Was Senator John McCain a U.S. Citizen at Birth?

By Michael David Rawlings

Introduction

I. The Resolution

II. The Challenges

A. "Eleven Months and a Hundred Yards Short of Citizenship"

B. Professor Chin v. Tribe-Olson: A Summary of the Facts

1. Professor Chin

2. Tribe-Olson

a. Because His Parents were U.S. Citizens

b. Because He was Born in the Territory and Allegiance of the Untied States

C. The Tin-Foil-Hat Argument and the Undiscovered Country of Jurisprudencia: or how Wittlake sailed around the world and never landed on the Shores of Legalese

1. The Moment of Conferral: Natural-Born Citizens and Naturalized Citizens

2. Up Jumped the Monkey: Naturalized-Born Citizenship?

3. Wong Kim Ark: A Legacy of Uncertainty

4. Unraveling the Mumbo Jumbo

5. Meanwhile, Lost at Sea . . .

Conclusion

Appendixes
Appendix A - The Insular Cases and Unincorporated Territories
Appendix B - Zimmer et al. v. Acheson: A Comedy of Errors
Appendix C - Physical Presence: Lefty's Magic Wand

Introduction

In response to the controversy over the legitimacy of Senator McCain's candidacy, the Senate passed a resolution that unequivocally declared McCain to be a natural-born citizen and, therefore, eligible to hold the Office of President. The resolution was loosely based on the Tribe-Olson Opinion commissioned by the McCain campaign.

Most of the fuel that fed the flames of this controversy was that of sheer ignorance—such as the false belief that one must be born in the United States of America in order to be a natural-born citizen. There was also a rumor that McCain had not actually been born on the Coco Solo U.S. Naval Submarine Base, but in a private hospital outside the Panama Canal Zone, which caused some consternation for those who erroneously believed that the premises of American military and diplomatic facilities, or the soil of territories leased by the United States constituted American soil for constitutional purposes.

Though ineducable ignorance would still have reared its pompous head—had McCain been born outside the Canal Zone, there would have been no substantive basis for a legal challenge to his presidential eligibility. The only potentially serious problem for McCain was a glitch in the statute that at the time of his birth governed the conferral of citizenship via the law of the bloodline, a glitch that adversely affected children born inside the Canal Zone. This bit of arcane legal trivia was not unknown to those well-versed in the history of America's immigration and nationality law, but before McCain won the Republican Party nomination and the Tribe-Olson Opinion invited a rebuke, it was of little consequence.

I. The Resolution

Recognizing that John Sidney McCain, III, is a natural born citizen.

Whereas the Constitution of the United States requires that, to be eligible for the Office of the President, a person must be a "natural born Citizen" of the United States;

Whereas the term "natural born Citizen", as that term appears in Article II, Section 1, is not defined in the Constitution of the United States;

Whereas there is no evidence of the intention of the Framers or any Congress to limit the constitutional rights of children born to Americans serving in the military nor to prevent those children from serving as their country's President;

Whereas such limitations would be inconsistent with the purpose and intent of the "Natural Born Citizen Clause" of the Constitution of the United States, as evidenced by the First Congress's own statute defining the term "natural born Citizen";¹

Whereas the well-being of all citizens of the United States is preserved and enhanced by the men and women who are assigned to serve our country outside of our national borders;

Whereas previous presidential candidates were born outside of the United States of America and were understood to be eligible to be President;² and

Whereas John Sidney McCain, III, was born to American citizens³ on an American military base in the Panama Canal Zone in 1936:⁴  Now, therefore, be it

Resolved, That John Sidney McCain, III, is a "natural born Citizen" under Article II, Section 1, of the Constitution of the United States.⁵

___________________________
¹Naturalization Act of 1790; Chapter III, Section I, Statute II, pg. 104: http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=227.

Demonstrating that our senators don't always know what they're talking about either, this provision does not define the term natural-born citizen; it merely specifies the requirements of citizenship's acquisition at birth for children born abroad of U.S. citizens. It states that a person born abroad is a natural-born citizen, provided that both of his parents were U.S. citizens at the time of his birth and his father was a U.S. resident at some time or another before his birth. (Today only one of the child's parents must be a U.S. citizen with prior residency in the United States.) That's not a definition of the term. The meaning of the term natural-born citizen as passed down to American law is understood in the context of the construct of territorial-hereditary allegiance.

Before the Court in Wong Kim Ark tainted the Constitution's original concept, natural-born citizenship could have been defined as the status which entails the full measure of the rights and privileges of allegiance bestowed by the Republic of the United States of American at the moment of birth on persons born of both the soil and the blood of the nation, whereby the native's claim on the soil of allegiance is immediate and the non-native's claim on the soil of allegiance is derivative.  Today, of course, a person can be a natural-born citizen by simply being born on the soil of allegiance; he does not have to be of the soil in the original sense, as it is no longer required that his blood have a prior claim on the soil. In other words, his parents do not necessarily have to be U.S. citizens at the time of his birth or even be on the soil legally. 

²These persons were George Romney and Lowell Weicker. Romeny was born in Mexico of U.S. citizens and ran for the Republican Party nomination in 1968. Weicker was born in France of U.S. citizens and ran for the Republican Party nomination in 1980. Weicker's father was a natural-born U.S. citizen, and his mother was a naturalized U.S. citizen originally born in India, i.e., a British citizen at birth. All of the citizen parents and their offspring had duly satisfied the respective requirements of residency and allegiance, and, therefore, both of these candidates were certified as natural-born citizens by the State Department.

³Yes. Both of McCain's parents were U.S. citizens, born and raised in America, which is the only thing that matters here.

⁴This is not relevant to McCain's presidential eligibility. The leased territory of the Panama Canal Zone wherein the naval base resided was foreign soil—every square inch of it.

⁵Senate Resolution 511 ATS; 110th Congress, 2nd Session; April 10, 2008; http://www.govtrack.us/congress/billtext.xpd?bill=sr110-511&version=ats&nid=t0%3Aats%3A2.

  II. The Challenges

Two distinct challenges were raised against McCain's natural-born status. While both were based on the fact that the Panama Canal Zone was never American soil for constitutional purposes, one of them conflated the terms "native born" and "natural born". The Constitution does not require that one be a native-born citizen in order to hold the Office of President, only that one be duly covered by statute if born abroad of U.S. citizens. Hence, that challenge was stupid. But the other, more complex challenge, argued by Professor Gabriel J. Chin of the University of Arizona,⁶ showed that McCain was born in the Canal Zone at a time when it was "a statutory dead zone" (1904 - 1937) due to a legal technicality ne plus ultra ("in the extreme").

Though highly unlikely, the Court might have heard the latter challenge had McCain won the election, if for no other reason but to affirm the natural-born status of children born abroad of U.S. citizens once and for all. The author of this work is confident that this would have been the present Court's course of action given its moderate-to-conservative majority and the fact that any other course of action would have created a constitutional crisis. But since McCain did not win the election and the only other persons to be born under the same circumstances. . . .

