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Natural-born-citizen clause (United States)

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Part of the constitutional provision as it appeared in 1787

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. After the 2008 election of President Barack Obama, interest in the clause swelled due to claims that he had not proven his eligibility.

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.

The grandfather provision of the clause provided an exception to the "natural born Citizen" requirement for those persons who were citizens at the time of the adoption of the Constitution. 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 and this grandfather clause would cover them.[1]

Additionally, 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."

President and Vice President are the only offices that have a natural born citizen requirement. Representatives and Senators are only required to be citizens.[2][3]

Constitutional Convention

The records of Constitutional Convention provide little illumination as to what the Framers intended by this clause.[4] 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.[5]

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.[6]

The Committee of Eleven, without explanation, changed the wording to "natural born citizen," and the Convention as a whole ultimately adopted the modified provision without further debate.[7]

After the original Constitution was ratified, various people opined about the meaning of this clause.

James Madison

In a speech before the House of Representatives in May 1789, James Madison said:

It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.[8]

John Bingham

John Bingham stated in the House of Representatives in 1862:

Who are natural-born citizens but those born in the Republic? […] [P]ersons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians.[9]

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.[10]

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, ... .[11][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.[12][italics in original]

Blacks Law Dictionary (9th Edition) defines 'Natural Born Citizen' as "A person born within the jurisdiction of a national government". 

:::::"One born in the country to two citizen parents"

Congressional Research Service

A memorandum to Congress dated April 3, 2009, written by the Congressional Research Service, 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".[13]

In a 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."[14] 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.

[15]

In a 2008 article published by the Michigan Law Review Lawrence Solum, Professor of Law at the University of Illinois, stated that "[t]here 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'".[16] 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 "[b]ased 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".[17]

Case law

Supreme Court cases relating to citizenship at birth

See also: Birthright citizenship in the United States § Cases of interest
  • Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830): The Supreme Court dealt with the question of the disposition of an estate of a man born in New York in 1776. The court found that jus soli automatically granted American citizenship to children born in New York City between July 4, 1776 and September 15, 1776, but not to children born in that city during the British occupation which followed September 15 of that year. In a separate opinion which he stated "coincides generally with that of the majority of the Court", Justice Joseph Story wrote: "Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth."

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; [...][18][italics in original]

However, Dred Scott pre-dates the Fourteenth amendment, which added to the constitution an explicit description of who shall be citizens, "making all persons born within the United States and subject to its jurisdiction citizens of the United States".[19]

  • Elk v. Wilkins, 83 U.S. 36 (1872): The Court denied Elk, a Native American, the right to vote as a U.S. citizen even though he was born on U.S. soil, because he was born on an Indian Reservation. Elk was not born subject to the jurisdiction of the United States, 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.[20]

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.

  • 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.'[21]

Since the Constitution does not specify what the requirements are to be a "citizen" or a "natural born citizen", the majority adopted the common law of England:

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 treatise on international law by Emerich de Vattel entitled The Law of Nations: "The natives, or natural-born citizens, are those born in the country, of parents who are citizens."[22] Many Supreme Court decisions equate natives with natural born citizens, sometimes citing Vattel.[23] The dissenters in Wong Kim Ark also argued that birth on the soil was not sufficient to grant citizenship at birth, 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.
  • 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.

Lower court cases addressing natural born citizenship

  • Lynch v. Clarke, 3 N.Y. Leg. Obs. 236, 1 Sand. Ch. 583 (1844):[24] This opinion from a New York court extensively reviewed the issue of natural born citizenship, and was later cited by the U.S. Supreme Court in Wong Kim Ark.

    And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. "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," &c . The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the rule of the common law, in force when the constitution was adopted, he is a citizen.

    Moreover, the absence of any avowal or expression in the constitution, of a design to affect the existing law of the country on this subject, is conclusive against the existence of such design. It is inconceivable that the representatives of the thirteen sovereign states, assembled in convention for the purpose of framing a confederation and union for national purposes, should have intended to subvert the long established rule of law governing their constituents on a question of such great moment to them all, without solemnly providing for the change in the constitution; still more that they should have come to that conclusion without even once declaring their object. And what is true of the delegates in the convention, is equally applicable to the designs of the states, and of the people of the states, in ratifying and adopting the results of their labors.

  • Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (2009): The Indiana Court of Appeals applied Wong Kim Ark and upheld the lower court's dismissal of a challenge to President Obama's eligibility.[25][26]

Legislation and executive branch policy

The requirements for citizenship, and its 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."[27]

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 at birth under the Fourteenth Amendment.[28]

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".[29] 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 United States to one or two U.S.-citizen parents has varied considerably over time.[30] 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]."[31]

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.[32] 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.[33][34] 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.[35]

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.[36] 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."[37] 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.

According to an April 2000 report by the Congressional Research Service, most constitutional scholars interpret Article II, Section 1 of the Constitution as including citizens born outside the United States to parents who are U.S. citizens under the "natural born" requirement. 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.[34]

Eligibility challenges

Standing in eligibility challenges

Several courts have ruled that private citizens do not have standing to challenge the eligibility of candidates to appear on a presidential election ballot.[38] Alternatively, there is a statutory method by which the eligibility of the President-elect to take office may be challenged in Congress.[39]

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.[40]

Presidential candidates whose eligibility was questioned

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.[41] In addition, one U.S. Vice President (Albert Gore) was born in Washington, D.C. 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.[42]

  • Chester A. Arthur (1829–1886), 21st president of the United States, was rumored to have been born in Canada.[43][44] 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 U.S. citizen 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,[45] Arthur additionally began to claim between 1870 and 1880[46] that he had been born in 1830, rather than in 1829, which only caused minor confusion and was even used in several publications.[47] 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.[48]
  • 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."[49]
  • 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.[43]
  • 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.[50][51]
  • 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.[52][51]
  • 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[41][53][54][55][56][57][58] 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".[55] A lawsuit filed by Fred Hollander in 2008 alleged that McCain was actually born in a civilian hospital in Colon City, Panama.[59][60] 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."[61][62][63][64] The former unincorporated territory of the Panama Canal Zone and its related military facilities were not regarded as United States territory at the time,[65] 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.[66] In April 2008, the U.S. Senate approved a non-binding resolution recognizing McCain's status as a natural-born citizen.[67] 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.[68] 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.[69] 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.[70] 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 […]".[71] 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.[72][73] 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".[74] The urban legend fact checking website Snopes.com has examined the matter and cites numerous experts. It considers the matter "undetermined".[75]
  • 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.[76] 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,[77] 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 of 1948.[78] 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.[38] On July 28, 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."[79] On April 27, 2011, the White House released a copy of President Obama's "long form" birth certificate.[80]

Proposed constitutional amendments

More than two dozen proposed constitutional amendments have been introduced in Congress to relax the restriction.[81]

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,[82] and the Equal Opportunity to Govern Amendment by Senator Orrin Hatch in 2003, to allow eligibility for Governor of California Arnold Schwarzenegger.[81] The Bingham amendment would have also made clear the eligibility of those born abroad to U.S. parents,[82] while the Hatch one would have allowed those who have been naturalized citizens for twenty years to be eligible.[81]

All proposals to relax the restriction have failed.

