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Natural-born citizen
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The United States Constitution requires that Presidents (and Vice Presidents) of the United States be natural born citizens of the United States.
special term "Natural Born Citizen" is used in particular as a requirement for eligibility to serve as President or Vice President of the United States. Section 1 of Article Two of the United States Constitution contains the clause:
Additionally, the Twelfth Amendment to the United States Constitution states that: "[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." The grandfather provision of the Natural Born Citizen Clause thus covered the only exceptions to the natural born requirement for the first several presidents and vice-presidents, who were citizens at the time of the adoption of the Constitution, but had been born as British subjects before the American Revolution.
It is thought by some that these constitutional provisions mean only people born on U.S.
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The United States Constitution requires that Presidents (and Vice Presidents) of the United States be natural born citizens of the United States.
Constitutional provisions
The special term "Natural Born Citizen" is used in particular as a requirement for eligibility to serve as President or Vice President of the United States. Section 1 of Article Two of the United States Constitution contains the clause:
Additionally, the Twelfth Amendment to the United States Constitution states that: "[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." The grandfather provision of the Natural Born Citizen Clause thus covered the only exceptions to the natural born requirement for the first several presidents and vice-presidents, who were citizens at the time of the adoption of the Constitution, but had been born as British subjects before the American Revolution.
It is thought by some that these constitutional provisions mean only people born on U.S. soil to two U.S. citizens are the “natural born citizens” of the nation and eligible to someday become president or vice-president, whereas anyone whose citizenship is acquired after birth as a result of naturalization "process or procedure" is not a "natural born citizen" and is therefore ineligible for those two positions. Notwithstanding the Supreme court decision in United States v. Wong Kim Ark, , a majority of commentators today argue that the Presidential Eligibility clause incorporates both common-law (Jus soli) and English statuatory (Jus sanguinis) principles. In between these extremes lie gray areas, some controversy, and various settled legal precedents.
The Citizenship Clause of the Fourteenth Amendment to the United States Constitution provides an additional source of constitutional doctrine stating that birth "in the United States" and subjection to U.S. jurisdiction at the time of birth, entitles one to citizenship:
The full text of the fourteenth amendment does not mention the phrase "natural born citizen," nor does it address Presidential qualifications. The phrase "natural born Citizen" is not defined anywhere in the Constitution, as is also true with most other constitutional terms.
One possible source of the natural born citizen clause can be traced to a letter of July 25, 1787, from John Jay (who was born in New York) to George Washington (who was born in Virginia), presiding officer of the Constitutional Convention. John 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." (Underlining in the original) There was no debate, and this qualification for the office of the Presidency was introduced by the drafting Committee of Eleven, and then adopted without discussion by the Constitutional Convention.
Legislation and executive branch policy
The requirements for citizenship, and its very definition in American statute law, have changed since the Constitution was ratified in 1788. Congress first recognized the citizenship of children born to U.S. parents overseas on March 26, 1790, stating that "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." To date, the Naturalization Act of 1790 has been the only U.S. law explicitly conferring "natural born" citizenship. In 1795, Congress removed the words "natural born" from the law; the Naturalization Act of 1795 says only that foreign-born children of American parents "shall be considered as citizens of the United States."
All persons born in the United States, except those not subject to the jurisdiction of the U.S. government (such as children of ambassadors or other foreign diplomats) are citizens under the Fourteenth Amendment. Additionally, under sections 301–309 of the Immigration and Nationality Act (restated in sections 1401–1409 of Title 8 of the United States Code), current U.S. law defines numerous other categories of individuals born abroad, as well as people born in most U.S. territories and possessions, as being "nationals and citizens of the United States at birth." The phrase "natural born citizen," however, does not appear in the current statutes dealing with citizenship at birth.
The law governing the citizenship of children born outside the U.S. to one or more U.S.-citizen parents has varied considerably over time. Current U.S. statutes define various categories of individuals born overseas as "citizens at birth," including (for example) all persons "born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person[s]."
The definition of the "United States", for nationality purposes, was expanded in 1952 to add Guam, and in 1986 it was expanded again to include the Northern Mariana Islands. Persons born in these territories (in addition to Puerto Rico and the U.S. Virgin Islands) currently acquire U.S. citizenship at birth on the same terms as persons born in other parts of the United States. The category of "outlying possessions of the United States" (whose inhabitants generally have U.S. "nationality" but not U.S. "citizenship") is now restricted to American Samoa and Swains Island.
