Is McCain a "Natural Born Citizen" under Art. II?
Edward A Hartnett
hartneed at shu.edu
Sat Feb 16 14:00:38 PST 2008
It may be that the action of the 1790 Congress is an "obviously sensible .
. . gloss on Article II’s 'natural born' language." But note three
things about that approach:
1) It has not been treated that way by the Supreme Court in cases dating
back to the mid 18th century, which treat the grant of citizenship to
children born abroad to United States citizen parents as an exercise of
the naturalization power.
2) Congress has not used the term "natural born" to describe the grant of
citizenship to this class of perons since 1795.
3) The 1790 act itself had a proviso "That the right of citizenship shall
not descend to persons whose fathers have never been resident in the
United States." Act of March 26, 1790. Should we treat this as part of
the "obviously sensible . . . gloss" as well? If so, how should we treat
the decision of subsequent Congresses that imposed different conditions on
citizenship by descent? And how should we treat the 50 year period in the
19th century when children born abroad to some American citizen parents
were not treated as American citizens at all?
Matt's suggestion that "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," appears to suggest
that the dissent in Won Kim Ark had it right and that citizenship should
follow descent rather than soil. Is that the thrust of the suggestion?
I should add that I am not suggesting that it is wise or just that Senator
McCain not be eligible for the Presidency. But what may be most
interesting here is to think about how we respond when perfectly ordinary
methods of constitutional interpretation (including reliance on
longstanding Supreme Court precedent) suggest a result that is not wise or
just. Perhaps, as I think Marty suggests, we tend to latch onto any
plausible argument that matches our sense of wisdom and justice. But
maybe we should pause to admit that the constitution (and certainly the
constitution as interpreted by the Supreme Court) is not always wise or
just, and seize the opportunity to amend it.
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
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335
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