[Congressional Record Volume 154, Number 70 (Wednesday, April 30, 2008)]
[Senate]
[Pages S3645-S3646]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
[[Page S3645]]
JOHN S. McCAIN, III CITIZENSHIP
Mr. BROWN. Mr. President, I ask unanimous consent the Senate proceed
to the immediate consideration of Calendar No. 715, S. Res 511.
The PRESIDING OFFICER. The clerk will report the resolution by title.
The legislative clerk read as follows:
A resolution (S. Res. 511) recognizing that John Sidney
McCain, III, is a natural born citizen.
There being no objection, the Senate proceeded to consider the
resolution.
Mr. LEAHY. Mr. President, today we are considering a bipartisan
resolution to express the common sense of all in this Chamber that
Senator McCain is a ``natural born Citizen,'' as the term is used in
the Constitution of the United States. Last week the Judiciary
Committee voted unanimously to report this resolution to the Senate. I
urge Senators to come together to pass this bipartisan resolution
without delay.
Our Constitution contains three requirements for a person to be
eligible to be President--the person must have reached the age of 35;
must have resided in America for 14 years; and must be a ``natural born
Citizen'' of the United States. Certainly there is no doubt that
Senator McCain is of sufficient years on this Earth and in this country
given that he has been serving in Washington for over 25 years.
``However, some have raised the question whether he is a ``natural born
Citizen'' because he was born outside of the United States.
John Sidney McCain, III, was born to American citizens on an American
Naval base in the Panama Canal Zone in 1936. His father was serving in
the Navy at that time.
It is possible that at the time of our Nation's founding, the Framers
of our Constitution could not imagine how pronounced our commitments
overseas would become but it would make no sense to limit the careers
of children born to military families simply because they were
stationed overseas. Similarly, it would not make sense to punish
children born to foreign service families or Ambassadors stationed
overseas or children born overseas to American missionaries. They are
all American citizens at the time of their birth.
Numerous legal scholars have looked into the purpose and intent of
the ``natural born Citizen'' requirement. As far as I am aware, no one
has discovered any reason to think that the Framers would have wanted
to limit the rights of children born to Americans abroad or that such a
limited view would serve any noble purpose enshrined in our founding
document. Based on the understanding of the pertinent sources of
constitutional meaning, it is widely believed that if someone is born
to American citizens anywhere in the world they are natural born
citizens.
It is interesting to note that another previous Presidential
candidate, George Romney, was also born outside of the United States.
He was widely understood to be eligible to be President. Senator Barry
Goldwater was born in a U.S territory that later became the State of
Arizona. Certainly those who voted for these two Republican candidates
believed that they were eligible to assume the office of the President.
Because he was born to American citizens, there is no doubt in my
mind that Senator McCain is a ``natural born Citizen''. I recently
asked Secretary of Homeland Security Michael Chertoff, a former Federal
judge, if he had any doubts in his mind. He did not.
Former Solicitor General Theodore Olson and Harvard Law School
Professor Laurence Tribe also analyzed the issue and came to the same
conclusion--that Senator McCain is a natural born citizen eligible to
serve as President.
Our bipartisan resolution would make it clear that Senator McCain,
born in 1936 on an American Naval base to U.S. citizens, is a ``natural
born Citizen. We should act today on a bipartisan basis to erase any
doubt that Senator McCain is eligible to run for President because of
his citizenship status.
I ask unanimous consent that the legal analysis of Theodore Olson and
Laurence Tribe be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Gibson, Dunn & Crutcher LLP,
Washington, DC, April 8, 2008.
Re legal analysis of question whether Senator John McCain is
a natural born citizen eligible to hold the office of
President.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Dirksen
Senate Office Building, Washington, DC.
Dear Chairman Leahy: Pursuant to a request received from
the staff of your Committee, I enclose for your and your
Committee's consideration a copy of my and Professor Laurence
Tribe's analysis of the question whether Senator John McCain
is a natural-born citizen eligible, under Article II of the
Constitution, to hold the office of President of the United
States. Professor Tribe and I are in agreement that the
circumstances of Senator McCain's birth to American parents
in the Panama Canal Zone make him a natural-born citizen
within the meaning of the Constitution.
