Natural-born-citizen clause

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Status as a natural-born citizen of the United States is one of the eligibility requirements established in the United States Constitution for holding the office of President or Vice President. This requirement was intended to protect the nation from foreign influence.[1]

The U.S. Constitution uses but does not define the phrase "natural born Citizen", and various opinions have been offered over time regarding its precise meaning. The consensus of early 21st-century constitutional scholars, together with relevant case law, is that natural-born citizens include, subject to exceptions, those born in the United States. Many scholars have also concluded that those who meet the legal requirements for U.S. citizenship "at the moment of birth", regardless of place of birth, are also natural born citizens.[2][3] Every president to date was either a citizen at the adoption of the Constitution in 1789 or was born in the United States; of those in the latter group, there have been six that had a parent who was not born on U.S. soil.[4]

The natural-born-citizen clause has been mentioned in passing in several decisions of the United States Supreme Court, and by some lower courts that have addressed eligibility challenges, but the Supreme Court has never directly addressed the question of a specific presidential or vice-presidential candidate's eligibility as a natural-born citizen. Many eligibility lawsuits from the 2008, 2012, and 2016 election cycles were dismissed in lower courts due to the challengers' difficulty in showing that they had standing to raise legal objections. Additionally, some experts have suggested that the precise meaning of the natural-born-citizen clause may never be decided by the courts because, in the end, presidential eligibility may be determined to be a non-justiciable political question that can be decided only by Congress rather than by the judicial branch of government.[5][6]

Constitutional provisions[edit]

Part of the constitutional provision as it appeared in 1787

Section 1 of Article Two of the United States Constitution sets forth the eligibility requirements for serving as president of the United States, under clause 5 (emphasis added):

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

The Twelfth Amendment states, "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, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Under Article One, representatives and senators are required to be U.S. citizens, but there is no requirement that they be natural born.[7][8]

Eight of the first nine presidents—Martin Van Buren being the exception—as well as early potential presidential candidates, were born as British subjects in British America before the American Revolution but were eligible for the office by virtue of having been citizens at the time that the Constitution was adopted.[9]

History[edit]

Antecedents in Britain[edit]

The use of the term "natural born" was not without precedent. The earliest recorded mention was in Calvin's Case (1609), albeit in terms of birth within the jurisdiction of the sovereignty of the King.[10] Statutes in Britain prior to American independence used the phrase "natural born subject". For example, the British Foreign Protestants Naturalization Act 1708.[11][12]

The children of all natural born subjects born out of the ligeance [i.e. out of Britain] of Her Majesty Her Heirs and Successors shall be deemed and adjudged to be natural born subjects of this Kingdom to all intents, constructions, and purposes whatsoever.

The Act was repealed by the Tories in 1711 by the Naturalization Act 1711 (10 Anne c. 9).[13][14][clarification needed]

Similarly, the British Nationality Act 1730 stated:

[A]ll Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively ... are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever.[15]

Another use is in the Plantation Act 1740:[16]

[A]ll persons born out of the legience of His Majesty, His Heirs, or Successors, who have ... or shall inhabit or reside for ... seven years or more in any of His Majesty’s colonies in America ... shall be deemed, adjudged, and taken to be His Majesty’s natural-born subjects of this Kingdom.

Jurist William Blackstone wrote in 1765 that inhabitants born within England may be natural-born subjects:[clarification needed] "Natural-born subjects are such as are born within the dominions of the crown of England".[12][17] Blackstone added that offspring who are not inhabitants may also be natural born subjects:[17][18]

But by several more modern statutes ... all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

Prior to Blackstone, Edward Coke offered a narrower opinion in Calvin's Case.[19] According to Coke: "[I]f any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions."[20]

The term "natural born" has often been used synonymously with "native born".[21] The English lexicographer Samuel Johnson wrote in 1756 that the word "natural" means "native," and that the word "native" may mean either an "inhabitant" or an "offspring".[22]

Between 1776 and 1789[edit]

From the Declaration of Independence (1776) to the ratification of the Constitution (1789), the thirteen states were independent of Britain, and during much of this time the Articles of Confederation tied together the country. The phrase "natural born citizen" was sometimes used during this period. An example occurred in 1784 when the Maryland General Assembly conferred citizenship on the (French-born) Marquis de Lafayette:[23][24][25]

Be it enacted by the General Assembly of Maryland—that the Marquiss de la Fayette and his Heirs male forever shall be and they and each of them are hereby deemed adjudged and taken to be natural born Citizens of this State and shall henceforth be intitled to all the Immunities, Rights and Privileges of natural born Citizens thereof …

Constitutional Convention[edit]

The Constitution does not explain the meaning of "natural born".[26] On June 18, 1787, Alexander Hamilton submitted to the Convention a sketch of a plan of government.[27] The sketch provided for an executive "Governour" but had no eligibility requirements.[28] At the close of the Convention, Hamilton conveyed a paper to James Madison he said delineated the Constitution that he wished had been proposed by the Convention; he had stated its principles during the deliberations. Max Farrand wrote that it "was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton."[29] Article IX, section 1 of Hamilton's draft constitution 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."[30]

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.[32]

While the Committee of Detail originally proposed that the President must be merely a citizen, as well as a resident for 21 years, the Committee of Eleven changed "citizen" to "natural born citizen", and the residency requirement to 14 years, without recorded explanation after receiving Jay's letter. The Convention accepted the change without further recorded debate.[33]

Constitutionality of the natural-born-citizen clause[edit]

In 2012, Abdul Karim Hassan filed several unsuccessful lawsuits claiming the natural-born-citizen clause violated the Equal Protection Clause of the Fourteenth Amendment, arguing it was a form of discrimination based on national origin.[34]

Proposed constitutional amendments[edit]

More than two dozen proposed constitutional amendments have been introduced in Congress to relax the restriction.[35] Two of the more well known were introduced by Representative Jonathan Bingham in 1974, with the intent to allow German-born Secretary of State Henry Kissinger (otherwise fourth in the line of succession) to become eligible,[36] and the Equal Opportunity to Govern Amendment by Senator Orrin Hatch in 2003, intending to allow eligibility for Austrian-born Arnold Schwarzenegger.[35] The Bingham amendment would have also made clear the eligibility of those born abroad to U.S. parents,[36] while the Hatch one would have allowed those who have been naturalized citizens for twenty years to be eligible.[35]

Rationale[edit]

St. George Tucker, an early federal judge, wrote in his 1803 edition of William Blackstone's Commentaries on the Laws of England, perhaps the leading authority for the delegates to the Constitutional Convention for the terms used in the Constitution, that the natural born citizen clause is "a happy means of security against foreign influence" and that "[t]he admission of foreigners into our councils, consequently, cannot be too much guarded against."[1] In a footnote, Tucker wrote that naturalized citizens have the same rights as the natural-born except "they are forever incapable of being chosen to the office of president of the United States."[37]

