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)

JAMES C. HO

of place of birth, or through the U.S. citizenship of the person’s
parents? These questions have been debated by constitutional scholars since well before the 2008 election cycle.1
Just ask the 2012 Republican candidate for President. His father,
former Michigan Governor George Romney, faced questions about
his own eligibility when he (unsuccessfully) pursued the Republican
nomination for President in 1968. George Romney was born to
U.S. citizen parents, and thus entitled to U.S. citizenship at birth –
but he was born in Mexico.
Thanks to the 2008 Presidential election cycle, this decades-long
debate over the meaning of “natural born Citizen” should now be
settled as a practical matter. A major political party nominated an
individual for President, and the other major political party accepted that person’s constitutional qualifications for the office – even
though that person was born outside the United States. As Pub. L.
Misc. readers well know, constitutional law is not exclusively written by judges. Even “political” precedents can play a significant role
in constitutional law.

B

• • •

ut exactly what “precedent” does the McCain nomination establish? This question has generated some confusion.
One might argue, for example, that McCain was eligible for the
Presidency based on the traditionally accepted ground that he was in
fact born on U.S. soil – namely, on Coco Solo Naval Air Station, a
U.S. military installation in the Panama Canal Zone. Others, however, have raised real doubts about this claim, due to ambiguities
concerning whether the United States actually exercised sovereignty
over the Panama Canal Zone at the time of his birth.2
1

See, e.g., Isidor Blum, Is Gov. George Romney Eligible to Be President?, N.Y.L.J., Oct. 16 &
17, 1967, at 1; Charles Gordon, Who Can Be President of the United States: The Unresolved
Enigma, 28 Md. L. Rev. 1 (1968); Jill A. Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881
(1988). Indeed, the constitutional debate over McCain’s eligibility inspired an entire Michigan Law Review symposium devoted to the topic. See Senator John McCain and Natural Born
Citizenship: The Full Symposium, available at www.michiganlawreview.org/first-impressions
/volume/107.
2
See, e.g., Hollander v. McCain, 566 F. Supp. 2d 63, 66 (D.N.H. 2008) (noting that “[t]he

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NATURAL BORN PRESIDENTS

So when the United States Senate unanimously approved a resolution deeming Senator McCain eligible for the Presidency, it did
not do so because he was born on U.S. soil. Instead, the Senate resolved that McCain was eligible because “previous presidential candidates were born outside of the United States of America and were understood to be eligible to be President.”3 The resolution further
pointed out that any other view would be “inconsistent with the
purpose and intent of the ‘natural born Citizen’ clause of the Constitution of the United States, as evidenced by the First Congress’s
own statute defining the term ‘natural born Citizen’” to cover persons born to U.S. citizens outside U.S. soil.4
The Senate resolution came just weeks after the publication of a
legal opinion by renowned constitutional scholar Laurence H. Tribe
and former U.S. Solicitor General Theodore B. Olson. That letter
argued in support of both potential bases for Senator McCain’s eligibility. But it led with McCain’s entitlement to citizenship at birth
by virtue of his parents’ citizenship – not place of birth.
To the extent that courts have subsequently weighed in on the issue, they too have sided in favor of the broader conception of Presidential eligibility.5 But to your humble Pub. L. Misc. editors, it is the
Supreme Court . . . has made contradictory comments in dicta on the status of the Canal
Zone” under the Hay-Bunau-Varilla Convention). Mischievously, Congress did not enact
legislation conferring citizenship at birth on persons born in the Canal Zone to U.S. citizens until 1937 – a year after McCain’s birth. 8 U.S.C. § 1403(a). See generally Gabriel J.
Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of
Citizenship, available at papers.ssrn.com/sol3/papers.cfm?abstract-id=1157621.
3
S. Res. 511, 110th Cong. (2008), 2 J.L. (2 PUB. L. MISC.) ___ (2012) (emphasis added).
4
See 1 Stat. 103, 104 (1790) (“the children of citizens of the United States that might be
born beyond the sea, or out of the limits of the United States, should be considered as
natural-born citizens”). It is well established that enactments of the First Congress provide
strong context for construing our Constitution. See, e.g., Marsh v. Chambers, 463 U.S. 783,
790-91 (1983).
5
See Robinson v. Bowen, 567 F. Supp. 2d 1144, 1146 (N.D. Cal. 2008) (finding it “highly
probable . . . that Senator McCain is a natural born citizen” due to his birth to at least one
U.S. citizen parent, before dismissing case for lack of standing); Hollander v. McCain, 566 F.
Supp. 2d 63, 66 n.3 (D.N.H. 2008) (noting that “the weight of the commentary falls heavily on the side of eligibility” for persons born outside the U.S. to at least one U.S. citizen
parent, before dismissing case for lack of standing); see also Ankeny v. Governor of Indiana,
916 N.E.2d 678, 684 n. 10 (Ind. Ct. App. 2009) (noting that “[t]he United States Senate
passed a resolution on April 30, 2008, which explicitly recognized Senator John McCain as

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JAMES C. HO

non-judicial materials that emerged from Senator McCain’s 2008
run for the White House that are more interesting – not to mention
less accessible. Accordingly, we are pleased to publish them here –
for posterity, and for those who study the Presidency.

a natural born citizen,” and that “Plaintiffs do not cite to any authority or develop any cogent legal argument for the proposition that a person must actually be born within one of
the fifty States in order to qualify as a natural born citizen”).

