories wasn't automatic.)
posted by spiderwire at 11:29 AM on February 28, 2008

spiderwire writes "Again, there's no debate as to whether they're citizens. The question is whether they're 'natural-born' citizens, which is required in order to be President."

That's not what your quote was talking about. Let me repeat it:

"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."

I don't see any mention of natural born as opposed to naturalized (McCain had citizenship at birth anyway, so there's no way he's naturalized). This is referring to the same thing A-train was talking about, and AFAIK it's only relevant if the parents are not US citizens.
posted by krinklyfig at 11:32 AM on February 28, 2008

That's not what your quote was talking about.

Sorry, that was unclear. I was responding to the earlier comment about being born on a military base.

McCain had citizenship at birth anyway, so there's no way he's naturalized

It's the other way around -- he was naturalized, which is why he has citizenship from-birth.
posted by spiderwire at 11:37 AM on February 28, 2008

So McCain is a Panamanian Sleeper Agent?
posted by drezdn at 11:39 AM on February 28, 2008

spiderwire, let me put this a different way. If a US couple is traveling in London and gives birth there, is the child considered a citizen of the US? If so, the child has no other natural-born citizenship to claim. IANAL, but I think it's absurd to claim that someone would not be considered natural born for such an accident of circumstance, where the parents at the time of birth are both citizens on a military base in US territory (it doesn't really matter where they are, actually). That would complicate the law unnecessarily.
posted by krinklyfig at 11:40 AM on February 28, 2008

spiderwire writes "It's the other way around -- he was naturalized, which is why he has citizenship from-birth."

How was he naturalized?
posted by krinklyfig at 11:42 AM on February 28, 2008

How was he naturalized?

They removed his foreskin.
posted by tkchrist at 11:47 AM on February 28, 2008 [1 favorite]

*faced with the groundswell of popular support, slightly fudges his Sherman statement and begins angling for special-interest money*
posted by languagehat at 11:47 AM on February 28, 2008

Here's some info on naturalization. I think you're using the word incorrectly. Here's some info about this particular circumstance.
posted by krinklyfig at 11:47 AM on February 28, 2008

spiderwire, it's my understanding that a naturalized citizen is one who becomes a citizen after having been born the citizen of another nation or territory. how could mccain be considered naturalized?

also, your quote does not specify the type of children being talked about. are they talking about the children of US citizens, or the children of non US citizens born on a US military base? I ask because this comment leads me to believe that your comment is discussing the latter, since they are directly contradictory otherwise.

note: chances are I'm going to ask you to cite a passage that makes your answer clear unless the answer is unclear within the legislation.
posted by shmegegge at 11:52 AM on February 28, 2008

No, "naturalization" just means the legal grant of citizenship; McCain's citizenship is by-law. "Natural-born" citizenship is different; citizenship doesn't have to be granted, because it exists by reason of birth (as opposed to at-birth), so there's nothing to naturalize.
posted by spiderwire at 11:54 AM on February 28, 2008

shmeggege: Note that the Act, cited in the comment you link, grants citizenship "at birth," i.e. via legal grant by statute. Here's the relevant bit from that Wikipedia article cited earlier; note the use of "by birth" versus "at birth":

The Fourteenth Amendment mentions two types of citizenship: citizenship by birth and citizenship by law (naturalized citizens): "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."

All persons born in the United States, except those not subject to the jurisdiction of the U.S. government (such as children of foreign diplomats) are citizens by birth under the Fourteenth Amendment. There is some debate over whether other persons with citizenship can also be considered citizens by birth, or whether they should all be considered to be "naturalized". Current US statutes define certain individuals born overseas as "citizens at birth," as opposed to citizens by birth. One side of the argument interprets the Constitution as meaning that a person either is born in the United States or is a naturalized citizen. According to this view, in order to be a "natural born citizen," a person must be born in the United States; otherwise, he is a citizen "by law" and is therefore "naturalized."

posted by spiderwire at 11:58 AM on February 28, 2008

I don't see any mention of natural born as opposed to naturalized (McCain had citizenship at birth anyway, so there's no way he's naturalized). This is referring to the same thing A-train was talking about, and AFAIK it's only relevant if the parents are not US citizens.

Exactly. There are two ways to be a "natural born citizen." 1. Be born in the United States. To whom you are born makes no difference. You are a citizen. 2. Be born the child of two US citizens. Where you are born makes no difference. You are a citizen. In both cases, you are a citizen from the moment of birth, therefore a "natural born citizen." If you are born in the US and your parents are already citizens, then double good for you. But only one or the other is required.

