April 30, 2008 CONGRESSIONAL RECORD — SENATE S3645 JOHN S. MCCAIN, III CITIZENSHIP George Romney, was also born outside the office of President of the United States. of the United States. He was widely un- Professor Tribe and I are in agreement that Mr. BROWN. Mr. President, I ask the circumstances of Senator McCain’s birth unanimous consent the Senate proceed derstood to be eligible to be President. Senator Barry Goldwater was born in a to American parents in the Panama Canal to the immediate consideration of Cal- Zone make him a natural born citizen within endar No. 715, S. Res 511. U.S territory that later became the the meaning of the Constitution. The PRESIDING OFFICER. The State of Arizona. Certainly those who Please do not hesitate to contact me if I clerk will report the resolution by voted for these two Republican can- can be of further assistance in this matter. title. didates believed that they were eligible Very truly yours, The legislative clerk read as follows: to assume the office of the President. THEODORE B. OLSON. A resolution (S. Res. 511) recognizing that Because he was born to American MARCH 19, 2008. John Sidney McCain, III, is a natural born citizens, there is no doubt in my mind We have analyzed whether Senator John citizen. that Senator MCCAIN is a ‘‘natural born McCain is eligible for the U.S. Presidency, in There being no objection, the Senate Citizen’’. I recently asked Secretary of light of the requirement under Article II of proceeded to consider the resolution. Homeland Security Michael Chertoff, a the U.S. Constitution that only ‘‘natural Mr. LEAHY. Mr. President, today we former Federal judge, if he had any born Citizen[s] . . . shall be eligible to the are considering a bipartisan resolution doubts in his mind. He did not. Office of President.’’ U.S. Const. art. II, § 1, to express the common sense of all in Former Solicitor General Theodore cl. 5. We conclude that Senator McCain is a ‘‘natural born Citizen’’ by virtue of his birth this Chamber that Senator MCCAIN is a Olson and Harvard Law School Pro- fessor Laurence Tribe also analyzed the in 1936 to U.S. citizen parents who were serv- ‘‘natural born Citizen,’’ as the term is ing their country on a U.S. military base in used in the Constitution of the United issue and came to the same conclu- the Panama Canal Zone. The circumstances States. Last week the Judiciary Com- sion—that Senator MCCAIN is a natural of Senator McCain’s birth satisfy the origi- mittee voted unanimously to report born citizen eligible to serve as Presi- nal meaning and intent of the Natural Born this resolution to the Senate. I urge dent. Citizen Clause, as confirmed by subsequent Senators to come together to pass this Our bipartisan resolution would legal precedent and historical practice. bipartisan resolution without delay. make it clear that Senator MCCAIN, The Constitution does not define the mean- ing of ‘‘natural born Citizen.’’ The U.S. Su- Our Constitution contains three re- born in 1936 on an American Naval base to U.S. citizens, is a ‘‘natural born Cit- preme Court gives meaning to terms that are quirements for a person to be eligible not expressly defined in the Constitution by to be President—the person must have izen. We should act today on a bipar- looking to the context in which those terms reached the age of 35; must have re- tisan basis to erase any doubt that are used; to statutes enacted by the First sided in America for 14 years; and must Senator MCCAIN is eligible to run for Congress, Marsh v. Chambers, 463 U.S. 783, be a ‘‘natural born Citizen’’ of the President because of his citizenship 790–91 (1983); and to the common law at the United States. Certainly there is no status. time of the Founding. United States v. Wong Kim Ark, 169 U.S. 649, 655 (1898). These doubt that Senator MCCAIN is of suffi- I ask unanimous consent that the sources all confirm that the phrase ‘‘natural cient years on this Earth and in this legal analysis of Theodore Olson and Laurence Tribe be printed in the born’’ includes both birth abroad to parents country given that he has been serving who were citizens, and birth within a na- RECORD. in Washington for over 25 years. ‘‘How- tion’s territory and allegiance. Thus, regard- ever, some have raised the question There being no objection, the mate- less of the sovereign status of the Panama whether he is a ‘‘natural born Citizen’’ rial was ordered to be printed in the Canal Zone at the time of Senator McCain’s because he was born outside of the RECORD, as follows: birth, he is a ‘‘natural born’’ citizen because United States. GIBSON, DUNN & CRUTCHER LLP, he was born to parents who were U.S. citi- JOHN SIDNEY MCCAIN, III, was born to Washington, DC, April 8, 2008. zens. Re legal analysis of question whether Senator Congress has recognized in successive fed- American citizens on an American eral statutes since the Nation’s Founding Naval base in the Panama Canal Zone John McCain is a natural born citizen eligi- ble to hold the office of President. that children born abroad to U.S. citizens in 1936. His father was serving in the Hon. PATRICK J. LEAHY, are themselves U.S. citizens. 