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

[Robert Sheridan]

The condition subsequent to perfection of US citizenship for those  
born abroad to a USC parent is five years continuous residence in the  
United States between ages 14-28, according to the Immigration and  
Naturalization Act Sec. 301(b), per Rogers v. Bellei, referred to in  
the post below.  Here's the headnote, etc., from Bellei:

  ROGERS v. BELLEI, 401 U.S. 815 (1971)
401 U.S. 815

ROGERS, SECRETARY OF STATE v. BELLEI
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF  
COLUMBIA
No. 24.
Argued January 15, 1970 Reargued November 12, 1970
Decided April 5, 1971

Appellee challenges the constitutionality of 301 (b) of the  
Immigration and Nationality Act of 1952, which provides that one who  
acquires United States citizenship by virtue of having been born  
abroad to parents, one of whom is an American citizen, who has met  
certain residence requirements, shall lose his citizenship unless he  
resides in this country continuously for five years between the ages  
of 14 and 28. The three-judge District Court held the section  
unconstitutional, citing Afroyim v. Rusk, 387 U.S. 253 , and Schneider  
v. Rusk, 377 U.S. 163 . Held: Congress has the power to impose the  
condition subsequent of residence in this country on appellee, who  
does not come within the Fourteenth Amendment's definition of citizens  
as those "born or naturalized in the United States," and its  
imposition is not unreasonable, arbitrary, or unlawful. Afroyim v.  
Rusk, supra, and Schneider v. Rusk, supra, distinguished. Pp. 820-836.

296 F. Supp. 1247, reversed.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.  
J., and HARLAN, STEWART, and WHITE, JJ., joined. BLACK, J., filed a  
dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post,  
p. 836. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS, J.,  
joined, post, p. 845.

***
14th Amendment citizens by virtue of birth in the US need not perfect  
their status as citizens, while those born abroad do.

I don't know how this affects the "natural born" requirement, but it  
seems to make two classes of citizenship quite apart from the 3rd  
class, naturalization.

I wonder whether Sen. McCain perfected his claim to USC status, or  
whether there's an act regulating those born to a USC parent in Panama  
or in U.S. run overseas military installations (I wouldn't be  
surprised).  My surmise would be that he did perfect his claim by  
virtue of his four years in the Naval Academy in Annapolis, MD plus  
subsequent military service at home and abroad, on the theory that he  
may have regarded Maryland as his domicile/residence (or another state  
of his choice in which he resided) which would follow him into the  
service wherever he was stationed or imprisoned.  He made this point  
when challenged on residency grounds while running for the Senate from  
Arizona the first time, to telling effect.  If McCain needed to  
perfect, and hasn't, he still can, by going through the proving up  
process at the (formerly called) Naturalization Office.  My guess is  
that he's way ahead of us on statutory compliance and it's moot.  As  
to natural born, that's another issue.

rs
sfls


On Feb 16, 2008, at 10:03 AM, Edward A Hartnett wrote:

>
> 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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