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Panama John

Summary:

Since Senator John McCain was not born "in the United States" he is not a natural born Citizen of the United States and therefore is not eligible to the Office of President.

It's really quite simple, and only needs further explanation because the general consensus of politicians and the media has been to duck the issue. All evidence supports the conclusion seen in the topic sentence. Sources that support this conclusion include the U.S. Constitution which is the supreme law of the land, The Naturalization Act of 1790, The Naturalization Act of 1795, and the Hay-Bunau-Varilla Treaty ratified for the construction and operation of the Panama Canal Zone.

John McCain was born on the sovereign territory of the Republic of Panama to U.S. citizen parents. McCain is a United States citizen due to parentage, not naturally by reason of birth on U.S. soil which is a basic constitutional requirement.

The ineligibility of John McCain to serve as president may not prevent his run for the office. However, he cannot hold the office. If he were elected president, legal challenges would be inevitable.

Without an amendment to the U.S. Constitution, it is unlikely the Supreme Court of the United States could rule in McCain's favor except by legislating from the bench. The more conservative side of the Republican party has typically represented the case for separation of powers with a louder voice than the more liberal side of the Democrat party. Have conservatives been gagged?

The sidestepping of this critical issue in the media, by the politicians, and the political parties is alarming and may lead to a national crisis in the event of a McCain win in the general election.

The Naturalization Act of 1790 that changed the definition for natural born citizen to include parentage was repealed by the Naturalization Act of 1795. Since then the constitutional requirement has not again been broadened to "contemplates two sources of citizenship, and two sources only: birth and naturalization. . . . Persons [401 U.S. 815, 842] not . . . subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired." 112 U.S., at 101 -102.include parentage in the definition of natural born Citizen.


In presenting this constitutional dilemma, the purpose is to bring attention to the need for a remedy. This may also mean that the remedy would not be in place in time for Senator John McCain to be eligible to hold the office of President.

The Argument:

Supreme Court of the United States in Rogers vs. Bellei

The first congressional exercise of this power, entitled "An Act to establish an uniform Rule of Naturalization," was passed in 1790 at the Second Session of the First Congress. It provided in part:

"And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." 1 Stat. 103, 104.

This provision is the earliest form of the statute under which Bellei acquired his citizenship. Its enactment as part of a "Rule of Naturalization" shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization. However, the clearest expression of the idea that Bellei and others similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v. Wong Kim Ark, 169 U.S. 649 (1898):

"The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere [401 U.S. 815, 841] fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts." 169 U.S., at 702 -703.

The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. This inclusive definition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus in Minor v. Happersett, 21 Wall. 162, 167 (1875), the Court said: "Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born or they may be created by naturalization." And in Elk v. Wilkins, 112 U.S. 94 (1884), the Court took the position that the Fourteenth Amendment

"contemplates two sources of citizenship, and two sources only: birth and naturalization. . . . Persons [401 U.S. 815, 842] not . . . subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired." 112 U.S., at 101 -102.

Not everyone who is born an American citizen is a natural born Citizen. To be a natural born Citizen one must be born on U.S. soil. Senator John McCain was not born on U.S. soil. This disqualifies him from holding the office of the president. He can run, he just can't take the office.

www.state.gov

7 FAM 1110 ACQUISITION OF U.S.

CITIZENSHIP BY BIRTH IN THE UNITED STATES

7 FAM 1111 BASIC TERMS AND DISTINCTIONS

7 FAM 1116.1 "In The United States"

7 FAM 1116.1-1 States and Incorporated Territories

(TL:CON-64; 11-30-95)

a. The phrase “in the United States” as used in the 14th Amendment clearly includes States that have been admitted to the Union. Sections 304 and 305 of the INA provide a basis for citizenship of persons born in Alaska and Hawaii while they were territories of the United States. These sections reflect, to a large extent, prior statutes and judicial decisions which addressed the l4th Amendment citizenship implications of birth in these and other U.S. territories. Guidance on evidence on such births should be sought from CA/OCS.

b. Sec. 101(a)(38) INA provides that, for the purposes of the INA,

The term “United States”,... when used in the geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States. In addition, under Pub. L. 94-241, the “approving Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America”, (Sec. 506(c)), which took effect on November 3, 1986, the Northern Mariana Islands are treated as part of the United States for the purposes of sections 301 and 308 of the INA.

c. All of the aforenamed areas, except Guam and the Northern Mariana Islands, came within the definition of “United States” given in the Nationality Act of 1940, which was effective from January 13, 1941 through December 23, 1952.

d. Prior to January 13, 1941, there was no statutory definition of “the United States” for citizenship purposes. Thus there were varying interpretations. Guidance should be sought from the Department (CA/OCS) when such issues arise.

 

7 FAM 1116.1-4 Not Included in the Meaning of "In the United States"

(TL:CON-64; 11-30-95)

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.

 

7 FAM 1116.2 "Subject to the Jurisdiction" of the United States

7 FAM 1116.2-1 Subject at Birth to U.S. Law

(TL:CON-64; 11-30-95)

The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.