Really, wouldn't it be a huge red-tape mess if parents had to apply for their children's citizenship every time a kid was born outside of the country? And would we want there to be even a theoretical possibility that a kid born to US citizens would not himself or herself be a citizen?
posted by Pater Aletheias at 12:00 PM on February 28, 2008

John McCain and Exxon Valdez
posted by homunculus at 12:01 PM on February 28, 2008

are they talking about the children of US citizens, or the children of non US citizens born on a US military base?

Primarily the latter, as I mentioned earlier, but the statement applies to both. The children are non-citizen nationals in both cases ab initio absent any other authority, but the children born to U.S. citizens are granted citizenship automatically by law -- i.e., naturalized. They're not, however, necessarily "natural-born" within the meaning of the Constitution, and that's not the legal means by which they claim/are granted citizenship.
posted by spiderwire at 12:02 PM on February 28, 2008

spiderwire writes "The Fourteenth Amendment mentions two types of citizenship: citizenship by birth and citizenship by law (naturalized citizens): '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.'"

If you're born to US citizens outside the US, you're a citizen at birth, not a naturalized one. The legal term, according to FindLaw, is that you "acquire citizenship" through birth, which is the first situation you mention. Naturalization means you previously had other citizenship, and you were naturalized as an adult. One exception may be if your parents were naturalized before you were 18, which is referred to as "derived citizenship."
posted by krinklyfig at 12:02 PM on February 28, 2008

spiderwire writes "Primarily the latter, as I mentioned earlier, but the statement applies to both. The children are non-citizen nationals in both cases ab initio absent any other authority, but the children born to U.S. citizens are granted citizenship automatically by law -- i.e., naturalized."

I think you're wrong, and I think you're misunderstanding how it works and the very legal definition of "naturalization." I'd recommend asking a lawyer, however.
posted by krinklyfig at 12:04 PM on February 28, 2008

Exactly. There are two ways to be a "natural born citizen." 1. Be born in the United States. To whom you are born makes no difference. You are a citizen. 2. Be born the child of two US citizens. Where you are born makes no difference. You are a citizen. In both cases, you are a citizen from the moment of birth, therefore a "natural born citizen."

This is incorrect. The former case (1) is the "natural-born citizen" route. In the latter case (2) citizenship is granted by statute. Being a citizen at birth is not legally the same thing as being a "natural-born citizen."
posted by spiderwire at 12:05 PM on February 28, 2008

I think you're wrong, and I think you're misunderstanding how it works and the very legal definition of "naturalization." I'd recommend asking a lawyer, however.

Um -- I have. This is, as indicated, a live debate, but I assure you that I'm familiar with the legal definition of "naturalization," and you are incorrect.
posted by spiderwire at 12:08 PM on February 28, 2008

spiderwire writes "Um -- I have. This is, as indicated, a live debate, but I assure you that I'm familiar with the legal definition of 'naturalization,' and you are incorrect."

OK, then, interpret it any way you want. I'm not going to bother with this anymore.
posted by krinklyfig at 12:14 PM on February 28, 2008

Only from the NYT.
posted by VicNebulous at 12:18 PM on February 28, 2008

For all those wondering where my hilarious "snow niggah" comment went, it was apparently deleted and called out to MetaTalk. My response is here, and I am still representin'. Eh?
posted by Turtles all the way down at 12:20 PM on February 28, 2008

Now, if the requirement were that the president had to be a natural born killer, that'd be badass.
posted by kirkaracha at 12:28 PM on February 28, 2008

funny story: As I've been reading this thread and thinking about this law, I thought to myself (in all seriousness) "self, this is an awfully stupid law. we should get rid of it... once schwarzenegger's dead."
posted by shmegegge at 12:33 PM on February 28, 2008

And would we want there to be even a theoretical possibility that a kid born to US citizens would not himself or herself be a citizen?

If neither one has ever been to the United States, their child is not a citizen.

I assure you that I'm familiar with the legal definition of "naturalization," and you are incorrect.

Actually, you're incorrect, and krinklyfig is correct. Please stop shitting up this thread until you understand what "naturalization" means.
posted by oaf at 12:34 PM on February 28, 2008

Upon rereading, it looks like spiderwire doesn't understand that in order to be naturalized, you have to have been without U.S. citizenship at some point in your life. If you were a U.S. citizen when you were born, assuming you didn't relinquish it or have it stripped from you, you can't be a naturalized U.S. citizen, because you were never naturalized.
posted by oaf at 12:36 PM on February 28, 2008

This thread is further proof that it's more fun to snark, bitch and yell than it is to do even the tiniest bit of research.

Actually, the Wikipedia link adds the following wrinkle:

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."