A. "Eleven Months and a Hundred Yards Short of Citizenship"

As a result of the Court's imposition of the British rule of birthright citizenship in United States v. Wong Kim Ark (March, 1898), it was not clear whether or not the territories acquired from Spain in December of 1898 were part of the United States for constitutional purposes.⁷ In what are collectively known as the Insular Cases—the most important of these being Downes v. Bidwell (1901), Hawaii v. Mankichi (1903), Dorr v. United States (1904) and Rasmussen v. United States (1905)—the Court established that while unincorporated territorial possessions were subject to the sovereignty and to the allegiance of the United States, they were not part of the United States proper. That is, until Congress explicitly provided otherwise, they did not reside within the jurisdiction of the Fourteenth Amendment. The federal government's administration of them was not subject to the commandments of the Constitution.  Neither the privileges of citizenship nor the Bill of Rights applied to their native inhabitants.

While today the entire apparatus of the United States' immigration and nationality law rests on the jurisdictional distinctions established by the decisions of the Insular Cases, the full ramifications of these decisions did not become manifestly clear until 1932.⁸

For approximately three decades it was believed that a handful of remedial legislative measures had repaired the breach between previous statute and the decisions of the earlier Insular Cases for all of the unincorporated territories of the United States. Later, the "Jurisdiction Act" of 1926 (currently codified, 8 U.S.C. § 173) consolidated the various legislative remedies of the Insular Cases and was retroactively applied to the general body of immigration and nationality law. But despite the conventional wisdom, during the process of hammering out the details of the Revised Statutes of 1934, it became clear no later than 1932 that because of the Canal Zone's unique anomaly the offspring of U.S. citizens born there since 1904 were not citizens of the United States. In fact, due to the terms of the Hay-Bunau Varilla Treaty and Panamanian law, technically, they had no nationality at all.

So in 1937, Congress passed a separate statute (currently codified, 8 U.S.C. § 1403.a.) which conferred U.S. citizenship on "any person born in the Panama Canal Zone on or after February 26, 1904", provided that at least one of the person's parents was a U.S. citizen at the time of the person's birth. While U.S. citizenship can be retroactively granted to U.S. nationals by statute, for example, such conferrals were understood to be acts of naturalization. But the intent of this statute was to confer natural-born citizenship. This was a gray area because it had always been understood that the highest status of U.S. citizenship could only be endowed at the moment of birth. Either the foreign-born children of U.S. citizens were covered by statute or they were not. If not, they either had to be naturalized by a statutory declaration or undergo the naturalization process just like any other foreign national.

While Congress provided for the first time in history that citizenship could be acquired at birth by children born abroad of citizen mothers in the Revised Statutes of 1934, it did not alter the elementary language of Section 1993, which dated back to 1855 and was the essence of the problem. The entire body of America's immigration and nationality law was long overdue for an overhaul, and Congress was reluctant to monkey with the language of the code any further until after the State Department completed a comprehensive review and submitted its recommendations. So after a long debate, Congress passed the stand-alone, retroactive "patch" of 1937.

Not surprisingly, the new law drew a number of legal challenges, all of which the Court dutifully ignored: it disregarded the letter of the law in order to allow its spirit to scurry past the moment unmolested and refused to grant locus standi ("standing") to its detractors. The Court was not willing to impede Congress' desire to retroactively redeem Section 1993's original intent over a legal technically that in all likelihood would never be tested, even if someone born under its cloud were to someday stand before the Electoral College as the President Elect.

None of the remedial legislation of the Insular Cases abrogated the fundamental provisions of America's immigration and nationality law, including the requirements of citizenship for the foreign-born children of U.S. citizens dating back to 1790; that is to say, any person born abroad to U.S. citizens was a natural-born citizen, provided that at least one of the person's parents had been a U.S. resident before the person's birth. In McCain's case, both of his parents were U.S. citizens by the right of soil.

Structured residency requirements only apply when one of the parents is a U.S. citizen or when the citizen parent or parents were themselves born abroad. Hence, given only that much information, the statute of 1937 would appear to have mostly applied to the children of Panamanian women sired by American servicemen who were still in their teens. In order for a child born abroad of only one citizen parent to be a U.S. citizen at birth, its citizen parent must have an X number of years of total U.S. residency, including an X number of years past a certain age. The requirement has varied over the years. Current law requires a total of five years of residency in the U.S., with at least two of those years occurring after the age of fourteen.

So what exactly is this potentially substantive challenge to McCain's eligibility based on?

The constituents of Professor Chin's thesis are the jurisdictional distinctions established by the decisions of the Insular Cases, the 1934 version of the Revised Statutes Section 1993 and the "Jurisdiction Act" of 1926 (8 U.S.C. § 173).

While not all unincorporated territories are part of the United States for constitutional purposes under the Fourteenth Amendment, all formally owned territorial possessions reside within the realm of the United States' national allegiance. And while leased territorial possessions do not reside within the realm of the United States' national allegiance, they do reside within the United States' martial-judicial jurisdiction. In 1926, Congress retroactively applied these respective forms of sovereignty to the year of 1899 under 8 U.S.C. § 173. This was done for the purpose of establishing a uniform code of law; they were already in force no later than 1906 due to the Court's rulings in the earlier Insular Cases.

The following clause from the Revised Statutes Section 1993 as revised in 1934 was the prevailing iteration governing the status of children born abroad of U.S. citizens at the time of McCain's birth:

Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child.⁹

As defined by 8 U.S.C. § 173 of 1926, "the limits . . . of the United States" are the territorial boundaries of the United States' national allegiance, which encompass the several states and all territories formally owned by the United States. Hence, territories leased by the United States, like the soil of all the rest of the world, reside "out of the limits . . . of the United States". The "jurisdiction of the United States" goes to the martial-judicial control that the United States might wield at any given time over foreign territory. The jurisdiction of the Fourteenth Amendment only encompasses the United States propersessions. (See "The Straight Dope on U.S. Territories").

The Revised Statutes Section 1993 was not a problem for most persons born abroad of U.S. citizens and, as defined by statute, outside the martial-judicial jurisdiction of the United States.  It was precisely the citizenship of these persons that the law was intended to secure. The original intent here was to only prohibit the automatic conferral of citizenship at birth on children born on the soil of occupied foreign territory under actively/potentially hostile conditions to U.S. military, intelligence or perhaps diplomatic personnel.  At the time, in this case, the parent citizen would have been male and the mother a foreigner of uncertain allegiance.  But in the Insular Cases, the Court held that the martial-judicial jurisdiction of the United States included the foreign territory of leased possessions. 

 

(Before 1934, only those children whose fathers were U.S. citizens were granted citizenship if born beyond "the limits and the jurisdiction of the United States". Unless born within "the limits . . . of the United States" after conception, the child of a citizen mother sired by an alien, was, like its father, a foreign national.)

The statute was not a problem for persons born in one of the formally owned territories of U.S. citizens as such possessions reside within "the limits . . . of the United States". While the jurisdiction of the Fourteenth Amendment does not encompass the soil of the outlying possessions, it axiomatically follows U.S. citizens wherever they go in the several states of the Union, the District of Columbia and the formally owned territories. In other words, The Revised Statutes Section 1993 was irrelevant.¹⁰  

While the Canal Zone did reside beyond the territorial boundaries of the United States' national allegiance, it did not reside beyond its martial-judicial jurisdiction. The statute did not read limits or jurisdiction, it read limits and jurisdiction.

