Citizenship

The rules in place at the time of the birth of John McCain made him a U.S. national but not a U.S. citizen.

• Although the Panama Canal Zone was legally an unincorporated U.S. territory until the implementation of the Torrijos-Carter Treaties in 1979, questions arose almost from its inception as to whether the Zone was considered part of the United States for constitutional purposes, or, in the phrase of the day, whether the Constitution followed the flag.

• In 1901 the U.S. Supreme Court had ruled in Downes v. Bidwell that unincorporated territories are not the United States.[5]

• On July 28, 1904, Controller of the Treasury Robert Tracewell stated: "While the general spirit and purpose of the Constitution is applicable to the zone, that domain is not a part of the United States within the full meaning of the Constitution and laws of the country."[6]

• Accordingly, the Supreme Court held in 1905 in Rasmussen v. United States that the full Constitution only applies for incorporated territories of the United States.[7] Until the rulings in these so-called "Insular Cases", children born of two U.S. citizens in the Canal Zone had been subject to the Naturalization Act of 1795, which granted statutory U.S. citizenship at birth.

• With the ruling of 1905 persons born in the Canal Zone only became U.S. nationals, not citizens.[8] This no man's land with regard to U.S. citizenship was perpetuated until Congress passed legislation in 1937, which corrected this deficiency.

• The law is now codified under title 8 section 1403.[9] It not only grants statutory and declaratory born citizenship to those born in the Canal Zone after February 26, 1904, with at least one U.S. citizen parent, but also did so retroactively for all children born of at least one U.S. citizen in the Canal Zone before the law's enactment.[10]