Natural-Born Citizenship – McCain OK for Presidency?

By Ted J. Chiappari and Angelo A. Paparelli*

Some scholars and pundits suggest that presumptive Republican candidate John
McCain is no more eligible under the Constitution to be President of the United States
than Paris Hilton or Arnold Schwarzenegger. The California governor, and the faux
starlet and recently self-proclaimed candidate, are each ineligible but for different reasons
– he is an Austrian-born naturalized U.S. citizen, and she is only 27 rather than 35, the
minimum required age.

Although Senator McCain is clearly a citizen by birth as a result of a post-natal

statutory grant, the question arises whether he is a “natural born Citizen” eligible to be
President pursuant to Article II of the U.S. Constitution. Article II provides that “No
person except a natural born Citizen … shall be eligible to the office of President.”1
Based on the peculiar facts of McCain’s birth (born in 1936 to U.S. citizen parents in the
Panama Canal Zone, a territory leased to the United States “in perpetuity” from 1904
until its return to the Republic of Panama in 1979) and the complexity of U.S. citizenship
laws, reasonable minds can and do differ on the answer.

In March, at the behest of McCain’s presidential campaign, Harvard Law

Professor Laurence H. Tribe and former Solicitor General Theodore B. Olson issued a
short memorandum concluding that the answer is “yes” and convincing the U.S. Senate
to pass a non-binding resolution to that effect.2 University of Arizona Law Professor
Gabriel J. Chin published a 52-page analysis in July reaching the opposite conclusion.3
Chin’s scholarly article provides a detailed analysis of the complexities of U.S.
citizenship law developed over the last 200+ years that is lacking in the Tribe-Olson
memo, which focuses more narrowly on the interpretation of the “natural born”
Constitutional provision. A primer on U.S. citizenship law may help to understand why
Senator McCain’s birth abroad to U.S. citizen parents has prompted such controversy
over his putative status as a natural born citizen.

There are two basic paradigms of acquiring citizenship: by birth, and by

naturalization. The Immigration and Nationality Act currently in effect defines

1
U.S. Const. art. II, § 1, cl. 5.
2
Letter by Laurence H. Tribe and Theodore B. Olson, dated March 19, 2008, reprinted in 154
Cong. Rec. S3645-46 (Apr. 30, 2008) in support of a nonbinding bipartisan resolution
“recognizing that John Sidney McCain, III, is a natural born citizen.” See also Michael Dobbs,
McCain’s Birth Abroad Stirs Legal Debate, Washington Post, May 2, 2008, at A06
(http://www.washingtonpost.com/wp-
dyn/content/article/2008/05/01/AR2008050103224_pf.html).
3
Gabriel J. Chin, “Why Senator John McCain Cannot Be President: Eleven Months and a
Hundred Yards Short of Citizenship” (July 9, 2008), Arizona Legal Studies Discussion Paper
No. 08-14, available at Social Science Research Network (SSRN):
http://ssrn.com/abstract=1157621.
“naturalization” to mean “the conferring of nationality of a state upon a person after birth,
by any means whatsoever.”4 There should therefore be no doubt that a “natural born
Citizen” as described in Article II of the Constitution is one who acquired U.S.
citizenship at birth, and not through naturalization. The law of naturalization is therefore
not discussed in any detail here.

To determine whether U.S. citizenship is conferred at birth, one must determine

where the birth took place and to whom the child was born. Birthright citizenship has
two guiding principles: jus soli (citizenship determined by place of birth; literally, rule
“of the soil”) and jus sanguinis (citizenship by descent; literally, rule “of blood,” i.e.,
regardless of place of birth).

In the United States, citizenship by naturalization was the only paradigm

explicitly addressed by our Founders in the Constitution, which delegated to Congress the
power “To establish an uniform Rule of Naturalization.”5 Citizenship by birth was of
course implicitly acknowledged in clause 5 of Article II, section 1 – the provision at the
center of the debate over McCain’s eligibility for the presidency – but the Constitution as
originally drafted was silent as to the principles of jus soli and jus sanguinis.

British common law recognized the principle of jus soli,6 but only the ratification
of the Fourteenth Amendment in 1868 explicitly incorporated the principle into our
Constitution: “All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States….”7 Jus sanguinis was not part of
British common law – rather, it was a statutory creation in Great Britain – and therefore
was not incorporated into U.S. common law.8 Accordingly, in the United States
citizenship by descent has always been and remains solely a function of statutes created
and regulated by Congress. (In fact, such a statute was already enacted by the First
Congress, establishing that children born abroad to U.S. citizens would be U.S. citizens
themselves, so long as the father had been resident in the United States.)9 U.S. citizenship
law (independent of the Constitutional question of eligibility for the Presidency and
despite the suggestion by Tribe and Olson that British common law at the time our
Constitution was drafted “confirm[s] that the phrase ‘natural born’ includes … birth
abroad to parents who were citizens”10) has never recognized common law as a separate
or independent basis for claiming U.S. citizenship by reason of birth to U.S. citizens
abroad (i.e., jure sanguinis).
4
Immigration and Nationality Act [INA] § 101(a)(23), 8 U.S.C. § 1101(a)(23).
5
U.S. Const. art. I, § 8, cl. 4.
6
Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 92.03[1][a], citing to
Weedin v. Chin Bow, 274 U.S. 657, 660 (1927); U.S. v. Wong Kim Ark, 169 U.S. 649 (1898);
and Calvin’s Case, 7 Coke 8 (1608).
7
U.S. Const. amend. XIV, § 1.
8
Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 93.01[2]. See also U.S. v.
Wong Kim Ark, 169 U.S. 649, 669-670.
9
Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 104.
10
Tribe-Olson Letter, supra note 2.
 Jus soli