Even the government is confused on this point of law.
posted by jonp72 at 12:41 PM on February 28, 2008

jonp72, that part is irrelevant because both of McCain's parents were U.S. citizens when he was born.
posted by oaf at 12:45 PM on February 28, 2008

The first president born in the United States after the Declaration of Independence was Martin van Buren, who was born in 1782.

Zachary Taylor was the first president born after Great Britain recognized American independence in the Treaty of Paris (1783). John Tyler was the first president born after the ratification of the US Constitution.
posted by kirkaracha at 1:14 PM on February 28, 2008 [1 favorite]

Blah blah blah. I'm voting Rosslyn in 08. So say we all!
posted by phearlez at 1:27 PM on February 28, 2008

I like how Kirkaracha makes up fake presidents.
posted by shmegegge at 1:35 PM on February 28, 2008 [1 favorite]

President Hat... It has a nice ring to it!
posted by grubi at 1:53 PM on February 28, 2008

Rosslyn? That religious nut with the visions?


BALTAR 2012!
posted by tkchrist at 2:19 PM on February 28, 2008

If elected, my first act will be to change the White House to the Black House; my National Security Adviser will be quonsar. Just so you know.
posted by languagehat at 2:19 PM on February 28, 2008

You guys think these rules are quirky and weird, check out the rules for Mexican presidency. Up until very recently, you didn't only have to be born a Mexican citizen, but so did both your parents, and all four of your grandparents. They removed the grandparents requirement some time shortly before 2000, to allow Vicente Fox, the PAN candidate, to run for president (he subsequently won), since his paternal grandfather was Irish.

There's a whole bunch of things in Mexico you need to be a natural-born citizen for, naturalized doesn't cut it. That includes lots of jobs and elected positions in government, even on the local level, as well as work in police and fire departments, the armed forces, and whatnot.
posted by Joakim Ziegler at 2:28 PM on February 28, 2008 [1 favorite]

spiderwire: You don't know what you're talking about.

Please cite any reputable source that agrees with you before pretending that your wholly unsupported view has any semblance of correctness.
posted by oaf at 2:37 PM on February 28, 2008

who's repeating themselves now? ;)
posted by caddis at 2:45 PM on February 28, 2008

Please cite any reputable source that agrees with you before pretending that your wholly unsupported view has any semblance of correctness.

Um, U.S. Constitution, 14th Amendment, Section 1, first sentence? The INA? I cited two or three cases upthread; all you've done so far is drool on yourself. You can't disprove a negative, you twit.
posted by spiderwire at 2:45 PM on February 28, 2008

who's repeating themselves now? ;)

yeah, it was the trackpad click. i turned it off.
posted by spiderwire at 2:46 PM on February 28, 2008

**prove a negative; or, counterfactuals are for sissies
posted by spiderwire at 2:47 PM on February 28, 2008

You could make an equally compelling argument that anyone born via C-section is disqualified. Which is to say, not compelling at all.

But he'd be qualified to kill MacBeth.
posted by BrotherCaine at 3:03 PM on February 28, 2008 [1 favorite]

Um, U.S. Constitution, 14th Amendment, Section 1, first sentence?

I said cite a source that agrees with you.

I eagerly await your expert opinion on the legality of warrantless wiretaps (Fourth Amendment) and the District of Columbia's handgun ban (Second). Bonus points if you can cite irrelevant case law.
posted by oaf at 3:03 PM on February 28, 2008

Citizen by birth or by naturalization, by birth includes geography or blood, at least according to one government agency. If the one (geography) is natural born, why not the other (by blood)? It's just fun that it isn't clear in the law, but I think most people would say that the right result would be that being born out of the country to parents who are citizens should probably make you natural born. These issues go way, way back though.

Anyway, some people would argue that Barack Obama is not a natural born citizen.
posted by caddis at 3:17 PM on February 28, 2008

I said cite a source that agrees with you.

The first sentence of the 14th Amendment draws a textual distinction between citizenship by birth and citizenship by naturalization. Assuming that you're literate, that should be relatively straightforward.

Minor v. Happersett, which I mentioned earlier (text), held that there's no overlap between the two, since the first grant is original, and not expanded by the 14th Amendment. That case is, in fact, precisely on point.

If you can point to an authority providing for a dual grant, feel free to do so. Up to this point, you really haven't done anything to indicate that you do, in fact, know what you're talking about.
posted by spiderwire at 3:23 PM on February 28, 2008

The first sentence of the 14th Amendment draws a textual distinction between citizenship by birth and citizenship by naturalization.

McCain acquired citizenship at birth. Why do you find this so difficult to understand?

Assuming that you're literate, that should be relatively straightforward.

You're awfully condescending for someone who isn't even right.
posted by oaf at 3:28 PM on February 28, 2008

McCain acquired citizenship at birth. Why do you find this so difficult to understand?

