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Natural-born-citizen clause (United States)

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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. Therefore, it is undisputed that children of American citizens born in the U.S. are eligible to hold the office of President upon reaching the required age, and that persons naturalized as U.S. citizens after birth are disqualified from holding that office.

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:

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 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 generally agreed [citation needed] that these constitutional provisions mean anyone born on American soil to parents who are U.S. citizens is a “natural born citizen” 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.[1] In between these extremes lie gray areas, some controversy, and various settled precedents.[2]

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:

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.

This clause mentions two types of citizenship: citizenship by birth and citizenship by law (naturalized citizens). However, 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.

It is thought[by whom?] the origin 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)[3] 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 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, under the first naturalization law: "And 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."[4] Many members of the 1790 Congress had been members of the Constitutional Convention. In addition, George Washington was president of the Constitutional Convention and President of the United States when this bill became law, yet it was not vetoed.

In 1795, the Congress passed the Naturalization Act of 1795 which removed the words "natural born" from the Naturalization Act of 1790, to state that such children born to citizens beyond the seas "shall be considered as citizens of the United States."[5] George Washington was also President in 1795, and thus he was aware of this change, and yet did not veto it. With regard to the original (but now obsolete) Naturalization Act of 1790, the U.S. Department of State Foreign Affairs Manual states 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."[6] To this day the short-lived Naturalization Act of 1790 has been the only U.S. law conferring natural born citizenship.

All persons born in the United States, except those not subject to the jurisdiction of the U.S. government (such as children of foreign diplomats) are citizens under the Fourteenth Amendment. Additionally, certain other people have been classified by federal statute as citizens at birth, according to 8 U.S.C. § 1401. 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.[7] Current U.S. statutes define certain individuals born overseas as "citizens at birth," including 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]."[8][9]

Currently under the Immigration and Nationality Act of 1952 (INA) effective from December 24, 1952, to present, the definition of the "United States" for nationality purposes, was expanded to add Guam; and, effective November 3, 1986, the Commonwealth of the Northern Mariana Islands (in addition to Puerto Rico and the Virgin Islands of the United States). Persons born in these territories on or after December 24, 1952, acquire U.S. citizenship at birth on the same terms as persons born in other parts of the United States; and "Outlying possessions of the United States" was restricted to American Samoa and Swains Island. [10]

Regarding people born at U.S. military bases in foreign countries, current State Department policy 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."[11] 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.[12]

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, 60 U.S. 393 (1857): 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, 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.”[13] 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."
  • 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 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.'" [14] 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."[15] 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."[14]
  • 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."

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.[16] Alternatively, there is a statutory method by which the eligibility of the President-elect to take office may be challenged in Congress.[17]

Eligibility challenges under the Natural Born Citizen clause touch on matters of self-evident national importance.[18] 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.[18]

Various other opinions

A small minority of people outside mainstream legal thought[2] dispute whether the foreign-born children of U.S. citizens are natural born citizens.[19] A minority view interprets the Constitution as meaning that a person either is born in the United States or is a naturalized citizen.[20] 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).[19]

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. [21] 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.[22]

  • Chester A. Arthur (1829-1886), 21st president of the United States, was rumored to have been born in Canada.[23] 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,[24] his citizenship status at birth is unclear, because only since the 1868 ratification of the 14th Amendment any person born on United States territory was considered a born U.S. citizen, unequivocally after United States v. Wong Kim Ark (1898). Chester A. Arthur held at least Irish citizenship through jus sanguinis of 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.[25]
  • 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.[23]
  • Lowell Weicker (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.[26]
  • John McCain (1936-), who ran for the Republican party nomination in 2000 and was the Republican nominee in 2008, was born in Colón, Panama,[28] near the Panama Canal Zone[29] of two U.S. parents, who were at the time serving at the Coco Solo Naval Air Station.[30] 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.[31] In April 2008 the U.S. Senate approved a non-binding resolution recognizing McCain's status as a natural born citizen.[32] 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.[33] 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.[34] 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 […]".[35] 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.[36]
  • Barack Obama (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,[37] 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,[38] but argued instead that he was nevertheless not a natural born citizen because his citizenship at birth was governed by the British Nationality Act.[39] 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. [citation needed]