In a speech before the Senate, delegate Charles Cotesworth Pinckney gave the rationale, "to insure experience and attachment to the country."[38]

Professor Akhil Amar of Yale Law School claimed that there had been a perception on the part of those drafting the constitution that a member of the European aristocracy could immigrate and buy his way into power.[39]

Interpretations of the clause[edit]

Naturalization Acts of 1790 and 1795[edit]

Because of the large number of Framers who went on to serve in Congress, laws passed by the early sessions of Congress have often been looked to as evidence of the Framers' intent. The Naturalization Act of 1790 stated 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."[40] This act was repealed by the Naturalization Act of 1795, which removed the characterization of such children as "natural born", stating that "the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States" while retaining the same residency restrictions as the 1790 act.[40]

Government officials' interpretations[edit]

1800s[edit]

John Bingham, an American lawyer and politician, held to the belief that natural born should be interpreted as born in the United States. In 1862, in the House of Representatives he stated:

The Constitution leaves no room for doubt upon this subject. The words "natural born citizen of the United States" appear in it, and the other provision appears in it that, "Congress shall have power to pass a uniform system of naturalization." To naturalize a person is to admit him to citizenship. Who are natural born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth—natural born citizens.[41]

He reiterated his statement in 1866:

Every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen; but, sir, I may be allowed to say further that I deny that the Congress of the United States ever had the power, or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States. Citizenship is his birthright and neither the Congress nor the States can justly or lawfully take it from him.[42]

Edward Bates also held to the belief that "natural born" should be interpreted as "born in the United States". He also indicated that those born in the United States to alien parents, even if they reside elsewhere, are still considered natural born. 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. The question arose because the Coast Guard had detained a schooner commanded by a free "colored man" who claimed he was a citizen of the United States. If he were a U.S. citizen the boat could be released, but otherwise—the Civil War then being fought—it would be confiscated. No information about the man's birth or parentage was provided. Bates responded on November 29, 1862, with a 27-page opinion — considered of such importance that the government published it not only in the official volumes of Attorney-General opinions but also as a separate booklet[43] — 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]

In another opinion, dated September 1, 1862,[44] Bates dealt with a question from the Secretary of State, of whether a person born in the U.S. to two non-citizens, who is taken with them back to their country, could, years later, re-enter the United States as of right, as a U.S. citizen. Bates wrote:

I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship. I might sustain this opinion by a reference to the well-settled principle of the common law of England on this subject; to the writings of many of the earlier and later commentators on our Constitution and laws; ... and lastly to the dicta and decisions of many of our national and state tribunals. But all this has been well done by Assistant Vice Chancellor Sandford, in the case of Lynch vs. Clarke, and I forbear. I refer to his opinion for a full and clear statement of the principle, and of the reasons and authorities for its support.

Unlike Edward Bates, U.S. Secretary of State William Learned Marcy was equivocal about whether those born in the country of alien parents and who reside elsewhere are still considered citizens. In 1854 Marcy wrote John Y. Mason, the U.S. Minister to France:[45]

In reply to the inquiry ... whether "the children of foreign parents born in the United States, but brought to the country of which the father is a subject, and continuing to reside within the jurisdiction of their father's country, are entitled to protection as citizens of the United States", I have to observe that it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship. There is not, however any United States statute containing a provision upon this subject, nor, so far as I am aware, has there been any judicial decision in regard to it.

U.S. Attorney General Edwards Pierrepont, however, shared Edward Bates' opinion that those born in the country of alien parents and who reside elsewhere are still considered citizens, and he added that they should be entitled to be president of the United States, if elected. In 1875 Pierrepont was presented with a query from the Secretary of State, Hamilton Fish. A young man, named Arthur Steinkauler,[46] had been born in Missouri in 1855, a year after his father was naturalized a U.S. citizen. When he was four years old, his father returned to Germany with him and both had stayed there ever since. The father had relinquished his American citizenship and the young man was now 20 years old and about to be drafted into the Imperial German army. The question was asked "What was this young man's situation as a native-born American citizen?" After studying the relevant legal authorities, Pierrepont wrote:[47]

Under the treaty [of 1868 with Germany], and in harmony with American doctrine, it is clear that Steinkauler the father abandoned his naturalization in America and became a German subject (his son being yet a minor), and that by virtue of German laws the son acquired German nationality. It is equally clear that the son, by birth, has American nationality, and hence he has two nationalities, one natural, the other acquired ... Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of 21, and in due time, if the people elect, he can become President of the United States. ... I am of opinion that when he reaches the age of 21 years he can then elect whether he will return and take the nationality of his birth, with its duties and privileges, or retain the nationality acquired by the act of his father.

1900s[edit]

Frederick van Dyne, the Assistant Solicitor of the U.S. Department of State (1900–1907) indicated that children of citizens born outside the United States are also considered citizens. In 1904, he published a textbook, Citizenship of the United States, in which he wrote:[48]

There is no uniform rule of international law covering the subject of citizenship. Every nation determines for itself who shall, and who shall not, be its citizens. ... By the law of the United States, citizenship depends, generally, on the place of birth; nevertheless the children of citizens, born out of the jurisdiction of the United States, are also citizens. ... The Constitution of the United States, while it recognized citizenship of the United States in prescribing the qualifications of the President, Senators, and Representatives, contained no definition of citizenship until the adoption of the 14th Amendment, in 1868; nor did Congress attempt to define it until the passage of the civil rights act, in 1866. ... Prior to this time the subject of citizenship by birth was generally held to be regulated by the common law, by which all persons born within the limits and allegiance of the United States were deemed natural-born citizens. It appears to have been assumed by the Supreme Court of the United States in the case of Murray v. The Charming Betsy (1804) 2 Cranch (6 U.S.) 64, 119, 2 L.Ed. 208, 226, that all persons born in the United States were citizens thereof. ... In M'Creery v. Somerville (1824) 9 Wheat. (22 U.S.) 354, 6 L.Ed. 109, which concerned the title to land in the state of Maryland, it was assumed that children born in that state to an alien were native-born citizens of the United States. ... The Federal courts have almost uniformly held that birth in the United States, of itself, confers citizenship.

