Sunday, March 23, 2008

SENATOR JOHN McCAIN--NATURAL-BORN

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."--Citizenship Clause
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SUMMARY
Senator John McCain was born in 1936 of American parents in the Panama Canal Zone, out of the limits of the United States. Owing to this circumstance of his birth, it is claimed that he may not qualify as a "natural-born citizen"; hence, ineligible to the presidency.

What is confusing to most Americans is that, under the current reading of the Citizenship Clause, the children of aliens "born in the United States, and subject to the jurisdiction thereof" are deemed "natural born" and hence, eligible to the presidency, but children of American parents "born abroad," out of the limits of the United States, are not.

However, there is this rule of Partus sequitur patrem--the "status of the child follows the father"--that Chief Justice Melville Fuller, dissenting in U.S. v. Wong Kim Ark (1898), cited:

"[I]t seems to me that the rule, 'Partus sequitur patrem,' has always applied to children of our citizens born abroad, and that the acts of congress on this subject are clearly declaratory, passed out of abundant caution, to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere."

In fact, during the same year Congress debated and approved the Citizenship Clause in 1866, Justice Noah Haynes Swayne in U.S. v. Rhodes declared that:

"All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together." (bold added)

In this regard, Chief Justice Morrison R. Waite in Minor v. Happersett (1874) held that:

"Allegiance and protection are, in this connection (that is, in relation to citizenship) reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance." (bold added)

Justice Swayne and Chief Justice Waite are, of course, merely echoing what Sir William Blackstone in Commentaries on the Laws of England (1765) said concerning the relationship between "natural-born" and allegiance:

"Natural-born subjects are such as are born within the dominions of the crown of England, that is, within … the allegiance of the king … Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject."

Earlier, it was Sir Edward Coke in Calvin’s Case (1608) who first articulated the significance of the relationship between "natural-born" and allegiance to the common-law principle on birthright:

"Neither the climate nor the soil but obedience and allegiance that makes the subject born."

Allegiance acts as the unifier of the two distinct class of citizens--the "natural-born" and the "naturalized"--and it is this allegiance owed that marks the citizen off from an "alien" subject to a foreign power.

Allegiance, in fact, becomes the equalizer. For the obligation of allegiance that attaches to the child at birth ("Birth and allegiance go together" U.S. v. Rhodes, otherwise born stateless) in compensation for "protection" afforded (Minor v. Happersett), either by (a) the "right of soil" (jus soli) or by (b) the "right of blood" (jus sanguinis), is the same obligation of allegiance an alien after birth is mandated to pledge to be admitted as a "naturalized citizen."

This paper argues that a "natural-born citizen" of the United States is best defined as a person "born in the allegiance of the United States," since allegiance in compensation for protection is the sole determinant--Blackstone's "tie or ligamen"--to citizenship at birth or after birth.

During the Citizenship Clause debate, Senator Lyman Trumbull, Judiciary Committee Chair and author of the 1866 Civil Rights Act, defined the phrase “subject to the jurisdiction thereof”:

"Mr. TRUMBULL … What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means." (bold added)

What Senator Trumbull is, of course, conveying in his definition of the phrase is that “owing allegiance” is simply the "reciprocal" obligation in return for "protection" (Minor v. Happersett) extended to persons “subject to the jurisdiction of the United States” and in compensation for the attendant rights, privileges and immunities persons "owing allegiance" are guaranteed to enjoy, as distinguished from persons merely "within the jurisdiction" of the United States, which refers to “anyone, citizen or stranger who is subject to the laws of the State” as defined in Plyler v. Doe (1982).

This paper argues that, under the Citizenship Clause--grammatically read as the author intended it to convey--the children of American parents, or of persons owing allegiance to the United States, even if "born abroad," are persons "born in the allegiance of the United States" and hence, "natural-born" citizens of the United States.

More significant during the debate, Senator James Doolittle directly quoted (shown printed in quotation marks in the scanned original Congressional Globe transcript) how “the language” of the phrase, "subject to the jurisdiction thereof," that Senator Howard authored, was understood to be read:

"Mr. DOOLITTLE ... But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language which he [the author, Senator Howard] uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does ..." (bold added)

To repeat for emphasis the words printed in quotation marks Senator Doolittle refers to as "the language" the author of the Clause, Senator Howard, used: "all persons subject to the jurisdiction of the United. States"

Now why would Senator Doolittle add the words "all persons" to the phrase "subject to the jurisdiction of the United States"?