 

Oops.

Did Congress intend to leave persons born in the Canal Zone of U.S. citizens out in the cold? No. In fact, the State Department has always officially honored congressional intent in this wise and treated those born in the Canal Zone to U.S. citizens between the critical years of 1903 and 1937 as citizens of the U.S. from the moment of birth, in spite of the fact that its pertinent personnel are well aware of the Act of 1937, the rationale behind it and that natural-born citizenship, strictly speaking, can only be conferred at the moment of birth, not retroactively.

The "Panama Citizenship Act of 1937" (currently codified 8 U.S.C. § 1403.a.b.):

(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.  

(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.¹¹

Note that the statute does not read "declared to be a naturalized citizen of the United States." The intent was to retroactively confer citizenship at birth, and the congressional  record of the committee and floor discussions on the bill unmistakably confirm that intent.

So the legal technicality that prevented McCain from being a natural-born citizen at birth in the conventional sense comes down to one tiny word. Though it is highly unlikely that the Court would have heard a challenge to McCain's eligibility had he won the election, the strongest approach would have been to challenge the constitutionality of the 1937 law that conferred natural-born citizenship retroactively.  Arguably, McCain was a Panamanian citizen at birth and became a naturalized citizen of the U.S. by statute in 1937.  

___________________________
⁶Formerly with the University of Arizona.

⁷See Appendix A: "The Insular Cases and Unincorporated Territories", Michael David Rawlings; Was Senetor John McCain a U.S. Citizen at Birth?

⁸One of the contributions in a Wikipedia article on the topic of natural-born citizenship claims that the decisions of the Insular Cases overruled Section 3 of the Naturalization Act of 1795 (http://en.wikipedia.org/wiki/Natural_born_citizen). 
Technically, this is true, but without further explanation, this claim would lead one to believe that the Court explicitly overruled it (more accurately, the Revised Statutes Section 1993 of 1878, i.e., the prevailing iteration). But the Court did not purposely do that. The revised code was not even mentioned by the Court in the relevant decisions of the Insular Cases. It simply did not become clear until about 1932 that in effect that's what the Court had done. Also, the Court did not overrule the code in the sense that the law was struck down; the Court's ruling merely nullified its application to persons born in leased, unincorporated territorial possessions.

⁹The original 1855 version (carried over in the Revised Statutes of 1878) before the revisions of 1934:

All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.

¹⁰Based on its interpretation of the Insular Cases' key decisions, Congress held that the Fourteenth Amendment covered the children born of U.S. citizens in the formally owned territories; i.e., citizen parents embodied the Fourteenth Amendment's jurisdiction. Being the only possession not formally owned by the U.S. where a child of a U.S. citizen could be born, only the anomalous Canal Zone was thought by Congress to "buck" the intent of Section 1993 in the aftermath of the Insular Cases.

In any even, after closing the gap for the Canal Zone in 1937, Congress chose not to take any further action until after the release of the comprehensive review of the nation's immigration and nationality law ordered by the Roosevelt Administration in 1938, which culminated in the Nationality Act of 1940, a monumental revision. In that Act, Section 201.(g) enunciated the terms of citizenship conferred on persons born abroad of U.S. citizens and read in part that "[a] person born outside the United States and its outlying possessions. . . ." Thus, Congress indisputably placed the recipient of citizenship via jus sanguinis proper beyond "the territorial boundaries of the United States' national sovereignty of allegiance", the martial-judicial jurisdiction of the United States and the jurisdiction of the Fourteenth Amendment.

While Professor Chin elaborates on the problem of Section 1993's language and the politics of race and gender with regard to the unincorporated territories, he neglects to explicitly identify the underlying reason why the legislative branch did not view Section 1993's inadequacy to be as extensive as the executive branched believed. The reason for this difference in perspective is key to fully understanding why Congress did not address the supposed statutory "dead zones" of the other unincorporated, albeit, formally owned territories ("Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship", Gabriel J. Chin, Michigan Law Review First Impressions, Vol. 107:1 [August, 2008]: see Congressman John Sparkman's comment under "II. Natural Born Citizenship as a Child of Citizens, B. Citizens by Descent in 1936: The Canal Zone Is a 'No Man’s Land' ", pg. 7; also see "D. The Politics of Canal Zone Citizenship", pgs. 11-14, http://www.michiganlawreview.org/assets/fi/107/mccain.pdf).

¹¹75th Congress, 1st Session, Chapter 563, Statute 2416, Public Law No. 242 (August 4, 1937) .

 

B. Chin v. Tribe-Olson: A Summary of the Facts

Though Professor Chin's Note is not free of error, unlike the politically driven Tribe-Olson Opinion, it's an earnest attempt to ferret out the facts and establish the exact nature of McCain's citizenship and the extent to which his claim on presidential eligibility is valid.
 

1. Professor Chin

Because the applicable law (Revised Statutes Section 1993) that conferred citizenship at birth on the children born abroad of U.S. citizens at the time of McCain's birth did not cover persons born in the Panama Canal Zone, McCain was not a U.S. citizen at birth. That law required that one be "born out of the limits and jurisdiction of the United States". While the Panama Canal Zone was "out of the limits . . . of the United States", it was not "out of the . . . jurisdiction of the United States".

The "Jurisdiction Act" of 1926, as applied to the Revised Statutes Section 1993, defines these terms as follows: "the limits of the United States" are the territorial boundaries of the United States' national sovereignty of allegiance, and the "jurisdiction of the United States" is the martial-judicial control that the United States might wield at any given time over domestic or foreign territories.

Because the Revised Statutes Section 1993 of the 1934 Act read "and" instead of "or", McCain was not a U.S. citizen at birth.  The retroactive statute of 1937 was passed to close the gap without upsetting the previous applications of established law.

Chin's argument comes down to this: because natural-born citizenship can only be bestowed at the moment of birth, not subsequent to birth (all such conferrals being a form of naturalization proper), the statute of 1937 is either (1) unconstitutional in light of its unmistakable intent or (2) conferred a type of citizenship at birth that was not the same as that of the Natural Born Citizen Clause. Also, McCain cannot appeal to the intent of the 1934 version of Section 1993, as Congress' committee and floor discussions on the proposed 1937 bill and Congress' very passage of that bill clearly demonstrate its acknowledgment that persons born in the Canal Zone from 1904 to 1937 were barred from citizenship at birth under the letter of the law.

As for the Court's position on textual problems. . . .

If Congress enacted into law something different from what it intended, then it should amend the statute to conform it to its intent (Lamie v. U.S. Trustee, 540 U.S. 526 [2004], No. 02-693, III).

It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think . . . is the preferred result (United States v. Granderson, 511 U.S. 39 [1994] No. 92-1662, pg. 68).

Citizenship is a high privilege, and when doubts exist concerning a grant of it, generally at least, they should be resolved in favor of the United States and against the claimant (United States v. Manzi, 276 U.S. 463 [1928], No. 204, paragraph 15).