The question of birth “in the United States” is an easy one for those born in one of
its States. It is more complicated for those like Senator McCain born in an outlying
territory. The common law and Constitutional principle of jus soli has been codified in
the current nationality act,11 which also defines the “United States” to mean the
continental United States, Alaska, Hawaii, Puerto Rico, Guam and the Virgin Islands of
the United States.12

The geographic scope of jus soli in cases of birth in outlying territories has been
far from clear. There is a line of Supreme Court decisions, called the Insular Cases,13
that draws the distinction between incorporated territories (like Alaska), to which the
reach of the U.S. Constitution was fully extended, and unincorporated ones (like the
Philippines) to which it was not. Although dating back to the early 20th Century, the
Insular Cases have never been disavowed or overturned.

In McCain’s case, the Panama Canal Zone is an anomaly among outlying U.S.
territories. Leased in perpetuity, not purchased (like Alaska or the Virgin Islands) or
ceded (like Hawaii or the former Spanish territories of Puerto Rico, Guam and the
Philippine Islands), the Panama Canal Zone was never explicitly recognized as part of the
United States, even though it was under complete U.S. jurisdiction. Indeed, the United
States returned the Canal Zone to the Republic of Panama in 1979. Professor Chin
concludes that the Panama Canal Zone was an unincorporated territory – like the
Philippines – to which the Constitution’s Fourteenth Amendment did not extend, while
Tribe and Olson base their opposite conclusion on the virtually exclusive jurisdiction the
United States exercised in the Canal Zone at the time, in essence ignoring the Insular
Cases and probably overstating the reach of the Fourteenth Amendment.

Jus sanguinis

Statutes implementing jus sanguinis have caused great complexity in U.S.

citizenship law. This is because the statutes impose very specific requirements, which
Congress has changed many times over the years, and because citizenship is determined
by the statute in effect at the time of the child’s birth.14

11
INA § 301(a), 8 U.S.C. § 1401(a).
12
INA § 101(a)(38), 8 U.S.C. § 1101(a)(38).
13
See Downes v. Bidwell, 182 U.S. 244 (1901), the first of the Insular Cases, discussed in
Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 92.04[1][a].
14
U.S. Department of State Foreign Affairs Manual [FAM] 1131.1-2 (“The law applicable in the
case of a person born abroad who claims citizenship is the law in effect when the person was
born, unless a later law applies retroactively to persons who had not already become citizens.”);
see also Montana v. Kennedy, 366 US 308, 312 (1961).
 It may come as a surprise to some that a child born to a U.S. citizen abroad may
not be a U.S. citizen at birth – an illustration of the statute’s complexity. Under current
law, in order to transmit U.S. citizenship to his or her child born outside of the United
States, a U.S. citizen married to a foreign national, before the birth of the child, must
have resided in the United States for a minimum of five years, at least two of which were
after turning age 14.15 An example: a woman is born in Connecticut, moves with her
parents to France at age 15 and ends up studying in France (at which point her parents
move back to Connecticut). She falls in love, marries a Frenchman and has their first
child there before realizing that she wants to move back to Connecticut to be closer to her
parents. Although the mother is clearly a U.S. citizen at birth, she hasn’t resided for the
requisite amount of time in the United States before the birth of her child to transmit U.S.
citizenship to her child at birth. Her child must first immigrate as a lawful permanent
resident (green card holder) before she can naturalize to U.S. citizenship.

Where both parents are U.S. citizens, all that is required – again, under the current
statute – is that one of the parents have resided in the United States (or one of its
possessions) before the child’s birth.16 A child born out of wedlock may or may not
acquire U.S. citizenship at birth, depending on whether the mother or the father is a U.S.
citizen, and whether certain other conditions (such as the establishment of the father’s
paternity) are met, depending on who the U.S. citizen parent is.17

These factors – a parent’s period of residence in the United States before the birth
of the child; the parents’ marital status; whether one or both parents are U.S. citizens –
and other factors, such as the requirement at one time that a person born abroad must
reside in the United States for a certain period of time in order to retain U.S. citizenship
acquired at birth, have changed over the years. For example, until 1934, only U.S. citizen
fathers could transmit U.S. citizenship to children born abroad, but there was no amount
of time specified for the residence in the United States that was required of the father
before the birth of the child. Children born abroad between 1934 and 1978 to one U.S.
citizen parent must still prove that they retained their U.S. citizenship by residing (or,
later, by being physically present) for some period of time in the United States. Those
born after 1978 are not subject to any such retention requirement.