Interpretations by the courts[edit]

1800s[edit]

Although eligibility for the Presidency was not an issue in any 19th-century litigation, there have been a few cases that shed light on the definitions of natural born and native born citizen. The leading case, Lynch v. Clarke[49] of 1844, indicated that citizens born "within the dominions and allegiance of the United States" are citizens regardless of parental citizenship. This case dealt with a New York law (similar to laws of other states at that time) that only a U.S. citizen could inherit real estate. The plaintiff, Julia Lynch, had been born in New York while her parents, both British, were briefly visiting the U.S., and shortly thereafter all three left for Britain and never returned to the U.S. The New York Chancery Court determined that, under common law and prevailing statutes, she was a U.S. citizen by birth and nothing had deprived her of that citizenship, notwithstanding that both her parents were not U.S. citizens or that British law might also claim her through her parents' nationality. In the course of the decision, the court cited the Constitutional provision and said:

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.[50]

And further:

Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever the situation of his parents, is a natural born citizen. It is surprising that there has been no judicial decision upon this question.[51]

The decision in Lynch was cited as persuasive or authoritative precedent in numerous subsequent cases, and reinforced the interpretation that "natural born citizen" meant born "within the dominions and allegiance of the United States" regardless of parental citizenship. For example, in an 1884 case, In re Look Tin Singg,[52] the federal court held, that despite laws preventing naturalization of Chinese visitors, Chinese persons born in the United States were citizens by birth, and remained such despite any long stay in China. Citing Lynch, Justice Stephen J. Field wrote:

After an exhaustive examination of the law, the Vice-Chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen, and added that this was the general understanding of the legal profession, and the universal impression of the public mind.[53]

The Lynch case was also cited as a leading precedent in the U.S. Supreme Court decision in United States v. Wong Kim Ark (1898),[54] which similarly held a child born in the United States of two Chinese parents was a "natural born" U.S. citizen.[55]

1900s[edit]

Consistent with the earlier decisions, in 1939, the U.S. Supreme Court stated in its decision in Perkins v. Elg that a person born in America and raised in another country was a natural born citizen, and specifically stated that they could "become President of the United States".[56] The case was regarding a young woman, born in New York a year after her father became a naturalized U.S. citizen. However, when she was about four her parents returned to Sweden taking her with them, and they stayed in Sweden. At age 20, she contacted the American embassy in Sweden and, shortly after her 21st birthday, returned to the United States on a U.S. passport and was admitted as a U.S. citizen. Years later, while she was still in America, her father in Sweden relinquished his American citizenship, and, because of that, the Department of Labor (then the location of the Immigration & Naturalization Service) declared her a non-citizen and tried to deport her. The young woman filed suit for a declaratory judgment that she was an American citizen by birth. She won at the trial level, and at the circuit court—where she was repeatedly described as "a natural born citizen" [57] — and finally in the U.S. Supreme Court, where the court decision quoted at length from the U.S. Attorney General's opinion in Steinkauler's Case (mentioned above) including the comment that a person born in America and raised in another country could yet "become President of the United States".[56]

Some federal cases argued for a narrow reading of the Fourteenth Amendment, according to which U.S. citizens were necessarily either born or naturalized in the United States, and any citizen who was not born in the United States must have been naturalized by operation of law, even if such naturalization was "automatic" at birth. In this view, such a person should not be considered a natural born citizen, but rather a "naturalized" citizen who is not eligible for the Presidency.[58]

In 1951, the U.S. Court of Appeals for the Tenth Circuit noted in Zimmer v. Acheson that "[t]here are only two classes of citizens of the United States, native-born citizens and naturalized citizens", quoting a dictum by Justice Gray from United States v. Wong Kim Ark and Elk v. Wilkins.[6] The court ruled that Zimmer, who was born abroad in 1905 to a U.S. citizen father and a noncitizen mother, was himself a citizen under the nationality law in force at the time of his birth, but "his status as a citizen was that of a naturalized citizen and not a native-born citizen".[59] In the 1956 case of Wong Kam Wo v. Dulles, the U.S. Court of Appeals for the Ninth Circuit quoted Zimmer v. Acheson and United States v. Wong Kim Ark in support of a ruling that the statute that was in effect prior to 1940 granting citizenship to foreign-born children of U.S. citizens was a naturalization law rather than a provision for nationality at birth. In 1940, however, the federal law was amended to explicitly define "naturalization" as conferring nationality after birth.

In 1961, the U.S. Supreme Court ruled in Montana v. Kennedy that an individual who was born in 1906 in Italy to a U.S. citizen mother and a noncitizen father was not a U.S. citizen by birth under the nationality laws in force at the time of his birth. It observed that automatic citizenship was granted to children of U.S. citizen fathers and noncitizen mothers by an 1855 act of Congress, but the reverse situation was only addressed, non-retroactively, in 1934.[60] In 1971, the Court encountered a similar situation in Rogers v. Bellei, where the individual in question was born after 1934 and so was granted automatic U.S. citizenship, though subject to residence requirements and was subject to expatriation. The Court "appeared to assume or imply that such persons became citizens at birth by way of naturalization".[58]

More recent cases, particularly Nguyen v. INS and Robinson v. Bowen, relaxed this view, suggesting that the Fourteenth Amendment merely establishes a "floor" for birthright citizenship, and this category may be expanded by Congress.[58]

2000s[edit]

In 2009 in Ankeny v. Governor,[61] the Indiana Court of Appeals reaffirmed that persons born within the borders of the United States are "natural born Citizens", regardless of the citizenship of their parents. The court referred to the case of Wong Kim Ark, and provides a compilation of the arguments pertaining to this topic.

A clarification to this interpretation was made in 2010, where a three-judge panel of the United States Court of Appeals for the Fifth Circuit held that natural born citizens can lose their citizenship if their territory of birth later ceases to be U.S. territory. The case involved a Philippine-born litigant who could not claim U.S. citizenship on the basis of his parents, who lived all their lives in the Philippines, because they were born while the Philippines was U.S. territory prior to being given its independence. The Courts for the Second, Third, and Ninth Circuits have also held that birth in the Philippines at a time when the country was a territory of the United States does not constitute birth "in the United States" under the Citizenship Clause, and thus did not give rise to United States citizenship.[62]

In a 2012 New York case, Strunk v. N.Y. State Board of Elections,[4] the pro se plaintiff challenged Barack Obama's presence on the presidential ballot, based on his own interpretation that "natural born citizen" required the president "to have been born on United States soil and have two United States born parents" (emphasis added). To this the Court responded, "Article II, section 1, clause 5 does not state this. No legal authority has ever stated that the Natural Born Citizen clause means what plaintiff Strunk claims it says. ... Moreover, President Obama is the sixth U.S. President to have had one or both of his parents not born on U.S. soil". The opinion then listed Andrew Jackson, James Buchanan, Chester A. Arthur, Woodrow Wilson, and Herbert Hoover.[4]

Academic interpretations[edit]

1800s[edit]

William Rawle, formerly the U.S. Attorney for Pennsylvania (1791–1799) defined natural born citizen as every person born within the United States, regardless of the citizenship of their parents. In an 1825 treatise, A View of the Constitution of the United States of America, he wrote:

