Saturday, March 01, 2008

Blood and Soil

After a couple of days of discussing the McCain issue via blog comments, emails and telephone, I've decided that it is time to finally blog about it myself. So here goes. I have always felt that being a natural born citizen simply meant that you were a citizen at birth, whether by blood or by soil. And I still feel that that is what it should mean. That being said, I'd like to weigh in with my take on all the arguments that are being made about the McCain issue at the moment.

First, I don't think that anyone is arguing that McCain is not legally a citizen, as it is obvious beyond a shadow of a doubt that he is and has been from the time of his birth. If that is all it takes to be a natural born citizen then he is one, end of argument. However, the argument does not end there. Some assert that in order to be considered a natural born citizen you must be a citizen by soil.

Therefore a new question arises. Is McCain a citizen by both blood and soil or simply a citizen by blood? In a recent article from the AP, McCain states his position on the issue:
McCain himself insists the issue was put to rest when fellow Arizonan, Barry Goldwater, ran for president in 1964.

"Barry Goldwater was born in Arizona when it was a territory, Arizona was a territory, and it went all the way to the Supreme Court," McCain told reporters Thursday on his campaign plane. "And there's no doubt about that. And it was researched again in 2000."

The Panama Canal Zone was a U.S. territory when McCain was born on Aug. 29, 1936.
Again, this new information would seem to put the issue to rest, but again, it does not. Yet another question arises, was the Panama Canal Zone truly a US territory? I personally am not convinced that it was. Let us check the law on the issue.

On the issue of citizenship, US Code Title 8, Chapter 12, Subsection III, Part I, §1401 states:
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
This makes no distinction about the parentage of the individual, and in fact, even the children of illegal aliens born within the boundaries of the United States are indeed legal US Citizens. And given the US Supreme Court's ruling an Goldwater (which I would reference if I could find, but try as I might, I can't find it), it would seem to include territories of the US as well.

So, if the Panama Canal Zone was a US territory in 1936 as McCain and the above quoted article indicate, why does §1403 of the same US Code state the following?
(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.
Why does there need to be special instructions on the canal zone and why does at least one of the parents of a child born in the canal zone have to be a US citizen for that child to acquire citizenship at birth if it is indeed US soil? This would seem to me to indicate that individuals born here do not acquire citizenship by right of soil.

And then there is the text of the Hay-Bunau-Varilla Treaty itself which states:

The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority. [emphasis mine]
So that leads to the question of what exactly counts as a US territory? This treaty does not give the US actual sovereignty over the canal zone, but the same rights it would have if it had sovereignty.

In addition to that, the land was leased with annual lease payments due to Panama from the United States.
As the price or compensation for the rights, powers and privileges granted in this convention by the Republic of Panama to the United States, the Government of the United States agrees to pay to the Republic of Panama the sum of ten million dollars ($10,000,000) in gold coin of the United States on the exchange of the ratification of this convention and also an annual payment during the life of this convention of two hundred and fifty thousand dollars ($250,000) in like gold coin, beginning nine years after the date aforesaid.
Is this not the same type of arrangement the US has about Guantanamo? And does the administration not argue that Guantanamo is NOT US territory? It seems to me that you can't have it both ways. Either leased areas are territory or they are not. How can the Canal Zone be and Guantanamo not be?

For those who would point to the fact that he was born on a military base as proof that he was in fact born on US soil, we must take a brief look at the Foreign Affairs Manual which states in 7 FAM 1116.1-4:
c. Despite widespread popular belief, U.S. military installations abroad and U.S.
diplomatic or consular facilities are not part of the United States within the meaning of the
14th Amendment. A child born on the premises of such a facility is not subject to the
jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.
Now of course this is irrelevant to McCain's citizenship, as it undoubtedly is referring to the children of non-US citizens born in such locations, but it does address whether such citizenship is acquired by right of soil, which it obviously is not.

So in conclusion I will reiterate. I think that McCain should be eligible for the office of president because I believe that either right of blood or right of soil should suffice for meeting the "natural born" requirement spelled out in Article II of the Constitution. However, if it is determined that right of soil is necessary, then I don't believe he is eligible under the current law as is stands.

I think that if the case were brought before the Supreme Court they would probably find in McCain's favor, but I think that a very reasonable argument could be brought against such a ruling. I think that if, on the off chance, they did find that he did not qualify, there would be an immediate uproar for a Constitutional Amendment to either define "natural born" as including right of blood in addition to right of soil or to remove the "natural born" requirement altogether. I would be fine with removing it altogether, personally. But if it were removed, I think that the time requirement should be extended beyond a mere 14 years.

Anyway, that's my opinion and my argument given the information I currently have at my disposal. If someone has some other pertinent info that I'm missing I'd be happy to consider it. And I would really appreciate a link to the Supreme Court case involving Goldwater if anyone has it. Until then, that's my story and I'm sticking to it.


Anonymous said...

Filipino and Japanese Amerasians (G.I. babies) have been stripped of their right to become U.S. citizens. U.S. Public Law 97-359, known as the Amerasian Immigration Act of 1982.

That's what happens when you are not a 'natural born citizen' on US soil.

Expound on that ;)

Natural Born Citizen speaks for itself, otherwise why would it be natural ?

Look at natural born baby -vs- C-section. Is there a difference ? If, "no", then Panama John is a natural born citizen and so are the Amerasians denied citizenship.

Keep telling yourself Panama John is a natural born citizen, the Supreme Court will (lol)

The truth is a big lie

Jan said...

I will admit that in some of my earlier discussions I did bring up the fact that if you or your parents have to prove anything in order for you to considered an American citizen then I could see how that could be considered something other than "natural born".

Anonymous said...

"Natural born" implies receiving citizenship without the benefit of special legislation. Congress' principal power to grant citizen lies under the power to established a "uniform rule of naturalization . . . throughout the United States." There actually is no other express power permitting Congress to confer citizenship. From that, I would deduce that any legislation granting citizenship is a form of "naturalization." And a "naturalized" citizen is not a "natural born" citizen. A "natural born" citizen is one who becomes so as a result of the Constitution, and only a person born in the United States is so.

By the way, I never understood McCain's reference to Barry Goldwater and a "decision" by the Supreme Court that Goldwater was eligible because born in the Arizona territory before it became a state. I know of no such decision or opinion by that court.