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

[Edward A Hartnett]

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
973-642-8842
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335
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