Ted Olson on McCain and 'natural born'

Posted: Thursday, February 28, 2008 1:55 PM by Mark Murray

From NBC's Joel Seidman
Ted Olson, the former Solicitor General under Bush who is advising McCain's camp on whether the Arizona senator being born in the Panama Canal Zone qualifies him to be president, emails NBC News: "Although I am continuing to research the matter, there is little doubt in my mind that Senator McCain fully meets the Constitution's qualifications to be President of the United States. In my view, the plain meaning of 'natural born citizen' includes persons who become citizens of this nation 'naturally,' that is by virtue of their birth to parents who are citizens, particularly when the birth takes place on territory occupied and controlled by the United States, in Senator McCain's case, a U. S. military base in the Panama Canal Zone. Indeed, the very First Congress, containing many Members who were the actual Framers of the Constitution, explicitly declared that children of United States citizens, born outside the limits of the United States, were 'natural born' citizens. I am confident that the United States Supreme Court, should it ever address the issue, would agree."

*** UPDATE *** I sent Jill Pryor, an Atlanta attorney, who 20 years ago wrote in the Yale Law Journal about the "Natural Born Enigma" an e-mail about Olson's remarks, and she said, in part, "Eligibility for ... children born on American military bases ... is also uncertain."

Here's what she wrote in full: "While I agree with Mr. Olson's conclusion, what I said in my article 20 years ago remains true today: 'Whether a person born abroad of American parents ... qualifies as natural born has never been resolved,' and that 'Eligibility for ... children born on American military bases ... is also uncertain.' Some have taken the view that 'natural born' means native born, that is, born in the United States, and there is no authority expressly to the contrary. The 'natural born' language in the naturalization statute passed by the first Congress, to which Mr. Olson refers, was deleted from a later version of the statute for unknown reasons. The early common law did not always provide that the children of citizens born abroad were citizens themselves, see for example dicta in Weedin v. Chin Bow, 274 U.S. 657, 663 (1927), and the automatic citizenship of persons born in United States territories or on military bases is of much more recent origin."

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Comments

"Sure, let's find a way to disqualify John McCain so it will be way easier for a Dem to get in office. "

It was OK to disqualify legal voters in FL to put the flying monkey in office. IF it weren't for cheating, the repukes wouldn't even be in the game.

"undermining the democratic process" HAHAHAHAHAHAHAHA

Thursday Afternoon (Sent Thursday, February 28, 2008 4:23 PM)

Bubba in Montana: Good one...Bethlehem!

not drinking the koolaid (Sent Thursday, February 28, 2008 4:24 PM)

"My understanding is that Obama was born in Hawaii BEFORE it was a state. Be careful what you wish for."
Walt, Myrtle Beach, SC (Sent Thursday, February 28, 2008 2:35 PM)

Walt, you said Obama was born in Hawaii before it was officially a state... The ratified date was August 21, 1959. Barack was born on August 4, 1961, just shy of 2 years after. Even with the gray area of occupancy that Panama may have, Obama is definitely a U.S. citizen by both blood and soil.

I am happy that my wishes appear to be coming true.

Obama '08!

Matt, Boise, ID (Sent Thursday, February 28, 2008 4:41 PM)

Wasn't McCain born in Ireland?

Dirp di dirp dirp! (Sent Thursday, February 28, 2008 5:00 PM)

Please note that John McCain is not a naturalized citizen. He is a U.S. citizen by birth. Under U.S. law, if an American chooses to live in another country, and bears or fathers a child there, the U.S. embassy in that country will grant U.S. citizenship to the child upon presentation of proof that the child has a parent who is a U.S. citizen. The birth does not need to occur on U.S. soil, and the both parents do not need to be U.S. citizens, just one of them. As a former soldier who has been stationed abroad, I have seen this done many times.

If the parents do not apply for U.S. citizenship at the time of birth, it can be applied for later, although time may make it more difficult to prove the paternity-maternity links. (Thus, Senator Obama would be a born, not naturalized, U.S. citizen, even if he had been born in Kenya, rather than Hawaii, because his mother was a U.S. citizen.)

If you want to attack the logic of Mr. Olson's legal reasoning on "natural born," you should attack the premises and warrants of his reasoning. Attacking his conclusions because of his connections to the Administration is illogical, and smacks of desperation. And it makes all of us Democrats look irrational.

Mark, Ashburn, VA (Sent Thursday, February 28, 2008 5:38 PM)

I am not sure Panama qualifies as US soil? McCain is a US citizen by birth; however, the constitution does not tell us if Panama qualifies as US State. I hope he was born in American's military base located in Panama or American Embassy in Panama. Anything short of this could pose problem for John McCain.

This is going to be an interesting development.

Bee (Sent Thursday, February 28, 2008 5:52 PM)

Hey, if they disqualify John McCain, maybe the Republican Party can get Alan Keyes to run against Barack Obama again. It worked so well in Illinois during Obama's senate run back in 2004.

Billy G., Oak Brook, IL (Sent Thursday, February 28, 2008 6:40 PM)

I'm an Obama supporter and this story about McCain is just a lot of noise. Natural born refers to being a birthright citizen as opposed to being a naturalized citizen. McCain is clearly a birthright citizen and is qualified under the constitution to be President, end of story. What fool would tell two US citizens serving in our military in an occupied zone that any children they might have would not later be eligible to be President.

