McCain's eligibility

John McCain isn’t a popular guy in some circles, but now some of those who are opposed to him think they’ve found a silver bullet: a claim that McCain isn’t eligible to the Presidency because (they argue) he isn’t a natural-born citizen. Typical of the type is this post; Kevin Johnson has a useful comment here.

As I understand it, the rhetorical strategy is to note that McCain was born in the Panama Canal Zone (“PCZ”), and citing 7 FAM 1116.1-4(c), argue that McCain isn’t a natural-born citizen because children born to U.S. citizen parents at overseas military bases and diplomatic installations aren't subject to the jurisdiction of the United States, as the Fourteenth Amendment requires, so don’t attain citizenship as a birthright. Ordinarily this isn’t a big deal, because acting pursuant to its Art. I § 8 authority to legislate rules for naturalization, Congress has provided that such persons become naturalized citizens at birth, see 8 U.S.C. § 1401(c). However, the distinction might become a big deal in the one, unique, context where it’s not good enough to be a naturalized citizen rather than a natural-born one: candidacy for the Presidency.

The defects in the argument are pretty obvious. First, the citation to the Foreign Affairs Manual isn’t helpful; its discussion explicitly relates to the Fourteenth Amendment, but the relevant provision of the Constitution is Article II § 1. The Fourteenth Amendment only establishes that you can be a citizen by way of natural-born status or naturalization; it doesn't textually answer the instant question of what constitutes being “born ... in the United States.” Second, to connect 1116.1-4(c) to McCain, we’d have to assume that the PCZ was “abroad,” which is to say, “not part of the United States.” Even if McCain was born on a military base in the PCZ, 1116.1-4(c)'s whole point is that it's not the base that you look to, but the soil the base sits on. So 1116.1-4(c) is useless without the antecedent argument that the PCZ was a foreign sovereign and thus wasn't part of the United States. The problem with that argument, though, is that the PCZ has been thought of as a U.S. territory, certainly in the era in which McCain was born.1 If it is such, 1116.1-4(c) doesn’t apply. Still, these points deserve some elaboration, and the core point of the argument deserves consideration, because “[w]e deal here not with an ordinary election, but with an election for the President of the United States.” Bush v. Gore, 531 U.S. 98, 112 (2000) (Rehnquist, C.J., concurring).

Behind the hokey conspiracy theorizing, the real point is that Article II § 1 requires that the President be a natural born citizen. It doesn’t say that the President must be born on American soil, and even if it did, it doesn't say what counts as “American soil.” When a legal text doesn’t define its terms, you have to figure out what a term means. Those of us who adhere to textualism and the legal process school do this by reasoning from text, structure, precedent, and an inquiry into the original public meaning of the text.

As to text, you can often use what’s recently come to be called intratextualism (new bottles for old wine, in my view - I had thought it an ordinary canon of construction that like words within a statute are presumed to bear like meaning, see Francis McCaffrey, Statutory Construction 40 § 13 (1953)) to resolve ambiguity. The idea is that if the text uses a word in one context where its meaning is clear, and the same word in another context where its meaning isn't clear, it probably means the same thing in both places. Intratextualist analysis “focuses on at least two clauses and highlights the link between them ... [and regards] strongly parallel language [a]s a strong (presumptive) argument for parallel interpretation.” So, for example, if you weren't sure what it meant to “ordain and establish” inferior courts in the Article III vesting clause, you could try and work out what “ordain and establish” meant in the preamble, and infer it means the same thing in Article III. For that analysis, see Steven Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions, 107 Colum. L. Rev. 1002 (2007). Or for that matter, if you weren't sure what it meant for the executive power to be “vested” in the President, you could consider what it means for the legislative powers granted or the judicial power to be “vested” in Congress and the Supreme Court respectively. But intratextualism doesn’t help here, because the Constitution only uses the term “natural-born Citizen” in the instant context. And structural analysis doesn't seem helpful either. So we’re left with the original public meaning of the term: what would educated persons contemporaneous to the Constitution have understood “natural born Citizen” to mean? As the Supreme Court said in the Wong Kim Ark case, the term “natural-born citizen of the United States,” so far as we’re concerned with it here, “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.” 169 U.S. at 654. What did that term mean at common law?

According to the Supreme Court – albeit nearly a century after the fact – it was, “[a]t common-law, … never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.” Minor v. Happersett, 88 U.S. 162, 167 (1874). Somewhat closer to the time, Blackstone said that in England, “[n]atural-born subjects are such as are born within the dominions of the crown of England....” But that just kicks the can down the road: what was the extent of the “dominions of the crown of England”? Immediately prior to the Revolutionary War, “[t]he Crown’s dominions ... consisted of territories under the Crown’s sovereignty, such as England, Wales, and Ireland; the town of Berwick; the islands of Jersey, Guernsey, and Man; and the North American colonies. Although many of those territories exercised substantial legal autonomy from England and thus formed no part of its ‘kingdom’ or its ‘realm,’ all were sovereign territories of the Crown.” Boumediene v. Bush, No. 06-1195, Respondent's Brief, 27 (citations omitted) (see also ibid. (quoting Hale’s The Prerogatives of the King as defining “dominions” as consisting of territories “such as the king hath in right of the crown of England as parcel thereof or annexed thereto” (emphasis deleted))). Wong Kim Ark makes the apt point: as the common law stood in 1788,

aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. … The same 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.

