Friday, August 29, 2008

Sachs on John McCain's Citizenship: A Tentative Defense

The issue of John McCain's citizenship at birth, and therefore his eligibility for the presidency, gets another look in a new paper by Stephen E. Sachs, John McCain's Citizenship: A Tentative Defense. Sachs takes issue with the analysis in Gabriel Chin's recent paper, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship. Sachs is a recent Yale J.D. and judicial law clerk, and will be practicing law in Washington, D.C. Here's Sachs's 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.