Mccain birth certificate senate resolution

Congress only has the authority to naturalize citizens and a naturalized citizen is not eligible to the Office of President.

Merevaudvillian, You ask if citizenship by birth in U. Two of the most important constitutional lawyers of recent decades offered that as a basis for Senator McCain's natural born citizenship. Given Professor Tribe's and Mr. Olson's stature, I thought the argument had to be addressed, both because there is reason to presume their arguments are strong, and if their arguments are not well taken, it suggests that the best thinkers have been forced to grasp at straws. And at least Mr. Olson represents Senator McCain, so he is not free to offer his personal view if at variance with his client's position.

So a weak argument is not evidence that Mr. Olson is a bad lawyer, but it is evidence that he has a difficult position. You mention the common-law understanding of "natural born" but the Constitution also contains the word "citizen. Such individuals are not citizens, but might fit the common-law's understanding of "natural born. If Congress has not provided for citizenship for some class of persons, members of that class are not "natural born citizens. Marty, I agree with DB that Congress can't create natural born citizens after the fact. The factually doubtful policy reason for the clause must rest on the idea that those born into the constitutional community are more likely to be loyal to it, so those adopted into it are excluded.

Whatever natural born citizen means, I don't think it includes citizens of foreign countries raised in foreign territory, who became citizens, perhaps in middle age or beyond, because born in a place taken by the United States by conquest or purchase. The doctrinal reason that DB's position is probably right is that I'll bet although I can't affirm based on my own research that the concept of natural born citizen or natural born subject referred to common law concepts or statutes applicable when the person at issue was born.

That is, I'll bet the doctrine contemplated that a person was, at birth, natural born or not except perhaps when the question was compulsory military service--then His Brittanic Majesty might have been a bit more broad-minded. Thus, the oft-repeated dicta that "Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native-born citizens", U. Finally, I agree that there are constitutional objections to denying children of U.

But it happens every day, and has since the Founding. I don't think it is consistent with the rule of law for John McCain to benefit from broad and lenient principles that are utterly inapplicable to other folks caught up in the system. If John McCain said "my dad was in the military service, so I am a citizen at birth, and every child of a service parent should also be a citizen at birth whatever Congress may have said " I would say terrific, that's a principle of constitutional law which fits the overall constitutional structure better than the current rules.

If President, he could implement those policies by regulation; as a Senator, he could have introduced legislation to that effect. But at the moment, that is not the law; some of the most important Supreme Court immigration cases of recent years upheld denial of citizenship to children of U. Nguyen v. INS, U. Albright, U.

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The Supreme Court has said that "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. Manzi, U. I am willing to discuss keeping this principle or rejecting it, but not for keeping it for certain folks, and rejecting it as to others.


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Although you state, "People whose sole claim to citizenship is birth in the Canal Zone are regularly deported from the United States, so this argument is not consistent with existing law," is that really what's at issue? It seems like the "child of citizen parents" might be an even stronger claim to being "natural born. At the founding, Blackstone noted that children of citizen parents born abroad were known as "natural-born," admittedly by statute, but that it was so common that statutory "natural-born" citizens were essentially indistinguishable from common law "natural-born.


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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; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. Their rights are also distinguishable by the fame criterions of time and locality; natural-born subjects having a great variety of rights, which they acquire by being born within the king's ligeance, and can never forfeit by any distance of place or time, but only by their own misbehaviour.

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But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themfelves, to all intents and purpofes, without any exception. Thus, if, at the founding, "natural born" included the inherent connotation that children of citizen parents are "natural-born," then it seems to be a superior reading to include children of citizen parents in the definition of "natural born.

DB: Why do you assume the clause is designed to constrain Congress? Why doesn't it make more sense to say that the clause is intended to restrict the class of persons who are eligible to be President to i those that the Constitution declares to be citizens by virtue of their birth as the 14th Amendment does ; plus ii those who Congress deems to be citizens by virtue of their birth; plus possibly iii some common-law baseline of "natural-born citizens" that would antedate any constitutional or statutory designations?

So, for instance, after , blacks born in the U. I suppose so, although it might raise Equal Protection problems.

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Tulsi Gabbard Was Born In American Samoa. Her Presidential Run Could Raise Eligibility Questions.

But I doubt the drafters of the clause worried that Congress would do any such foolish thing -- a prospect almost as unlikely as the legislature passing a statute saying "Anyone born anywhere in the world in the year will be a U. The fact that Congress could -- but will not -- make all sorts of birth characteristics sufficient for citizenship, even without any reasonable connection to the U.

Maybe the following hypothetical is too absurd to use as a test case, but I wonder whether it shows that your proposal proves too much. Suppose that Congress really wants someone to be able to run for President but they're concerned that he wasn't a citizen from birth and that he might therefore by barred by the clause. Could they check out the candidate's birth certificate and then pass a statute that says, "Whoever was born at X degrees longitude and Y degrees latitude on [the candidate's date of birth] at [the time he was born] shall by a US citizen from birth"?

That statute would, I take it, grant the candidate citizenship by virtue of characteristics of his birth and would, on your view, make him a natural-born citizen. But that would mean that the Clause doesn't really bind Congress at all.

Instead, Congress would be able to rejigger the rules to make whoever it wants eligible for the presidency. And I don't think that can be right. The point of limiting the presidency to a certain subset of citizens--viz. Otherwise, why not just open it up to all citizens? Of course, I ask in an attempt to impute some plausible intent to the Clause as it is written--as a normative matter, the job really ought to be opened up to all citizens, but that's a different question.

Arguably, having the allegedly ineligible candidate on the ballot causes other candidates to suffer an "injury" inasmuch as the ineligible candidate draws votes from those candidates. Even assuming that such an argument has some validity, though, bringing a suit to disqualify an opponent might be viewed as "dirty politics," so most candidates would probably shy away from doing so.

I wonder, Jack, if you or someone else has a view on the standing issue. Here are two paragraphs from the NYT:.

Who are the possible Senate replacements for John McCain?

Tokaji, an election law expert at Ohio State University, agreed. Question: Assuming Jack is right on the substantive issue, is there any difference from a standing point of view between this sort of claim against McCain and a similar claim that could be made against Arnold Schwarzenegger if he ran for President of the United States or for that matter Mahmoud Ahmadinejad?

If not, then isn't it likely that someone or some organization has standing to bring these claims? While a federal court might look for ways to avoid deciding the issue, it would seem more embarrassing to conclude that no one can challenge presidential candidates on citizenship. So even if this individual voter does not have standing, I imagine that some other entity is likely to step into the fray.

Presidential Eligibility

Jack: It's a great, provocative paper. But I'm not quite persuaded. In particular, it's not clear to me that the statute can't be read to provide citizenship retroactive to the birth of the covered persons after all, on your theory, Congress thought it was a silly oversight or scrivener's error that that weren't citizens in the first place. You raise a constitutional objection: "I don't think it could be made retroactive for purposes of the natural born citizenship clause. But let's assume that Bruce and Michael are wrong, and that John McCain first became a citizen only when he was eleven months old.

Why isn't that enough? Certainly not in the second paragraph of note 14, which if I'm not mistaken is the one place you address it.