Seriously, how do you not understand the difference between acquiring citizenship at birth (statutory grant; naturalization) and being born a citizen (original grant; privilege/immunity)?
posted by spiderwire at 3:31 PM on February 28, 2008

Seriously, how do you not understand the difference between acquiring citizenship at birth (statutory grant; naturalization) and being born a citizen (original grant; privilege/immunity)?

Why are you throwing everything behind a distinction without a difference? I acquired citizenship at birth, at the exact same point in my life as McCain did in his (time t=0).

I am a citizen of the United States, and has been his entire life. I am not a naturalized citizen.
John McCain is a citizen of the United States, and has been his entire life. He is not a naturalized citizen.
posted by oaf at 3:35 PM on February 28, 2008

In case you don't understand my above comment, spiderwire, McCain was born a citizen, as was I.
posted by oaf at 3:36 PM on February 28, 2008

has been his have been my
posted by oaf at 3:36 PM on February 28, 2008

Why are you throwing everything behind a distinction without a difference?

Oh, OK, you just don't understand the basic distinction. I'm not sure how to explain it to you if you don't get that the entire basis of the issue is that there is a difference, but at least I know your objection wasn't substantive. Minor distinguishes the two. Cite some authority for your conflation, please.
posted by spiderwire at 3:44 PM on February 28, 2008

Where does Minor mention the definition of "natural born citizen"?
posted by oaf at 3:46 PM on February 28, 2008

spiderwire, although oaf is the one bothering to disagree here, I'm also not seeing why you draw that distinction. Children of US citizens are ipso facto citizens when they are born. What's the reason for not seeing it that way? I mean, I know you say there is a debate, but on what does the debate rest? Why think the only way to be born a citizen is to be born on US soil, and that otherwise one must be granted citizenship? (I'm just asking for a recap of your reason for believing this)
posted by LobsterMitten at 3:51 PM on February 28, 2008

Oh, for crying out loud.

Let's review. There are a few different ways that a person can become a U.S. citizen. The Constitution restricts people who became citizens in one of those ways from becoming President.

The first is to have already been a subject of the Crown and a citizen of one of the Colonies in early July, 1776. This is not how McCain gained his citizenship, but it is how at least eight presidents did it.

The second is natural citizenship, which is to say citizenship acquired at birth (natural < L. naturalis, < natura 'nature' < natus, p.part. of nasci 'to be born'. Lingua Latina, fili meretricis—scisne legere?). There are two doctrines under which citizenship is acquired at birth:

1. Jus soli, right of soil. If you are born in an integrated part of the United States, you're a citizen. That right does not apply to territory that isn't in the United States at all, such as overseas military bases, even if that territory is under the sole control of the United States. It does not now apply to any inhabited places that are not states. I'm not certain if it applies to certain uninhabited U.S.-held islands, and I don't know but that it may have applied to other U.S. territories that have since become states. This is also not how McCain gained his citizenship.
2. Jus sanguinis, right of blood. If both your legal parents are already citizens, you acquire citizenship upon being born to them. I don't know exactly how this applies to adoption, which would really be a more interesting case to argue about. At any rate, this is the basis of McCain's citizenship.

The third way is to be made a citizen later in your life, by a legal action that confers upon you a citizen's rights and responsibilities. This is called naturalization because it gives you (nearly) the same status as one who is a citizen by nature, i.e. by birth. If you were already natural, you could not be naturalized. This is the citizenship process that does not confer presidential electability, and it is not the citizenship process undergone by John McCain.

The meaning of the words seems clear enough to me. You may therefore count me in the spiderwire needs to get a new lawyer camp.
posted by eritain at 3:54 PM on February 28, 2008 [1 favorite]

The U.S. doesn't recognize jus sanguinis as a matter of Constitutional right; it's statutory. "Natural-born" citizenship is jus soli. McCain's citizenship is, in fact, probably jus soli per §303 of the INA; eritain, you're discussing a doctrine, not a precedent.

You may therefore count me in the spiderwire needs to get a new lawyer camp.

Yes, make more ad hominem criticisms without substantive support, please.
posted by spiderwire at 4:06 PM on February 28, 2008

"Natural-born" citizenship is jus soli.

Or jus sanguinis. The fact that I got my citizenship at birth through jus soli (and jus sanguinis, but it's not like I get to vote twice) and McCain got his only through jus sangunis doesn't make him not a natural born citizen. (There's absolutely no case law that would disagree with me.)
posted by oaf at 4:11 PM on February 28, 2008

"Natural-born" citizenship is jus soli.

