"Foreign-born" Presidents

I might eventually want to run for the office of the President. However, I was born on Guam. In order to meet the requirements for that office, I must, at the time of my inauguration, be:

• at least 35 year's old,
• inhabitant of the United States for at least fourteen years, and
• a natural born citizen (or a "Citizen of the United States, at the time of the Adoption of this Constitution").

I will meet the first two requirements by the time of the next election (2012), if I were to choose to run, but what about the third one; what is a "natural born citizen"? Everyone agrees that anyone born in the 50-state union of United States is a natural born citizen. Most people seem to agree that if someone was born in Washington, D.C. that they be considered a "natural born citizen." But apparently there isn't much agreement (or any precedent) beyond this.

Guam is an organized unincorporated Territory of the United States. Digging a little deeper, there seem to be several types of Territories of the United States. The Territorial type may well allow people born there to eventually become the President of the United States. I don't know this to be true, but I'm going to assume that there is a hierarchy of Territory types. (NOTE: this classification system is my own musings, and not based on any Constitutional law.)

1. Incorporated organized Territories: Lands contiguous with a full-fledged state, and with a set of laws put forth through an Organic Act by the national Congress.
2. Unincorporated organized Territories: Lands not contiguous with a full-fledged state, and with a set of laws put forth through an Organic Act by the national Congress.
3. Incorporated unorganized Territories: Lands contiguous with a full-fledged state, and without a set of laws put forth through an Organic Act by the national Congress.
4. Unincorporated unorganized Territories: Lands not contiguous with a full-fledged state, and without a set of laws put forth through an Organic Act by the national Congress.

What's a Territory?
Under Article IV (Sec. 3, Clause 2) of the United States Constitution: "The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

So... Article IV provides definitions of what Congress can do with Territories (or other property) belonging to the United States, but does not provide a definition of what a Territory is. However (without doing a Constitutional study of the meaning), it appears that the working definition of "Territory" falls generally in a rough definition of "lands won or bought by the United States government" (my own words). This matches with the creation methods of Alaska Territory, Louisiana Territory, Oregon Territory, Hawaii Territory, etc.

Since Guam was ceded from Spain after the Spanish-American War in the Protocol of Peace, it (as well as Puerto Rico and the Philippines) became a Territory of the United States; won as a consequence of that war.

The Panama Canal Zone (PCZ) is an interesting case, since it was effectively purchased from the newly-independent country of Panama in the Hay-Bunau Varilla Treaty. Admittedly, this was done as a mechanism to provide monetary backing for building and maintaining the Panama Canal, but the United States effectively purchased the area through which the Panama Canal ran, thereby making the PCZ a Territory of the United States (through purchase). Due to the governance of the Territory (first by a military governor, then by President-appointed civil governors), it is likely that, while the PCZ was an American Territory, it would have been classified as an Incorporated (not an “Insular Area” Territory) Unorganized (had no Organic Act) Territory, but I can find no evidence that this was the case.

Creation of the (Un)Organized Category
The presence or absence of an "Organic Act" is what determines a Territory’s “Organized” status. The act sets forth the rules for government (a pseudo-Constitution, if you will) in a Territory of the United States, establishing, in the case of Guam, branches of government, and moving its federal governance from the Dept. of the Navy to the Dept. of the Interior, and providing a level of independent governance. I assume that Organic Acts for other organized Territories are similar in the creation of government bodies and federal oversight. Just as a reminder, "organized" Territories have Organic Acts, "unorganized" Territories don't have an Organic Act.

Creating the (Un)Incorporated Category
Early in 1901, there were a series of Supreme Court decisions regarding the status of import duties (DeLima v. Bidwell), export duties (Dooley v. United States), and whether Article I, Section 8, clause 1 of the Constitution included the newly acquired Territory of Puerto Rico (Downes v. Bidwell) - and, by extension, the other Territories acquired by the United States. The Supreme Court ruled 6-3 on DeLima and 5-4 on Dooley, effectively stating that no import or export duties could be levied on trade with Puerto Rico. However, the Bidwell decision (5-4 against Downes) effectively stated that without an Act of Congress, all Territories of the United States (at that time including Arizona, New Mexico, and Oklahoma, as well as the Spanish-American War acquisitions) did not have equal constitutional rights. It wasn't until three years later (1904), that this decision was effectively overturned in the Dorr v. United States case, and this Supreme Court decision effectively created the categories of "incorporated" and "unincorporated" Territories. Management of unincorporated Territories - all technically “Insular Area” Territories – is by the Office of Insular Affairs in the Department of the Interior (ironic, no?)