Proposed constitutional amendments

More than two dozen proposed constitutional amendments have been introduced in Congress to relax the restriction.[40]

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,[41] and the Equal Opportunity to Govern Amendment by Senator Orrin Hatch in 2003, to allow eligibility for Governor of California Arnold Schwarzenegger.[40] The Bingman amendment would have also made clear the eligibility of those born abroad to U.S. parents,[41] while the Hatch one would have allowed those who have been naturalized citizens for twenty years to be eligible.[40]

See also

Notes

  1. ^ Meese, Edwin (2008). The Heritage Guide to the Constitution. Washington, D.C.: Regnery Publishing. p. 190. ISBN 159698001X. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)CS1 maint: extra punctuation (link) Solum, Lawrence B. (2008-09-05). "Originalism and the Natural Born Citizen Clause". Michigan Law Review. 107. Michigan: University of Illinois: 22. ISBN 159698001X.
  2. ^ a b How can Panamanian-born McCain be elected president? FactCheck.org, 2008-02-25, retrieved 2008-12-05.
  3. ^ Heard, Alexander and Nelson, Michael. Presidential Selection, page 123 (Duke University Press 1987) via Google Books.
  4. ^ "Statutes at Large, 1st Congress, 2nd Session". A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875. Library of Congress. 1790. Retrieved 2006-11-10.
  5. ^ Statutes At Large, Third Congress, Session II, p. 414.
  6. ^ 7 FAM 1131.6-2d: "Eligibility for Presidency" (referring to 7 FAM 1131.6-2c).
  7. ^ The ABC’s of Immigration: Citizenship Rules for People Born Outside the United States, Suskind's Immigration Bulletin, Visalaw website, Suskind Susser Bland, Memphis, Tennesse
  8. ^ 8 U.S.C. § 1401
  9. ^ "Citizenship and Nationality". U.S. Department of State. U.S. Department of State. Retrieved 2006-11-09.
  10. ^ "7 FAM 1120 ACQUISITION OF U.S. NATIONALITY IN U.S. TERRITORIES AND POSSESSIONS" (PDF). U.S. Department of State Foreign Affairs Manual Volume 7- Consular Affairs. U.S. Department of State. 06-01-05. Retrieved 2008-11-28. {{cite web}}: Check date values in: |date= (help)
  11. ^ "7 FAM 1100 "Acquisition and Retention of U.S. Citizenship and Nationality"" (PDF). U.S. Department of State. U.S. Department of State. Retrieved 2008-02-14.
  12. ^ "7 FAM 1130 "Acquisition of U.S. Citizenship by Birth Abroad to U.S. Citizen Parent"" (PDF). U.S. Department of State. U.S. Department of State. Retrieved 2008-04-25.
  13. ^ Elk, 112 U.S. at 102.
  14. ^ a b 169 U.S. 649 (1898)
  15. ^ "The Law Of Nations, 1758, de Vattel, Book 1, Chapter 19, section 212"
  16. ^ E.g. see Robinson v. Bowen, 567 F. Supp. 2d 1144 (N.D. Cal. 2008); Hollander v. McCain, 2008WL2853250 (D.N.H. 2008); Berg v. Obama, 08-04083 (E.D. Pa. 2008.
  17. ^ See 3 U.S.C. ch. 1.
  18. ^ a b Tokaji, Daniel. "The Justiciability of Eligibility: May Courts Decide Who Can Be President?" Michigan Law Review, First Impressions, Volume 107, page 31 (2008).
  19. ^ a b "U.S. Congress moves to clarify the rules: Just how 'American' must a president be?". International Herald Tribune. International Herald Tribune. June 2, 2004. Retrieved 2006-11-09. {{cite web}}: Check date values in: |date= (help)
  20. ^ Constitutional Topic: Citizenship, U.S. Constitution Online, retrieved 2008-11-25
  21. ^ McCain’s Canal Zone Birth Prompts Queries About Whether That Rules Him Out - New York Times
  22. ^ Spiro, Peter. “McCain’s Citizenship and Constitutional Method”, Michigan Law Review, Volume 107, page 208 (2008).
  23. ^ a b “Who Can Be President?”, Voice of America News (2008-07-29).
