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Is John McCain constitutionally eligible to be president of the United States? As The New York Times recently reported, the fact of Sen. McCain’s birth in the Panama Canal Zone revives “a musty debate that has surfaced periodically since the founders first set quill to parchment” about the meaning of the Constitution’s dictate that the president must be a “natural born Citizen.” Twenty years ago, I examined this question in my student note for the Yale Law Journal and concluded that if the eligibility of a presidential candidate born outside the territorial United States were challenged under the natural-born citizen clause, the outcome, based on then-existing authority, would be “unpredictable and unsatisfactory.” Although I never expected to encounter this issue again, my conclusion is the same today. While there are certainly good arguments that McCain or anyone else born to American parents on a U.S. military base abroad would or should meet this requirement, there is no legal precedent. Every person to hold the office of president has been born on American soil. With McCain as the presumptive Republican presidential candidate, most likely the debate will continue. NATURALLY DONE What does the phrase “natural born” mean? On the one hand, no one doubts that it includes persons born in one of the 50 states. On the other hand, it plainly does not include persons who had no claim to U.S. citizenship at birth but later took an oath and became naturalized — such as California Gov. Arnold Schwarzenegger, who was born in Austria. But does it cover persons who had U.S. citizenship at birth under the naturalization laws then in effect? Currently, this group would include persons born abroad to American parents, persons born abroad on U.S. military bases, and persons born in U.S. territories. But the laws of England before U.S. independence and the laws of the United States since have not always provided birthright citizenship to these groups. At the time of this nation’s founding, of course, it had no territories or military bases abroad. Looking to the intent of the Framers of the Constitution produces no conclusive answer. The term “natural born” was never in common usage. It appeared without explanation in an early draft of the Constitution. The records of the Constitutional Convention offer no clue as to its precise meaning. Before the term appeared in Article II, John Jay suggested in a letter to George Washington that the Constitution should declare “expressly that the Command in chief of the American army shall not be given to … any but a �natural born Citizen.’ ” From this and other writings, we know that the Founders were concerned about the possibility that foreign princes might be asked to assume leadership of the new nation and its military. But this fact tells us little about the precise definition of “ natural born Citizen.” In 1790, under the authority expressly granted to it by the Constitution, Congress passed the first naturalization statute, which provided that the children of U.S. citizens “that may be born beyond the sea … shall be considered as natural born citizens.” But a few years later this provision was deleted from a subsequent naturalization act for unknown reasons, and it has not reappeared in the naturalization statutes. The constitutionality of the 1790 law — and of any other law seeking to define “natural born Citizen,” as has been proposed from time to time — has never been examined by the courts. THE ‘BORN’ What does seem clear from looking at constitutional history is that the Founders believed the president ought to have had citizenship from birth. What else could the word “born” mean? Alexander Hamilton, submitting a “sketch of a plan of government,” proposed that no person should be eligible to be president “unless he now be a Citizen of one of the States [at the time of the nation's founding], or hereafter be born a Citizen of the United States.” The structure of the Constitution likewise supports the idea that the critical thing was that the person be born a citizen, under whatever laws were in effect at the time of the person’s birth. Article I gives Congress the power to write the rules of naturalization. The 14th Amendment sets forth a constitutional definition of citizenship: “All persons born or naturalized in the United States … are citizens of the United States.” The question is how this definition intersects with the natural-born citizen clause. If all citizens are either “born … in the United States” or “naturalized,” then “natural born” must be either synonymous with “born in the United States” or some subset of “naturalized,” i.e., given citizenship under the laws passed by Congress. While the answer is by no means clear and many have concluded that “natural born” strictly means born in the United States, I favor the interpretation that “natural born” constitutes a subset of “naturalized” (note the root “natural”) and means “naturalized at birth.” A requirement that the president be a citizen from birth not only is consistent with the Framers’ stated concerns that the government not be turned over to someone with greater loyalty to a foreign power, but also addresses their fear of arbitrary congressional action. The Framers prohibited ex post facto laws and bills of attainder and might have feared that Congress would someday pass a law to make one particular person who was not a citizen from birth eligible for the presidency. (Such fears seem prescient in the light of publicized suggestions for a constitutional amendment to allow Schwarzenegger to run.) CANAL ZONE KID So where does that leave Sen. McCain? Contrary to popular belief, U.S. military facilities abroad, such as the naval hospital in the Panama Canal Zone where he was born in 1936, are not considered to be “in” the United States within the meaning of the 14th Amendment. The citizenship laws in effect in 1936 declared children born to American citizens outside the United States to be citizens at birth. Despite his American parentage, however, there is another wrinkle in McCain’s case — one that could be used for or against him. In 1937, the year after the senator’s birth, Congress passed a bill “to remove the existing uncertainty” as to the citizenship of those born in the Canal Zone to U.S. parents. The act, S. 2416, states, “Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of birth of such person was or is a citizen of the United States is declared to be a citizen of the United States.” A committee report accompanying S. 2416 explained the need for the law: Because the Canal Zone was under the jurisdiction of the United States but not within its territorial limits, children born in the zone did not fall under the citizenship statutes then in effect granting citizenship at birth to children who were born (1) within United States territory or (2) of American citizens outside the limits and jurisdiction of the United States. Does the act’s attempt to resolve the question retroactively satisfy the natural-born citizen clause, even under my arguably more liberal naturalized-at-birth interpretation? On the one hand, the 1937 law suggests that McCain does not fall under the usual rule about children born abroad of American citizens because of the particular place in which he was born. On the other hand, it purports to clarify (although retroactively) that he was a citizen from birth. Thus revived, the “musty debate” rages on.
Jill A. Pryor is a partner in Atlanta’s Bondurant, Mixson & Elmore, where she practices business litigation. This article first appeared in the Fulton County Daily Report , an ALM publication.

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