Natural-born-citizen clause (United States)

The United States Constitution requires that Presidents (and Vice Presidents) of the United States be natural born Citizens of the United States.

Constitutional provisions

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.

Additionally, the Twelfth Amendment 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 Fourteenth Amendment, adopted in 1868, defines a "Citizen" of the United States, but not necessarily a "natural born Citizen." Its Citizenship Clause provides 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."

Possible sources

There is no record of a debate on the "natural born Citizen" qualification during the Constitutional Convention. This clause was introduced by the drafting Committee of Eleven, and then adopted without discussion by the Convention as a whole. One possible source of the clause can be traced to a July 25, 1787 letter from John Jay to George Washington, presiding officer of the Convention. 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.

Another possible source, worded differently, comes from Alexander Hamilton, a delegate to the Convention. On June 18, 1787, 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."

Legal opinions

1857 opinion of Supreme Court Justice Benjamin R. Curtis

In his opinion dissenting from the decision in Dred Scott v. Sanford 60 U.S. (19 How.) 393 (1857) Justice Benjamin R. Curtis wrote in considerable detail on this topic. His writing there is too lengthy to requote here in entirety; partially requoted, Justice Curtis wrote,

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 the history of this country at the time of the adoption of the Constitution, which referred Citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies, were the subjects of the King; that by the Declaration of independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, [...] .

The Constitution having recognized that persons born within the several States are citizens of the United States, one of four things must be true:
  First. That the constitution itself has described what native-born persons shall or shall not be citizens of such State, and thereby be citizens of the United States; or,
  Second:. That it has empowered Congress to do so; or,
  Third. That all free persons, born within the several States, are citizens of the United States; or,
  Fourth. That it is left to each State to determine what free persons, born within its limits, shall be citizens of such State, and thereby be citizens of the United States.
If there is such a thing as Citizenship of the United States acquired by birth within the States, which the Constitution expressly recognizes, and no one denies, then those four alternatives embrace the entire subject, and it only remains to select that one which is true.
[...]

The answer is obvious. The Constitution has left to the States the determination what person, born within their respective limits, shall acquire by birth citizenship of the United States; [...] [italics in original]

The language "a natural-born citizen" in the constitution referred to by Justice Curtis is Article II, Section 1, Clause 5, which reads, "No person except a natural born Citizen, [...] shall be eligible for the Office of President; [...] ."

1862 opinion of the U.S. Attorney General

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. Attorney General 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, ... .[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.[italics in original]

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 statutory "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."

The foregoing section of the FAM only addresses citizenship by jus soli: In short, what is the geographic scope of the "United States"? This does not affect citizenship via jus sanguinis, i.e. 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." This position seems to be at odds with the fact that Congress in 1790 felt it could confer natural born citizenship on those born abroad to American parents. Ultimately, it will take a Supreme Court decision to settle the matter once an American citizen born abroad runs for and wins the presidency.

Case law

Supreme Court cases relating to citizenship

Although the U.S. Supreme Court has never specifically determined the meaning of "natural born citizen," they have occasionally discussed the term as obiter dictum in cases concerning citizenship.

• Dred Scott v. Sandford, 60 U.S. 393 (1857): In regard to the "natural born citizen" clause, the dissent states that such citizenship 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, 83 U.S. 36 (1872): 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, 83 U.S. 36 (1872): 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, 88 U.S. 162 (1874): In this case decided after the adoption of the Fourteenth Amendment, the Court stated (pp. 167–68):

  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 parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

Thus, as early as 1874, the Supreme Court of the United States identified the existence of a legitimate legal dispute as to whether the natural born citizenship requirement for the Presidency was the same a citizenship at birth or whether it was something more restrictive. However, since the determination of that legal question was not necessary to resolve the dispute before them, the Court merely pointed out the existence of the dispute but refused to resolve it.

• United States v. Wong Kim Ark, 169 U.S. 649 (1898): 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 and who were not eligible for U.S. citizenship, 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 of "natural born citizen" found in the constitution, the majority adopted the common law of England that was a carry over from feudal times.