Why think this?
posted by LobsterMitten at 4:14 PM on February 28, 2008

Mmmm... au jus!
posted by markkraft at 4:20 PM on February 28, 2008

oaf:

Where does Minor mention the definition of "natural born citizen"?

Search function not working?

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that 'no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,' and that Congress shall have power 'to establish a uniform rule of naturalization.' Thus new citizens may be born or they may be created by naturalization.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.

LobsterMitten:

spiderwire, although oaf is the one bothering to disagree here, I'm also not seeing why you draw that distinction. Children of US citizens are ipso facto citizens when they are born. What's the reason for not seeing it that way? I mean, I know you say there is a debate, but on what does the debate rest? Why think the only way to be born a citizen is to be born on US soil, and that otherwise one must be granted citizenship? (I'm just asking for a recap of your reason for believing this)

The jus soli grant of citizenship is Constitutional, and can't be abridged -- even preemptively -- by the government, because it's a guaranteed privilege/immunity based on the Constitutional pact. That's the first method outlined in the 14th Amendment: born in the country. It exists as a matter of right independently of government action.

The jus sanguinis grant is automatic under the immigration statutes, and it could in theory be abridged preemptively, but like any substantive right, after it's been granted it can't be extinguished without due process. That's the second method outlined under the 14th Amendment: naturalization.

There's two separate issues here. oaf's quibble over the definition of "naturalization" is really not in doubt. I have no idea what his argument is there. How that relates to the definition of "natural-born citizen" is what's somewhat unclear, as you can see from the bit I just quoted.
posted by spiderwire at 4:28 PM on February 28, 2008

oaf: (There's absolutely no case law that would disagree with me.)

That's because it's an open question. There's no caselaw that unambiguously supports the position, either.

But that wasn't your original argument. You were complaining about the definition of "naturalization"—which is distinct from "natural-born" citizenship—and you got it wrong. "Naturalization" is the legal grant of citizenship, distinguished by the 14th Amendment. The issue is whether that statutory grant can meet the Constitutional bar of "natural-born" citizenship or not.
posted by spiderwire at 4:32 PM on February 28, 2008

Search function not working?

I didn't feel like reopening the ruling, honestly. The line in the ruling that "new citizens may be born or they may be created by naturalization" doesn't refute my assertion that people who are born citizens (like John McCain, or like me) are natural born citizens. He was a new citizen, born, not created by naturalization.

The grant of citizenship to citizens who are citizens from the moment they are born outside the U.S. is not naturalization. If you've never been anything other than a U.S. citizen, you can't have been naturalized. I think this is where you're getting confused.
posted by oaf at 4:48 PM on February 28, 2008

Natural born in 1790.
posted by Brian B. at 4:54 PM on February 28, 2008

In this annotation to the citizenship sentence of the 14 Amendment, findlaw says:

In a subsequent decision, however, the Court held that persons who were statutorily naturalized by being born abroad of at least one American parent could not claim the protection of the first sentence of Sec. 1 and that Congress could therefore impose a reasonable and non-arbitrary condition subsequent upon their continued retention of United States citizenship. 13

[Footnote 13] Rogers v. Bellei, 401 U.S. 815 (1971). This, too, was a five-to-four decision, Justices Blackmun, Harlan, Stewart, and White, and Chief Justice Burger in the majority, and Justices Black, Douglas, Brennan, and Marshall dissenting.

I can't go read that decision right now, but the phrasing there sounds like it is using "naturalization" in the (IMO very un-intuitive) way that spiderwire is using it.

As I have always understood the term "naturalization" it's a bureaucratic procedure you have to go through. Which is why I was skeptical -- since if you're born of US citizen parents, you don't have to go through any such procedure to be a citizen. (You might need a procedure to get documentation of your citizenship, but the citizenship is there from the beginning whether or not you inform a bureaucrat.) But this sounds like it might be a specialized technical use of the term "naturalized" that I'm not familiar with?
posted by LobsterMitten at 4:58 PM on February 28, 2008 [1 favorite]

LobsterMitten explained it. Thank you.
posted by spiderwire at 5:03 PM on February 28, 2008

phrasing there sounds like it is using "naturalization" in the (IMO very un-intuitive) way that spiderwire is using it

But it's not a ruling on what "natural born citizen" means. The meaning of the phrase doesn't necessarily flow from anything else.
posted by oaf at 5:06 PM on February 28, 2008

oaf: yes. It explains only one of two things we were disagreeing about. But I take it that spiderwire's answer would be something like "There is a live debate over whether 'natural born' includes citizens born abroad to US citizen parents, because in at least one constitutional context, the Supreme Court [?] has made a distinction between those "naturalized" citizens-at-birth and the non-"naturalized" citizens-at-birth who were born on US soil. There's this distinction available, and legal opinions are divided as to whether it should be called upon in interpreting 'natural born'. "

If that's your view spiderwire, is it that you have discussed this distinction in law school and someone said there are, theoretically, two ways to go here? Or is it that there are published papers/decisions/etc on both sides?
posted by LobsterMitten at 5:15 PM on February 28, 2008

But it's not a ruling on what "natural born citizen" means.