Did Senator Howard, the author, intend the phrase to be read in this way or, reciprocally, as Senator Trumbull defined it during the debate, cited earlier above--"All persons owing allegiance to the United States"?

Is this not what Justice Noah Haynes Swayne in U.S. v. Rhodes similarly declared during the same year the Clause was debated in 1866, cited here--“All persons born in the allegiance of the United States are natural-born citizens"?

Surprisingly, Senator Doolittle's direct quotation of how the phrase was understood to be employed in the Clause has never been accorded the critical attention and widespread scrutiny it deserves and remains to this day lamentably unnoticed.

For under U.S. v. Wong Kim Ark (1898), the phrase "and subject to the jurisdiction thereof" is viewed, on the contrary, as "restrictive," or merely as a "qualifying phrase" of the element preceding it, "All persons born or naturalized in the United States," to exclude the already "recognized exceptions"--"the children born of alien enemies in hostile occupation and children born of diplomatic representatives of a foreign state."

Dissenting, Chief Justice Fuller (with Justice John Marshall Harlan concurring), adds a disturbing note:

"If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect." (bold added)

Chief Justice Fuller later reiterates his view:

"In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this government. If not, and if the correct view is that they were aliens, but collectively naturalized under the acts of congress which recognized them as natural born, then those born since the fourteenth amendment are not citizens at all unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized 'in the United States.'" (bold added)

So, if the children of American parents born in the Panama Canal Zone are to be regarded as having been "born abroad"; then, to Chief Justice Fuller, Senator McCain was born an "alien," with the rather grim caveat that "no statutory provision to the contrary is of any force or effect," including the Naturalization Acts.

Chief Justice Fuller offers an alternative reading concerning the "exceptions":

"But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanent allegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would. (bold added)

"And it was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted.

Chief Justice Fuller, of course, was merely reiterating what Justice Samuel Miller earlier said in The Slaughter House Cases (1873):

“The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States.” (bold added)

The stark reality of excluding "the children of aliens" Chief Justice Fuller raised as the more reasonable ground behind the inclusion of the phrase--and its reciprocal relation to allegiance--to account for "exceptions" is no doubt the one seemingly insurmountable consequence of the Wong Kim Ark reading that needs to be convincingly explained, since the reading of the phrase to account for already "recognized exceptions" that can later on be stretched to even include "the children of aliens" or of "citizens or subjects of foreign states" would ran counter to the basic common law principle behind the jus soli rule, to the effect that the status of the child does not depend upon parentage but upon the place of birth alone.

What is distressing to note is that the “qualifying phrase” view is now the accepted gospel truth; thus, to claim or even suggest an altogether different reading of the phrase in the context of the Clause is unthinkable (even idiotic?). Perhaps, the issue concerning Senator McCain's "natural-born" status may yet turn out to be the opportunity to take a closer look at the over-century old Wong Kim Ark reading of the Clause.

This paper argues that the Wong Kim Ark reading of the phrase, "and subject to the jurisdiction thereof," in the Citizenship Clause is grammatically incorrect.

Note that the words "or naturalized" in the Clause as ratified do not appear in the draft the author, Senator Jacob Merritt Howard, proposed that was debated and "agreed to" on the same day he submitted it on May 30, 1866. Rather, the words were inserted a full week later on June 8th "after the word 'born,'" upon motion of Senator William Pitt Fessenden, Chair of the powerful Joint Committee on Reconstruction, and "agreed to," without any debate, "by general consent":

Take careful note, too, that the phrase “and subject to the jurisdiction thereof” is enclosed within a pair of commas. And the relevant punctuation rule in elementary English grammar is clear: “If it can be omitted,” which means that the element is “non-restrictive, it can be set off by commas”; if not, which means that the element is “restrictive, it should not be set off by the comma.”

In placing the first comma before the coordinator “and,” the rule laid down in The Elements of Style by Strunk (1918) applies: “If a parenthetic [or non-restrictive] expression is preceded by a conjunction,” the rule is “place the first comma before the conjunction, not after it.” And, in the case of the second comma placed before the linking verb “are,” “Grammar English's Famous Rule of Punctuation” is: “Never use only one comma between a subject and its verb.”