Regarding people born at U.S. military bases in foreign countries, current U.S. State Department policy (as codified in the department's Foreign Affairs Manual) reads: "Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth." However, the State Department is of the opinion that this does not affect those who are born abroad to U.S. citizens and who otherwise meet the qualifications for statutory citizenship. The State Department also asserts that "the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes."
Case law
Supreme Court cases relating to citizenship and "natural born" status
Although the U.S. Supreme Court has never specifically determined the meaning of "natural born Citizen," they have occasionally considered the matter in passing.
- Dred Scott v. Sandford, : In regard to the "natural born citizen" clause, the dissent states that it is acquired by place of birth (jus soli), not through blood or lineage (jus sanguinis): "The first section of the second article of the Constitution uses the language, 'a natural born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth." (Much of the majority opinion in this case was overturned by the 14th Amendment in 1868.)
- Elk v. Wilkins, : The Court denied Elk, a Native American, the right to vote as a US citizen even though he was born on US soil, because he was born on an Indian Reservation. Elk was not born subject to the jurisdiction of the US, because he “owed immediate allegiance to” his tribe, a vassal or quasi-nation, and not to the United States. The Court held Elk was not “subject to the jurisdiction” of the United States at birth. “The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” This ruling was rendered moot when native Americans were granted citizenship in the Indian Citizenship Act of 1924.
- Slaughterhouse Cases, : The Court discussed the Citizenship Clause of the Fourteenth Amendment: "the phrase 'subject to the jurisdiction thereof' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States."
- Minor v. Happersett, : "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first."
- United States v. Wong Kim Ark, : In this case, the majority of the Court held that a child born in U.S. territory to parents who were subjects of the emperor of China but who had “a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China” was a U.S. Citizen. The Court stated that: "The constitution nowhere defines the meaning of these words [citizen and natural born citizen], either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.'" Since there was no definition found in the constitution, the majority adopted the common law of England that was a carry over from feudal times. The dissent argued that the meaning of the “subject to the jurisdiction” language found in 14th Amendment was the same as that found in the 1866 Civil Rights Act, which provides: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” On the meaning of “natural born citizen,” the dissent also cited the preeminent treatise on international law by Emerich de Vattel entitled “The Law of Nations” which was known to have influenced the drafters of the original constitution: "The natives, or natural-born citizens, are those born in the country of parents who are citizens." The dissenters also noted that: "it is unreasonable to conclude that 'natural born citizen' applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not."
- Perkins v. Elg, : The U.S. Supreme Court concluded that Marie Elizabeth Elg, who was born in the United States of Swedish parents naturalized in the United States, had not lost her birthright U.S. citizenship because of her removal during minority to Sweden and was entitled to all the rights and privileges of that U.S. citizenship. In this case, the U.S. Supreme Court affirmed the decree that declared Elg "to be a natural born citizen of the United States."
- Schneider v. Rusk, : The Court voided a statute that provided that a naturalized citizen should lose his United States citizenship if, following naturalization, he resided continuously for three years in his former homeland. "We start from the premise that the rights of citizenship of the native-born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be President."
- Rogers v. Bellei, : Reviews the history of citizenship legislation and of the Fourteenth Amendment's Citizenship Clause.
Standing in eligibility challenges
Several United States District Courts have ruled that private citizens do not have standing to challenge the eligibility of candidates to appear on a presidential election ballot. Alternatively, there is a statutory method by which the eligibility of the President-elect to take office may be challenged in Congress.
Eligibility challenges under the Natural Born Citizen clause touch on matters of self-evident national importance. Even if they are nonjusticiable in lower federal courts, and are not undertaken in Congress, there are other avenues for adjudication, such as an action in state court.
Various other opinions
A small minority of people outside mainstream legal thought dispute whether the foreign-born children of U.S. citizens are natural born citizens. A minority view interprets the Constitution as meaning that a person either is born in the United States or is a naturalized citizen. According to this view, in order to be a "natural born citizen," a person must be born in the United States, or possibly an incorporated territory; otherwise, they are a citizen "by law" and are therefore a "statutory citizen," (not necessarily, however, a naturalized citizen, which implies a pre-existing foreign citizenship).
Presidential candidates whose eligibility was questioned
While every President and Vice President to date (as of 2009) is widely believed either to have been a citizen at the adoption of the Constitution in 1789 or to have been born in the United States, One U.S. President (Chester A. Arthur) and some presidential candidates either were not born or were suspected of not having been born in a U.S. state. This does not necessarily mean that they were ineligible, only that there was some controversy (usually minor) about their eligibility, which may have been resolved in favor of eligibility.