  24. ^ Date of William Arthur's naturalization: August 31, 1843; cf. Certificate of Naturalization (Library of Congress)
  25. ^ D. Fitzgerald, "Nationality and Migration in Modern Mexico", in: Journal of Ethnic and Migration Studies, 2005, Vol. 31, No. 1, pp. 171-191
  26. ^ Weicker, An Outcast, Runs Again, New York Times, April 13, 1988
  27. ^ The Green Papers: 2008 Election details about the Calero Presidential Campaign
  28. ^ Colón Hospital, Colón, Republic of Panama (cf. Senator McCains birth certificates).
  29. ^ The Panama Canal Zone and its military facilities are not regarded as United States territory; cf. US Foreign Affairs Manual, 7 FAM §1116.1–4: "Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic 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 U.S. jurisdiction and does not acquire U.S. citizenship by reason of birth."
  30. ^ Alexander, Paul (2002). Man of the People: The Life of John McCain. John Wiley & Sons. p. 12. ISBN 0-471-22829-X.
  31. ^ "Lawyers Conclude McCain Is "Natural Born", Associated Press via CBS News (2008-03-28). Retrieved 2008-05-23.
  32. ^ S.Res.511: A resolution recognizing that John Sidney McCain, III, is a natural born citizen; sponsors: Sen. Claire McCaskill, Sen. Barack Obama et al.; page S2951 notes Chairman Patrick Leahy as agreeing to Secretary Michael Chertoff's "assumption and understanding" that a citizen is a natural born citizen, if he or she was "born of American parents".
  33. ^ Cf. William Alsup, Robinson v. Bowen: Order denying preliminary injunction and dismissing action, September 16, 2008, p. 2; Alsup ruled that McCain was either a natural born citizen by birth under 8 U.S.C. §1401c or retroactively under 8 U.S.C. §1403(a). These laws however do not describe natural born citizenship, but only confer or declare statutory citizenship at birth. (See also: "Judge says McCain is a 'natural born citizen'". Associated Press. September 18, 2008. Retrieved November 16, 2008., and Constitutional Topic: Citizenship, U.S. Constitution Online, retrieved 2008-11-25.)
  34. ^ Gabriel J. Chin, "Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship", in: Michigan Law Review First Impressions, Vol. 107, No. 1, 2008 (Arizona Legal Studies Discussion Paper No. 08-14)
  35. ^ 7 FAM §113.6–2, Eligibility for Presidency; the first revision of the Naturalization Act however demonstrates the opinion of Congress in 1795 that U.S. citizens born outside of the United States and its outlying possessions were not considered to be natural born.
  36. ^ SCOTUS 401 U.S. 815, 828 (1971)
  37. ^ "The Truth About Barack's Birth Certificate". Fight the Smears (Obama for America). (retrieved: 2009-01-22), quoting in excerpts from: "Does Barack Obama have Kenyan citizenship?". FactCheck.org (Annenberg Foundation). 2008-08-29.; see also: "Obama hits back at Internet slanders". Agence France-Press. 2008-06-12.
  38. ^ Leo C. Donofrio v. Nina Mitchell Wells (SCOTUS 08A407) and Cort Wrotnowski v. Susan Bysiewicz (SCOTUS 08A469); a hearing of both cases before the Supreme Court as well as their applications were denied by conference decision.
  39. ^ "The truth about Barack's birth certificate", Obama for America. Retrieved 2009-01-22); in a written oath to the State of Arizona Obama further stated that he is a natural born citizen (cf. Candidate Nomination Paper, State of Arizona, November 30, 2007).
  40. ^ a b c Kasindorf, Martin (2004-12-02). "Should the Constitution be amended for Arnold?". USA Today. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  41. ^ a b "President Kissinger?". Time. 1974-03-04. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
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