Status as a natural-born citizen of the United States is one of the eligibility requirements established in the United States Constitution for election to the office of President or Vice President. This requirement was an attempt to allay concerns that foreign aristocrats might immigrate to the new nation and use their wealth and influence to impose a monarchy.
The Constitution does not define the phrase natural-born citizen, and various opinions have been offered over time regarding its precise meaning. The Congressional Research Service has stated that the weight of scholarly legal and historical opinion indicates that the term means one who is entitled under the Constitution or laws of the United States to U.S. citizenship "at birth" or "by birth," including any child born "in" the United States (other than to foreign diplomats serving their country), the children of United States citizens born abroad, and those born abroad of one citizen parent who has met U.S. residency requirements.[1]
The natural-born-citizen clause has been mentioned in passing in several decisions of the United States Supreme Court and lower courts dealing with the question of eligibility for citizenship by birth, but the Supreme Court has never directly addressed the question of a specific presidential or vice-presidential candidate's eligibility as a natural-born citizen.
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Section 1 of Article Two of the United States Constitution sets forth the eligibility requirements for serving as president of the United States:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
The Twelfth Amendment states that, "No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." The Fourteenth Amendment does not use the phrase natural-born citizen. It does provide 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."
Under Article One of the United States Constitution, representatives and senators are only required to be U.S. citizens.[2][3]
The first several presidents prior to Martin van Buren, as well as potential presidential candidates, were born as British subjects in British America before the American Revolution.[4]
The natural-born-citizen clause was an attempt to allay concerns that foreign aristocrats would immigrate to the new nation and use their wealth and influence to impose a monarchy on the new nation.[5] In furtherance of this goal, the Framers also imposed a 14 year residency requirement of anyone who would seek to become President of the United States.
The Constitution does not explain the meaning of "natural born".[6] On June 18, 1787, Alexander Hamilton submitted to the Convention a sketch of a plan of government. Article IX, section 1 of Hamilton's plan provided:
No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.[7]
On July 25, 1787, John Jay wrote to George Washington, presiding officer of the Convention:
Permit me to hint whether it would not 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 Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen.[9]
There is no proof that deliberations took place at the convention on the subject of the letter. While the Committee on Detail originally proposed that the President must be merely a citizen as well as a resident for 21 years, the Committee of Eleven changed "citizen" to "natural born citizen" without explanation. The Convention accepted the change without further debate.[10]
After the original Constitution was ratified, various people opined about the meaning of this clause.
John Bingham stated in the House of Representatives in 1862:
The Constitution leaves no room for doubt upon this subject. The words 'natural born citizen of the United states' appear in it, and the other provision appears in it that, "Congress shall have power to pass a uniform system of naturalization." To naturalize a person is to admit him to citizenship. Who are natural born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth--natural born citizens.[11]
He reiterated his statement in 1866:
Every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen; but, sir, I may be allowed to say further that I deny that the Congress of the United States ever had the power, or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States. Citizenship is his birthright and neither the Congress nor the States can justly or lawfully take it from him.[12]
In 1862, Secretary of the Treasury Salmon P. Chase sent a query to Attorney General Edward Bates asking whether or not "colored men" can be citizens of the United States. Bates responded on November 29, 1862, with a 27-page opinion concluding, "I conclude that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, ... .[13][italics in original]" In the course of that opinion, Bates commented at some length on the nature of citizenship, and wrote,
... our constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.[14][italics in original]
In an 1829 treatise on the U.S. Constitution, William Rawle wrote that
every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.[15]
During an 1866 House debate James F. Wilson quoted Rawle's opinion, and also referred to the "general law relating to subjects and citizens recognized by all nations" saying
...and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except it may be that children born on our soil to temporary sojourners or representatives of foreign Governments, are native-born citizens of the United States.[16]
An English-language translation of Emerich de Vattel's 1758 treatise The Law of Nations (original French title: Le Droit du gens), stating that "The natives, or natural-born citizens, are those born in the country of parents who are citizens," was quoted in 1857 by Supreme Court justice Peter Vivian Daniel in a concurring opinion in Dred Scott v. Sandford,[17] as well as by Chief Justice Melville Fuller in 1898 in his dissenting opinion in United States v. Wong Kim Ark.[18]
Alexander Porter Morse, the lawyer who represented Louisiana in Plessy v. Ferguson,[19] wrote in the Albany Law Journal:
If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. It may be observed in passing that the current phrase “native-born citizen” is well understood; but it is pleonasm and should be discarded; and the correct designation, “native citizen” should be substituted in all constitutional and statutory enactments, in judicial decisions and in legal discussions where accuracy and precise language are essential to intelligent discussion.[20]
Black's Law Dictionary (9th Edition) defines 'Natural Born Citizen' as "A person born within the jurisdiction of a national government."
