John McCain's Citizenship: A Tentative Defense

52 Pages Posted: 3 Sep 2008 Last revised: 28 Dec 2014

Stephen E. Sachs

Duke University School of Law

Date Written: August 19, 2008

Abstract

Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be "natural born."

Even assuming, however, that McCain's citizenship depended on this statute - and ignoring his claim to citizenship at common law - Chin's argument may be based on a misreading. When the statutory language was originally adopted in 1795, it was apparently read to address all children born outside of the United States proper, which would include those born in the Canal Zone. Patterns of historical usage, early interpretations of the citizenship statutes, contemporaneous expressions of the statutes' purpose, and the actual application of the statutes to cases analogous to McCain's all confirm this understanding. More recently, the acquisition of America's outlying possessions lent plausibility to new interpretations of the law. But because the key language was never altered between 1795 and 1936, its original meaning was preserved intact, making John McCain a U.S. citizen at birth.

(An abridged version of this paper will soon be published online as part of a symposium hosted by the Michigan Law Review's First Impressions.)

Keywords: John McCain, Canal Zone, citizenship, naturalization, immigration, natural born citizen, presidential eligibility, statutory interpretation

JEL Classification: K00, K10, K33

Suggested Citation

Sachs, Stephen E., John McCain's Citizenship: A Tentative Defense (August 19, 2008). Available at SSRN: https://ssrn.com/abstract=1236882 or http://dx.doi.org/10.2139/ssrn.1236882

Stephen E. Sachs (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8542 (Phone)

HOME PAGE: http://law.duke.edu/fac/sachs

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