Please do not hesitate to contact me if I can be of further
assistance in this matter.
Very truly yours,
Theodore B. Olson.
____
Gibson, Dunn & Crutcher LLP
Washington, DC, April 8, 2008.
Re legal analysis of question whether Senator John McCain is
a natural born citizen eligible to hold the office of
President.
Hon. Arlen Specter,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Specter: Pursuant to a request received from
Democratic Committee staff, I enclose for your consideration
a copy of my and Professor Laurence Tribe's analysis of the
question whether Senator John McCain is a ``natural born
citizen'' eligible, under Article II of the Constitution, to
hold the office of President of the United States. Professor
Tribe and I are in agreement that the circumstances of
Senator McCain's birth to American parents in the Panama
Canal Zone make him a natural born citizen within the meaning
of the Constitution.
Please do not hesitate to contact me if I can be of further
assistance in this matter.
Very truly yours,
Theodore B. Olson.
____
March 19, 2008.
We have analyzed whether Senator John McCain is eligible
for the U.S. Presidency, in light of the requirement under
Article II of the U.S. Constitution that only ``natural born
Citizen[s] . . . shall be eligible to the Office of
President.'' U.S. Const. art. II, Sec. 1, cl. 5. We conclude
that Senator McCain is a ``natural born Citizen'' by virtue
of his birth in 1936 to U.S. citizen parents who were serving
their country on a U.S. military base in the Panama Canal
Zone. The circumstances of Senator McCain's birth satisfy the
original meaning and intent of the Natural Born Citizen
Clause, as confirmed by subsequent legal precedent and
historical practice.
The Constitution does not define the meaning of ``natural
born Citizen.'' The U.S. Supreme Court gives meaning to terms
that are not expressly defined in the Constitution by looking
to the context in which those terms are used; to statutes
enacted by the First Congress, Marsh v. Chambers, 463 U.S.
783, 790-91 (1983); and to the common law at the time of the
Founding. United States v. Wong Kim Ark, 169 U.S. 649, 655
(1898). These sources all confirm that the phrase ``natural
born'' includes both birth abroad to parents who were
citizens, and birth within a nation's territory and
allegiance. Thus, 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.
Congress has recognized in successive federal statutes
since the Nation's Founding that children born abroad to U.S.
citizens are themselves U.S. citizens. 8 U.S.C. Sec. 1401(c);
see also Act of May 24, 1934, Pub. L. No. 73-250, Sec. 1, 48
Stat. 797, 797. Indeed, the statute that the First Congress
enacted on this subject not only established that such
children are U.S. citizens, but also expressly referred to
them as ``natural born citizens.'' Act of Mar. 26, 1790, ch.
3, Sec. 1, 1 Stat. 103, 104.
Senator McCain's status as a ``natural born'' citizen by
virtue of his birth to U.S. citizen parents is consistent
with British statutes in force when the Constitution was
drafted, which undoubtedly informed the Framers'
understanding of the Natural Born Citizen Clause. Those
statutes provided, for example, that children born abroad to
parents who were ``natural-born Subjects'' were also
``natural-born Subjects . . . to all Intents, Constructions
and Purposes whatsoever.'' British Nationality Act, 1730, 4
Geol. 2, c. 21. The Framers substituted the word ``citizen''
for ``subject'' to reflect the shift from monarchy to
democracy, but the Supreme Court has recognized that the two
terms are otherwise identical. See, e.g., Hennessy v.
Richardson Drug Co., 189 U.S. 25, 34-35 (1903). Thus, the
First Congress's statutory recognition that persons born
abroad to U.S. citizens were ``natural born'' citizens fully
conformed to British tradition, whereby citizenship conferred
by statute based on the circumstances of one's birth made one
natural born.
There is a second and independent basis for concluding that
Senator McCain is a ``natural born'' citizen within the
meaning of the Constitution. If the Panama Canal Zone was
sovereign U.S. territory at the time of Senator McCain's
birth, then that fact alone
[[Page S3646]]
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
United States. See, e.g., Wong Kim Ark, 169 U.S. at 655-66.