The citizens of each state constituted the citizens of the United States when the Constitution was adopted. ... [He] who was subsequently born the citizen of a State, became at the moment of his birth a citizen of the United States. Therefore 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. ... Under our Constitution the question is settled by its express language, and when we are informed ... no person is eligible to the office of President unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.[63]

James F. Wilson agreed with Rawle's opinion, but added the exclusion of visiting foreign diplomats. During an 1866 House debate, he 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.[64]

Supreme Court Justice Peter Vivian Daniel disagreed with this position and considered natural born citizen as every person born of citizen parents within the United States. In 1857, in a concurring opinion in Dred Scott v. Sandford,[65] he quoted an English-language translation of Emerich de Vattel's 1758 treatise The Law of Nations (Le Droit des gens), stating that "The natives, or natural-born citizens, are those born in the country of parents who are citizens".[66]

This was quoted again in 1898 by Chief Justice Melville Fuller in his dissenting opinion in United States v. Wong Kim Ark.[67] However, two paragraphs later, Justice Vattel disagrees and states, "§ 214. ... there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner."

Joseph Story, an Associate Justice of the U.S. Supreme Court, believed that the term native citizen is synonymous with natural born citizen, though he does not define either term. In his 1840 guidebook to the Constitution, A Familiar Exposition of the Constitution of the United States, about the natural-born-citizen clause he wrote "It is not too much to say that no one, but a native citizen, ought ordinarily to be [e]ntrusted with an office so vital to the safety and liberties of the people."[68] This same wording also appeared in his 1834 work The constitutional class book: being a brief exposition of the Constitution of the United States: Designed for the use of the higher classes in common schools.[69]

1900s[edit]

Alexander Porter Morse, the lawyer who represented Louisiana in Plessy v. Ferguson,[70] considered this connection between native born and natural born to signify that only a child of citizens should be allowed to run for President. In the Albany Law Journal, he wrote:

If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, "no person, except a native-born citizen"; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. It may be observed in passing that the current phrase "native-born citizen" is well understood; but it is pleonasm and should be discarded; and the correct designation, "native citizen" should be substituted in all constitutional and statutory enactments, in judicial decisions and in legal discussions where accuracy and precise language are essential to intelligent discussion.[71]

2000s[edit]

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

Foreign soil[edit]

In 2000, the Congressional Research Service (CRS), in one of its reports, wrote that most constitutional scholars interpret the natural born citizen clause to include citizens born outside the United States to parents who are U.S. citizens. This same CRS report also asserts that citizens born in the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands, are legally defined as "natural born" citizens and are, therefore, also eligible to be elected President.[72]

This opinion was reaffirmed in a 2009 CRS report, which stated:

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".[73]

This interpretation of natural born being the equivalent of citizen at birth (not naturalized) was again in a 2011 CRS report and a 2016 CRS report. The 2011 report stated:

The weight of legal and historical authority indicates that the term "natural born" citizen would mean a person who is entitled to U.S. citizenship "by birth" or "at birth," either by being born "in" the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship "at birth". Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an "alien" required to go through the legal process of "naturalization" to become a U.S. citizen.[3]

The 2016 report similarly stated:

Although the eligibility of U.S. born citizens has been settled law for more than a century, there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term "natural born" in England and in the American colonies in the 1700s included both the strict common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent). Legal scholars in the field of citizenship have asserted that this common understanding and legal meaning in England and in the American colonies was incorporated into the usage and intent of the term in the U.S. Constitution to include those who are citizens at birth.[58]

Gabriel J. Chin, Professor of Law at UC Davis School of Law, held the opinion that the term "natural born" is ambiguous and citizenship-granting authority has changed over the years. He notes that persons born outside the United States to U.S.-citizen parents have not always been born citizens.[74][75] For example, foreign-born children of persons who became naturalized citizens between April 14, 1802 and 1854 were considered aliens. He also believed that children born in the Panama Canal Zone to at least one U.S. then-citizen between May 24, 1934, and August 4, 1937, when Congress granted citizenship to all such persons, were born without American citizenship. As a result, Chin argues, such persons (for constitutional and political purposes, most notably 2008 U.S. presidential candidate John McCain, born in the Canal Zone on August 28, 1936) may be considered "natural born" only if both parents were citizens.

  1. Congress possesses the authority either
    • to grant not only citizenship (as is undisputed) but the more specific status of a "natural born" citizen, with an affirmative answer raising the question of whether it can also act to remove that status (and thereby disqualify individuals from the Presidency through action short of stripping them of their citizenship),
      or
    • to issue "declarations" regarding the meaning of preexisting law (in this case, U.S. citizenship law between the aforementioned dates) and having binding authority, a claim likely to violate separation of powers given the Constitution's provisions in Article III that "[t]he judicial Power of the United States[] shall be vested in one supreme Court[] and in such inferior Courts as the Congress may from time to time ordain and establish" (Section 1) and that "[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority" (Section 2)
    and
  2. the statute (currently codified at 8 U.S.C. § 1403[a]) – which states only that "any person [fitting the above description] is declared to be a citizen of the United States" and neither
    • expressly claims that its declaration (whether a grant or an interpretation) has retroactive rather than merely prospective effect (contrast the locution "to have been a citizen of the United States [from birth]")
      nor
    • in any way mentions "natural born" status (instead conferring or recognizing the preexistence only of "citizen[ship]" generally) –
      in fact grants or recognizes citizenship from birth, let alone status as a natural born citizen (to whatever extent the requirements of that status exceed those for citizenship from birth).

In 2009, G. Edward "Ted" White, Professor of Law at the University of Virginia, stated the term refers to anyone born on U.S. soil or anyone born on foreign soil to American citizen parents.[76]

Unlike Chin and White, Mary McManamon, Professor of Law at Widener University School of Law, has argued in the Catholic University Law Review that, aside from children born to foreign ambassadors or to hostile soldiers on U.S. territory, both of whom owe allegiance to a different sovereign, a natural born citizen must be born in the United States. She claims that common law provides an exception for the children of U.S. ambassadors born abroad and the children of American soldiers while engaged in hostilities. Thus, with these two limited exceptions, she equates "natural born" with "native born".[77][78]

Professor Einer Elhauge of Harvard Law School agrees with Professor McManamon that "natural born" means "native born" and therefore the wording of the Constitution "does not permit his (Ted Cruz's) candidacy."[79] Professor Robert Clinton at the Sandra Day O'Connor College of Law at Arizona State University is also of the opinion that "natural born citizen" means "born in the United States."[80] University of Chicago Professor Eric Posner also concludes that "natural born citizen" means a "person born in the (United States)".[81] Former Chief Justice of the New York Court of Appeals, Sol Wachtler, concludes the same.[82]

American soil[edit]

There is consensus among academics that those born on American soil are natural born citizens, or jus soli, regardless of parental citizenship status.