[S]tatute should not be extended . . . simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used (McBoyle v. United States, 283 U.S. 25 [1931], No. 552, pg. 27).

Make no mistake about it. Chin is absolutely correct. Technically, under the law, as written and applied, John McCain was not a citizen at birth, and under the Constitution, a person who becomes a citizen subsequent to birth is not a natural-born citizen, but a naturalized citizen. McCain was, as the title of Chin's piece declares and the argument he presents shows, "Eleven Months and a Hundred Yards Short of Citizenship" at birth. In other words, McCain would have been a citizen at birth had he either been born after the effective date of the 1937 statute or had he been born anywhere else in Panama but the Canal Zone.

2. Tribe-Olson

The Tribe-Olson Opinion consists of two parts.

a. Because His Parents were U.S. Citizens

The first part of Tribe-Olson contends that "regardless of the sovereign status of the Panama Canal Zone at the time of Senator McCain's birth, he is a 'natural born' citizen because he was born to parents who were U.S. citizens."¹²

While the authors of Tribe-Olson cite the prevailing iteration that bestowed natural-born citizenship on the foreign-born children of U.S. citizens (Section 1993 of the Revised Statutes of 1934, a.k.a., Public Law No. 73-250, later recodified as 8 U.S.C § 1401), they adroitly sidestep the glitch in that very same statute that technically barred McCain from citizenship; and for obvious reasons they do not mention the retroactive “Panama Citizenship Act of 1937."

Zing!
 

As for the authors' suggestion that "the common law at the time of the Founding . . .  confirm[s] that the phrase 'natural born' includes birth abroad to parents who were citizens. . . .¹³
 

While the status bestowed at the moment of birth on children born abroad of U.S. citizens under the constitutional and statutory law of the Republic is that of natural-born citizenship to be sure, jus sanguinis was never a component of English Common Law.  It was first bestowed via royal decree.  Thereafter, English statutory law bestowed natural-born citizenship on the foreign-born children of British subjects; English case law tied nationality and citizenship to the soil of the nation proper only.  It cannot be convincingly argued, let alone documented, that the King’s Bench ever incorporated the principle of jus sanguinis by way of adjudication.

___________________________
^{12 & 13}Tribe-Olson Memo on Natural-Born Citizenship and Senator John McCain.

"Opinion of Lawrence H. Tribe and Theodore B. Olson"; Appendix A; Michigan Law Review First Impressions; Vol. 107:1; March 19, 2008; pg. 19.

b. Because He was Born in the Territory
and Allegiance of the Untied States

The second part of Tribe-Olson contends that if "the Panama Canal Zone was sovereign U.S. territory at the time of Senator McCain's birth, then that fact alone would make him a 'natural born' citizen under the well-established principle that 'natural born' citizenship includes birth within the territory and allegiance of the Untied States", and "[t]he Fourteenth Amendment expressly enshrines this connection between birthplace and citizenship in the text of the Constitution."¹⁴  The authors further opine that since the executive, legislative and judicial branches have all declared the Canal Zone to be under the sovereignty of the United States, "[t]here is substantial legal support for the proposition that the Panama Canal Zone was indeed sovereign U.S. territory when Senator McCain was born in 1936."¹⁵
 

But there is no “legal support for the proposition”. Absolutely none! The second part of the Opinion is pure bluster.

When determining nationality or citizenship, one must be mindful of the distinction between formally owned and leased territories, and the applicable jurisdictions of the United States. There are “the territorial boundaries of the United States’ national allegiance”, the martial-judicial jurisdiction of the United States and the jurisdiction of the Fourteenth Amendment. And if things weren’t already complicated enough, the terms sovereignty and jurisdiction are routinely used interchangeably in the policy manuals of the variously pertinent departments of the executive branch and in statute most especially.

 It’s a three-bottles-of-aspirin headache.

Contrary to what the authors of Tribe-Olson imply, the Fourteenth Amendment’s jurisdiction and “the territorial boundaries of the United States’ national allegiance” are not synonymous, and the “sovereignty” over the Canal Zone to which the various branches of the U.S. government have referred over the years was strictly the martial-judicial jurisdiction of the United States under the terms of the Hay-Bunau Varilla Treaty. The United States did not grant the Canal Zone its independence under the Carter Administration as would have been the case were the Canal Zone ever a part of “the territory and allegiance of the United States”. The United States merely relinquished its perpetual lease on the Canal Zone.

The Insular Cases established that only the several states of the Union and the formally owned territorial possessions of the same have ever resided within what the authors of the Memo refer to as “the territory and allegiance of the United States”.  The authors throw that phrase around rather carelessly, as only the several states of the Union, the District of Columbia, the national outlying territorial possessions of the United States and the federal, outlying  territorial possessions of the United States reside within “the territorial boundaries of the United States’ national allegiance”.

Leased possessions, like the former Canal Zone, are foreign soil.
 
Also, only the several states of the Union, the continental territorial possessions and the District of Columbia have ever unequivocally resided within the jurisdiction of the Fourteenth Amendment.  And while the native inhabitants of the national outlying territorial possessions are U.S. citizens by statute, the native inhabitants of the federal outlying territorial possessions are U.S. nationals only.  The Fourteenth Amendment does not confer nationality; it confers citizenship.

What statute ever declared that the Panama Canal Zone resided within “the territory and allegiance of the United States” in the sense that is implied in Tribe-Olson?  What statute ever declared that the Panama Canal Zone resided within the jurisdiction of the Fourteenth Amendment?  What statute ever conferred U.S. nationalism or citizenship on the basis of the foreign soil of the Panama Canal Zone in and of itself?  What statute ever confered U.S. citizenship on persons born in the Panama Canal Zone other than the offspring of U.S. citizens?  And what statute ever conferred such citizenship in fact before the “Panama Citizenship Act of 1937”?

crickets chirping

Given the widespread confusion over nationality and citizenship law, particularly as it pertains to outlying possessions, the second part of Tribe-Olson is especially irresponsible.  The various territorial designations and jurisdictions of United States have been settled law for more than a century. The author of this work finds it very difficult to believe that Tribe and Olson—both of whom are among the leading constitutional lawyers in America and have argued dozens of cases before the Court—do not know these things.

Had Tribe and Olson not so brazenly misrepresented the law to obscure McCain’s questionable eligibility in the second part of the Opinion, especially, Professor Chin probably wouldn’t have bothered to refute them. After all, Congress never intended to preclude the offspring of U.S. citizens born in the Zone from 1904 to 1937, and the State Department has always treated them as natural-born citizens in spite of the glitch in Section 1993 of the Revised Statutes.  Tribe-Olson is just another slap in the face from a political class of self-anointed guardians who cannot resist the urge to herd and direct, rather than trust in and faithfully inform the people who make America work.

In this instance, silence was the better course of action than telling the big lie. 