A memorandum to Congress dated April 3, 2009, written by the Congressional Research Service (CRS), states:
Considering the history of the constitutional qualifications provision, the common use and meaning of the phrase "natural-born subject" in England and in the Colonies in the 1700s, the clause's apparent intent, the subsequent action of the first Congress in enacting the Naturalization Act of 1790 (expressly defining the term "natural born citizen" to include a person born abroad to parents who are United States citizens), as well as subsequent Supreme Court dicta, it appears that the most logical inferences would indicate that the phrase "natural born Citizen" would mean a person who is entitled to U.S. citizenship "at birth" or "by birth."[21]
According to an April 2000 report by the CRS, most constitutional scholars interpret the natural born citizen clause as to include citizens born outside the United States to parents who are U.S. citizens. This same CRS report also asserts that citizens born in the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands are legally defined as "natural born" citizens and are, therefore, also eligible to be elected President.[22] Gabriel J. Chin, Professor of Law at the University of Arizona, however, believes under the current law not all persons born outside of the United States to U.S. citizen parents are eligible to serve under the natural born citizen clause.[23][24]
In a 2008 article published by the Michigan Law Review Lawrence Solum, Professor of Law at the University of Illinois, stated that "there is general agreement on the core of [the] meaning [of the Presidential Eligibility Clause]. Anyone born on American soil whose parents are citizens of the United States is a 'natural born citizen'".[25] In April 2010, Solum republished the same article as an online draft, in which he changed his opinion on the meaning of natural born citizen to include persons born in the United States of one American citizen parent. In a footnote he explained that "based on my reading of the historical sources, there is no credible case that a person born on American soil with one American parent was clearly not a 'natural born citizen'." He further extended natural born citizenship to all cases of jus soli as the "conventional view".[26] Although Professor Solum stated elsewhere that the two-citizen-parents arguments "weren't crazy", he believes "the much stronger argument suggests that if you were born on American soil that you would be considered a natural born citizen."[27]
Ronald Rotunda, Professor of Law at Chapman University, stated, "There's some people who say that both parents need to be citizens. That's never been the law."[28] Polly Price, Professor of Law at Emory University, added, "It's a little confusing, but most scholars think it's a pretty unusual position for anyone to think the natural born citizen clause would exclude someone born in the [United States]."[27] Professor Chin concurred with that assessment, stating, "there is agreement that 'natural born citizens' include those made citizens by birth under the 14th Amendment."[29] Similarly, Eugene Volokh, Professor of Law at UCLA, found "quite persuasive" the reasoning employed by the Indiana Court of Appeals, which had ruled "that persons born within the borders of the United States are 'natural born Citizens' for Article II, Section 1 purposes, regardless of the citizenship of their parents."[30][31] Daniel Takaji, Professor of Law at Ohio State University, agrees the citizenship status of a U.S.-born candidate's parents is irrelevant.[32]
Several courts have ruled that private citizens do not have standing to challenge the eligibility of candidates to appear on a presidential election ballot.[33] Alternatively, there is a statutory method by which the eligibility of the president-elect of the United States to take office may be challenged in Congress.[34]
Some legal scholars assert that, even if eligibility challenges are nonjusticiable in federal courts, and are not undertaken in Congress, there are other avenues for adjudication, such as an action in state court in regard to ballot access.[35]
While every president and vice president to date 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.[36] In addition, one U.S. vice president (Albert Gore) was born in Washington, D.C., and another (Charles Curtis) was born in the Kansas Territory. 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.[37]
Chester A. Arthur (1829–1886), 21st president of the United States, was rumored to have been born in Canada.[38][39] This was never demonstrated by his Democratic opponents, although Arthur Hinman, an attorney who had investigated Arthur's family history, raised the objection during his vice-presidential campaign and after the end of his presidency. Arthur was born in Vermont to a Vermont-born mother and a father from Ireland, who was naturalized as a U.S. citizen in 1843, 14 years after Chester was born. Despite the fact that his parents took up residence in the United States somewhere between 1822 and 1824,[40] Arthur additionally began to claim between 1870 and 1880[41] that he had been born in 1830, rather than in 1829, which only caused minor confusion and was even used in several publications.[42] Arthur was sworn in as president when President Garfield died after being shot.