8 U.S.C. Navy at that time. Chairman, Committee on the Judiciary, U.S. § 1401(c); see also Act of May 24, 1934, Pub. L. It is possible that at the time of our Senate, Dirksen Senate Office Building, No. 73–250, § 1, 48 Stat. 797, 797. Indeed, the Nation’s founding, the Framers of our Washington, DC. statute that the First Congress enacted on Constitution could not imagine how DEAR CHAIRMAN LEAHY: Pursuant to a re- this subject not only established that such pronounced our commitments overseas quest received from the staff of your Com- children are U.S. citizens, but also expressly would become but it would make no mittee, I enclose for your and your Commit- referred to them as ‘‘natural born citizens.’’ tee’s consideration a copy of my and Pro- Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 104. sense to limit the careers of children fessor Laurence Tribe’s analysis of the ques- Senator McCain’s status as a ‘‘natural born to military families simply be- tion whether Senator John McCain is a nat- born’’ citizen by virtue of his birth to U.S. cause they were stationed overseas. ural-born citizen eligible, under Article II of citizen parents is consistent with British Similarly, it would not make sense to the Constitution, to hold the office of Presi- statutes in force when the Constitution was punish children born to foreign service dent of the United States. Professor Tribe drafted, which undoubtedly informed the families or Ambassadors stationed and I are in agreement that the cir- Framers’ understanding of the Natural Born overseas or children born overseas to cumstances of Senator McCain’s birth to Citizen Clause. Those statutes provided, for example, that children born abroad to par- American missionaries. They are all American parents in the Panama Canal Zone make him a natural-born citizen within the ents who were ‘‘natural-born Subjects’’ were American citizens at the time of their meaning of the Constitution. also ‘‘natural-born Subjects . . . to all In- birth. Please do not hesitate to contact me if I tents, Constructions and Purposes whatso- Numerous legal scholars have looked can be of further assistance in this matter. ever.’’ British Nationality Act, 1730, 4 Geol. into the purpose and intent of the Very truly yours, 2, c. 21. The Framers substituted the word ‘‘natural born Citizen’’ requirement. As THEODORE B. OLSON. ‘‘citizen’’ for ‘‘subject’’ to reflect the shift far as I am aware, no one has discov- from monarchy to democracy, but the Su- ered any reason to think that the GIBSON, DUNN & CRUTCHER LLP preme Court has recognized that the two Framers would have wanted to limit Washington, DC, April 8, 2008. terms are otherwise identical. See, e.g., Hen- Re legal analysis of question whether Senator nessy v. Richardson Drug Co., 189 U.S. 25, 34– the rights of children born to Ameri- John McCain is a natural born citizen eligi- 35 (1903). Thus, the First Congress’s statu- cans abroad or that such a limited view ble to hold the office of President. tory recognition that persons born abroad to would serve any noble purpose en- Hon. ARLEN SPECTER, U.S. citizens were ‘‘natural born’’ citizens shrined in our founding document. Ranking Member, Committee on the Judiciary, fully conformed to British tradition, where- Based on the understanding of the per- U.S. Senate, Dirksen Senate Office Build- by citizenship conferred by statute based on tinent sources of constitutional mean- ing, Washington, DC. the circumstances of one’s birth made one ing, it is widely believed that if some- DEAR SENATOR SPECTER: Pursuant to a re- natural born. quest received from Democratic Committee There is a second and independent basis for one is born to American citizens any- staff, I enclose for your consideration a copy concluding that Senator McCain is a ‘‘nat- where in the world they are natural of my and Professor Laurence Tribe’s anal- ural born’’ citizen within the meaning of the born citizens. ysis of the question whether Senator John Constitution. If the Panama Canal Zone was It is interesting to note that another McCain is a ‘‘natural born citizen’’ eligible, sovereign U.S. territory at the time of Sen- previous Presidential candidate, under Article II of the Constitution, to hold ator McCain’s birth, then that fact alone