 

7 FAM 1117 LEGISLATION REGARDING CITIZENSHIP BY BIRTH IN THE UNITED STATES

(TL:CON-64; 11-30-95)

Sec. 301. 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; (b) a person born in the United States to a member of an Indian, Eskimo, Aleutian or other aboriginal tribe, Provided, that the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right to tribal or other property;...

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;...

Some claim that the Canal Zone was a United States territory, leading them to the conclusion that McCain was born on U.S. soil. The evidence disputes that assertion. When the treaty was signed that gave the U.S. control of the Canal Zone, the territory was retained by the Republic of Panama.

www.yale.edu

Convention for the Construction of a Ship Canal (Hay-Bunau-Varilla Treaty), November 18, 1903

Concluded November 18, 1903; ratification advised by the Senate February 23, 1904; ratified by President February 25,1904; ratifications exchanged February 26, 1904; proclaimed February 26, 1904. (U.S. Stats., vol. 33.)

The United States of America and the Republic of Panama being desirous to insure the construction of a ship canal across the Isthmus of Panama to connect the Atlantic and Pacific oecans, and the Congress of the United States of America having passed an act approved June 28, 1902, in furtherance of that object, by which the President of the United States is authorized to acquire within a reasonable time the control of the necessary territory of the Republic of Colombia, and the sovereignty of such territory being actually vested in the Republic of Panama, the high contracting parties have resolved for that purpose to conclude a convention and have accordingly appointed as their plenipotentiaries,

ARTICLE III

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.

ARTICLE V

The Republic of Panama grants to the United States in perpetuity a monopoly for the construction, maintenance and operation of any system of communication by means of canal or railroad across its territory between the Caribbean Sea and the Pacific ocean.

The treaty to establish the Canal Zone clearly does not establish a U.S. territory. For any who would pursue that further, consider the definition of territory.

Territory: In the United States, a portion of the country not included within the limits of any State, and not yet admitted as a State into the Union, but organized with a separate legislature, under a Territorial governor and other officers appointed by the President and Senate of the United States.

Territory: a part of the United States not included within any state but organized with a separate legislature

Territory: A subdivision of the United States that is not a state and is administered by an appointed or elected governor and elected legislature.

The Columbia Encyclopedia, Sixth Edition

Any ruling that was made on the part of Barry Goldwater referring to his being born in a U.S. territory before it became a state is irrelevant to the case of John McCain being born in the Canal Zone which was never a U.S. territory.

A natural born Citizen is one who is born on U.S. soil. To be able to be President of the United States, among other things, you must be a natural born Citizen. Since Senator John McCain is not a natural born Citizen (he was born outside the U.S.) it is by law that he was naturalized as a citizen at birth because of parentage. He was not a natural born Citizen based on the nature of where he was born.

Some may not agree with the Constitution of the United States, but it is what it is. It's the supreme law of the land.

U.S. Constitution.net

U.S. Constitution - Article II, Section 1

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

If you don't like it, then change it through an amendment. But don't make it something that it isn't. That is a trick, not worthy of any American who stands by the constitution.

Since the other two branches of government are unwilling to act, the Supreme Court needs to judge. That is why the Supreme Courts exists. Unfortunately, it is not likely to reach the court until one who is not a natural born Citizen gets elected to the presidency. This would be a crisis. The vice president would probably have to take over.

Here is a link to a much more detailed analysis.

If Senator Claire McCaskill's hastily scrawled "fix" actually goes through congress, it is a law that would need to be judged by the Supreme Court of the United States. Unless it is an amendment to the constitution, then McCaskill (and congress) would be undermining the supreme law of the land that is the U.S. Constitution.

The Naturalization Act of 1790

And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never beend resident in the United States: Provided also, That no person heretofore proscribed by any State, shall be admitted a citizen as aforesaid, except by an act of the Legislature of the State in which such person was proscribed.

The Naturalization Act of 1795

SEC. 3. And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization, and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States. No person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted as foresaid, without the consent of the legislature of the state in which such person was proscribed.

SEC. 4. And be it further enacted, that the Act, intitled, "An act to establish an uniform rule of naturalization," passed the twenty-sixth day of March, one thousand seven hundred and ninety, be, and the same is hereby repealed.

Apparently neither of these acts apply any longer. The first one was repealed by the second. And then the second was repealed in 1802.

Consider the act of 1790. It read, "And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United Staes, shall be considered as natural born citizens..." This was a concession. They never were considered to be natural born citizens until this act.

In the act of 1795 that repealed the act of 1790 the language was changed to "shall be considered as citizens of the United States." It would seem that this change was by design, recognizing that nature did not make these babies citizens, it was only by law. The law cannot change nature. The term "natural born Citizen" could not apply to these people. It only applies to jus soli (where the place where one is born naturally determines citizenship).

I'm starting to feel bad about this for John McCain. He has come so far and to have the very nature of his citizenship to be questioned would be miserable, especially after heroic service. But he is seeking the one occupation that explicitly requires that the officeholder be a "natural born Citizen." This can only be changed by an amendment that changes the Constitution from saying "natural born Citizen" to something that would include him as eligible, though he is a citizen by jus sanguinis (citizenship by descent).

In presenting this constitutional dilemma, the purpose is to bring attention to the need for a remedy. This may also mean that the remedy would not be in place in time for Senator John McCain to be eligible to hold the office of President.

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