Is McCain a "Natural Born Citizen" under Art. II?

[Edward A Hartnett]

Some have wondered about the relevance of the 14th amendment.  For better 
or worse, the Supreme Court has treated the relevant aspects of the 14th 
amendment as declaratory of the pre-existing law. 

The court in Won Kim Ark, 169 U.S. 649 (1898) observed that 

“The constitution of the United States, as originally adopted, uses the 
words ‘citizen of the United States' and ‘natural-born citizen of the 
United States,“ 

but

“nowhere defines the meaning of these words, either by way of inclusion or 
of exclusion, except in so far as this is done by the affirmative 
declaration that ‘all persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the United 
States.’ Amend. art. 14.”

As a result,

“In this, as in other respects, it must be interpreted in the light of the 
common law, the principles and history of which were familiarly known to 
the framers of the constitution.”

It proceeded to accept the following statement from Justice Curtis’s 
opinion in Dred Scott – noting that “no different opinion was expressed or 
intimated by any of the other judges” – 

“The first section of the second article of the constitution uses the 
language, ‘a natural-born citizen.’ It thus assumes that citizenship may 
be acquired by birth. Undoubtedly, this language of the constitution was 
used in reference to that principle of public law, well understood in this 
country at the time of the adoption of the constitution, which referred 
citizenship to the place of birth.'” 

It then explained that Congress has used its power “to establish an 
uniform rule of naturalization” to make 

“provision for the admission to citizenship of three principal classes of 
persons: First. Aliens, having resided for a certain time ‘within the 
limits and under the jurisdiction of the United States,’ and naturalized 
individually by proceedings in a court of record. Second. Children of 
persons so naturalized, ‘dwelling within the United States, and being 
under the age of twenty-one years at the time of such naturalization.’ 
Third. Foreign-born children of American citizens, coming within the 
definitions prescribed by congress.”

That is, it treated foreign born children of American citizen parents as 
naturalized citizens.

Moreover, it observed that 

“during the half century intervening between 1802 and 1855, there was no 
legislation whatever for the citizenship of children born abroad, during 
that period, of American parents who had not become citizens of the United 
States before the act of 1802; and that the act of 1855.” 

It concluded that 

“the fourteenth amendment is declaratory of existing rights, and 
affirmative of existing law, as to each of the qualifications therein 
expressed,— ‘born in the United States,’ ‘naturalized in the United 
States,’ and ‘subject to the jurisdiction thereof’; in short, as to 
everything relating to the acquisition of citizenship by facts occurring 
within the limits of the United States. But it has not touched the 
acquisition of citizenship by being born abroad of American parents; and 
has left that subject to be regulated, as it had always been, by congress, 
in the exercise of the power conferred by the constitution to establish a 
uniform rule of naturalization”

Justice Fuller, joined by Justice Harlan understood the majority’s 
decision as follows:

“The argument is that although the constitution prior to that amendment 
nowhere attempted to define the words ‘citizens of the United States' and 
‘natural-born citizen,’ as used therein, yet that it must be interpreted 
in the light of the English common-law rule which made the place of birth 
the criterion of nationality; that that rule ‘was in force in all the 
English colonies upon this continent down to the time of the Declaration 
of Independence, and in the United States afterwards, and continued to 
prevail under the constitution as originally established’ . . . 
“And it is this rule, pure and simple, which it is asserted determined 
citizenship of the United States during the entire period prior to the 
passage of the act of April 9, 1866, and the ratification of the 
fourteenth amendment, and governed the meaning of the words, ‘citizen of 
the United States' and ‘natural-born citizen,’ used in the constitution as 
originally framed and adopted.

“Thus, the fourteenth amendment is held to be merely declaratory, except 
that it brings all persons, irrespective of color, within the scope of the 
alleged rule, and puts that rule beyond the control of the legislative 
power.”

Lest anyone think that this is merely ancient history, note that in 1971, 
in Rogers v. Bellei, 401 U.S. 815, the Supreme Court held that a child 
born abroad to an American citizen mother – and therefore a naturalized 
citizen at birth pursuant to statute – could lose that citizenship by 
failure to meet a condition subsequent imposed by that statute.  Indeed, 
it held that a person born abroad and not naturalized in the United States 
(but instead naturalized by birth in another country) is “simply . . . not 
a Fourteenth-Amendment-first-sentence citizen.”

It relied on Wong Kim Ark, and Justice Gray’s observation “that the first 
sentence of the Fourteenth Amendment was ‘declaratory of existing rights, 
and affirmative of existing law,’ so far as the qualifications of being 
born in the United States, being naturalized in the United States, and 
being subject to its jurisdiction are concerned.”
I don't claim that these cases answer the question.  It may be that 
Congress has the power to make someone a "natural born citizen" by a 
statute that establishes citizenship at birth.  It may be that it can 
construe the term "natural born citizen" by statute -- although it is far 
from clear that it has done so since (as far as I know) the term "natural 
born" in the 1790 act has not appeared in the statute since 1795.  It may 
be that someone can be both a naturalized citizen and a natural born 
citizen.  And it may be that these cases are wrong -- I'm certainly no 
judicial supremacist.  But I do not think that it is clear that McCain is 
eligible based simply on his being naturalized at birth.


Edward A. Hartnett
Richard J. Hughes Professor
     for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8842
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335
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