Skip to content

Stephen E. Sachs, Why John McCain was a Citizen at Birth, 29 Immigr. & Nat'lity L. Rev. 623 (2008).

Abstract: Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain's birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a "natural born Citizen" eligible to be president. A person need not be born on U.S. soil to be a citizen at birth. Section 1993 of the Revised Statutes, the statute defining foreign-born citizenship at the time of McCain's birth, made citizens of certain children "born out of the limits and jurisdiction of the United States." The Canal Zone was "out of the limits" of the United States -- i.e., outside its borders and outside the Fourteenth Amendment's grant of citizenship to those born "in the United States, and subject to the jurisdiction thereof." But the United States had exclusive control of the Canal Zone at the time, arguably placing it within U.S. "jurisdiction" if not its limits. Thus, Chin claims, McCain was not "born out of the limits and jurisdiction of the United States," falling instead into a "gap in the law." When Congress changed the law in 1937, it would have been too late for McCain to become a natural born citizen (assuming, with Chin, that this means a citizen at birth). Chin's sophisticated analysis deserves to be taken seriously, but history may point in another direction. The key statutory language, "the limits and jurisdiction of the United States," was first added in 1795. At the time, this language apparently referred to a unitary concept -- the United States proper, the area within its borders-rather than two independent concepts of "limits" and "jurisdiction." Like "metes and bounds" or "cease and desist," the phrase was a mere repetition -- a doublet, or (in the words of Judge Posner) one of the many "form[s] of redundancy in which lawyers delight." To be born "out of the limits and jurisdiction of the United States," it seems, was historically understood as synonymous -- and not just coextensive -- with being born outside the United States proper. The historical usage of the phrase and its continuous construction over the first century after 1795 supports this reading. Early interpreters -- including scholars, congressmen, and state and federal courts -- repeatedly referred to the "limits and jurisdiction" of the United States to mean the same thing as the nation's "limits" (i.e., its borders). Indeed, the term "limits and jurisdiction" was frequently used this way in contexts unrelated to citizenship. When separate requirements of limits and jurisdiction might otherwise have conflicted, courts and commentators uniformly adhered to a unitary interpretation of the statute. This interpretation was also consistent with the recognized purposes of the citizenship statutes, avoiding the absurdities of a restrictive reading. Only recently have some questioned this traditional interpretation; but because Congress did not alter the key language between 1795 and 1936, the provision's original meaning was preserved up to the date of McCain's birth. Thus, the balance of the evidence favors a view that John McCain -- and other children like him -- were citizens of the United States from birth.