169 U.S. at 658. So the original understanding, it seems clear, was that one became a natural-born citizen of England even if born outside of England itself, so long as born in territory subject to the sovereignty of England. So it seems reasonable to assume that the original meaning of “natural born Citizen” was basically the same in those recently-English colonies, viz., something to the effect of “within the dominion of the United States.” But what would “within the dominion of the United States” mean?

As it turns out, it can’t be as simple as just saying “within any U.S. state,” which is where we start to circle back to the point about the status of the PCZ. Just as the dominion of the Crown extended beyond the shores of England, our Constitution clearly contemplates that the United States will have territory within its dominion that isn’t a state: there’s the federal district clause in Article I, and Article IV § 3, which empowers Congress to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States....” If McCain had been born in the District of Columbia, presumably no one would contest his eligibility to the Presidency, despite his not having been born in any U.S. state. It’s a no-brainer: if you tried to argue that D.C., for all its peculiarities, wasn’t American soil, people would look at you funny. Yet concede that much, and you concede that the dominion of the United States isn’t coextensive with the aggregate dominions of the individual states. From its inception, the United States had territories to administer – that’s why the clause in Article IV exists. So what about persons born in territories other than D.C.?

As it turns out, no President has been born on land that wasn’t at that time either a state, or one of the thirteen colonies (although, as Kevin Johnson points out in the post linked at top, one-time presidential candidate Barry Goldwater was born in Arizona territory three years before its admission to the Union as a state). But suppose Abraham Lincoln had been born in Indiana Territory, instead of a few miles south in Kentucky (in 1809, Kentucky was a state, but Indiana was still a U.S. territory). Would Lincoln have been ineligible to the Presidency? To answer “yes,” you’d have to argue that the territories weren’t part of the United States, even though they were within the geographic boundaries of what we now think of as the United States, and even though, as Chancellor Kent noted, Congress has “supreme power in the government of the[ territories belonging to the United States], depending on the exercise of their sound discretion.” However, if the answer to the question is “no,” as I think it probably is, then the only question seeming to remain is whether the PCZ was a “territory” of the United States and therefore within its dominion.

The status of the PCZ is determined by looking to the instrument that created it. The United States acquired the Canal Zone by virtue of the 1904 Hay-Bunau Varilla Treaty. In Article III thereof, Panama ceded to the U.S. “all the rights, power and authority within the [canal] zone ... which the United States would possess and exercise[ ] if it were the sovereign of the territory within which said lands and waters are located....” By way of comparison, consider a contemporary treaty, the 1903 Cuban-American Treaty. By terms of that treaty, “Cuba hereby leases to the United States, for the time required for the purposes of ... naval stations" (emphasis added), the territory we now call Guantanamo Bay. Although it’s true that this is “no ordinary lease,” Rasul v. Bush, 542 U.S. 466, 487 (Kennedy, J., concurring), conferring as it does “complete jurisdiction and control in perpetuity, and the United States has subsequently exercised all the incidents of sovereignty over Guantanamo [Bay],” Boumediene v. Bush, No. 06-1195, Pet. Brief, 17 n.16 (internal quotation marks omitted), the contracting parties nevertheless “recognize[d] the continuance of the ultimate sovereignty of the Republic of Cuba” over Guantanamo, subject to the limitation that “the United States shall exercise complete jurisdiction and control over and within said areas” for the duration of the lease.

The Hay-Bunau Varilla Treaty is more explicit: it gave us “all the rights, power and authority within the [canal] zone ... which the United States would possess and exercise[ ] if it were the sovereign of the territory within which said lands and waters are located....” Still, that could probably be read two ways. You could say that the terms of the treaty seem to very strongly suggest that the United States would be either sovereign over the territory, or functionally so. That's the view that the Supreme Court has taken, see, e.g., O'Connor v. United States, 479 U.S. 27, 28 (1986) ("[f]rom 1904 to 1979, the United States exercised sovereignty over the Panama Canal"). But it wouldn't be irrational to say that the assignment of “all the rights, power and authority within the [canal] zone ... which the United States would possess and exercise[ ] if it were the sovereign” (emphasis added) implicitly denies that the treaty conveys actual sovereignty over the PCZ to the United States, rather than power equivalent to it.

And here I must end, because “dominion” almost certainly implies “sovereignty over,” so to really probe this question we’d have to get into an exegesis of concepts of sovereignty (and more particularly still, what the prevailing conception was in 1788), a question about which volumes and volumes have been written, and that we are not going to resolve in this place on this day. So with those thoughts, I leave it to the reader's contemplation to determine whether they think the PCZ was more like Guantanamo Bay or the Indiana Territory.

In the comments: Pat concurs in the judgment - and goes into more detail on the point here. To emphasize, we both agree on the relevant criterion, and although we each get there by a different route, reach the same result.

Update by Pat: Welcome to all the new visitors! We've added a quick update post to include a link to the New York Times story which has stirred up so much interest in this little non-story. While you're here, please kick the tires and check us out. We're not always this right, this early, but we try. Many thanks to the following bloggers for their links to this post: Patterico, Jammie Wearing Fool, Sister Toldjah, In From the Cold.

Post facto:
Eligibility, redux (5/2/08)
Line of succession, redux (7/28/08)
Houston, we have a problem (8/19/08)

1. 1. See, e.g. McConaughey v. Morrow, 263 U.S. 39, 45-6 (1923); Cunard S.S. Co. v. Mellon, 262 U.S. 100, (1923); McDonald v. United States, 279 U.S. 12, 19 n.1 (1929) (residence in the PCZ by aliens "may be considered residence within the United States"); United States v. Beach, 324 U.S. 193, 195 (1945).