Yes, it is. It's in §V(3).

The meaning of the phrase doesn't necessarily flow from anything else.

The entire point is that "naturalization" and "natural-born citizen" are different concepts; the former is just another name for the legal grant of citizenship, and the latter is the requirement for the Presidency in question. The error you're making is simply that you seem to be conflating the two.
posted by spiderwire at 5:16 PM on February 28, 2008

I almost want this to get to the Supreme Court so we can tell what the founding fathers thought a certain group of nine men and women think "natural born citizen" means.

I say "almost" because it would require McCain to win in November.
posted by oaf at 5:21 PM on February 28, 2008

If that's your view spiderwire, is it that you have discussed this distinction in law school and someone said there are, theoretically, two ways to go here?

Yeah, Sandy Levinson at least seems to think it's up in the air. I'm not so sure, but I disagree with him on a lot of things. There's at least two ways to go; one may be more right than the other.

Or is it that there are published papers/decisions/etc on both sides?

Immigration law isn't my specialty, but yeah—it's part and parcel with the issue of Dred Scott and the legitimacy of the Reconstruction Amendments, depending on how you interpret their import.
posted by spiderwire at 5:22 PM on February 28, 2008

It's in §V(3).
(Can you explain briefly, or quote what you're talking about here?)

The sentence in the 14 Amt that the annotation interprets is:

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.

It does not include the term "natural born". It includes the term "born...in" (ie, born in US territory) and "naturalized in".
posted by LobsterMitten at 5:22 PM on February 28, 2008

Yes, it is.

Not really. Minor's definition isn't exclusive.
posted by oaf at 5:23 PM on February 28, 2008

Well, aside from the murky problem that little previous case law has explicitly addressed this question, I suspect that the court will probably pass given:
1: The lack of compelling competing interest.
2: The constitutional grant of the power to congres "to establish an uniform Rule of Naturalization."
posted by KirkJobSluder at 5:24 PM on February 28, 2008

McCain wasn't born in incorporated U.S. territory or naturalized in same. Does that mean he's not a citizen? Of course not.
posted by oaf at 5:30 PM on February 28, 2008

> One more reason to never immigrate to USA. I mean, why go if I can't run for president?

Sure you can, after the Schwarzenegger Amendment is ratified.
posted by jfuller at 5:40 PM on February 28, 2008

Not really. Minor's definition isn't exclusive.

Yes, it is. The dissent in Bellei cites Wong Kim v. Ark:

The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But 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. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

It then cites to Minor and Elk v. Wilkins as original examples for the proposition that

[ . . . ] naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization [ . . . ]

This is pretty straightforward.
posted by spiderwire at 5:48 PM on February 28, 2008

Oh, I forgot to mention President Galusha Pennypacker.
posted by kirkaracha at 5:52 PM on February 28, 2008

KJS, I basically agree. Actually, I imagine that the specific way it would go down is that the Court would interpret "natural born" and a byword for uniform naturalization based on the 1790 Act, which is really the only one that addressed the term.

Though I'm generally not a fan of referencing to, e.g., the early Congresses or the Federalist Papers for evidence of the framer's intent (not least of all because that leads you down stupid avenues like Justice Thomas arguing that "Commerce" is only about buying and shipping), in this case I think it's at least plausible that "natural born" in the Constitution just idiosyncratic—really, the only reason it hasn't been adjudicated is because it's not tightly tied into the citizenship requirements like it should be.

It's also pretty clear that the framers didn't think through the Executive Office requirements all that well; if they had they wouldn't have needed the 12th Amendment.
posted by spiderwire at 5:58 PM on February 28, 2008

**as a byword for
posted by spiderwire at 5:58 PM on February 28, 2008

And KJS, of course there's a "compelling competing interest"—do you really want foreigners running the country? Come on, now. Next thing, you'll be telling us they aren't fluoridating our water and contaminating our precious bodily fluids.
posted by spiderwire at 6:01 PM on February 28, 2008

Man, the New York Times likes bashing this guy. First a lobbying scandal, now this. Guess they shouldn't have freakin' endorsed him in the first place.