As can be seen from these examples, at various times, there have been conditions
precedent and conditions subsequent to the birth of the child that must have been met to
effect transmission of U.S. citizenship. In the leading treatise on immigration and
citizenship law, a summary of conditions applicable to persons born abroad is broken
down into six periods, reflecting the various changes in the law over the years: birth
before May 24, 1934; 1934-1941; 1941-1952; 1952-1978; 1978-1986; and on or after
November 14, 1986.18 The U.S. Department of State, which is charged with determining

15
INA § 301(g), 8 U.S.C. § 1401(g).
16
INA § 301(c), 8 U.S.C. § 1401(c).
17
INA § 309, 8 U.S.C. § 1409.
18
Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 93.03.
U.S. citizenship at birth for purposes of issuing passports and registrations of birth
abroad, in its Foreign Affairs Manual, dedicates 103 pages to the topic of acquisition of
U.S. citizenship by birth abroad to a U.S. citizen parent.

Conclusion

So is Senator McCain a “natural born citizen”? Perhaps not since the plot twist
about the caesarian birth of Macbeth’s murderer has so much drama ensued over the form
of a person’s nativity.19 It is unlikely that this question will have any practical impact in
the election in November, that we’ll ever get a definitive answer, or, given the specific
facts of his birth, that any such determination would have any precedential value.
Nonetheless, it highlights the complexities of U.S. nationality law. Unless we attribute a
meaning to that Constitutional term divorced from general U.S. citizenship jurisprudence,
the answer depends on two issues: whether the Panama Canal Zone was part of the
United States at the time of McCain’s birth (so that the Fourteenth Amendment would
make McCain a citizen at birth); and, if not, whether there was a statute in effect at the
time that granted U.S. citizenship by reason of his parents’ U.S. citizenship. As to first
question, discussed in the section on jus soli above, it is at best unclear whether the
Fourteenth Amendment reached the Panama Canal Zone.

As to the second question, Chin concludes from the passage of an amendment to

the U.S. nationality act 11 months after McCain’s birth – specifically granting U.S.
citizenship to those born to U.S. citizen parents in the Panama Canal Zone on or after
February 26, 1904, including McCain – that the answer here is also no.20 The statute in
effect at the time of McCain’s birth did grant citizenship at birth to “[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.”21 Chin argues,
however, in light of the statutory change in 1937 and the legislative history of that statute,
as well as the logic of the Insular Cases, that the Panama Canal Zone was “out of the
limits” of the United States but not out of its jurisdiction, and therefore neither part of the
United States nor foreign territory. Tribe and Olson’s reaction to Chin is that the 1937
law merely clarified what Congress intended all along, and that reading the statute as
Chin does would be “‘to attribute a crazy design to Congress’ that ‘would create an
irrational gap.’”22

19
William Shakespeare, The Tragedy of Macbeth, Act IV. scene i:
“Be bloody, bold, and resolute; laugh to scorn
The power of man; for none of woman born
Shall harm Macbeth.”

It was Macduff who “was from his mother’s womb Untimely ripp’d.” Act V, scene viii.

20
This provision is still in effect in the current statute; see INA § 303(a), 8 U.S.C. § 1403(a).
21
Act of May 24, 1934, § 1, 48 Stat. 797. Neither
22
Adam Liptak, A Hint of New Life to a McCain Birth Issue, New York Times, July 11, 2008
(http://nytimes.com/2008/07/11/us/politics/11mccain.html).
 Chin would not disagree with Tribe and Olson’s assessment of U.S. nationality
statutes: he calls McCain’s dilemma a “technicality ne plus ultra” – the most extreme of
technicalities – and concludes that, “as a policy matter, Senator McCain should be
eligible to the Office of President.”23 In a subsequent newspaper interview, he conceded
that “It’s preposterous that a technicality like this can make a difference in an advanced
democracy.”24 Were it not for our convoluted statutory framework for citizenship jure
sanguinis, Chin’s reading of the statute would indeed appear strained. For immigration
practitioners accustomed to that framework, however, where the difference of a day in
birth can result in a different set of rules and make or break a claim to birthright
citizenship, Chin’s reading is perfectly plausible. We can only hope that McCain’s
Constitutional question might move Congress to draft a simpler, more coherent statute
regulating citizenship by descent.

_______________
Reprinted with permission from the August 22, 2008, edition of the New York Law
Journal. © 2008 ALM Properties Inc. All rights reserved. Further duplication without
permission is prohibited. The authors thank the Journal for permission to reprint this
article.

* Ted J. Chiappari is a partner at Satterlee Stephens Burke & Burke LLP in New York
City. Angelo Paparelli is Managing Partner of Paparelli & Partners LLP
(www.entertheusa.com), in New York, NY and Irvine, CA, and President of the Alliance
of Business Immigration Lawyers (www.abil.com). He writes a blog on America’s
dysfunctional immigration system: www.nationofimmigrators.com.

23
Chin, “Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards
Short of Citizenship”, supra note 3 at 7.
24
Adam Liptak, A Hint of New Life to a McCain Birth Issue, New York Times, July 11, 2008
(http://nytimes.com/2008/07/11/us/politics/11mccain.html).