Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship
Gabriel J. Chin
University of California, Davis - School of Law
August 13, 2008
Michigan Law Review First Impressions, Vol. 107, No. 1, 2008
Arizona Legal Studies Discussion Paper No. 08-14
Senator McCain was born in 1936 in the Canal Zone to U.S. citizen parents. The Canal Zone was territory controlled by the United States, but it was not incorporated into the Union. As requested by Senator McCain's campaign, distinguished constitutional lawyers Laurence Tribe and Theodore Olson examined the law and issued a detailed opinion offering two reasons that Senator McCain was a natural born citizen. Neither is sound under current law. The Tribe-Olson Opinion suggests that the Canal Zone, then under exclusive U.S. jurisdiction, may have been covered by the Fourteenth Amendment's grant of citizenship to "all persons born . . . in the United States." However, in the Insular Cases, the Supreme Court held that "unincorporated territories" were not part of the United States for constitutional purposes. Accordingly, many decisions hold that persons born in unincorporated territories are not Fourteenth Amendment citizens. The Tribe-Olson Opinion also suggests that Senator McCain obtained citizenship by statute. However, the only statute in effect in 1936 did not cover the Canal Zone. Recognizing the gap, in 1937, Congress passed a citizenship law applicable only to the Canal Zone, granting Senator McCain citizenship, but eleven months too late for him to be a citizen at birth. Because Senator John McCain was not a citizen at birth, he is not a "natural born Citizen" and thus is not "eligible to the Office of President" under the Constitution.
This essay concludes by exploring how changes in constitutional law implied by the Tribe-Olson Opinion, such as limiting the Insular Cases and expanding judicial review of immigration and nationality laws passed by Congress, could make Senator McCain a citizen at birth and thus a natural born citizen.
Number of Pages in PDF File: 62
Keywords: John McCain, Canal Zone, citizenship, naturalization, natural born citizen, president, presidential eligibility
JEL Classification: K33Accepted Paper Series
Date posted: July 11, 2008 ; Last revised: November 17, 2008
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