See also

Notes

  1. ^ "White House Trivia: Would ya believe it?". The Independent. London. November 4, 2008.
  2. ^ Article 1, Section 2, Clause 2, US Constitution [1]
  3. ^ Article 1, Section 3, Clause 3, US Constitution [2]
  4. ^ Han, William. "Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship", Drake Law Review, Vol. 58, No. 2, 2010, page 462.
  5. ^ Pryor, Jill A. "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty". 97 Yale Law Journal 881, 889 (1988);
  6. ^ Heard, Alexander; Nelson, Michael (1987). Presidential Selection, Duke University Press. p. 123. Retrieved April 24, 2011.
  7. ^ Han, William. "Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship", Drake Law Review, Vol. 58, No. 2, 2010, pages 462-463.
  8. ^ Abridgment of the Debates of ... - Google Books
  9. ^ Congressional Globe 37.2 (1862), p. 1639.
  10. ^ Congressional Globe 39.1 (1866) p. 1291. Stated again during a House debate in 1872; cf. Congressional Globe 42.2 (1872), p. 2791.
  11. ^ Bates, Edward (1862). Opinion of Attorney General Bates on Citizenship. Government Printing Office. pp. 26–27. ISBN 1418193194Template:Inconsistent citations {{cite book}}: Invalid |ref=harv (help)CS1 maint: postscript (link).
  12. ^ Bates 1862, p. 12, Op. cit.
  13. ^ 41131059 MoC Memo What to Tell Your Constituents in Answer to Obama Eligibility
  14. ^ William Rawle, A View of the Constitution of the United States of America, Philadelphia: Philip H. Nicklin Law Bookseller, 1829, p. 86.
  15. ^ James F. Wilson in: Congressional Globe, House of Representatives, 39th Congress, 1st Session, Washington 1866, p. 1117.
  16. ^ Lawrence B. Solum, "Originalism and the natural born citizen clause", Michigan Law Review: First Impressions 107, peer-reviewed print version, September 2008, p. 22.
  17. ^ Lawrence B. Solum, "Originalism and the natural born citizen clause", revised draft version, 18 April 2010 (SSRN), p. 1, n. 3. However, other passages of his revised draft still imply U.S. citizenship of both parents; cf. i.a. pp. 3, 9, 11.
  18. ^ United States. (1857). ": Dred Scott, John F. A. Sanford, Benjamin Chew Howard". A Report of the Decision of the Supreme Court of the United States and the Opinions of the Judges Thereof, in. D. Appleton. pp. 576–582. ISBN 0306711834Template:Inconsistent citations {{cite book}}: Invalid |ref=harv (help); Unknown parameter |coauthors= ignored (|author= suggested) (help)CS1 maint: postscript (link).
  19. ^ 83 U.S. 36
  20. ^ Elk, 112 U.S. at 102.
  21. ^ United States v. Wong Kim Ark 169 U.S. 649 (1898)
  22. ^ Han, William. "Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship", Drake Law Review, Vol. 58, No. 2, 2010, pages 471-472: “Chief Justice Melville Fuller … pointed to the continental publicists of the law of nations, quoting one as saying that ‘in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country’….Wong Kim Ark, 169 U.S. at 708 (Fuller, C.J., dissenting) (quoting 1 EMMERICH DE VATTEL, THE LAW OF NATIONS ch. 19, § 212 (Joseph Chitty trans. 1797)).”
  23. ^ Chin, Gabriel. "Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship", Michigan Law Review First Impressions, Vol. 107, No. 1, 2008, pages 10-11: “Many decisions equate natives with natural born citizens….Scott v. Sanford, 60 U.S. 393, 476 (1856) (Daniel J., concurring) (‘The natives, or natural-born citizens, are those born in the country, of parents who are citizens.’) (quoting Vattel, Book 1, cap. 19, p. 101)….”
  24. ^ New York (State). Court of Chancery (1887). Reports of cases adjudged in the Court of Chancery of New York. Banks & Brothers. Retrieved April 6, 2011.
  25. ^ Volokh, Eugene (November 18, 2009). "Indiana Court of Appeals Rejects Claim That 'Because His Father Was a Citizen of the United Kingdom, President Obama Is [Not a Natural Born Citizen and Therefore] Constitutionally Ineligible to Assume the Office of the President'". The Volokh Conspiracy. Retrieved May 3, 2011. {{cite web}}: Unknown parameter |separator= ignored (help)
  26. ^ Ankeny v. Governor of State of Indiana, 916 NE 2d 678 (Ind: Court of Appeals 40129).
  27. ^ "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.
  28. ^ Weiner, Myron. Migration and Refugees, page 252 (Berghahn Books 1998).