- Chester A. Arthur (1829–1886), 21st president of the United States, was rumored to have been born in Canada. This was never demonstrated by his political opponents, although they raised the objection during his vice-presidential campaign. He was born to a U.S. citizen mother and a father from Ireland, who was eventually naturalized as a U.S. citizen. Arthur was sworn in as president when President Garfield died after being shot. Since his Irish father William naturalized 14 years after Chester Arthur's birth, his natural born citizenship status at birth is unclear, because he was born before the 1868 ratification of the 14th Amendment that provided any person born on United States territory and subject to the jurisdiction thereof was considered a U.S. citizen, and because he held at least Irish citizenship jus sanguinis through his father.
- George Romney (1907–1995), who ran for the Republican party nomination in 1968, was born in Mexico to U.S. parents. Romney’s grandfather had emigrated to Mexico in 1886 with his three wives and children after Utah outlawed polygamy. Romney's monogamous parents retained their U.S. citizenship and returned to the United States with him in 1912. Romney never received Mexican citizenship, because the country's nationality laws had been restricted to jus-sanguinis statutes due to prevailing politics aimed against American settlers.
- Barry Goldwater (1909–1998) was born in Phoenix, in what was then the Arizona Territory of the United States. During his presidential campaign in 1964, there was a minor controversy over Goldwater's having been born in Arizona when it was not yet a state.
- Lowell Weicker (born 1931), the former Connecticut Senator, Representative, and Governor, entered the race for the Republican party nomination of 1980 but dropped out before voting in the primaries began. He was born in Paris, France to parents who were U.S. citizens. His father was an executive for E. R. Squibb & Sons and his mother was the Indian-born daughter of a British general.
- John McCain (born 1936), who ran for the Republican party nomination in 2000 and was the Republican nominee in 2008, was born in Colón, Panama, in the Panama Canal Zone of two U.S. parents, who were at the time serving at the Coco Solo Naval Air Station. In March 2008 McCain was held eligible for Presidency in an opinion paper by former Solicitor General Ted Olson and Harvard Law Professor Laurence H. Tribe. In April 2008 the U.S. Senate approved a non-binding resolution recognizing McCain's status as a natural born citizen. In September 2008 U.S. District Judge William Alsup stated obiter in his ruling that it is "highly probable" that McCain is a natural born citizen, although he acknowledged the possibility that the applicable laws had been enacted after the fact and applied only retroactively. These views have been criticized by Gabriel J. Chin, Professor of Law at the University of Arizona, who argues that McCain was at birth a citizen of Panama and was only retroactively declared a born citizen under , because at the time of his birth and with regard to the Canal Zone the Supreme Court's Insular Cases overruled the Naturalization Act of 1795, which would otherwise have declared McCain a U.S. citizen immediately at birth. In any case, the US Foreign Affairs Manual states that "it has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen […]". In Rogers v. Bellei the Supreme Court only ruled that "children born abroad of Americans are not citizens within the citizenship clause of the 14th Amendment", and didn't elaborate on the natural born status.
- Barack Obama (born 1961), 44th president of the United States, was born in Honolulu, Hawaii to a U.S. citizen mother and a British subject father from the Kenya Colony of the United Kingdom. Before and after the 2008 presidential election, the argument was made that he was not a natural born citizen. On June 12, 2008, the Obama presidential campaign launched a website to counter what it described as smears by his opponents, including these challenges to his eligibility. The most prominent issue raised against Obama was the assertion that he was not actually born in Hawaii. In two other lawsuits, the plaintiffs argued that it was irrelevant whether he was born in Hawaii, but argued instead that he was nevertheless not a natural born citizen because his citizenship at birth was, in part, determined by the British Nationality Act. The relevant courts have either denied all applications or declined to render a judgment due to lack of jurisdiction. Some of the cases have been dismissed because of the plaintiff's lack of standing.
Proposed constitutional amendments
More than two dozen proposed constitutional amendments have been introduced in Congress to relax the restriction.
Two of the more well known were introduced by Representative Jonathan Bingham in 1974, to allow for Secretary of State Henry Kissinger to become eligible, and the Equal Opportunity to Govern Amendment by Senator Orrin Hatch in 2003, to allow eligibility for Governor of California Arnold Schwarzenegger. The Bingman amendment would have also made clear the eligibility of those born abroad to U.S. parents, while the Hatch one would have allowed those who have been naturalized citizens for twenty years to be eligible.
See also
External links
- John Yinger, on the Presidential Eligibility clause and on the origins and interpretation of natural born citizen.
- Jill A. Pryor, , Yale Law Journal, Vol. 97, 1988, pp. 881–899.
- Sarah P. Herlihy, , Chicago-Kent Law Review, Vol. 81, 2006, pp. 275–300.
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