Is McCain a "Natural Born Citizen" under Art. II?
Franck, Matthew J
mfranck at RADFORD.EDU
Sat Feb 16 13:02:34 PST 2008
Paul, you raise some interesting points. Assume arguendo that the 1790
act was understood by Congress to be an effort to guide, by a
declaratory gloss on the Constitution, the actions of subsequent
presidential electors and Congresses when choosing presidents whose
"natural born" citizenship might be in question by virtue of birth
overseas to U.S. citizen parents. Your argument is that "to guide" is
not "to bind," and I see your point. Each quadrennial electoral
college, and every other Congress, will have to decide this question for
itself if it arises. Fair enough. I have a "hard" answer and a "soft"
answer. The "hard" one is that certainly electors, and possibly members
of Congress too when not actually legislating, are bound by statutory
declarations of the kind we are considering-notwithstanding the fact
that the casting and counting of electoral ballots are actions no less
constitutional in status than legislating. That is a reply worth
considering, but I am not sure that I convince even myself! My "soft"
answer is that the view of the 1790 Congress is so obviously sensible as
a gloss on Article II's "natural born" language (more sensible, I think,
than the current statutory requirement just pointed out by Robert
Sheridan that a foreign-born citizen "perfect" his natural born-ness by
a period of continuous residence at a certain age), that it would
behoove the contemporary electors and Congress simply to follow that
early lead and treat this question as the simple one it assuredly is.
As an aside, I would say it makes a good deal more sense to consider
John McCain a natural born citizen than it did a few years ago for the
military and the courts to consider Yaser Esam Hamdi a citizen.
Matthew J. Franck
Professor and Chairman
Department of Political Science
P.O. Box 6945
Radford, VA 24142-6945
e-mail mfranck at radford.edu <mailto:mfranck at radford.edu>
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Paul Horwitz
Sent: Saturday, February 16, 2008 12:59 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Is McCain a "Natural Born Citizen" under Art. II?
Matthew, thanks for the response. I thought that might be what you were
saying in your first post but wasn't sure. But if Congress was merely
engaging in a declaratory statement about how to interpret the "natural
born" language of Article II, then I return to the view that the
question posed about McCain's eligibility for the office of President is
entirely a live one and doesn't depend on whether the first Congress's
statutory language is repealed or superseded. I don't see how
subsequent members of Congress (or, for that matter, the members of the
first Congress itself, had the issue subsequently arisen) are freed from
their own oath to uphold the Constitution simply because some other
Congress purported to "interpret" Article II in non-binding language.
That language may be persuasive evidence, but as a "declaratory
statement" it is not authoritative or binding -- on the members or on
the electors. And whoever is empowered to "decide" the question, I
don't think that frees other actors, including those I mentioned, from
the obligation to address the question to their own satisfaction.
Your Necessary and Proper argument I find more intriguing, but again not
dispositive. However deferential we might be to Congress if it
exercised power in this way, surely its power to effectuate this
language of Article II doesn't extend to legislation that effectively
alters the meaning of "natural born" -- and that, I take it, is the very
question at issue here. And it is not clear we should defer to Congress
here. Certainly if we consider the policy behind the "natural born"
language, we might conclude that any efforts by the political branches
to legislatively alter the meaning of the clause, whether through the
Necessary and Proper power or by any other means, should be subject to
skeptical review, whether by the courts or by We the People.
* * * * * * * * * * * * * * * * *
University of Alabama
School of Law
Tuscaloosa, AL 35487
phorwitz at law.ua.edu
SSRN Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=88097
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