  29. ^ 8 U.S.C. § 1401 , 8 U.S.C. § 1401a , 8 U.S.C. § 1401b , 8 U.S.C. § 1402 , 8 U.S.C. § 1403 , 8 U.S.C. § 1404 , 8 U.S.C. § 1405 , 8 U.S.C. § 1406 , 8 U.S.C. § 1407 , 8 U.S.C. § 1408 , 8 U.S.C. § 1409
  30. ^ The ABC's of Immigration: Citizenship Rules for People Born Outside the United States, Suskind's Immigration Bulletin, Visalaw website, Suskind Susser Bland, Memphis, Tennessee
  31. ^ "Citizenship and Nationality". U.S. Department of State. U.S. Department of State. Retrieved 2006-11-09.
  32. ^ See 8 U.S.C. § 1101(a)(36) and 8 U.S.C. § 1101(a)(38) Providing the term "State" and "United States" definitions on the U.S. Federal Code, Immigration and Nationality Act 8 U.S.C. § 1101a
  33. ^ "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)
  34. ^ a b "PRESIDENTIAL ELECTIONS IN THE UNITED STATES: A PRIMER" (PDF). Congressional Research Service. United States Congressional Research Service. 2000-04-17. Retrieved 2010-01-08.
  35. ^ "7 FAM 1116.1-4(c) "Acquisition and Retention of U.S. Citizenship and Nationality"" (PDF). U.S. Department of State. U.S. Department of State. Retrieved 2008-02-14.
  36. ^ "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.
  37. ^ 7 FAM 1131.6-2d: "Eligibility for Presidency" (referring to 7 FAM 1131.6-2c).
  38. ^ a b 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.
  39. ^ See 3 U.S.C. ch. 1.
  40. ^ Tokaji, Daniel. "The Justiciability of Eligibility: May Courts Decide Who Can Be President?" Michigan Law Review, First Impressions, Volume 107, page 31 (2008).
  41. ^ a b McCain's Canal Zone Birth Prompts Queries About Whether That Rules Him Out - New York Times
  42. ^ Spiro, Peter. "McCain's Citizenship and Constitutional Method", Michigan Law Review, Volume 107, page 208 (2008).
  43. ^ a b "Who Can Be President?", Voice of America News (2008-07-29).
  44. ^ 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, on April 12, 1821. After the family had settled in Fairfield, Vermont, William Arthur traveled with his eldest daughter to East Stanbridge (Canada) in October 1830 and commuted to Fairfield on Sundays to preach. "It appears that he traveled regularly between the two villages, both of which were close to the Canadian border, for about eighteen months, holding two jobs" (cf. Thomas C. Reeves, "The Mystery of Chester Alan Arthur's Birthplace", Vermont History 38, Montpelier: Vermont Historical Society, p. 295), which may well explain the confusion about Arthur's place of birth, as perhaps did the fact that he was born in Franklin County, and thus literally within a day's walk of the Vermont-Quebec border (cf. William A. DeGregorio, The Complete Book of U.S. Presidents, Random House: 1993, pp. 307-08, ISBN 0-517-08244-6).
  45. ^ Regina, the first child of William and Malvina Arthur, was stillborn in Dunham, Quebec, on March 8, 1822. Their second child Jane was born March 14, 1824 in Burlington, Vermont, where the family had taken up residence. Thereafter the family relocated several times in Vermont, to Jericho (1825), Waterville (1827), and finally Fairfield (May 1828), where Chester A. Arthur was later born; cf. Thomas C. Reeves, "The Mystery of Chester Alan Arthur's Birthplace", Vermont History 38, Montpelier: Vermont Historical Society, pp. 294–5.
  46. ^ Thomas C. Reeves, Gentleman Boss. The Life and Times of Chester Alan Arthur, Newtown 1991, p. 5.
  47. ^ E.g. in an early biography of Presidents Garfield and Arthur; Doyle, Burton T. (1881). Lives of James A. Garfield and Chester A. Arthur. Washington: R.H. Darby. p. 183. ISBN 0-104-57546-8. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  48. ^ "Is Mr. Schürmann eligible?", New York Tribune, October 2, 1896, in: Anonymous (ed.), The Presidential Campaign of 1896. A Scrap-Book Chronicle, New York 1925: Funk & Wagnalls, p. 130 sq. (Note: The year of publication is given as 1888, although the election was 8 years later (sic!). However, the author's introduction is dated 1925.)
  49. ^ Breckinridge Long (1916), "Is Mr. Charles Evans Hughes a 'Natural Born Citizen' within the Meaning of the Constitution?", Chicago Legal News 146, p. 220.
  50. ^ Lipsky, Seth (2009). The Citizen's Constitution: An Annotated Guide. (Basic Books). p. 126.
  51. ^ a b Heard, Alexander and Nelson, Michael (1987). Presidential Selection. (Duke University Press). p. 127.