___________________________
^14 and 15Tribe-Olson Memo on Natural-Born Citizenship and Senator John McCain.

C. The Tin-Foil-Hat Argument and the Undiscovered Country of Jurisprudencia: or how Wittlake sailed around the world and never landed on the Shores of Legalese

This is the argument that conflates the terms native born and natural born, the stupid argument that would not be worth the time of day if it were not so widespread. Steven Wittlake's improbable version of it got play all over the Internet in 2008, especially on conservative sites. That's disturbing, for this argument is not the stuff of originalism at all, but the legacy of a leftist judicial tradition that has given us anchor babies and would demote the status of citizenship bestowed on the blood of the nation relative to that acquired by persons born of foreign nationals.  It would effectively erase the distinction between jus sanguinis proper and leges sanguinis.  It has assaulted the congressional powers of prerogative and expatriation, the means by which the people's legislative body governs the terms of national allegiance. Ultimately, it's the stuff of one-world government, the erasure of international borders for all intents and purposes. Kumbyha.

Before Wong Kim Ark, the Constitution provided for what was the highest standard of citizenship acquisition in the world: a dual standard, whereby one had to be born of both the soil and the blood of the nation in order to be a natural-born citizen, with the citizen parents' prior claim on the soil of the nation attributed to one born abroad. It was this standard that barred from citizenship the American-born children of both polite visitors and those of surly interlopers. With the requirement regarding the blood of the nation already undermined, to now surrender the principle of jus sanguinis proper, that is, to demote the status of citizenship imparted by it is to handover the management of America's immigration and nationality law to the judiciary.¹⁶  Conservatives who argue that one must be native born in order to be a natural-born citizen need to snap out of it. They're contributing to the general confusion obscuring original intent and prevailing historical practice.

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¹⁶See Wong Kim Ark Meet Rogers, Michael David Rawlings.

 

1. The Moment of Conferral: Natural-Born Citizens
and Naturalized Citizens

There are only two types of U.S. citizenship—natural-born citizenship and naturalized citizenship. Other than presidential eligibility, the only constitutionally pertinent difference between them is the moment of conferral. Natural-born citizenship is conferred at the moment of birth; naturalized citizenship is conferred subsequent to birth. As for persons born abroad of U.S. citizens, like their native-born brothers and sisters, they acquire citizenship at the moment of birth, for they too are naturally born into the American family.  Naturalized citizens are adopted. But Wittlake obfuscates this simple matter from the jump by audaciously asserting that "[j]us sanguinis (the law of the bloodline) where citizenship (but not natural born citizenship) of children is determined by citizenship of one or both of the parents through Statutes that are not embodied in the United States Constitution and is granted through statute and is called acquired citizenship by decent or derivative citizenship."¹⁷

The Constitution doesn't embody any statutes, and there are no provisions that prohibit the conferral of natural-born citizenship via jus sanguinis "embodied in the . . . Constitution" either, let alone any that conflate the terms native born and natural born. Wittlake just imagines himself to be a greater authority on the matter than the members of the First Congress, many of whom were among the Framers of the Constitution.

And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.¹⁸

Some have alleged that because the term natural born doesn't appear again in subsequent legislation that natural-born citizenship via the law of the bloodline was repealed by Congress. This is the untutored notion of those who have not examined the history of the congressional record of committee and floor discussions on citizenship and naturalization. But more to the point, this is the notion of those who do not understand that the status bestowed at the moment of birth is necessarily that of natural-born citizenship. The Naturalization Act of 1790 established the centuries-old tradition in American statutory law. Thereafter, natural-born status was wedded to the conferral of citizenship at birth via jus sanguinis.

Others have alleged that the Fourteenth Amendment, which merely states that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof [i.e., excluding children born of persons in the service of foreign powers, like diplomats] are citizens of the United States and of the State wherein they reside", amended the Constitution's Natural Born Citizen Clause in some way or another to prohibit Congress from conferring natural-born citizenship via jus sanguinis thereafter. It did no such thing. The Fourteenth Amendment and the unaltered Natural Born Citizen Clause stand side-by-side within the Constitution without conflict. The Fourteenth Amendment applies strictly to the acquisition of citizenship in the United States; it voided the states' rights Doctrine of First Allegiance and tweaked Congress' naturalization powers. That's all.

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¹⁷"Introduction", Steven Wittlake, Natural Born Citizenship, http://johnmccain.dominates.us/articles/Natural_Born_Citizenship.html.

¹⁸Naturalization Act of 1790; Chapter III, Section I, Statute II, pg. 104: http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=227.

2. Up Jumped the Monkey:
Naturalized-Born Citizenship?

But then suddenly, out of nowhere in 1898, despite centuries of legal tradition and the Framers' original intent, it was declared that persons born abroad of U.S. citizens were naturalized citizens at birth in the dicta of United States v. Wong Kim Ark.¹⁹ According to the Court, they were citizens at birth by the right of blood and naturalized citizens by statute. But despite its unfortunate language, the Court did not educe a third category of citizenship akin to the one that Wittlake's logic necessarily purports to exist—although it doesn't appear that Wittlake is conscious of the fact that he implies the existence of a third. In fact, he wastes reams of space on an assortment of ponderous irrelevancies and never once raises the one pertinent asseveration in all of American legal history that appears to lend some credence to his supposition—namely, that of Justice Gray in Wong Kim Ark.

Prior to Wong Kim Ark, legal scholars routinely expounded the history of the principle of jus sanguinis. While admittedly the pre-constitutional literature emphatically linking the principle to the Natural Born Citizen Clause is scant, the pronouncements of Alexander Hamilton, John Jay and James Madison to the effect should be authoritative enough for any sensible person.  And while there was some disagreement over the precise limits or exceptions of the congressional practice, scholars did not debate whether or not the Constitution permitted Congress to confer the full rights and privileges of citizenship on the foreign-born children of U.S. citizens.  It was not until after this decision and most especially after the complications of unincorporated territorial possessions were thrown into the mix that the practice became a topic of widespread controversy. As for the doubts swirling around its constitutionality in academia today, these are the aspersions cast by leftist academicians whose motive is to muddle the distinction between jus sanguinis proper and leges sanguinis.

Given that Jill A. Pryor also traces the origin of the controversy back to Wong Kim Ark, making the period of uncertainty at the time of her Note's publication ninety years, not two-hundred, the title of her Note, "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty", is mysterious, but she makes the very same argument that the author of this work did in a 1983 term paper—though his conclusion was more optimistic, if not perhaps more dogmatically confident.

Constitutional scholars have traditionally approached the uncertainty surrounding the meaning of the natural-born citizen clause by inquiring into the specific meaning of the term "natural born" at the time of the Constitutional Convention. They conclude that a class of citizens should be considered natural born today only if they would have been considered natural-born citizens under the law in effect at the time of the framing of the Constitution. The traditional approach has not established the clause's full and precise meaning, however, because it fails to adequately consider a critical analytical question that must inform our understanding of the constitutional text:  What is the proper role for Congress in giving specific content to the natural-born citizen clause? This Note argues that the natural-born citizen clause can only be properly understood if we appreciate the interplay of the clause with the naturalization powers clause . . . as modified by section one of the Fourteenth Amendment.²⁰

One must begin with the traditional approach, but without the key that unlocks the door of "interplay" between the Natural Born Citizen Clause and Congress' naturalization powers, the practical necessity of original intent remains beyond one's grasp. The key is the term natural born itself, and this unique term of art embodies the commonly shared maxim of common and natural law that citizenship at birth via jus sanguinis is not an inherent human right, but merely a civil right or privilege subject to conditions and emendation. The essence of the prerogative exercised by the Crown and later by Parliament was elegantly combined with the common-law rule of jus soli and bestowed upon Congress by the Framers—no definition required. The only pertinent distinction in statute between natural-born citizenship and naturalized citizenship is the moment of conferral.