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PRESIDENTS AND CITIZENSHIP
Opinion letter by Laurence H. Tribe and Theodore B. Olson
March 19, 2008

_________________________________________________
We have analyzed whether Senator John McCain is eligible for
the U.S. Presidency, in light of the requirement under Article II of
the U.S. Constitution that only “natural born Citizen[s] . . . shall be
eligible to the Office of President.” U.S. Const. art. II, § 1, cl. 5.
We conclude that Senator McCain is a “natural born Citizen” by virtue of his birth in 1936 to U.S. citizen parents who were serving
their country on a U.S. military base in the Panama Canal Zone.
The circumstances of Senator McCain’s birth satisfy the original
meaning and intent of the Natural Born Citizen Clause, as confirmed by subsequent legal precedent and historical practice.
The Constitution does not define the meaning of “natural born
Citizen.” The U.S. Supreme Court gives meaning to terms that are
not expressly defined in the Constitution by looking to the context
in which those terms are used; to statutes enacted by the First Congress, Marsh v. Chambers, 463 U.S. 783, 790-91 (1983); and to the
common law at the time of the Founding. United States v. Wong Kim
Ark, 169 U.S. 649, 655 (1898). These sources all confirm that the
phrase “natural born” includes both birth abroad to parents who
were citizens, and birth within a nation’s territory and allegiance.
Thus, regardless of the sovereign status of the Panama Canal Zone at
the time of Senator McCain’s birth, he is a “natural born” citizen
because he was born to parents who were U.S. citizens.
Congress has recognized in successive federal statutes since the
Nation’s Founding that children born abroad to U.S. citizens are
themselves U.S. citizens. 8 U.S.C. § 1401(c); see also Act of May
24, 1934, Pub. L. No. 73-250, § 1, 48 Stat. 797, 797. Indeed, the
statute that the First Congress enacted on this subject not only established that such children are U.S. citizens, but also expressly referred to them as “natural born citizens.” Act of Mar. 26, 1790, ch.
3, § 1, 1 Stat. 103, 104.
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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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PRESIDENTS AND CITIZENSHIP
Claire McCaskill et al., Senate Resolution 511
April 30, 2008

_________________________________________________

S. RES. 511
Recognizing that John Sidney McCain, III, is a natural born citizen.

_____________________
IN THE SENATE OF THE UNITED STATES
APRIL 10, 2008
Mrs. MCCASKILL (for herself, Mr. LEAHY, Mr. OBAMA, Mr. COBURN, Mrs.
CLINTON, and Mr. WEBB) submitted the following resolution; which was referred to the Committee on the Judiciary
APRIL 24, 2008
Reported by Mr. LEAHY, without amendment
APRIL 30, 2008
Considered and agreed to

_____________________
RESOLUTION
Recognizing that John Sidney McCain, III, is a natural born citizen.
Whereas the Constitution of the United States requires that, to be
eligible for the Office of the President, a person must be a “natural born Citizen” of the United States;
Whereas the term “natural born Citizen”, as that term appears in
Article II, Section 1, is not defined in the Constitution of the
United States;
Whereas there is no evidence of the intention of the Framers or any
Congress to limit the constitutional rights of children born to
Americans serving in the military nor to prevent those children
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MCCASKILL ET AL., S. RES. 511, APR. 30, 2008

from serving as their country’s President;
Whereas such limitations would be inconsistent with the purpose
and intent of the “natural born Citizen” clause of the Constitution of the United States, as evidenced by the First Congress’s
own statute defining the term “natural born Citizen”;
Whereas the well-being of all citizens of the United States is preserved and enhanced by the men and women who are assigned to
serve our country outside of our national borders;
Whereas previous presidential candidates were born outside of the
United States of America and were understood to be eligible to
be President; and
Whereas John Sidney McCain, III, was born to American citizens on
an American military base in the Panama Canal Zone in 1936:
Now, therefore, be it
Resolved, That John Sidney McCain, III, is a “natural born Citizen”
under Article II, Section 1, of the Constitution of the United States.

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