In a 2008 article published by the Michigan Law Review, Lawrence Solum, Professor of Law at the University of Illinois, stated that "there is general agreement on the core of [the] meaning [of the Presidential Eligibility Clause]. Anyone born on American soil whose parents are citizens of the United States is a 'natural born citizen'".[83] In April 2010, Solum republished the same article as an online draft, in which he clarified his original statement so that it would not be misunderstood as excluding the children of one citizen parent. In a footnote he explained, "based on my reading of the historical sources, there is no credible case that a person born on American soil with one American parent was clearly not a 'natural born citizen'." He further extended natural born citizenship to all cases of jus soli as the "conventional view".[84] Although Solum stated elsewhere that the two-citizen-parents arguments were not "crazy", he believes "the much stronger argument suggests that if you were born on American soil that you would be considered a natural born citizen."[85]

Ronald Rotunda, Professor of Law at Chapman University, has remarked "There's [sic] some people who say that both parents need to be citizens. That's never been the law."[86]

Polly Price, Professor of Law at Emory University, has commented "It's a little confusing, but most scholars think it's a pretty unusual position for anyone to think the natural born citizen clause would exclude someone born in the U.S."[85]

Chin concurred with that assessment, stating, "there is agreement that 'natural born citizens' include those made citizens by birth under the 14th Amendment."[87]

Similarly, Eugene Volokh, Professor of Law at UCLA, found "quite persuasive" the reasoning employed by the Indiana Court of Appeals, which had concluded "that persons born within the borders of the United States are 'natural born Citizens' for Article II, Section 1 purposes, regardless of the citizenship of their parents".[88][89]

Daniel Tokaji, Professor of Law at Ohio State University, agrees the citizenship status of a U.S.-born candidate's parents is irrelevant.[90]

Eligibility challenges[edit]

Several courts have ruled that private citizens do not have standing to challenge the eligibility of candidates to appear on a presidential election ballot.[91] Alternatively, there is a statutory method by which the eligibility of the president-elect of the United States to take office may be challenged in Congress.[92] 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.[5][6]

Every president to date was either a citizen at the adoption of the Constitution in 1789 or born in the United States; of those in the latter group, every president except two (Chester A. Arthur and Barack Obama) had two U.S.-citizen parents. Further, four additional U.S. Presidents had one or both of his parents not born on U.S. soil (Andrew Jackson, James Buchanan, Woodrow Wilson and Herbert Hoover).[4]

Some presidential candidates were not born in a U.S. state or lacked two U.S.-citizen parents.[93] In addition, one U.S. vice president (Al Gore) was born in Washington, D.C., and another (Charles Curtis) was born in the Kansas Territory. This does not necessarily mean that these officeholders or candidates were ineligible, only that there was some controversy about their eligibility, which may have been resolved in favor of eligibility.[94]

1800s[edit]

Chester A. Arthur[edit]

Chester A. Arthur, who was sworn in as president when James A. Garfield died after being shot, was rumored to have been born in Canada.[95]

Chester A. Arthur was born in Vermont on October 5, 1829 to a Vermont-born mother and a father from Ireland (who later became a U.S. citizen, 14 years after Chester A. Arthur was born). His mother, Malvina Stone Arthur, was a native of Berkshire, Vermont, who 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, somewhere between 1822 and 1824, 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 Canada–US border, for about eighteen months, holding two jobs",[96] which may well explain the confusion about Chester A. Arthur's place of birth, as perhaps did the fact that he was born in Franklin County, and thus within a day's walk of the Vermont–Quebec border.[97] Moreover, Chester A. Arthur himself added a bit of confusion into the record by sometimes reporting his birth year as 1830.[98]

No evidence of him having been born in Canada was ever demonstrated by his Democratic opponents, although Arthur Hinman, an attorney who had investigated Chester A. Arthur's family history, raised the allegation as an objection during his vice-presidential campaign and, after the end of his presidency, published a book on the subject.[99]

1900s[edit]

Christopher Schürmann[edit]

Christopher Schürmann (born in New York City) entered the Labor primaries during the 1896 presidential election. His eligibility was questioned in a New York Tribune article, because he was born to parents of German nationality. It was stated that "various Attorney-Generals [sic] 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.[100]

Charles Evans Hughes[edit]

The eligibility of Charles Evans Hughes was questioned in an article written by Breckinridge Long, one of Woodrow Wilson's campaign workers, and published on December 7, 1916 in the Chicago Legal News — a full month after 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 was not yet naturalized at the time of his birth and was still a British citizen (in fact, both his parents were British citizens and never became U.S. citizens). Observing that Hughes, although born in the United States, was also (according to British law) 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." [101]

Barry Goldwater[edit]

Barry Goldwater 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 three years before it became a state.[95]

George Romney[edit]

George W. Romney, who ran for the Republican party presidential nomination in 1968, was born in Mexico to U.S. parents.[102][103] Romney's grandfather, a member of the LDS Church, had emigrated to Mexico in 1886 with his three wives and their children, after the U.S. federal government outlawed polygamy. However Romney's parents (monogamous under new church doctrine) retained their U.S. citizenship and returned to the United States with him and his siblings in 1912.[104] Romney's eligibility for President became moot when Richard Nixon was nominated as the Republican presidential candidate.

Lowell Weicker[edit]

Lowell P. Weicker entered the race for the Republican party nomination of 1980 but dropped out before voting in the primaries began; he was also suggested as a possible vice-president candidate in 1976. 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 born in India, the daughter of a British general.[103][105]

2000s[edit]

John McCain[edit]

John McCain was born in 1936 at Coco Solo Naval Air Station[93][106][107][108][109][110][111] in the Panama Canal Zone. McCain's eligibility was not challenged during his 2000 campaign, but it was challenged during his 2008 campaign.

McCain never released his birth certificate to the press or independent fact-checking organizations, but in 2008 one was shown 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."[108] A lawsuit filed by Fred Hollander in 2008 alleged McCain was actually born in a civilian hospital in Colón, Panama.[112][113] 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, has said that she 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."[114][115][116][117]

The former unincorporated territory of the Panama Canal Zone and its related military facilities were not regarded as United States territory at the time,[118] 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 William 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.[119] In April 2008, the U.S. Senate approved a non-binding resolution recognizing McCain's status as a natural-born citizen.[120] 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.[121]

These views have been criticized by Chin, who argues that McCain was at birth a citizen of Panama and was only retroactively declared a born citizen under 8 U.S.C. § 1403, because at the time of his birth and with regard to the Canal Zone the Supreme Court's Insular Cases overruled the Naturalization Act of 1795, which would otherwise have declared McCain a U.S. citizen immediately at birth.[122] 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.[123] In Rogers v. Bellei, the Supreme Court ruled that children "born abroad of American parents" are not citizens within the citizenship clause of the 14th Amendment but did not elaborate on their natural-born status.[124][125] 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".[126] The urban legend fact checking website Snopes.com considers McCain's eligibility "undetermined".[127]

Arguments over McCain's eligibility became moot after he lost the United States presidential election in 2008.