Christopher Schürmann (born 1848 in New York) entered the Labor primaries during the 1896 presidential election. His eligibility was questioned in a New York Tribune article, because he was born to alien parents of German nationality. It was stated that "various Attorney-Generals of the United States have expressed the opinion that a child born in this country of alien parents, who have not been naturalized, is, by the fact of birth, a native-born citizen entitled to all rights and privileges as such". But due to a lack of any statute on the subject, Schürmann's eligibility was "at best an open question, and one which should have made [his] nomination under any circumstances an impossibility", because questions concerning his eligibility could have been raised after the election.[43]
The eligibility of Charles Evans Hughes (1862–1948) was questioned in an article written by Breckinridge Long, and published in the Chicago Legal News during the U.S. presidential election of 1916, in which Hughes was narrowly defeated by Woodrow Wilson. Long claimed that Hughes was ineligible because his father had not yet naturalized at the time of his birth and was still a British citizen. Observing that Hughes, although born in the United States, was also a British subject and therefore "enjoy[ed] a dual nationality and owe[d] a double allegiance", Long argued that a native born citizen was not natural born without a unity of U.S. citizenship and allegiance and stated: "Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a 'natural-born' citizen of the United States."[44]
Barry Goldwater (1909–1998) was born in Phoenix, in what was then the incorporated 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.[38]
George Romney (1907–1995), who ran for the Republican party presidential nomination in 1968, was born in Mexico to U.S. parents.[45][46] Romney's grandfather had emigrated to Mexico in 1886 with his three wives and children after the U.S. federal government outlawed polygamy. Romney's monogamous parents retained their U.S. citizenship and returned to the United States with him in 1912.[47] 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.
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.[46][48]
Róger Calero (born 1969 in Nicaragua) was a Socialist Workers Party candidate in 2004 and 2008.[49] Because he was not a natural born citizen of the United States, Calero was ineligible to become president, so James Harris, the Socialist Workers Party presidential candidate from 2000, stood in on the ticket in nine states where Calero could not be listed. In 2004, Calero received 3,689 votes,[50] and Harris received 7,102 additional votes.[51] Calero also ran in 2008, with Harris again standing in for Calero in several states.[52] Calero was on the ballot in five states, where he received 7,209 votes; Harris received an additional 2,424 votes.[53]
John McCain (born 1936), who ran for the Republican party nomination in 2000 and was the Republican nominee in 2008, was born at Coco Solo Naval Air Station[36][54][55][56][57][58][59] in the Panama Canal Zone. McCain never released his birth certificate to the press or independent fact-checking organizations, but did show it to Washington Post reporter Michael Dobbs, who wrote "a senior official of the McCain campaign showed me a copy of [McCain's] birth certificate issued by the 'family hospital' in the Coco Solo submarine base".[56] A lawsuit filed by Fred Hollander in 2008 alleged that McCain was actually born in a civilian hospital in Colon City, Panama.[60][61] Dobbs wrote that in his autobiography, Faith of My Fathers, McCain wrote that he was born "in the Canal Zone" at the U.S. Naval Air Station in Coco Solo, which was under the command of his grandfather, John S. McCain Sr. "The senator's father, John S. McCain Jr., was an executive officer on a submarine, also based in Coco Solo. His mother, Roberta McCain, now 96, has vivid memories of lying in bed listening to raucous celebrations of her son's birth from the nearby officers' club. The birth was announced days later in the English-language Panamanian American newspaper."[62][63][64][65]