A few legal "scholars" are getting their 15 minutes of fame by speculating publicly about this and the New York times is I guess selling a few more papers today by running with it.

I'm almost starting to agree with McCain that the NYT seems to personally have it in for him. I'm planning to vote for Obama, but this crazy speculation about McCain's constitutional ability to be President needs to stop.

It would be more interesting, but still wrong, to say that since for certain purposes the law considers a married couple to be one person (i.e. a spouse cannot be compelled to testify against their spouse under the right to refuse to self-incriminate) that Hillary Clinton could not become President because Bill already served two full terms. Such an interpretation would be wrong, but has more going for it than the silly McCain story here.

John, Morgan Hill, California (Sent Thursday, February 28, 2008 8:50 PM)

MY GOD!
HOW DISGRACEFUL THESE LETTERS ARE. SOME OF YOU OBAMA SUPPORTERS ARE JUST DISGUSTING.
I AM PROUDLY A CLINTON SUPPORTER, BUT I APPRECIATE JOHN McCAINS SERVICE TO HIS COUNTRY AND I DON;T THINK WHEN HE WAS HELD IN A PRISON CAMP FOR 5 YEARS ANY OF US EVER WONDERED IF HE WAS A CITIZEN OF THIS COUNTRY OR NOT. IN FACT I THINK ANYONE WHO GOES TO WAR FOR OUR COUNTRY AND GETS A HONORABLE DISCHARGE FROM OUR ARMED SERVICES THEY SHOULD AUTOMATICLY BE GIVEN LEGAL STATUS. I AM NOT FOR McCAIN, BUT NEITHER AM I AGAINST HIM. HE CERTAINLY HAS PAID A BIGGER PRICE THAN MOST OF THE REST OF US, DON'T YOU THINK!

YELLOW DOG DEM. AR. (Sent Thursday, February 28, 2008 9:16 PM)

This is silly. Only morons would not know that Mccain is a natural born citizen, therfore ....

dan, chicago, is there another chicago? (Sent Thursday, February 28, 2008 9:58 PM)

I am starting to get disappointed with this Website. Some of these comments are clearly racist and still are being approved for posting. How can you possibly not catch someone calling Obama "Ghetto Scum" and understand the racial implications.

Jeremy FF, Warren, MI (Sent Thursday, February 28, 2008 10:56 PM)

This is not a slam dunk issue. The U.S. Constitution says that only "natural born citizens" are eligible to be President. Does that include foreign born children of U.S. citizens? Apparently, the U.S. Congress in 1790 did not think so; they enacted that year a law to confer citizenship status to such children. When our Constitution was written we did not have any foreign military bases or embassies. We had just won a war with England to claim the 13 colonies. There is a very good argument that the Constitution, when written, did not conceive of a need to confer any form of citizenship status on foreign born (even to US citizens). A mere act of Congress does not change the U.S. Constitution. People seem to think that because Congress eventually gave citizenship status to certain foreign born persons, that McCain has nothing to worry about. They forget that Congress has no power to change the meaning of the U.S. Constitution. It takes a Constitutional Amendment. I agree that it would be a travesty for McCain not to be eligible. However, it was a travesty that Blacks were not treated as full persons and that women could not vote. The U.S. Supreme Court could not save the day because it was constrained by the Constitution. It took the 14th, 15th and 22nd Amendment to right those wrongs. Will it take a similar amendment to allow foreign born persons of US citizens to be U.S. President? (It is noteworthy that even the U.S. State Department acknowledges that children born to US diplomats abroad and at foreign US military bases are not considered natural born U.S. citizens; they are considered citizens at birth, not citizens due to place of birth. Place of birth, rightly or wrongly, has always mattered to the U.S. Supreme Court and Congress.)

Andy Gutierrez (Sent Friday, February 29, 2008 1:23 AM)

Ted Olson’s comments are constitutionally correct on natural born citizen especially persons who are American citizens naturally by virtue of their birth to parents who are American citizens, particularly when the birth takes place on territory occupied and controlled by the United States, in Senator McCain's case, a U. S. military base in the Panama Canal Zone.

No one has questioned Barak Hussein Obama’s legitimacy as natural born citizen especially when he was born in Hawaii, US controlled territories to a father from Kenya and mother from Kansas. Also, I wonder why Barak Hussein Obama never recites the pledge of allegiance with his right hand over his heart.

Herb, Houston, TX (Sent Friday, February 29, 2008 8:25 AM)

IT's interesting that McCain plans to appoint judges that strictly interpret the Constitution (the mantra of the GOP). This I suppose apllies to interpreting the Constitution as it applies to reproductive rights, privacy rights, gay rights and affirmative action but in issues effecting his candidacy, McCain and his Republican friends in the White House are willing to apply a more liberal interpretation of Constitutional law.

Franc. New York. New YOrk (Sent Friday, February 29, 2008 9:01 AM)

Well kids McCain WAS born in the US. Far too many folks have forgotten history. At that time the area his family lived in was the US Canal Zone, sovereign US territory seceded to the US by the new country of Panama in the deal to build the canal. Just like other US territories; Guam, Porto Rico, American Samoa, ect. Those born there are US Citizen. In fact USC Title 8, Sec 1403 grants citizenship to a person born in the Zone with at least one parent who is a United States citizen.

Phil, Washington DC (Sent Friday, February 29, 2008 11:44 AM)

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