Citizenship by blood is not established in the Constitution but by the various modifications of the Immigration and Nationalization Act. In 1936, when McCain was born, the 1934 modified version of the Cable Act allowed transmission of citizenship via his mother as well as his father...
It wasn't until the Immigration and Nationality Act of 1952 that todays standards of overseas citizenship conference took shape. Citizenship in the US is a bit of a mess.
The Immigration and Nationality Act is a moving target. Periodically it is amended, or the Supreme Court strikes down certain provisions.
Having been born to a Canadian father in the US and moved to Canada when I was nine, my US citizenship lapsed when I turned 25 in Canada (I was quite happy to stay in Canada during the Vietnam war during my twenties). At the time I was unaware of the INA provisions repealed in 1978 that lapsed my US citizenship.
New FATCA and IRS obligations motivated me to research my US citizenship status and I was happy to discover that it had lapsed.
US Customs officers sometimes ask questions when I show up with a Canadian passport with a US birthplace. Now I pull out my copy of State Department FAM 1200 APPENDIX C to explain my status, but the legalese is a challenge for people with just high school.
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Strangely, I think you might qualify to run for the presidency. Nothing in the Constitution demands that you be a current citizen, only a natural-born one... which, assuming the date was late enough, you certainly were. McCain though, I don't think he made the cut.
Legally, he was very much not a citizen at birth. You are simply incorrect. In the year in which he was born, children of citizen parents born overseas were not citizens at birth... that only changed 3 years later when Congress passed a law making it so.
At that point he became a citizen, and not before.
The Expat law of 1907 dealt with naturalization of children born abroad to citizens and that female US citizens would LOSE their citizenship if they married foreign nationals.
You had to file the paperwork at the local consulate. If you didn't the child would have citizenship and it was a mess. Lots of American servicemen, their war brides, and children dealt with this after WWII.
>In the year in which he was born, children of citizen parents born overseas were not citizens at birth
This is completely incorrect and is not what the issue was with his citizenship. John McCain was born in 1936 in the Panama Canal Zone, the area around the Panama Canal that was controlled by the US. The Naturalization Act of 1855 granted birthright citizenship to foreign born children of a US citizen father [1], and was reaffirmed in 1878 [2]. The Equal Nationality Act of 1934 added that a US citizen mother could also confer citizenship to children born abroad [3].
Most interpretations considered The Canal Zone to be foreign territory for citizenship purposes. The issue was in the extremely specific wording of the Acts, which was that children of US parents born “out of the limits and jurisdiction of the United States” were granted citizenship. The Canal Zone was outside the limits of the US, but was technically under the jurisdiction of the US. So, depending on how you interpret the Act, children born in The Canal Zone are in a weird no man’s land, where they don’t get citizenship as a result of being born in the US, but also technically aren’t on totally foreign territory, which would give them their parent’s citizenship. In 1937 (a year after McCain’s birth, not three years), Congress passed 50 Stat. 558, explicitly making children born in The Canal Zone to a US citizen parent US citizens [4]. There was no citizenship law 3 years after McCain’s birth, but the Nationality Act of 1940 was four years after, however, its significant change was allowing children born out of wedlock to a US citizen mother to be given citizenship [5].
[1] “persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.” extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.govinfo.gov/content/pkg/STATUTE-10/pdf/STATUTE-1...
[2] “All children heretofore or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.” Original Statutes of 1878
[3] “Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such a child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child.” 8 FAM 301.5 SECTION 1993, revised statutes of 1878 extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.govinfo.gov/content/pkg/STATUTE-48/pdf/STATUTE-4...
[4] “any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this Act, 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.” extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.govinfo.gov/content/pkg/STATUTE-50/pdf/STATUTE-5...
[5] “The provisions of section 201, subsections (c), (d), (e), and (g), and section 204, subsections (a) and (b), hereof apply, as of the date of birth, to a child born out of wedlock, provided the paternity is established during minority, by legitimation, or adjudication of a competent court.” 8 U.S.C. 605; 54 Stat. 1139 https://fam.state.gov/fam/08fam/08fam030106.html
