Schwartz v. Cruz

Filing 1

COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0541-16015252) filed by Newton B. Schwartz, Sr. (Attachments: # 1 Exhibit A, # 2 Exhibit A-1, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Civil Cover Sheet)(Schwartz, Newton)

TRIBE AND OLSON OPINION LETTER, MAR. 19, 2008

Senator McCain’s status as a “natural born” citizen by virtue of
his birth to U.S. citizen parents is consistent with British statutes in
force when the Constitution was drafted, which undoubtedly informed the Framers’ understanding of the Natural Born Citizen
Clause. Those statutes provided, for example, that children born
abroad to parents who were “natural-born Subjects” were also “natural-born Subjects . . . to all Intents, Constructions and Purposes
whatsoever.” British Nationality Act, 1730, 4 Geo. 2, c. 21. The
Frames substituted the word “citizen” for “subject” to reflect the
shift from monarch to democracy, but the Supreme Court has recognized that the two terms are otherwise identical. See e.g., Hennessy
v. Richardson Drug Co., 189 U.S. 25, 34-35 (1903). Thus, the First
Congress’s statutory recognition that persons born abroad to U.S.
citizens were “natural born” citizens fully conformed to British tradition, whereby citizenship conferred by statute based on the circumstances of one’s birth made one natural born.
There is a second and independent basis for concluding that Senator McCain is a “natural born” citizen within the meaning of the
Constitution. If the Panama Canal Zone was sovereign U.S. territory at the time of Senator McCain’s birth, then that fact alone would
make him a “natural born” citizen under the well-established principle that “natural born” citizenship includes birth within the territory
and allegiance of the United States. See, e.g., Wong Kim Ark, 169 U.S.
at 655-66. The Fourteenth Amendment expressly enshrines this
connection between birthplace and citizenship in the text of the
Constitution. U.S. Const. amend. XIV, § 1 (“All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . .”) (emphases added).
Premising “natural born” citizenship on the character of the territory
in which one is born is rooted in the common-law understanding
that persons born within the British kingdom and under loyalty to
the British Crown – including most of the Framers themselves, who
were born in the American colonies – were deemed “natural born
subjects.” See, e.g., 1 William Blackstone, Commentaries on the Laws of
England 354 (Legal Classics Library 1983) (1765) (“Natural-born
subjects are such as are born within the dominions of the crown of
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TRIBE AND OLSON OPINION LETTER, MAR. 19, 2008

England, that is, within the ligeance, or as it is generally called, the
allegiance of the king . . . .”).
There is substantial legal support for the proposition that the
Panama Canal Zone was indeed sovereign U.S. territory when Senator McCain was born there in 1936. The U.S. Supreme Court has
explained that, “[f]rom 1904 to 1979, the United States exercised
sovereignty over the Panama Canal and the surrounding 10-milewide Panama Canal Zone.” O’Connor v. United States, 479 U.S. 27,
28 (1986). Congress and the executive branch similarly suggested
that the Canal Zone was subject to the sovereignty of the United
States. See, e.g., The President – Government of the Canal Zone, 26 Op.
Att’y Gen. 113, 116 (1907) (recognizing that the 1904 treaty between the United States and Panama “imposed upon the United
States the obligations as well as the powers of a sovereign within the
[Canal Zone]”); Panama Canal Act of 1912, Pub. L. No. 62-337,
§ 1, 37 Stat. 560, 560 (recognizing that “the use, occupancy, or
control” of the Canal Zone had been “granted to the United States
by the treaty between the United States and the Republic of Panama”). Thus, although Senator McCain was not born within a State,
there is a significant body of legal authority indicating that he was
nevertheless born within the sovereign territory of the United
States.
Historical practice confirms that birth on soil that is under the
sovereignty of the United States, but not within a State, satisfies the
Natural Born Citizen Clause. For example, Vice President Charles
Curtis was born in the territory of Kansas on January 25, 1860 –
one year before Kansas became a State. Because the Twelfth
Amendment requires that Vice Presidents possess the same qualifications as Presidents, the service of Vice President Curtis verifies
that the phrase “natural born Citizen” includes birth outside of any
State but within U.S. territory. Similarly, Senator Barry Goldwater
was born in Arizona before its statehood, yet attained the Republican Party’s presidential nomination in 1964. And Senator Barack
Obama was born in Hawaii on August 4, 1961 – not long after its
admission to the Union on August 21, 1959. We find it inconceivable that Senator Obama would have been ineligible for the PresiNUMBER  2  (2012)  

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TRIBE AND OLSON OPINION LETTER, MAR. 19, 2008

dency had he been born two years earlier.
Senator McCain’s candidacy for the Presidency is consistent not
only with the accepted meaning of “natural born Citizen,” but also
with the Framers’ intentions when adopting that language. The Natural Born Citizen Clause was added to the Constitution shortly after
John Jay sent a letter to George Washington expressing concern
about “Foreigners” attaining the position of Commander in Chief. 3
Max Farrand, The Records of the Federal Convention of 1787, at 61
(1911). It goes without saying that the Framers did not intend to
exclude a person from the office of the President simply because he
or she was born to U.S. citizens serving in the U.S. military outside
of the continental United States; Senator McCain is certainly not the
hypothetical “Foreigner” who John Jay and George Washington
were concerned might usurp the role of Commander in Chief.
Therefore, based on the original meaning of the Constitution,
the Framers’ intentions, and subsequent legal and historical precedent, Senator McCain’s birth to parents who were U.S. citizens,
serving on a U.S. military base in the Panama Canal Zone in 1936,
makes him a “natural born Citizen” within the meaning of the Constitution.

Laurence H. Tribe

512

Theodore B. Olson

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