I know print media is on a downhill slide and all, but why does the NYT feel the need to stoop to stunts like this to sell papers? Oh, I just answered my own question.
posted by zardoz at 6:16 PM on February 28, 2008

(not least of all because that leads you down stupid avenues like Justice Thomas arguing that "Commerce" is only about buying and shipping)

Makes more sense than "you can make a law about anything anywhere because if a butterfly flaps its wings in New York there might be a rainstorm in California and people might buy umbrellas from Ohio" interpretation.
posted by TheOnlyCoolTim at 6:31 PM on February 28, 2008

Yes, it is.

It's not exclusive, and you seem to be missing the point that your definition of naturalization isn't the one that makes one not a "natural born citizen".

The experts (not me, but the actual experts) disagree with you. But if you want to keep tilting at windmills, go ahead.
posted by oaf at 6:47 PM on February 28, 2008

oaf, I gotta say, just repeating that "the experts", whoever they are, are on your side isn't a very compelling argument. Spiderwire's backing up his point with cites. All you seem to be doing is repeating "no it isn't" and throwing around insults.

I have no idea which of you is actually correct, but I sure know which one I'd put my money on to win a debate.
posted by ook at 7:42 PM on February 28, 2008

ooh, it's oaf vs. ook!
posted by brain_drain at 8:27 PM on February 28, 2008

so test tube babies can never be president?
posted by pyramid termite at 8:42 PM on February 28, 2008

I wonder if this isn't a case where we can make a psychological/philosophical argument to throw out previous case law. Being pretty ignorant of the case law I'll argue the psycho/philo.

Here's my idea...

The laws of citizenship appear to have been mostly hashed out in an age when a person who was born abroad stood a good chance of not actually making it to the good ole USA before they had become a citizen/national of another state or culture just by education, training and assimilation. So, it stands to reason that the law might have been created to reflect this fact.

In the present age when we have instantaneous communication and a baby, born (say) in France to two US citizens could arrive on US soil a few short days after the umbilical cord is cut and (to throw a spanner in the works) if it was a male child even before Halacha demands that he be circumcised as a Jewish Male. (ok... enough about the jews).

What I'm driving at is that the idea of citizenship granted at birth in the place of birth is outmoded. Because at our present level of technology and human integration the concept of place can seem rather nebulous. Presuming that one has access to good record keeping and excellent transportation.

(and to bring it back around)

If a baby is born to a US Citizen(s), and I'm granting the possibility of a single unwed mother who is a US citizen and travelling abroad, in a foreign country and the doctor who delivers the child notes this fact down on the birth certificate I could see that it would be quite possible that when the parent(s) return to the US they'd get some flak from INS... BUT with DNA tech being as good as it is, and with as good of an ability of a nation such as ours to prove who its citizens are, I'd hazard to guess that the baby would be considered an actual US citizen w/o much quibbling.

or at least I hope so...


(again, this is a philosophical argument, I do recognize the possibility that I'm talking out of my ass, but it'd be nice if it worked that way)
posted by Sam.Burdick at 9:13 PM on February 28, 2008

To hell with all this--On Election Day I'm writing in "Al Gore".
posted by misha at 9:52 PM on February 28, 2008

spiderwire: And KJS, of course there's a "compelling competing interest"—do you really want foreigners running the country?

Well, the problem is that McCain is already running the country with his fingers deep in a mess of National Security pies. I just can't see the court considering the definition of "natural-born" as more than a triviality without some argument that McCain is, in fact, a Manchurian candidate about to hand the country over to the Chinese. And who would have the standing to make that argument before that court? The Bush Administration.
posted by KirkJobSluder at 10:23 PM on February 28, 2008

Almost since those words were written in 1787 with scant explanation, their precise meaning has been the stuff of confusion

Word, yo, Word.
posted by Bookhouse at 11:20 PM on February 28, 2008

This is an interesting academic issue and one I'd like to see resolved. I'm fine with McCain being president, but this issue deserves to be resolved as a matter of law. We can't ignore parts of the constitution because we disagree with them. Unfortunately, bringing this case would generate tons of sympathy for campaign.

Consider though, what would be happening if Obama were in the same situation.
posted by null terminated at 11:31 PM on February 28, 2008

*campaign = McCain

Yes I typed that phonetically
posted by null terminated at 11:31 PM on February 28, 2008

All you seem to be doing is repeating "no it isn't" and throwing around insults.

And all he's doing is throwing around insults and smugly insisting that his cites show exclusive definitions of what it means to be a natural born citizen. They don't. I'll trust legal scholars over a 1L any day.
posted by oaf at 8:10 AM on February 29, 2008

The Volokh Conspiracy has a much more complete discussion of this topic that references some contemporaneous material from Blackstone. It's still somewhat orthogonal to the point discussed above (that naturalization refers to the legal grant of citizenship) and doesn't fully answer the question of 14th Amendment reformation of the doctrine, but makes the "natural born citizen" question a bit clearer -- the answer is indeed that the Constitutional meaning is merely a stand-in for the results of a "uniform naturalization" program.
posted by spiderwire at 8:14 AM on February 29, 2008

I'll trust legal scholars over a 1L any day.

