法律英语：97 The “Natural Birth” Clause

by Michael W. Flynn
 
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.   
 
Today I will discuss an obscure and seldom-interpreted provision in the Constitution that could have serious implications in today’s presidential race: the “natural birth” clause. Specifically, this clause might prevent Senator John McCain, the likely Republican candidate, from becoming the 44th president.
 
Article II of the Constitution defines the Executive Branch, which basically means the president. Article II, Section 1 provides:
 
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption³ of this Constitution, shall be eligible⁴ to the Office of President; neither shall any Person be eligible to that Office who shall not have attained⁵ to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
 
The important phrase here is “natural born.” This phrase was added in response to a letter written by the first Chief Justice of the United States, John Jay, to the first president of the United States, George Washington. In that letter, Jay wrote: “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.” The natural born clause was added to the Constitution without debate.
 
The reason this is important is that John McCain was born on U.S. military base Coco Solo in the Panama Canal Zone to U.S. parents. Does that make him a “natural born Citizen?”
 
The Fourteenth Amendment⁶ provides that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This gives rise to the notion that there are two kinds of citizens: born and naturalized. So, the question becomes, was John McCain effectively born in the U.S., or did some law make him a citizen, rendering⁷ him naturalized?
 
First, it is important to note that John McCain is definitely a “Citizen” of the United States. Under 8 USC 1403(a), a part of the Immigration and Naturalization Act of 1952, “Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.” (emphasis added)
 
But, that does not answer the more precise question of whether he is “natural born.”
 
Proponents⁸ of McCain’s eligibility⁹ argue that McCain must be a natural born citizen because he was born a citizen by virtue¹⁰ of his parents being citizens and the birth occurring on a military base. They would argue that the framers of the Constitution only feared a foreigner, that is, someone who was a citizen of another country first, becoming president. Someone born to U.S. parents while on active duty defending the U.S. is not a foreigner.
 
Opponents of McCain’s eligibility would point to the dichotomy between being born a citizen, and being declared a citizen. If, under the language of the Fourteenth Amendment and Immigration and Naturalization Act of 1952, a person is “declared” to be a citizen, then the person was not a citizen at the moment of birth. The law “declared” him to be a citizen, and so the person was naturalized, not naturally born. Indeed the Act of 1952 was passed after John McCain was born, and effectively made him a citizen. If he were a citizen at birth, and naturally born, then this statute¹¹ would not be needed. Last, current State Department policy reads: “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular¹² facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises¹³ of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship¹⁴ by reason of birth.” Again, this supports the theory that a child born on a military base only becomes a citizen because of statutes¹⁵, and is not a citizen by virtue of birth.
 
Two other candidates for president faced similar concerns: Barry Goldwater and George Romney. Goldwater was born in Arizona when it was still a territory, and Romney was born in Mexico. Neither candidate was successful, so their status as “natural born” was never tested.
 
In the end, a group challenging McCain on this ground might face a backlash. McCain was a prisoner of war, and was born outside the physical boundaries of the U.S. only because the government ordered his parents there. He does not seem to be the problem that the original framers envisioned: a foreigner without current allegiance to the newly-founded United States. McCain, a longtime senator, does not seem to really fit this problem. But, as with so many legal questions, we will just have to wait and see what happens.
 
Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful¹⁶ Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

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Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.
 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 adoption   

n.采用，采纳，通过；收养

参考例句：

• An adoption agency had sent the boys to two different families.一个收养机构把他们送给两个不同的家庭。
• The adoption of this policy would relieve them of a tremendous burden.采取这一政策会给他们解除一个巨大的负担。

4 eligible   

adj.有条件被选中的；(尤指婚姻等)合适(意)的

参考例句：

• He is an eligible young man.他是一个合格的年轻人。
• Helen married an eligible bachelor.海伦嫁给了一个中意的单身汉。

5 attained   

（通常经过努力）实现( attain的过去式和过去分词 )； 达到； 获得； 达到（某年龄、水平、状况）

参考例句：

• She has attained the degree of Master of Arts. 她已获得文学硕士学位。
• Lu Hsun attained a high position in the republic of letters. 鲁迅在文坛上获得崇高的地位。

6 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

7 rendering   

n.表现，描写

参考例句：

• She gave a splendid rendering of Beethoven's piano sonata.她精彩地演奏了贝多芬的钢琴奏鸣曲。
• His narrative is a super rendering of dialect speech and idiom.他的叙述是方言和土语最成功的运用。

8 proponents   

n.（某事业、理论等的）支持者，拥护者( proponent的名词复数 )

参考例句：

• Reviewing courts were among the most active proponents of hybrid rulemaking procedures. 复审法院是最积极的混合型规则制定程序的建议者。 来自英汉非文学 - 行政法
• Proponents of such opinions were arrested as 'traitors. ' 提倡这种主张的人马上作为“卖国贼”逮捕起来。 来自辞典例句

9 eligibility   

n.合格，资格

参考例句：

• What are the eligibility requirements? 病人被选参加试验的要求是什么？ 来自英汉非文学 - 生命科学 - 回顾与展望
• Eligibility for HINARI access is based on gross national income (GNI). 进入HINARI获取计划是依据国民总收入来评定的。

10 virtue   

n.德行，美德；贞操；优点；功效，效力

参考例句：

• He was considered to be a paragon of virtue.他被认为是品德尽善尽美的典范。
• You need to decorate your mind with virtue.你应该用德行美化心灵。

11 statute   

n.成文法，法令，法规；章程，规则，条例

参考例句：

• Protection for the consumer is laid down by statute.保障消费者利益已在法令里作了规定。
• The next section will consider this environmental statute in detail.下一部分将详细论述环境法令的问题。

12 consular   

a.领事的

参考例句：

• He has rounded out twenty years in the consular service. 他在领事馆工作已整整20年了。
• Consular invoices are declarations made at the consulate of the importing country. 领事发票是进口国领事馆签发的一种申报书。

13 premises   

n.建筑物，房屋

参考例句：

• According to the rules,no alcohol can be consumed on the premises.按照规定，场内不准饮酒。
• All repairs are done on the premises and not put out.全部修缮都在家里进行，不用送到外面去做。

14 citizenship   

n.市民权，公民权，国民的义务(身份)

参考例句：

• He was born in Sweden,but he doesn't have Swedish citizenship.他在瑞典出生，但没有瑞典公民身分。
• Ten years later,she chose to take Australian citizenship.十年后，她选择了澳大利亚国籍。

15 statutes   

成文法( statute的名词复数 )； 法令； 法规； 章程

参考例句：

• The numerous existing statutes are complicated and poorly coordinated. 目前繁多的法令既十分复杂又缺乏快调。 来自英汉非文学 - 环境法 - 环境法
• Each agency is also restricted by the particular statutes governing its activities. 各个机构的行为也受具体法令限制。 来自英汉非文学 - 环境法 - 环境法

16 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。