VerDate Aug 31 2005 04:56 Jun 26, 2008 Jkt 069060 PO 00000 Frm 00093 Fmt 4624 Sfmt 0634 J:\CRONLINE\2008BA~2\2008NE~2\S30AP8.REC S30AP8 mmaher on PROD1PC76 with CONG-REC-ONLINE S3646 CONGRESSIONAL RECORD — SENATE April 30, 2008 would make him a ‘‘natural born’’ citizen ‘‘Foreigners’’ attaining the position of Com- APPOINTMENTS under the well-established principle that mander in Chief. 3 Max Farrand, The Records ‘‘natural born’’ citizenship includes birth of the Federal Convention of 1787, at 61 The PRESIDING OFFICER. The within the territory and allegiance of the (1911). It goes without saying that the Fram- Chair, on behalf of the Vice President, United States. See, e.g., Wong Kim Ark, 169 ers did not intend to exclude a person from pursuant to 22 U.S.C. 276d–276g, as U.S. at 655–66. The Fourteenth Amendment the office of the President simply because he amended, appoints the following Sen- expressly enshrines this connection between or she was born to U.S. citizens serving in ators as members of the Senate Delega- birthplace and citizenship in the text of the the U.S. military outside of the continental tion to the Canada-U.S. Inter- Constitution. U.S. Const. amend. XIV, § 1 United States; Senator McCain is certainly parliamentary Group conference during (‘‘All persons born or naturalized in the not the hypothetical ‘‘Foreigner’’ who John United States, and subject to the jurisdic- Jay and George Washington were concerned the Second Session of the 110th Con- tion thereof, are citizens of the United might usurp the role of Commander in Chief. gress: the Honorable GEORGE V. States. * * * ’’) (emphases added). Premising Therefore, based on the original meaning VOINOVICH of Ohio, and the Honorable ‘‘natural born’’ citizenship on the character of the Constitution, the Framers’ intentions, LISA A. MURKOWSKI of Alaska. of the territory in which one is born is root- and subsequent legal and historical prece- f ed in the common-law understanding that dent, Senator McCain’s birth to parents who persons born within the British kingdom and were U.S. citizens, serving on a U.S. military ORDERS FOR THURSDAY, under loyalty to the British Crown—includ- base in the Panama Canal Zone in 1936, APRIL 30, 2008 ing most of the Framers themselves, who makes him a ‘‘natural born Citizen’’ within were born in the American colonies—were the meaning of the Constitution. Mr. BROWN. Mr. President, I ask deemed ‘‘natural born subjects.’’ See, e.g., 1 LAURENCE H. TRIBE. unanimous consent that when the Sen- William Blackstone, Commentaries on the THEODORE B. OLSON. ate completes its business today, it Laws of England 354 (Legal Classics Library Mr. BROWN. Mr. President, I ask stand adjourned until 9:30 a.m. tomor- 1983) (1765) (‘‘Natural-born subjects are such unanimous consent the resolution be row, Thursday, May 1; that following as are born within the dominions of the agreed to, the preamble be agreed to, the prayer and pledge, the Journal of crown of England, that is, within the the motions to reconsider be laid upon proceedings be approved to date, the ligeance, or as it is generally called, the alle- the table, with no intervening action giance of the king.* * * ’’). morning hour be deemed expired, the There is substantial legal support for the or debate, and any statements be print- time for the two leaders be reserved for proposition that the Panama Canal Zone was ed in the RECORD. their use later in the day, there then be indeed sovereign U.S. territory when Senator The PRESIDING OFFICER. Without a period of morning business for up to McCain was born there in 1936. The U.S. Su- objection, it is so ordered. 1 hour with Senators permitted to preme Court has explained that, ‘‘[f]rom 1904 The resolution (S. 511) was agreed to. speak for up to 10 minutes each, with to 1979, the United States exercised sov- The preamble was agreed to. the Republicans controlling the first ereignty over the Panama Canal and the sur- The resolution, with its preamble, is half and the majority controlling the rounding 10-mile-wide Panama Canal Zone.’’ as follows: 0’Connor v. United States, 479 U.S. 27, 28 (1986). second half; and following morning S. RES. 511 Congress and the executive branch similarly business, the Senate resume consider- suggested that the Canal Zone was subject to Whereas the Constitution of the United ation of H.R. 2881, the FAA reauthor- the sovereignty of the United States. See, States requires that, to be eligible for the Of- ization bill. e.g., The President—Government of the fice of the President, a person must be a ‘‘natural born Citizen’’ of the United States; The PRESIDING OFFICER. Without Canal Zone, 26 Op. Att’y Gen. 113, 116 (1907) objection, it is so ordered. (recognizing that the 1904 treaty between the Whereas the term ‘‘natural born Citizen’’, United States and Panama ‘‘imposed upon as that term appears in Article II, Section 1, f the United States the obligations as well as is not defined in the Constitution of the the powers of a sovereign within the [Canal United States; ORDER FOR ADJOURNMENT Zone]’’); Panama Canal Act of 1912, Pub. L. Whereas there is no evidence of the inten- Mr. BROWN. If there is no further No. 62–337, § 1, 37 Stat. 560, 560 (recognizing tion of the Framers or any Congress to limit business to come before the Senate, I that ‘‘the use, occupancy, or control’’ of the the constitutional rights of children born to Americans serving in the military nor to ask unanimous consent it stand ad- Canal Zone had been ‘‘granted to the United journed under the previous order, fol- States by the treaty between the United prevent those children from serving as their States and the Republic of Panama’’). Thus, country’s President; lowing the remarks of the majority although Senator McCain was not born with- Whereas such limitations would be incon- leader. in a State, there is a significant body of legal sistent with the purpose and intent of the The PRESIDING OFFICER. Without authority indicating that he was neverthe- ‘‘natural born Citizen’’ clause of the Con- objection, it is so ordered. less born within the sovereign territory of stitution of the United States, as evidenced Mr. BROWN. I suggest the absence of the United States. by the First Congress’s own statute defining a quorum. Historical practice confirms that birth on the term ‘‘natural born Citizen’’; soil that is under the sovereignty of the Whereas the well-being of all citizens of The PRESIDING OFFICER. The United States, but not within a State, satis- the United States is preserved and enhanced clerk will call the roll. fies the Natural Born Citizen Clause. For ex- by the men and women who are assigned to The legislative clerk proceeded to ample, Vice President Charles Curtis was serve our country outside of our national call the roll. born in the territory of Kansas on January borders; Mr. REID. Mr. President, I ask unan- 25, 1860—one year before Kansas became a Whereas previous presidential candidates imous consent that the order for the State. Because the Twelfth Amendment re- were born outside of the United States of quorum call be rescinded. quires that Vice Presidents possess the same America and were understood to be eligible The PRESIDING OFFICER. Without qualifications as Presidents, the service of to be President; and Vice President Curtis verifies that the Whereas John Sidney McCain, III, was born objection, it is so ordered. phrase ‘‘natural born Citizen’’ includes birth to American citizens on an American mili- f outside of any State but within U.S. terri- tary base in the Panama Canal Zone in 1936: tory. Similarly, Senator Barry Goldwater Now, therefore, be it FAA REAUTHORIZATION was born in Arizona before its statehood, yet Resolved, That John Sidney McCain, III, is Mr. REID. Mr. President, as we close attained the Republican Party’s presidential a ‘‘natural born Citizen’’ under Article II, tonight, I want everyone within the nomination in 1964. And Senator Barack Section 1, of the Constitution of the United States. sound of my voice to understand this: Obama was born in Hawaii on August 4, We are working on a very important 1961—not long after its admission to the f Union on August 21, 1959. We find it incon- piece of legislation, the reauthoriza- ceivable that Senator Obama would have ORDER FOR AUTHORITY TO SIGN tion of the Federal Aviation Adminis- been ineligible for the Presidency had he ENROLLED BILLS AND JOINT tration—the agency responsible for been born two years earlier. RESOLUTIONS making sure aircraft is safe and reli- Senator McCain’s candidacy for the Presi- Mr. BROWN. Mr. President, I ask able. dency is consistent not only with the accept- unanimous consent that during the ad- Right now, we have an antiquated ed meaning of ‘‘natural born Citizen,’’ but system. This legislation will do what also with the Framers’ intentions when journment of the Senate, the majority adopting that language. The Natural Born leader be authorized to sign duly en- has been needed for a long time to Citizen Clause was added to the Constitution rolled bills or joint resolutions. change the way we do aviation in this shortly after John Jay sent a letter to The PRESIDING OFFICER. Without country. All the experts say it is long George Washington expressing concern about objection, it is so ordered. past due. We have had hard work for a

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