You have your facts wrong. You are also not citing any legal scholars, so your point is moot.
posted by spiderwire at 8:16 AM on February 29, 2008

Insults + citations > Insults + NUH-UH!

I'd personally prefer we balance the equation by subtracting insults from both sides, but if we're going to award trophies I don't think you'll like the shape yours is cast in, oaf.
posted by phearlez at 9:25 AM on February 29, 2008

I'll trust legal scholars over a 1L any day.

So would I, if you'd name one. Or cite one. Or support your argument with anything other than flying spittle and vague appeals to authority.
posted by ook at 10:00 AM on February 29, 2008

So basically anyone who has to swear a citizenship oath is automatically disqualified from being President?
posted by blue_beetle at 11:30 AM on February 29, 2008

What about robot candidates assembled by american scientists?
posted by blue_beetle at 11:49 AM on February 29, 2008

What about robot candidates assembled by american scientists?

As long as it is assembled in the USA and is programed to spout jingoistic plattitudes and vaguely racist/xenophobic comments about their opponents, they're electable.

See our previous robotic candidates Re-gon Model 80, GoreBot2000, KerryMachine mark 4 and Clin-Ton II. What? They don't have to be well built robots.
posted by Pollomacho at 11:56 AM on February 29, 2008

So, oaf, supposing we grant spiderwire that there is a technical legal sense of the term "naturalized" that can refer to children born of US citizens abroad.

Obviously this alone does not settle the question of whether "natural born" refers to citizen-at-birth-by-whatever-means, or if it refers to citizen-at-birth-by-place-of-birth-only. But it makes sense of the claim that there is a genuine legal controversy over the question.

As I understand it, that's what spiderwire is claiming -- that there is a controversy. That it is not clear-cut. (S/he's not claiming that the matter is settled on one side or the other.)

Do you have a reason for saying there is no such controversy, or that while there may have been a controversy, it's now been settled in the legal community? Or is it more that it seems prima facie implausible to you that there should be such a controversy?
posted by LobsterMitten at 12:22 PM on February 29, 2008

You have your facts wrong. You are also not citing any legal scholars, so your point is moot.

It doesn't appear that I do. And you're right, I'm not providing cites—duplicating links in a thread is kind of pointless.

Or support your argument with anything other than flying spittle and vague appeals to authority.

Um, you meant to direct that at spiderwire.

Please provide at least a shred of evidence that the Supreme Court would find other than for John McCain. Until then, shine on, you crazy diamond.

As I understand it, that's what spiderwire is claiming -- that there is a controversy.

That's not how I'm reading it; I'm reading his/her words as saying that McCain is clearly not a natural born citizen, since he was naturalized (which is true, if you alter the definition of "naturalize" slightly).

Do you have a reason for saying there is no such controversy, or that while there may have been a controversy, it's now been settled in the legal community?

There's a controversy in the "teach the controversy" sense. Please, feel free to show me an article by anyone reputable who thinks that the Supreme Court would actually rule that McCain can't be president.
posted by oaf at 6:07 AM on March 3, 2008

Please, feel free to show me an article by anyone reputable who thinks that the Supreme Court would actually rule that McCain can't be president.

Just for clarity, I don't have a dog in this fight at all. I don't have any idea if legal scholars think there's a genuine controversy here, or if this is just being discussed by a few of them as a possible, wouldn't-it-be-funny-if kind of "controversy".

But you seemed pretty confident that iit's the latter and not the former, so I'm wondering what's the basis for your certainty?
(a) I have an educated layperson's/non-specialist lawyer's understanding of this area, and it really stretches credibility to think the SCOTUS would rule against McCain on this. OR
(b) I have a well-grounded knowledge of this area of the law, and my legal opinion is that there is no genuine controversy.

If it's (a), I'm with you 100%.
If it's (b), I'm interested to know which links above to look at.
posted by LobsterMitten at 3:16 PM on March 3, 2008

It's 3 a.m. Who do you want answering the phone? Not John McCain, say some military leaders: "I think his knee-jerk response factor is a little scary"
posted by homunculus at 7:35 PM on March 5, 2008

McCain's Consistent Folly on Iraq: Wrong in 2003, wrong now, and still getting praised for it
posted by homunculus at 11:26 AM on March 6, 2008

Someone has filed a lawsuit challenging McCain's eligibility. It will probably be dismissed for lack of standing though.
posted by caddis at 7:53 AM on March 13, 2008