The Fourteenth Amendment expressly enshrines this connection
between birthplace and citizenship in the text of the
Constitution. U.S. Const. amend. XIV, Sec. 1 (``All persons
born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States. * *
* '') (emphases added). Premising ``natural born''
citizenship on the character of the territory in which one
is born is rooted in the common-law understanding that
persons born within the British kingdom and under loyalty
to the British Crown--including most of the Framers
themselves, who were born in the American colonies--were
deemed ``natural born subjects.'' See, e.g., 1 William
Blackstone, Commentaries on the Laws of England 354 (Legal
Classics Library 1983) (1765) (``Natural-born subjects are
such as are born within the dominions of the crown of
England, that is, within the ligeance, or as it is
generally called, the allegiance of the king.* * * '').
There is substantial legal support for the proposition that
the Panama Canal Zone was indeed sovereign U.S. territory
when Senator McCain was born there in 1936. The U.S. Supreme
Court has explained that, ``[f]rom 1904 to 1979, the United
States exercised sovereignty over the Panama Canal and the
surrounding 10-mile-wide Panama Canal Zone.'' 0'Connor v.
United States, 479 U.S. 27, 28 (1986). Congress and the
executive branch similarly suggested that the Canal Zone was
subject to the sovereignty of the United States. See, e.g.,
The President--Government of the Canal Zone, 26 Op. Att'y
Gen. 113, 116 (1907) (recognizing that the 1904 treaty
between the United States and Panama ``imposed upon the
United States the obligations as well as the powers of a
sovereign within the [Canal Zone]''); Panama Canal Act of
1912, Pub. L. No. 62-337, Sec. 1, 37 Stat. 560, 560
(recognizing that ``the use, occupancy, or control'' of the
Canal Zone had been ``granted to the United States by the
treaty between the United States and the Republic of
Panama''). Thus, although Senator McCain was not born within
a State, there is a significant body of legal authority
indicating that he was nevertheless born within the sovereign
territory of the United States.
Historical practice confirms that birth on soil that is
under the sovereignty of the United States, but not within a
State, satisfies the Natural Born Citizen Clause. For
example, Vice President Charles Curtis was born in the
territory of Kansas on January 25, 1860--one year before
Kansas became a State. Because the Twelfth Amendment requires
that Vice Presidents possess the same qualifications as
Presidents, the service of Vice President Curtis verifies
that the phrase ``natural born Citizen'' includes birth
outside of any State but within U.S. territory. Similarly,
Senator Barry Goldwater was born in Arizona before its
statehood, yet attained the Republican Party's presidential
nomination in 1964. And Senator Barack Obama was born in
Hawaii on August 4, 1961--not long after its admission to the
Union on August 21, 1959. We find it inconceivable that
Senator Obama would have been ineligible for the Presidency
had he been born two years earlier.
Senator McCain's candidacy for the Presidency is consistent
not only with the accepted meaning of ``natural born
Citizen,'' but also with the Framers' intentions when
adopting that language. The Natural Born Citizen Clause was
added to the Constitution shortly after John Jay sent a
letter to George Washington expressing concern about
``Foreigners'' attaining the position of Commander in Chief.
3 Max Farrand, The Records of the Federal Convention of 1787,
at 61 (1911). It goes without saying that the Framers did not
intend to exclude a person from the office of the President
simply because he or she was born to U.S. citizens serving in
the U.S. military outside of the continental United States;
Senator McCain is certainly not the hypothetical
``Foreigner'' who John Jay and George Washington were
concerned might usurp the role of Commander in Chief.
Therefore, based on the original meaning of the
Constitution, the Framers' intentions, and subsequent legal
and historical precedent, Senator McCain's birth to parents
who were U.S. citizens, serving on a U.S. military base in
the Panama Canal Zone in 1936, makes him a ``natural born
Citizen'' within the meaning of the Constitution.
Laurence H. Tribe.
Theodore B. Olson.
Mr. BROWN. Mr. President, I ask unanimous consent the resolution be
agreed to, the preamble be agreed to, the motions to reconsider be laid
upon the table, with no intervening action or debate, and any
statements be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The resolution (S. 511) was agreed to.
The preamble was agreed to.
The resolution, with its preamble, is as follows:
S. Res. 511
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'';
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; and
Whereas John Sidney McCain, III, was born to American
citizens on an American military base in the Panama Canal
Zone in 1936: 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.
____________________