In both incorporated and unincorporated Territories, "fundamental rights" under the Constitution apply. "Procedural rights" only automatically apply to incorporated Territories. Unincorporated Territories can only gain these procedural rights by an Act of Congress. (Yay for the executive decision - backed by Congress - on creating a reactive legal framework for the Philippines, which tacked U.S. fundamental rights onto Spanish procedural rights when forming the Philippine Commission, which then formed the precedent needed to extended the decision to all Territories won from Spain.)

Incorporated Organized Territories (IOTs)
Since the creation of the state of Hawai'i in 1959 (as the 50th state of the Union), there have been no incorporated organized Territories. How Hawai'i, located thousands of miles off the West Coast of the mainland, could geographically be considered "incorporated" (i.e., contiguous with the United States "mainland") is beyond my comprehension. However, since it wasn't acquired from Spain, it was legally defined as incorporated. Hawai'i got later became "organized" when with its Organic Act (section 3: "That a Territorial government is hereby established over the said Territory, with its capital at Honolulu, on the island of Oahu.")

So, what do we learn from the case of Hawai'i? It indicates that if the U.S. Congress says that a Territory is incorporated (regardless of its land borders, or lack thereof), then it is legally incorporated, and since it was able to get an Organic Act, it was on its way to statehood.

I placed IOTs at the highest "level" of Territory, since IOTs are legally contiguous with the mainland of the Union, and have a federally organized government that runs the Territory. In addition, all IOTs eventually have became full members of the Union.

What about Washington, D.C.?
Isn't D.C. technically an IOT? According to thegreenpapers.com, it is the only one left, but is a special case (being a federal district specially created by the Constitution), but I don't want to get into that discussion. However, one can look here for some history about DC's slow march toward self-representation.

Unincorporated Organized Territories (UOTs)
Those possessions the United States gained following the Spanish-American War (Philippines, Guam, Puerto Rico), became the first Territories of the United States that were unincorporated, that is, they were not legally contiguous with the United States mainland.

Since these Territories are organized, they all have an Organic Act that outlines how the Territory is to be governed, written by the United States Congress. No UOT has yet become a full-fledged state in the Union, but I feel that this is just a matter of time.

I placed UOTs at the second-highest "level" of Territory, since these Territories do have an Organic Act, but do not meet the benefits of full Constitutional protections that are guaranteed to incorporated Territories.

Incorporated Unorganized Territories (IUTs)
I’ve only been able to find one current example of an IUT: Palmyra Atoll. It was created when it was split off from Hawai’i Territory once Hawai’i became a state in 1959. Since the Hawai’i Territory was technically considered to be “incorporated,” the Palmyra Atoll inherited that distinction upon its being shorn from the new state of Hawai’i.

I placed IUTs at the third-place “level” of Territory, since they do not have an Organic Act, even though the residents do get full Constitutional protections. The lack of an Organic Act, however, means there is not a document describing how the Territory is to be governed. The need for an Organic Act, I feel, is greater than the need for “incorporation,” since an Act of Congress can allow for the increased Constitutional protections guaranteed to incorporated Territories, while the lack of an Organic Act means the chance for self-governance is limited.

Unincorporated Unorganized Territories (UUTs)
There are many UUTs, almost all of which are in the Pacific Ocean and uninhabited. There is one major exceptions, however: American Samoa.

American Samoa passed its last governing constitution in 1967, it is only technically an unorganized Territory (it doesn’t have an Organic Act), but is effectively self-governing, thanks to that constitution. As an exception to the rule, I will not be discussing it in detail here. American Samoa was not won in the Spanish-American War, but was gained as a settlement with Germany after an unfought battle over control of the Samoan archipelago. However, even though it wasn’t won from Spain, is considered an “insular Territory” in that it is managed by the Office of Insular Affairs, and is therefore unincorporated.

The other islands (Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Petrel Island, Serranilla Bank, Midway Islands, Navassa Island, and Wake Atoll) are all either uninhabited or have no indigenous population. Wake Atoll does have non-military residents, but serving only as contractors from the Marshall Islands.

I placed UUTs at the bottom “level” of Territory, since they do not have an Organic Act, and don’t have all the Constitutional protections as incorporated territories. Also, due to a lack of indigenous populations, they are unlikely to ever have an Organic Act, let alone have an Act of Congress passed providing them with the full protections of the Constitution.

The 14^th Amendment
Now, my original question was whether I could run for President, and it seems to me that none of the above – while interesting and highly informative – directly answers that question. Therefore, I look again to the Constitution to see the requirements of citizenship. I’m assuming that if one can claim citizenship at birth – due to the geographic location of birth – that one can call oneself a “natural born” citizen.

The text of the 14^th Amendment (Section 1) states:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The key clause in my case is (apparently), “All persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” This clause apparently provides birthright citizenship. More specifically, the Supreme Court decision in United States v. Wong Kim Ark (1898) supported (6-2 decision!) the language of the first clause by stating:

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 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.