Barack Obama[edit]

Barack Obama was born in 1961 in Honolulu, Hawaii (which had become a U.S. state in 1959). His mother was a U.S. citizen and his father was a British subject[128][129][130] from British Kenya.

Before and after the 2008 presidential election, arguments were made that Obama was not a natural-born citizen. On June 12, 2008, the Obama presidential campaign launched a website to counter what it described as a smear campaign by his opponents, including conspiracy theories challenging his eligibility.[131] The most prominent issue raised against Obama was the claim made in several lawsuits that he was not actually born in Hawaii. The Supreme Court declined without comment to hear two lawsuits in which the plaintiffs argued it was irrelevant whether Obama was born in Hawaii.[132] Most of the cases were dismissed because of the plaintiff's lack of standing; however, several courts have given guidance on the question.

In Ankeny v. Governor, a three-member Indiana Court of Appeals stated,

Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are 'natural born Citizens' for Article II, Section 1 purposes, regardless of the citizenship of their parents.[133]

Administrative Law Judge Michael Malihi in Georgia decided a group of eligibility challenge cases by saying, "The Indiana Court rejected the argument that Mr. Obama was ineligible, stating that the children born within the United States are natural born citizens, regardless of the citizenship of their parents. ... This Court finds the decision and analysis of Ankeny persuasive." [134] Federal District Judge John A. Gibney, Jr. wrote in his decision in the case of Tisdale v. Obama:

The eligibility requirements to be President of the United States are such that the individual must be a "natural born citizen" of the United States ... It is well settled that those born in the United States are considered natural born citizens. See, e.g. United States v. Ark [sic] ...[135]

On October 31, 2008, Hawaii Health Director Chiyome Fukino issued a statement saying,

I ... have personally seen and verified that the Hawai'i State Department of Health has Sen. Obama's original birth certificate on record in accordance with state policies and procedures.[91][136]

On July 27, 2009, Fukino issued an additional statement:

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.[137]

Attempts to prevent Obama from participating in the 2012 Democratic primary election in several states failed.[138][139][140][141]

Ted Cruz[edit]

Ted Cruz announced on March 22, 2015, that he was running for the Republican Party's nomination for president in the 2016 election.[142] Cruz was born in Calgary, Alberta, Canada,[143] to a "U.S. citizen mother and a Cuban immigrant father",[144] giving him dual Canadian-American citizenship. Cruz applied to formally renounce his Canadian citizenship and ceased being a citizen of Canada on May 14, 2014.[145][146][147]

Former Solicitor General Paul Clement,[148][149] former Acting Solicitor General Neal Katyal,[148][149] University of California, Irvine School of Law Dean Erwin Chemerinsky,[150] Professor Chin (see above),[144] Temple University Law School Professor Peter Spiro,[151] Professor Akhil Amar,[152] Georgetown University Law Center Professor Randy Barnett,[153] Yale Law School Professor Jack Balkin,[153] and University of San Diego Professor Michael Ramsey[153] believe Cruz meets the constitutional requirements to be eligible for the presidency. Similarly, Bryan Garner, the editor of Black's Law Dictionary, believes the U.S. Supreme Court would find Cruz to be eligible,[154] and Case Western Reserve University School of Law professor Jonathan H. Adler agrees that no court will rule against Cruz's eligibility.[155]

Laurence Tribe of Harvard, however, described Cruz's eligibility as "murky and unsettled".[156] Harvard Law Professor Cass Sunstein believes that Cruz is eligible, but agrees with Ramsey that Cruz's eligibility is not "an easy question". Sunstein believes concerns over standing and the political-question doctrine make it unlikely that courts would rule against Cruz.[157]

Mary McManamon (see above) writing in the Catholic University Law Review[77] believes that Cruz is not eligible because he was not born in the United States.[158] Professor Einer Elhauge of Harvard,[159] Professor Robert Clinton of Arizona State University,[160] University of Chicago Professor Eric Posner,[161] former Chief Justice of the New York Court of Appeals Sol Wachtler,[82] and Professor Victor Williams of Catholic University of America's law school[162] agree that Cruz is not eligible. Alan Grayson, a Democratic Member of Congress from Florida, does not believe Cruz is a natural-born citizen, and stated he would to file a lawsuit if Cruz had become the Republican nominee.[163] Orly Taitz, Larry Klayman, and Mario Apuzzo, who each filed multiple lawsuits challenging Obama's eligibility, have also asserted that Cruz is not eligible.[164][165]

Cruz's eligibility was questioned by some of his primary opponents, including Donald Trump,[166] Mike Huckabee, Rick Santorum, Carly Fiorina, and Rand Paul.[167] Marco Rubio, however, believes Cruz is eligible.[168]

Two November 2015 ballot challenges in New Hampshire alleging that Cruz was not a natural-born citizen were unsuccessful.[169][170] In December, a similar lawsuit was filed in Vermont,[171] and an unsuccessful lawsuit was filed in Florida.[172][173] In January 2016, similar lawsuits were unsuccessfully filed in Texas[174][175][176] and Utah,[177][178] and two similar unsuccessful ballot challenges were filed in Illinois.[179][180][181][182][183] In February, two similar unsuccessful lawsuits were filed in Pennsylvania[184][185][186][187][188] and one was filed in Arkansas;[189][190] a similar lawsuit was filed in Alabama;[191] similar unsuccessful ballot challenges were filed in Indiana;[192][193] and similar ballot challenges and an unsuccessful similar lawsuit were also filed in New York.[194][195][196][197] In March, a similar lawsuit was filed in New York.[197] In April, a similar ballot challenge was unsuccessfully filed in New Jersey.[162][198]

No lawsuit or challenge has been successful, and in February 2016, the Illinois Board of Elections ruled in Cruz's favor, stating, "The candidate is a natural born citizen by virtue of being born in Canada to his mother who was a U.S. citizen at the time of his birth."[199]

The question of Cruz's eligibility became moot when he suspended his campaign on May 3, 2016.[200]

Marco Rubio and Bobby Jindal[edit]

Marco Rubio and Bobby Jindal both announced in 2015 that they were running for the Republican Party's nomination for president in the 2016 election.[201][202] Taitz and Apuzzo each have stated neither Rubio nor Jindal is eligible because both were born (albeit in the United States) to parents who were not U.S. citizens at the time of their respective births.[85][164]

The question of Jindal's eligibility became moot when he suspended his presidential campaign in November 2015.[203] Nonetheless, a lawsuit filed in December 2015 in Vermont[171] and a ballot challenge filed in February 2016 in New York[195] challenged Jindal's eligibility.