In other words, because the concept of natural-born citizenship was established in American law by the Framers of the Constitution, not by Congress, and citizenship at birth by the law of the bloodline is an indispensable component of the concept, the principle of jus sanguinis most certainly is embodied in the Constitution despite the dunderheaded language of yet another instrument of government as we shall see. While Congress is not required by the Constitution to bestow citizenship on the foreign-born children of U.S. citizens—a superior rendering of original intent as opposed to the inaccurate "not embodied"—the power to stipulate the respectively distinct requirements of acquisition for natural-born citizenship and naturalized citizenship is delegated to the legislative branch in the Constitution. And Congress, jealously guarding its constitutional prerogative as handed down to it from legal tradition, has ignored the Court's characterization of citizenship at birth via jus sanguinis as being any form of naturalization whatsoever.

While Pryor and the author of this work resoundingly agree that the intertwining functions of the Natural Born Citizen Clause and the Naturalization Powers Clause are vitally relevant to understanding the Framers' original intent, and while he appreciates the fact that Pryor's motive is to preemptively salvage original intent, he emphatically rejects her hermeneutically redundant thesis that "a citizen may be both 'naturalized' and 'natural born' " (pg. 899).  Since the citizenship of foreign-born children of U.S. citizens via the law of the bloodline is ultimately predicated on the parents' prior claim on the soil of the nation, there is no need for extra-constitutional terminology like "naturalize[d] citizens from birth" or to appeal to "textual and structural support for the alternative 'naturalized born' approach" (pg. 885). Unlike Pryor, the author of this work grants no quarter to the Supreme Court's obiter dictum in Wong Kim Ark, let alone to that of the appellate court in Zimmer v. Acheson.²¹

Pryor is wrong when she writes:  "The misconception that naturalization only refers to the acquisition of citizenship after birth remains a potential stumbling block for the courts" (pg. 893). No! The moment of conferral is the only constitutionally pertinent distinction between natural-born citizenship and naturalized citizenship, and in this instance the only "stumbling block" impeding the way to a sensible rendering of the concept of natural-born citizenship is the servile impulse to reconcile original intent with the idiotic pronouncements of the judiciary. Should the judiciary ever declare in a ratio decidendi that the acquisition of citizenship at birth via the law of the bloodline is a form of naturalization, Congress should vacate its decision by retroactively confining the judiciary's jurisdiction to the adjudication of citizenship acquired in the United States only. In other words, Congress should respond by forcefully reiterating the elegant simplicity of the constitutional distinction and banish the convoluted legalese of Ivy Leaguers to the Twilight Zone.

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¹⁹http://en.wikipedia.org/wiki/U.S._v._Wong_Kim_Ark.

²⁰"The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, Introduction", The Yale Law Journal, Vol. 97: 881, 1988, pgs. 882-883, http://yalelawjournal.org/images/pdfs/pryor_note.pdf.

²¹See Appendix B: "Zimmer et al. v. Acheson: A Comedy of Errors", Michael Davis Rawlings; Was Senator John McCain a U.S. Citizen at Birth?

3. Wong Kim Ark: A Legacy of Uncertainty

The entirety of Whittlake's thesis rests on the premise that natural-born citizenship can only be conferred on the basis of jus soli ("the law of the soil") and that citizenship conferred at birth on the basis of jus sanguinis is strictly a statutory form of U.S. citizenship that is not natural-born citizenship. That's about as definitively certain as any sane person can be about his fundamental assertion. Only persons operating on the same wavelength of incoherency are qualified to decipher his rationale. When he's not lifting various phrases written about disparate topics from the pages of the State Department's Foreign Affairs Manuel (FAM) or from some other source, and cramming them together into one incoherent stream of semi-consciousness or another, he expresses ideas, which as far as the author of this work can tell are his own, that are even less coherent.

But this bit of silliness is readily unraveled by the observations that (1) American law only confers citizenship at birth or subsequent to birth and (2) naturalized citizenship proper is only conferred upon foreign nationals residing in the United States, not outside the United States.²²  Jus sanguinis confers U.S. citizenship at birth on persons born abroad of U.S. citizens.

The source of Wittlake's horribly mangled paraphrase is the United States Department of State Foreign Affairs Manuel Volume 7 - Consular Affairs:

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 U.S. laws have changed, the requirements for conferring and retaining derivative citizenship have also changed.²³

Notice that the State Department's version does not contain Wittlake's parenthetical caveat that jus sanguinis does not confer natural-born citizenship, and do not be confused by the fact that the FAM wrongfully splits the difference between congressional prerogative and the orbiter dictum of Wong Kim Ark with the phrase "not embodied in the U.S. Constitution". The State Department expounds the principle of jus sanguinis this way for the very same reason it vacillates in the warning label that it slaps on its certifications of presidential eligibility for persons born abroad of U.S. citizens:

[T]he fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for constitutional purposes.²⁴

It's all about the uncertainly spawned by the Court in Wong Kim Ark.

So we have Congress since 1790 conferring natural-born citizenship via jus sanguinis. We have the Court declaring—albeit, in dicta—that persons born abroad of U.S. citizens are "naturalized citizens at birth". We have the State Department characterizing persons born abroad of U.S. citizens as "natural born citizens" and certifying their presidential eligibility, yet simultaneously stammering that "a natural born citizen pursuant to a statute" is not "necessarily . . . such a citizen for constitutional purposes"²⁵ and the principle of jus sanguinis is not "embodied in the U.S. Constitution".

___________________________
²²On rare occasions, the foreign national might have once been a U.S. citizen either at birth or subsequent to birth, but because he failed to duly establish his claim on the soil of the nation in accordance with the requirements that applied to him at the time he acquired his citizenship, his citizenship was lost. For a naturalized citizen this used to occur when he resided abroad past a set period of time, but since Schneider v. Rusk (1964) that no longer applies.  All persons conferred U.S. citizenship at birth have a claim on the soil and/or on the blood of the nation; however, the claim on the soil in the case of those born abroad is predicated on the parents' claim.  In the case where only one of the parents of a person born abroad was a U.S. citizen—the other being a foreign national—the law used to require the citizen child to establish a claim on the soil of the nation in his own right before reaching a certain age. If he failed to do so, his claims on the soil and the blood of the nation were severed. On the other hand, Congress has passed legislation in the past that reinstated the citizenship of persons who had lost it without requiring them to undergo the naturalization process.