In fact, a "restrictive" phrase is precisely what the same 39th Congress employed in a similar clause in the 1866 Civil Rights Act it enacted barely two months earlier by omitting the comma before the conjunction "and":

"All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."

Here, owing to the omission of the comma before the conjunction "and," the phrase "not subject to any foreign power" is undoubtedly "restrictive," a "qualifying phrase" of the element preceding it, "All persons born."

But the phrase "and subject to the jurisdiction thereof" in the Clause (even if synonymous to that in the Civil Rights Act) is enclosed between a pair of commas, which, as defined, is "non-restrictive"; so, why is it read under Wong Kim Ark as "restrictive," a qualifier of the element preceding it, ignoring altogether the commas?

Although this matter is best left to grammarians to definitively resolve; nonetheless, the fact remains that, since it was the same 39th Congress and its Committee on Style that edited these similarly-phrased provisions written barely two months apart, would they have applied the same elementary English grammar rule selectively, arbitrarily?

Thus, in the case of the Citizenship Clause, by inserting the first comma before the coordinator "and," and the second before the linking verb "are," the author is grammatically conveying the intention that the phrase he enclosed between the commas, "and subject to the jurisdiction thereof," is "non-restrictive."

What this means, of course, is that the Clause Senator Howard framed consists instead of a compound subject and that he purposely enclosed the phrase, "and subject to the jurisdiction thereof," within a pair of commas (with the crucial first comma before the coordinator "and") so as not to be mistakenly confused later as "restrictive," a "qualifying phrase" of the element preceding it, and to grammatically identify the "non-restrictive" phrase enclosed between the commas as the second subject of the compound.

Structured, therefore, as the second of a compound subject, joined in coordinate configuration to the first by the conjunction "and," the phrase is worded as the elliptical for the complete construction "and [all persons] subject to the jurisdiction of the United States"--with the main noun phrase "all persons" omitted rather than stated or repeated for brevity or style, inferable from the main noun phrase in the first subject it is coordinate with, "All persons born in the United States," (sans the words "or naturalized" which was inserted a week later), defining a still-unrecognized category of citizens of the United States.

Hence, grammatically analyzed, "the language" that the author, Senator Howard, employed in his draft of the Clause that Senator Doolittle cited refers to a separate, still unrecognized category of citizens of the United States-"All persons subject to the jurisdiction of the United States"--at birth or after birth!

Justice John Marshall Harlan in Elk v. Wilkins (1884) argues a somewhat similar view, compelling even in dissent:

"Our brethren, it seems, construe the Fourteenth Amendment as if it read: ‘All persons born subject to the jurisdiction of, or naturalized in, the United States are citizens of the United States and of the State wherein they reside;’ whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States." (bold added)

Thus, the Clause is not just about jus soli, after all; for what Justice Harlan is saying here is that the Clause should be read as likewise conferring citizenship upon persons “from and after the moment they become subject to the complete jurisdiction of the United States” or after birth, “in respect of persons born in this country.”

Certainly, if being "subject to the complete jurisdiction" (or, reciprocally, "owing allegiance") is also the key to citizenship and not just upon the soil of birth; then, "in respect of persons born" out of the limits of this country to parents already "subject to the complete jurisdiction of the United States" (or, reciprocally, "owing allegiance" thereto), Justice Harlan's reading can be made to apply equally as well.

This long-overlooked reading Senator Doolittle cited that Justice Harlan echoed in dissent harmonizes with the intent the author, Senator Howard, underscored during his sponsorship speech that the draft he fashioned provides an all-encompassing, comprehensive definition of citizenship:

"Mr. HOWARD. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law, a citizen of the United States... This ... will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States." (bold added)

So, since there can only be one class of “persons born in the United States"--birthright under jus soli being a unique status vested at birth, upon the indelible circumstance of place of birth, irrespective of parentage, race, color, creed or purse (the slave-born and anchor babies included)--the question is:

At that time in 1866, who belonged to this category of "every other class of persons" already recognized "by virtue of natural law and national law" to be citizens of the United States that the author himself declared his draft "will include" in order to settle with finality "the great question of citizenship" and remove "all doubt as to what persons are or are not citizens of the United States"?