A November 2015 ballot challenge in New Hampshire alleging that Rubio was not a natural-born citizen was unsuccessful.[170] In December, a similar lawsuit was filed in Vermont,[171] and an unsuccessful lawsuit was filed in Florida.[172][173] In January 2016, a similar unsuccessful ballot challenge was filed in Illinois.[179][181] In February, a similar unsuccessful lawsuit was filed in Arkansas;[189][190] a similar ballot challenge was filed in New York;[195] and an unsuccessful ballot challenge was filed in Indiana.[192][193]

The question of Rubio's eligibility became moot when he suspended his presidential campaign in March 2016.[204]

Potential presidential candidates who are not eligible[edit]

Arnold Schwarzenegger[edit]

Arnold Schwarzenegger was reported as considering challenging the prevailing interpretation of the clause. In 2003, Senator Orrin Hatch unsuccessfully put forth the Equal Opportunity to Govern Amendment, intending to allow eligibility for Arnold Schwarzenegger.[35] In October 2013, the New York Post reported that Schwarzenegger—who is originally from Austria and became a naturalized U.S. citizen in 1983, also retaining Austrian citizenship—was exploring a future run for the American presidency. He reportedly lobbied legislators about a possible constitutional change, or filing a legal challenge to the provision. Cornell University law professor Michael C. Dorf observed that Schwarzenegger's possible lawsuit could ultimately win him the right to run for the office, noting, "The law is very clear, but it’s not 100 percent clear that the courts would enforce that law rather than leave it to the political process".[205] Schwarzenegger subsequently denied that he was running.[206]

See also[edit]

Notes[edit]