The former unincorporated territory of the Panama Canal Zone and its related military facilities were not regarded as United States territory at the time,[66] but 8 U.S.C. § 1403, which became law in 1937, retroactively conferred citizenship on individuals born within the Canal Zone on or after February 26, 1904, and on individuals born in the Republic of Panama on or after that date who had at least one U.S. citizen parent employed by the U.S. government or the Panama Railway Company; 8 U.S.C. § 1403 was cited in Judge Alsup's 2008 ruling, described below. A March 2008 paper by former Solicitor General Ted Olson and Harvard Law Professor Laurence H. Tribe opined that McCain was eligible for the Presidency.[67] In April 2008, the U.S. Senate approved a non-binding resolution recognizing McCain's status as a natural-born citizen.[68] 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 from birth by virtue of 8 U.S.C. § 1401, although he acknowledged the alternative possibility that McCain became a natural-born citizen retroactively, by way of 8 U.S.C. § 1403.[69]
These views have been criticized by Professor Chin, who argues that McCain was at birth a citizen of Panama and was only retroactively declared a born citizen under 8 U.S.C. § 1403, 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.[70] The U.S. State Department's Foreign Affairs Manual states that children born in the Panama Canal Zone at certain times became U.S. nationals without citizenship.[71] It also states in general 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 […]".[72] 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.[73][74] Similarly, legal scholar Lawrence Solum concluded in an article on the natural born citizen clause that the question of McCain's eligibility could not be answered with certainty, and that it would depend on the particular approach of "constitutional construction".[75] The urban legend fact checking website Snopes.com has examined the matter and cites numerous experts. It considers the matter "undetermined".[76]
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 what was then the Kenya Colony of the United Kingdom (which became the independent country of Kenya in 1963). Before and after the 2008 presidential election, arguments were made that he is 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 conspiracy theories challenging his eligibility.[77] The most prominent issue raised against Obama was the claim made in several lawsuits 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,[78] but argued instead that he was nevertheless not a natural-born citizen because his citizenship status at birth was governed by the British Nationality Act 1948.[79] 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.
On October 31, 2008, Hawaii Health Director Dr. Chiyome Fukino issued a statement saying, "I ... have personally seen and verified that the Hawai'i State Department of Health has Sen. Obama's original birth certificate on record in accordance with state policies and procedures." [33][80] On July 27, 2009, Hawaii Health Director Dr. Chiyome Fukino issued a statement saying, "I ... have seen the original vital records maintained on file by the Hawaii State Department of Health verifying Barack Hussein Obama was born in Hawaii and is a natural-born American citizen."[81] On April 27, 2011, the White House released a copy of President Obama's birth certificate.[82]
An attempt to prevent Obama from participating in the 2012 Democratic primary election in New Hampshire failed.[83] In October 2011, the Liberty Legal Foundation filed suit seeking to enjoin the Democratic National Committee from certifying Obama as its nominee for the 2012 U.S. presidential election on the ground that he does not have two citizen parents and thus, it contends, is not a natural-born citizen.[84][85]
More than two dozen proposed constitutional amendments have been introduced in Congress to relax the restriction.[86]
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,[87] and the Equal Opportunity to Govern Amendment by Senator Orrin Hatch in 2003, to allow eligibility for Governor of California Arnold Schwarzenegger.[86] The Bingham amendment would have also made clear the eligibility of those born abroad to U.S. parents,[87] while the Hatch one would have allowed those who have been naturalized citizens for twenty years to be eligible.[86]
All proposals to relax the restriction have failed.