The children of U.S. citizens born abroad are, of course, included among those who belonged to the category of "every other class of persons," since these children were already recognized "by virtue of national law" to be citizens of the United States at the time the Clause was debated in 1866, even as far back as the Naturalization Act of 1790, as amended in 1795, 1802 and 1855.

Under the Wong Kim reading, however, the children of U.S. citizens "born abroad" definitely do not fall under the category of "every other class of persons" that the author, Senator Howard, said his draft "will include," since citizenship of the United States, in the view of the majority opinion, is restricted to those "born or naturalized in the United States" (and nowhere else, other than "in the United States" alone) who must--at the moment of birth or naturalization--be "subject to the jurisdiction thereof" or owe allegiance thereto.

So, contrary to the intent Senator Howard declared during his sponsorship speech, the Wong Kim Ark reading does not "include every other class of persons" already conferred "by virtue of natural law and national law" to be citizens of the United States at the time the Clause was debated in 1866, apart from the class of persons "born in the United States." And it certainly does not settle "the great question of citizenship"; nor does it remove "all doubt as to what persons are or are not citizens of the United States."

In this light, the phrase "and subject to the jurisdiction thereof" in the Clause should have been read instead to signify what the author, Senator Howard, grammatically intended it to convey, which is the "language" Senator Doolittle during the debate directly cited and Justice Harlan in Elk v. Wilkins similarly advocated--to include a separate category of "every other class of persons" already recognized "by virtue of natural law and national law" to be citizens of the United States, if only to justify his contention, bold and sweeping as it is, that the draft he proposed "settles the great question of citizenship" and "removes all doubt as to what persons are or are not citizens of the United States," and that is, "All persons subject to the jurisdiction of the United States"--at birth or after birth.

Senator Howard highlighted the importance of this “great question of citizenship” that his draft was intended to resolve, by bluntly reminding his colleagues that the sanctity of citizenship conferred upon “all persons” recognized and qualified "by virtue of natural law and national law" would now be enshrined finally in the tabernacle of the Constitution, well beyond the tentacles of the legislative power:

"Mr. HOWARD. We desired to put this question of citizenship and the rights of citizenship and freedmen beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by its roots and destroy it, and expose the freedmen again to the oppressions of their old masters." (Bold added)

This paper concludes that, grammatically read as the author, Senator Jacob Merritt Howard, intended it to convey, the Citizenship Clause of the Fourteenth Amendment proclaims that:

"All persons born or naturalized in the United States, and [all persons] subject to the jurisdiction thereof, are citizens of the United States and [citizens] of the State wherein they reside."

With the Citizenship Clause grammatically read as intended, the two post-Civil War Amendments, 13th (1865) and 14th (1868), can now be viewed to convey consistency, oneness of intent--Equal Protection in two areas of concern in relation to “the sanctity of the person”: (1) "in the United States"; and (2) "subject to the jurisdiction of the United States”:

THIRTEENTH: The abolition of Slavery or involuntary servitude inflicted upon persons:
(1) "within the United States"; or
(2) "any place subject to their jurisdiction."

FOURTEENTH: The rights, privileges and immunities U.S. Citizenship confers upon persons:
(1) "born in the United States"; and
(2) "subject to the jurisdiction thereof"

Thus, having been born of parents "subject to the jurisdiction" and, reciprocally, "in the allegiance," of the United States, which falls squarely under the still-unrecognized category enclosed between a pair of commas in the Citizenship Clause, grammatically read as intended, the author, Senator Howard, refers to as "every other class of persons," apart from those "born in the United States"--

Senator John McCain is a "natural-born citizen" of the United States.

NOTE: This is the summary. Copy of Paper available. Please place your request at the Comment box.

2 comments:

Vince Treacy said...

This is a very good discussion. It should be shared with Ted Olson, tolson@gibsondunn.com. He should be asked for a copy of the report he did with Professor Tribe.

All those who are interested should take a look at GW Law Professor Jon Turley's blog:

http://jonathanturley.org/2008/03/29/olson-and-tribe-argue-that-mccain-is-natural-born/

scottwww said...

There is an ongoing discussion on both sides of the issue at http://johnmccain.dominates.us/forum/ where you are invited to participate.