Although I was not born in a state of the United States, I was born in a territory “subject to the jurisdiction thereof,” thereby immediately becoming a U.S. citizen. By the justification of this statement alone, babies born in any sovereign American territory (IOTs, UOTs, IUTs, and UUTs) are automatically citizens.

What about the “natural born” language? Well, the Wing Kim Ark decision also has quotes from Chancellor Kent addressing language of “natural born,” taken from the common law roots of American law:

Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.

I could base the question of whether I am “natural born” on this argument. Unfortunately, the Wing Kim Ark case does not directly specify whether or not I am “natural born”, since Ark was born in the United States proper.

So, can I run for President? Well, if Senator McCain wins the Republican nomination, this question will probably be answered for me. I believe he will be the first Presidential candidate born in a territory not in the mainland of the United States (or in 13 Colonies). Barry Goldwater (1964 Presidential candidate) was born in Arizona Territory (technically a IOT), and is the last presidential candidate to be born in a Territory. Al Gore was born in Washington, D.C. (I'm not counting D.C. as a "true" Territory, since it was explicitly created from another state as a federal district) and is the only person born not born in a state (or in the 13 Colonies) to become Vice President. McCain was born in the PCZ (possibly a UUT). (This is why I alluded to the PCZ above. Tricky bugger, aren’t I?) If McCain becomes the Republican Presidential candidate, I am sure highly competent legal scholars will be asked to weigh in on the issue of whether he is natural-born or not. (However, it looks like common law is on McCain's side.) If legal scholars (or the Supreme Court) decide that McCain is fit to run, then I'm pretty sure that I'll be in the clear to run in the future, too. (One more reason why I hope he gets the nomination.)

UPDATE (February 12, 2008): Based on an online conversation over at Dispatches, "Alex" made me aware of George W. Romney's (admittedly unsuccessful) Presidential bid in 1968. G.W. Romney was Galeana, Mexico. When he made his bid, he had to defend his "natural born" status, which - due to the extension of common law blockquoted above - he was eventually considered to be. If G.W.R. was able to run for the G.O.P. nomination for President in 1968, having been born outside the jurisdiction of the United States, then there is no reason why McCain shouldn't also be allowed to do so. (That G.W.R. didn't eventually get the nomination - which went to Nixon - is beside the point.)

In addition, Steve Reuland also pointed out that Title 8 of the US Code (Chapter 12, Subchapter III, Part 1, Section 1401) sets out the criteria for citizenship at birth. More specifically (for McCain's purposes), section 1403 states:

(a) 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.

(b) Any person born in the Republic of Panama 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 employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.

Looks like Jonny's in the clear. As for me, seeing that I was born on Guam, section 1407 pertains to me:

(a) The following persons, and their children born after April 11, 1899, are declared to be citizens of the United States as of August 1, 1950, if they were residing on August 1, 1950, on the island of Guam or other territory over which the United States exercises rights of sovereignty:

(1) All inhabitants of the island of Guam on April 11, 1899, including those temporarily absent from the island on that date, who were Spanish subjects, who after that date continued to reside in Guam or other territory over which the United States exercises sovereignty, and who have taken no affirmative steps to preserve or acquire foreign nationality; and

(2) All persons born in the island of Guam who resided in Guam on April 11, 1899, including those temporarily absent from the island on that date, who after that date continued to reside in Guam or other territory over which the United States exercises sovereignty, and who have taken no affirmative steps to preserve or acquire foreign nationality.

(b) All persons born in the island of Guam on or after April 11, 1899 (whether before or after August 1, 1950) subject to the jurisdiction of the United States, are declared to be citizens of the United States: Provided, That in the case of any person born before August 1, 1950, he has taken no affirmative steps to preserve or acquire foreign nationality.

(c) Any person hereinbefore described who is a citizen or national of a country other than the United States and desires to retain his present political status shall have made, prior to August 1, 1952, a declaration under oath of such desire, said declaration to be in form and executed in the manner prescribed by regulations. From and after the making of such a declaration any such person shall be held not to be a national of the United States by virtue of this chapter.

Hmm... let's see this is how the parts of section 1407 read for me:

(a): "The following persons [born before I was] are declared to be citizens of the United States as of August 1, 1950, if they were residing on August 1, 1950, on the island of Guam or other territory over which the United States exercises rights of sovereignty:

(a)(1): [Not applicable.]

(a)(2): [Not applicable.]

(b): All persons born in the island of Guam [well before I was] subject to the jurisdiction of the United States, are declared to be citizens of the United States: Provided, [a non-applicable case].

(c): [Not applicable.]"

Apparently, therefore, I'm "natural-born"!