[Congressional Record (Bound Edition), Volume 154 (2008), Part 5]
[Senate]
[Pages 7468-7470]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    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

[[Page 7469]]

     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 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,

[[Page 7470]]

     Section 1, of the Constitution of the United States.

                          ____________________