The court ruled:

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.

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, 307 U.S. 325 (1939): 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, 377 U.S. 163 (1964): 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, 401 U.S. 815 (1971): 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.

Some legal scholars assert that, even if eligibility challenges 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 in regard to ballot access.

Various other opinions

There is dispute regarding whether the foreign-born children of U.S. citizens are natural born citizens. One view interprets the "natural born Citizen" clause 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). Another view holds that the clause only requires that a president be a citizen at the time of birth, whether under the Fourteenth Amendment or under federal law.

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. Arthur was born in Vermont to a U.S. citizen mother and a father from Ireland, who was eventually naturalized as a U.S. citizen. It should be noted that his mother, Malvina Stone Arthur, while a native of Berkshire, Vermont, moved with her family to Quebec, where she met and married the future President's father, William Arthur, in 1821. They continued to reside in Canada until sometime in 1828, when William Arthur became a Baptist minister, and successively tended to eleven parishes in the Vermont and upstate New York region. Their marriage and lengthy residence in Canada may well explain the confusion about Arthur's place of birth, as perhaps did the fact that he (like his mother) was born in Berkshire, and thus literally within less than a day's walk of the Vermont-Quebec border. Additionally, during middle age, Chester Arthur began to claim he had been born in 1830, rather than in 1829, which may have further raised suspicions about the nature of his birth (despite the fact his parents took up residence in the United States in 1828).

Arthur was sworn in as president when President Garfield died after being shot. Since his Irish father William was naturalized 14 years after Chester Arthur's birth, his citizenship status at birth is unclear, because he was born before the 1868 ratification of the 14th Amendment, which provided that any person born on United States territory and being subject to the jurisdiction thereof was considered a born U.S. citizen, and because he may have also held British citizenship at birth by patrilineal jus sanguinis. Arthur's natural born citizenship status is therefore equally unclear.

• 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.

• Róger Calero (born 1969) was born in Nicaragua and ran as the Socialist Worker's Party presidential candidate in 2004 and 2008. In 2008, Calero appeared on the ballot in Delaware, Minnesota, New Jersey, New York and Vermont.

• John McCain (born 1936), who ran for the Republican party nomination in 2000 and was the Republican nominee in 2008, according to his birth certificate, was born of two U.S. citizen parents at Colon Hospital in Colon, Panama. The city of Colon was outside the US administered Canal Zone and remained Panamanian territory throughout the existence of the Panama Canal Zone. A brief birth announcement in The Panama American stated that the birth had taken place at "the Submarine Base Hospital." The former unincorporated territory Panama Canal Zone and its military facilities were not regarded as United States territory. In March 2008 McCain was opined 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 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. Although the US Foreign Affairs Manual states that children born in the Panama Canal Zone at one point only became U.S. nationals, 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 […]". 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 claim 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 status at birth was also governed by the British Nationality Act of 1948. 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 July 28, 2009, State officials in Hawaii once again issued a statement officially confirming Obama was born in the state of Hawaii. On July 27, 2009, the U.S. House of Representatives passed H.R. 593, commemorating the 50th anniversary of Hawaii's statehood, including the text, "Whereas the 44th President of the United States, Barack Obama, was born in Hawaii on August 4, 1961." The vote passed 378-0.

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 Bingham 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

• Citizenship
• Nationality
• Native-born citizen
• United States nationality law

External links

• John Yinger, Essay on the Presidential Eligibility clause and on the origins and interpretation of natural born citizen.
• Jill A. Pryor, "The Natural Born Citizen Clause and the Presidential Eligibility Clause; Resolving Two Hundred Years of Uncertainty", Yale Law Journal, Vol. 97, 1988, pp. 881–899.
• Sarah P. Herlihy, "Amending the Natural Born Citizen Requirement: Globalization as the Impetus and the Obstacle", Chicago-Kent Law Review, Vol. 81, 2006, pp. 275–300.