²³United States Department of State Foreign Affairs Manual Volume 7 - Consular Affairs; "7 FAM 1110 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH IN THE UNITED STATES, 1111.a.(2) INTRODUCTION (CT:CON-314; August 21, 2009)"; pg. 1 of 13; http://www.state.gov/documents/organization/86755.pdf.

²⁴"7 FAM 1130 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT (CT:CON-315; September 3, 2009), 1131 BASIS FOR DETERMINATION OF ACQUISITION, 1131.6 Nature of Citizenship Acquired by Birth Abroad to U.S. Citizen Parents, 1131.6-2.d Eligibility for Presidency (TL:CON-68; April 1, 1998)"; pg. 9 of 103; http://www.state.gov/documents/organization/86757.pdf.

²⁵Constitutional purposes is government speak, generally understood to mean the full rights and privileges of citizenship, including presidential eligibility.

4. Unraveling the Mumbo Jumbo

The Constitution's framework of nationality and citizenship was originally based on a variation of the English construct of territorial-hereditary allegiance—a synthesis of common law's jus soli (sans its rules of perpetual allegiance and birthright citizenship) and royal-parliamentary prerogative, which entailed the Roman principle of natural-born citizenship by descent. While citizenship at birth by the law of the bloodline was an indispensable component of English legal tradition, subjects of the Crown did not have an inherent, irrevocable right to transmit their citizenship to children born to them abroad. The Crown could grant or revoke the privilege by proclamation. The same is true under natural law, and in constitutional terms, Congress can grant or revoke the privilege by statute.

After observing that in both English and American statutory law that a natural-born subject/citizen is a person who becomes a subject/citizen at the moment of birth, whether born on the soil of the nation or abroad, the Court in Wong Kim Ark opined that constitutional law "contemplates two sources of citizenship, and two only: birth and naturalization" and that a person born abroad "can only become a citizen by being naturalized . . . 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".²⁶

Because the language the Court employed in this instance was merely intended to affirm that Congress could either extend citizenship at birth via jus sanguinis or withhold it, and because the binding aspects of its decision were strictly limited to the Fourteenth Amendment's rule of jus soli—the Court's linguistic adventurism did not impinge on the presidential eligibility of persons duly born abroad of U.S. citizens, that is, on the status of their citizenship. Nevertheless, the Court's troublesome language was one of the major reasons the decision was not unanimous and drew a scathing dissent from two justices who pointed out that the majority's language could be construed to mean that a person born on U.S. soil of foreign nationals merely passing through the United States had a more legitimate claim on presidential eligibility than a person born abroad of U.S. citizens engaged in the service of their country. Clearly, the Framers of the Constitution never contemplated that!

The majority was bound and determined to impose common law's rule of birthright citizenship on the jurisdiction of the Fourteenth Amendment one way or another. But all it had to say in order to achieve this was that while the Constitution permitted Congress to deny citizenship to anyone born outside the United States, since the ratification of the Fourteenth Amendment, the Constitution did not permit Congress to deny citizenship to anyone duly born within the United States, including persons of Chinese dissent.²⁷ Wong Kim Ark was born within the territorial boundaries of the Fourteenth Amendment's jurisdiction of productive foreign nationals legally residing therein and not engaged in any official capacity on the behalf of the Chinese Emperor. Had the Court, without its convoluted elaboration, simply affirmed the conditional nature of jus sanguinis and made it absolutely clear that children born on American soil of illegal aliens were not subject to the Fourteenth Amendment's jurisdiction, the decision might have been unanimous.

Since jus sanguinus is predicated on the Natural Born Citizen Clause in Article II, Section I of the Constitution, it was not necessary for the Court, in opposition of Congress' historical view, to characterize it as a form of naturalization just because the statutory requirements governing its acquisition and retention are predicated on Congress' power to establish a uniform rule of naturalization in Article I, Section 8 of the Constitution.

From the perspective of conservative originalists, the majority's language and its lack of clarity have proven to be disastrous. As a result of the Court's suggestion that jus sanguinis imparts a status of citizenship of a potentially lesser value than that which may be conferred on the offspring of just anyone traipsing across American soil, the several states, especially after Plyer v. Doe (1982), have recognized all persons born within the United States of parents not officially engaged by a foreign power to be de facto citizens thereof at birth—whether these persons' parents were legally residing within the United States or not.

Many would be surprised to learn that Congress has never passed any statute explicitly granting the offspring of illegal aliens birthright citizenship, and the Court has never explicitly ruled on the matter one way or the other. State-issued birth certificates for children born in America of illegal aliens are not necessarily official conferrals of U.S. citizenship as far as the federal government is concerned, but since the several states do not dictate the rules that govern citizenship and nationality, they have been obliged, as a result of the Court's open-ended decree and in lieu of Congress' silence on the matter, to regard the offspring born of illegal aliens within their jurisdictions as U.S. citizens at birth. Hence, highlighting the absurdity that resulted from the Court's lack of clarity, the State Department as a matter of practical necessity is also obliged to recognize them as such sans any manifest approbation from Congress.

While several bills that would deny the children of illegal aliens birthright citizenship have been proposed in Congress since 1990, not one of them was ever seriously considered.²⁸ If such a law were ever enacted it would land on the Court's docket yesterday and in all likelihood be struck down. The only other alternative for the Court would be to finally clarify its intent in Wong Kim Ark or reverse itself. But given prevailing legal opinion and institutional practice, especially since Plyer v. Doe,²⁹ which assumed in dicta that the Fourteenth Amendment does impart birthright citizenship to the children of illegal aliens, the only thing that would stick now would be an amendment to the Constitution. And only an amendment that prohibited the conferral of citizenship on persons born of illegal aliens after the date of its ratification would ever be seriously considered. Either way, good luck.

As for the State Department's assertion that the principle of jus sanguinis is "not embodied in the U.S. Constitution", that is flat-out wrong. The Court has never said any such thing. In fact, the cases in which it has stated the opposite are legion. The observation in Wong Kim Ark that there is no provision embodied in the Constitution that requires Congress to extend citizenship via jus sanguinis is not the same idea at all. As for the Court's characterization of citizenship at birth via jus sanguinis as a form of naturalization, which is yet another entirely different idea, that aspect of the Court's decision was an obiter dictum, and as indicated earlier, one regarded with contempt by Congress.

If the State Department must attach some sort of qualification to its certifications of presidential eligibility for U.S. citizens born abroad because of the Court's feebleminded language, it needs to do so accurately so as not to further confuse the matter. For years conservative originalists have implored the State Department to at the very least correct its misperception of the Court's ruling in Wong Kim Ark regarding the discretionary nature of citizenship via jus sanguinis in 7 FAM 1111.a., as the principle is indubitably embedded in the Constitution's Citizen Clause, but once again the same misleading statement appears in the 2009 version of the State Department's FAM. And while conservative originalists are not crazy about the State Department's ill-advised aspersion that the judiciary has never definitively affirmed Congress' position that persons born abroad of U.S. citizens are natural-born in the same sense as that of the Constitution's Citizen Clause, they can live with it as long as the State Department continues to counter that with the fact that legal tradition and statute mark the difference between natural-born citizens and naturalized citizens by the moment of conferral:

Section 201(g) [Nationality Act of 1940] . . . and section 301(g) [Immigration and Nationality Act of 1952] . . . (formerly section 301(a)(7) . . . ) both specify that naturalization is "the conferring of nationality of a state upon a person after birth." Cleary, then, Americans who acquired their citizenship by birth abroad to U.S. citizens are not considered naturalized citizens under either act.³⁰

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²⁶United States v. Wong Kim Ark, 169 U.S. 649 (1898), No. 18, pg. 703, http://supreme.justia.com/us/169/649/case.html.