  52. ^ Powell, Stewart (August 14, 1976). "Weicker May Not Be Eligible to Serve in High Position", Nashua Telegraph. United Press International.
  53. ^ S.Res.511: A resolution recognizing that John Sidney McCain, III, is a natural-born citizen., U.S. Senate, April 30, 2008, OpenCongress, retrieved April 13, 2011
  54. ^ "John McCain Biography", Biography.com, retrieved April 13, 2011
  55. ^ a b Dobbs, Michael (May 20, 2008). "John McCain's Birthplace". The Washington Post. Retrieved April 13, 2011.
  56. ^ Parish, Matt (2010), "How Old Is John McCain?", Politics Daily, AOL, retrieved April 13, 2011
  57. ^ "Profile: John McCain". Online NewsHour. PBS. July 1, 2008. Retrieved April 13, 2011.
  58. ^ Fagan, Kevin (September 21, 2008). "McCain: A profile in courage and adaptation". San Francisco Chronicle. Retrieved April 13, 2011.
  59. ^ Hollander v. McCain et al, Justia Dockets & Filings
  60. ^ Dr. Conspiracy (April 24, 2010), "John McCain's fake birth certificate", Obama Conspiracy Theories, retrieved April 13, 2011<
  61. ^ Dobbs, Michael (May 2, 2008), "McCain's Birth Abroad Stirs Legal Debate : His Eligibility for Presidency Is Questioned", The Washington Post
  62. ^ Article II of Convention Between the United States and the Republic of Panama states: "...the cities of Panama and Colon and the harbors adjacent to said cities, which are included within the boundaries of the zone above described, shall not be included within this grant."
  63. ^ A book written by the U.S. Navy includes the same reference: Link to relevant page in the book via Google Books: http://books.google.com/books?id=pxooAAAAYAAJ&dq=panama%20canal%20colon&lr=&pg=PA192
  64. ^ This map clearly shows that Colon is not part of the Canal Zone. Colon Hospital can be seen on the map at the North end of the island. (Source: http://www.serve.com/~CZBrats/)
  65. ^ 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."
  66. ^ "Lawyers Conclude McCain Is "Natural Born", CBS News, Associated Press, March 28, 2008, Retrieved 2008-05-23.
  67. ^ 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".
  68. ^ 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). (See also: "Judge says McCain is a 'natural-born citizen'". Associated Press. September 18, 2008. Retrieved November 16, 2008., and "Constitutional Topic: Citizenship" (Document). U.S. Constitution OnlineTemplate:Inconsistent citations {{cite document}}: Invalid |ref=harv (help); Unknown parameter |accessdate= ignored (help); Unknown parameter |url= ignored (help)CS1 maint: postscript (link).)
  69. ^ Chin, Gabriel J. (2008), "Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship", Michigan Law Review First Impressions, Vol. 107, No. 1, (Arizona Legal Studies Discussion Paper No. 08-14)
  70. ^ "Nationality" in: 7 FAM 1111.3 (c).
  71. ^ 7 FAM §1131.6–2, Eligibility for Presidency.
  72. ^ SCOTUS 401 U.S. 815, 828 (1971)
  73. ^ "Constitutional Topic: Citizenship" (Document). U.S. Constitution OnlineTemplate:Inconsistent citations {{cite document}}: Invalid |ref=harv (help); Unknown parameter |accessdate= ignored (help); Unknown parameter |url= ignored (help)CS1 maint: postscript (link)
  74. ^ Lawrence B. Solum, "Originalism and the natural born citizen clause", Michigan Law Review: First Impressions 107, September 2008, p. 30.
  75. ^ "Is John McCain a natural-born citizen?" Snopes.com, July 23, 2008. Retrieved March 27, 2011.
  76. ^ "The Truth About Barack's Birth Certificate (archived web cache)". Fight the Smears (Obama for America). (retrieved: 2011-03-09), 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.; 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).
  77. ^ Leo C. Donofrio v. Nina Mitchell Wells (SCOTUS 08A407) and Cort Wrotnowski v. Susan Bysiewicz (SCOTUS 08A469); in a conference decision the Supreme Court denied their applications without comment.
  78. ^ "The truth about Barack's birth certificate", Obama for America. Retrieved 2011-03-09).
  79. ^ "Hawaii reasserts Obama 'natural-born' citizen", MSNBC, July 28, 2009
  80. ^ President Obama's Long Form Birth Certificate
  81. ^ 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)
  82. ^ a b "President Kissinger?". Time. 1974-03-04. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
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