²⁷While the Constitution permits Congress to deny the acquisition of citizenship by naturalization to any ethnic group on the basis of whatever whim it fancies, after the ratification of the Fourteenth Amendment, Congress could not bar any American-born children from citizenship, provided that their parents were U.S. citizens. After Wong Kim Ark, which superimposed the British common-law rule of birthright citizenship on the Fourteenth Amendment's jurisdiction, Congress could not bar the American-born children of foreign nationals either . . . unless, perhaps, their parents were illegal aliens. Hence, the court partially overruled the Chinese Exclusion Act of 1882. While Congress could still bar Chinese foreign nationals or, for that matter, any other group of foreign nationals from the naturalization process, it could not deny their American-born children citizenship. The only exception to this rule was the American Indian. The Constitution itself grants Congress the power to regulate commerce with Indian tribes and to decree the status of their nationality. At the time, Congress held that all Indian tribes were alien nations. Before the Indian Citizenship Act of 1924, no American Indian was or could be a U.S. citizen.

²⁸The most recent attempt to eliminate the "anchor-baby loophole" is H.R.1868, Birthright Citizenship Act of 2009. It was introduced in the House by Republican representative Nathan Deal of Georgia. If passed, the revised statute would clarify Section 301 of the Immigration and Nationality Act so that a person born in the United States would be a citizen thereof, provided that at the time of the person's birth at least one of his parents was (1) a citizen or national of the United States, (2) a foreign national legally admitted for permanent residence and residing in the United States or (3) a foreign national actively serving in the military of the United States. This is the third bill of its sort introduced by Representative Deal. He also introduced H.R.698, Citizens Reform Act of 2005 and H.R.1940, Birthright Citizenship Act of 2007. His most recent effort is stalled in committee, as is Senate Joint Resolution 6 of 2009, which proposes a constitutional amendment.

²⁹See Appendix C, "Physical Presence: Lefty’s Magic Wand", Michael David Rawlings; Was Senator John McCain a Citizen at Birth?

³⁰United States Department of State Foreign Affairs Manual Volume 7 - Consular Affairs; "7 FAM 1130 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT (CT:CON-317; December, 8, 2009), 1131 BASIS FOR DETERMINATION OF ACQUISITION, 1131.6 Nature of Citizenship Acquired by Birth Abroad to U.S. Citizen Parents, 1131.6-3 Not Citizens by 'Naturalization' (TL:CON-68; April 1, 1998)"; pg. 9 of 101; http://www.state.gov/documents/organization/86757.pdf.
 
 
 

5. Meanwhile, Lost at Sea . . .

With the matter more satisfactorily clarified, it is time to examine the entire text of 7 FAM 1111.a., which, due to the duplicity of his thesis, Wittlake neglects to fully paraphrase in his characteristically clumsy fashion. While Wittlake is not hip to the historical origin or to the nature of the tension behind the State Department's inaccurate assessment of jus sanguinis' relationship with the Constitution, he should be aware of the fact that the State Department and Congress recognize only two categories of citizenship and only two moments of acquisition. He should also be aware of the fact that the State Department, as directed by Congress, recognizes children born abroad of U.S. citizens as natural-born citizens despite its caveats. In other words, I find it very difficult to believe that he only read 7 FAM 1111.a., and even that should be enough to alert him to the fact that his thesis doesn't add up.

Wittlake simply doesn't like the idea of conferring natural-born citizenship on persons born abroad and probably doesn't like McCain's politics. While I don't fault him for the latter, I do fault him for making things up in lieu of the things he doesn't know, rather than pushing past the apparent contradictions and filling in the gaps of his knowledge.

7 FAM 1111 INTRODUCTION

a. U.S. citizenship may be acquired either at birth or through naturalization subsequent to birth. U.S. laws governing the acquisition of citizenship at birth embody two legal principles:

(1) Jus soli (the law of the soil) - a rule of common law under which the place of a person's birth determines citizenship. In addition to common law, the principle is embodied in the Fourteenth Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes.

(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 U.S. laws have changed, the requirements for conferring and retaining derivative citizenship have also changed.³¹

Conclusion

Tribe-Olson erroneously attributes the principle of jus sanguinis to common law and conflates the Fourteenth Amendment's territorial jurisdiction with the United States' martial-judicial jurisdiction, and yet the drafters of Senate Resolution 511, who relied on Tribe-Olson, manage to avoid its political shenanigans. The Resolution lists the essential circumstances of McCain's birth; it's a simple declaration of his natural-born status and presidential eligibility. This is Congress asserting its constitutional prerogative to confer natural-born citizenship on persons born abroad of U.S. citizens as it subtly upholds its original intent in the Revised Statutes Section 1993 of 1934. Clearly, one does not have to be born on "American soil" in order to be a natural-born citizen or, if born abroad, on the premises of any U.S. military installation or consulate.

As for the historically illiterate mirage that conflates the terms native born and natural born, this necessarily involves some monstrosity not backed by any constitutional authority, a form of citizenship conferred at birth by some statutory slight of hand. There are but two forms of citizenship: natural-born and naturalized, bestowed at the moment of birth or subsequent to birth respectively. If the status of citizenship conferred at birth via jus sanguinis is not natural-born than it is some form of naturalization, and as it so happens, that is precisely the status the Court assigned to it, albeit in dicta; but don't tell Wittlake, as he is not cognizant of the only potentially legitimate support for his notion that citizenship via jus sanguinis is not natural-born. It's best to leave the obstinacy of self-deception in the dark. Meanwhile, back in the light of day, the Framers of the Constitution and Congress do not countenance the Court's mental masturbation.

The merits of Professor Chin's argument aside, which exposes the weakness of the first part of Tribe-Olson and utterly destroys the second, no court would have gotten near the legal technicality had McCain won the election. Congress would have certified the election results, the Electoral College would have made it official, the members of the Court would have preoccupied themselves with the etchings on the walls of their chambers, and John Sidney McCain, III would have been sworn in as the 44th president of the United States. Hence, McCain would have been the first person in the history of the United States born on foreign soil to have attained the Office of President. That by itself would have settled the matter regarding the status of citizenship acquired via jus sanguinis once and for all—terminating Wong Kim Ark's tenure of uncertainty.

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³¹United States Department of State Foreign Affairs Manual Volume 7 - Consular Affairs; "7 FAM 1110 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH IN THE UNITED STATES (CT:CON-314; August 21, 2009)"; pg. 1 of 13; http://www.state.gov/documents/organization/86755.pdf.

Next article in the series:  A Critique of the Chin Argument