  1. ^ a b Tucker, St. George (1803). "St. George Tucker, Blackstone's Commentaries 1:App. 316–25, 328–29". Retrieved April 10, 2016. 
  2. ^ Williams, Pete (January 19, 2016). "'Natural Born' Issue for Ted Cruz Is Not Settled and Not Going Away". NBC News. The emerging consensus of the legal experts, however, is that being 'natural born' means becoming a citizen at the moment of birth, as opposed to achieving it later through the process of naturalization.... 
  3. ^ a b Maskell, Jack (November 14, 2011). "Qualifications for President and the 'Natural Born' Citizenship Eligibility Requirement" (PDF). Congressional Research Service. p. 2. Retrieved February 25, 2012. In addition to historical and textual analysis, numerous holdings and references in federal (and state) cases for more than a century have clearly indicated that those born in the United States and subject to its jurisdiction (i.e., not born to foreign diplomats or occupying military forces), even to alien parents, are citizens 'at birth' or 'by birth,' and are 'natural born,' as opposed to 'naturalized,' U.S. citizens. There is no provision in the Constitution and no controlling American case law to support a contention that the citizenship of one's parents governs the eligibility of a native born U.S. citizen to be President. 
  4. ^ a b c d "Strunk v New York State Bd. of Elections :: 2012 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justia". Law.justia.com. Retrieved January 16, 2016. 
  5. ^ a b Tokaji, Daniel (2008). "The Justiciability of Eligibility: May Courts Decide Who Can Be President?". Michigan Law Review, First Impressions. 107: 31. 
  6. ^ a b c Gordon, Charles (1968). "Who can be President of the United States: The Unresolved Enigma". Maryland Law Review. Baltimore Maryland: Maryland Law Review, Inc. University of Maryland School of Law. 28 (1): 1–32. Retrieved October 8, 2012. 
  7. ^ U.S. Constitution: Article 1, Section 2, Clause 2: Qualifications of Members
  8. ^ U.S. Constitution: Article 1, Section 3, Clause 3: Qualifications of Senators
  9. ^ Martin Van Buren, National Children's Book and Literacy Alliance.
  10. ^ Calvin's Case 7 Coke Report 1a, 77 ER 377, The Constitution Society
  11. ^ Piggott, Francis. Nationality and Naturalization, pp. 48-50 (W. Clowes and Sons, 1907).
  12. ^ a b McManamon, Mary. "The Natural Born Citizen Clause as Originally Understood", Catholic University Law Review, v. 64, no. 2 (2015).
  13. ^ Index: N, O, Calendar of Treasury Books, Volume 27, 1713. Originally published by Her Majesty's Stationery Office, London, 1955.
  14. ^ Biglieri, Ezio; Prati, G. (2014). Enclyclopedia of Public International Law. Elsevier. p. 54. ISBN 978-1-4832-9477-3. 
  15. ^ "British Nationality Act, 1730". United Settlement. Retrieved 3 March 2016. 
  16. ^ Cohen, Elizabeth. "Citizenship and the Law of Time in the United States", Duke Journal of Constitutional Law & Public Policy, Vol. 8, p. 67 n. 59 (2013).
  17. ^ a b Blackstone, William. Commentaries on the Law of England, Vol. 1, p. 354 (Oxford, The Clarendon Press 1765).
  18. ^ Dann, Carrie. "Yes, Ted Cruz Was Born in Canada. So What?", NBC News (March 26, 2015).
  19. ^ 7 Coke Report 1a, 77 ER 377 (1608), Opinion of Edward Coke.
  20. ^ Edwards, F. B. "Natural-Born British Subjects at Common Law", Journal of the Society of Comparative Legislation, Vol. 14, p. 318 (1914).
  21. ^ Maskell, Jack. "Qualifications for President and the 'Natural Born' Citizenship Eligibility Requirement", CRS Report for Congress, pp. 31-32 (2011).
  22. ^ Johnson, Samuel. A Dictionary Of The English Language: In Which The Words are Deduced from Their Originals, And Illustrated in Their Different Significations By Examples from the Best Writers, To Which Are Prefixed, A History of the Language, And An English Grammar : In Two Volumes, Volume 2, pp. 180–181 (Knapton, 1756).
  23. ^ Speare, Morris. "Lafayette, Citizen of America", New York Times (September 7, 1919).
  24. ^ Riley, Elihu. "The Ancient City": A History of Annapolis, in Maryland, 1649-1887, p. 198 (Record Printing Office 1887).
  25. ^ Lee, Thomas. "Is Ted Cruz a 'natural born Citizen'? Not if you're a constitutional originalist", Los Angeles Times (January 10, 2016).
  26. ^ Han, William. "Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship", Drake Law Review, Vol. 58, No. 2, 2010, p. 462.
  27. ^ 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)http://yalelawjournal.org/images/pdfs/pryor_note.pdf;
  28. ^ http://avalon.law.yale.edu/18th_century/debates_618.asp
  29. ^ 3 M. Farrand, The Records of the Federal Convention of 1787, at 619.
  30. ^ 3 Farrand, at 629.
  31. ^ Letter from John Jay to George Washington, 25 July, 1787
  32. ^ Heard, Alexander; Nelson, Michael (1987). Presidential Selection, Duke University Press. p. 123. Retrieved April 24, 2011. (the word born is underlined in the quoted letter[31])
  33. ^ Han, William. "Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship", Drake Law Review, Vol. 58, No. 2, 2010, pp. 462–463.
  34. ^ Palazzolo, Joe (September 4, 2012). "The Other Democratic Candidate". The Wall Street Journal. 
  35. ^ a b c d Kasindorf, Martin (December 2, 2004). "Should the Constitution be amended for Arnold?". USA Today. 
  36. ^ a b "President Kissinger?". Time. March 4, 1974. 
  37. ^ Blackstone, Commentaries, Vol.II, Ch. 10, 1803.[page needed]
  38. ^ Farrand, Max. "Charles Pinckney in the United States Senate". The Records of the Federal Convention of 1787, Vol 3. Retrieved October 8, 2012. 
  39. ^ Amar, Akhil (March–April 2004). "NATURAL BORN KILLJOY Why the Constitution won't let immigrants run for president, and why that should change.". Legal Affairs. Retrieved July 16, 2012. 
  40. ^ a b Statutes At Large, First Congress, Session II, p. 103
  41. ^ Congressional Globe 37.2 (1862), p. 1639.
  42. ^ Congressional Globe 39.1 (1866) p. 1291. Stated again during a House debate in 1872; cf. Congressional Globe 42.2 (1872), p. 2791.
  43. ^ 10 Opinions of the U.S. Atty.Gen. [pages] 382–413, and separately as Opinion of Attoney General Bates on Citizenship (1863, Washington, DC, Govt. Printing Office) 27 pages.
  44. ^ "Citizenship of children born in the United States of alien parents", 10 Op. US Atty-Gen. 328.
  45. ^ Letter from Marcy to Mason, June 6, 1854, quoted from the manuscript, reprinted (with the emphasis shown) in John Bassett Moore, A Digest of International Law [of the United States], vol. 3, sec. 373, pp. 276–277 (US House of Representatives, 56th Congress, 2d Session, Document no. 551; Washington, DC, Govt. Printing Office, 1906).
  46. ^ His first name is not given in the Opinion itself but is found in the correspondence seeking the opinion, in Papers Relating to the Foreign Relations of the United States (US House of Representatives, 44th Congress, 1st Session, December 6, 1875) Exec. Doct. 1, part 1, page 563.
  47. ^ Steinkauler's Case, 15 Opinions of the US Attorneys-General 15 at 17–18 (June 26, 1875).
  48. ^ van Dyne, Frederick, Citizenship of the United States (1904, Rochester, NY, Lawyers Co-operative Publ'g Co.) pp. 3–12. With regard to the last sentence in the quotation, van Dyne discusses some peripheral court decisions, none dealing with conventional U.S. citizenship, but with the nationality of the child of a foreigner and a member of an independent American Indian tribe whose members were not ordinarily regarded as U.S. citizens.
  49. ^ NY Chanc.Ct., November 5, 1844; 1 Sandf.Ch. 583, 3 NY Leg.Obs. 236, 7 NY Ch. Ann. 443, 1844 WL 4804, 1844 N.Y.Misc. LEXIS 1. [1]
  50. ^ Sandf. at 656, Leg.Obs. at 246–247
  51. ^ Sandf. at 663, Leg.Obs. at 250
  52. ^ D.Cal., Sep 29, 1884) 21 Fed. 905, 10 Sawyer's Rpts. 353
  53. ^ Fed at 909, Sawyer at 359–360
  54. ^ U.S. v. Wong Kim Ark (1898) 169 U.S. 649, 42 L.Ed. 890, 18 S.Ct. 456. [2]
  55. ^ Similarly, in a 1999 Circuit Court decision, the U.S.-born children of two non-citizen parents were spoken of as "natural born citizens". Mustata v. US Dept. of Justice (6th Cir. 1999) 179 F.3d 1017 at 1019. [3]
  56. ^ a b Perkins v. Elg (1939) 307 U.S. 325 at 329, 83 L.Ed. 1320 at 1324, 59 S.Ct. 884 at 888. [4]
  57. ^ Perkins v. Elg (D.C. Cir. 1938) 69 U.S.App.D.C. 175, 99 F.2d 408
  58. ^ a b c d Maskell, Jack (January 11, 2016). "Qualifications for President and the "Natural Born" Citizenship Eligibility Requirement". Congressional Research Service. 
  59. ^ "Zimmer v Acheson, 191 F.2d 209 (10th Cir. 1951)". 
  60. ^ "Montana v. Kennedy, 366 U.S. 308 (1961)". 
  61. ^ Ankeny v. Governor of the State of Indiana (2009), Appeals Court Decision, 11120903
  62. ^ Nolos v. Holder (5th Cir. 2010) 611 F.3d 279, 62 ALR-Fed.2d 777, [5]; also Sean Morrison, Foreign in a Domestic Sense: American Samoa and the Last U.S. Nationals, 41 Hastings Constitutional Law Quarterly 71 (fall 2013) [6].
  63. ^ Rawle, William (1825). A View of the Constitution of the United States of America. Philadelphia, Carey & Lea. pp. 80–81. ISBN 978-1144771858. 
  64. ^ James F. Wilson in: Congressional Globe, House of Representatives, 39th Congress, 1st Session, Washington 1866, p. 1117.
  65. ^ Dred Scott v. Sandford, 60 U.S. 393, 476 (1857).
  66. ^ Book 1, § 212
  67. ^ United States v. Wong Kim Ark, 169 U.S. 649, 708 (1898).
  68. ^ Joseph Story (1840). A familiar exposition of the Constitution of the United States: containing a brief commentary on every clause, explaining the true nature, reasons, and objects thereof: designed for the use of school libraries and general readers: with an appendix, containing important public documents, illustrative of the Constitution. Marsh, Capen, Lyon and Webb. pp. 167 §269–271. 
  69. ^ Joseph Story (1834). The constitutional class book: being a brief exposition of the Constitution of the United States: Designed for the use of the higher classes in common schools. Hilliard, Gray & Company. pp. 115 §190. 
  70. ^ Plessy v. Ferguson, 163 U.S. 537 (1896).
  71. ^ A.P. Morse, "Natural-Born Citizen of the United States: Eligibility for the Office of President", Albany Law Journal, vol. 66 (1904–1905)
  72. ^ "Presidential Elections in the United States: A Primer" (PDF). Congressional Research Service. April 17, 2000. Retrieved January 8, 2010. 
  73. ^ 41131059 MoC Memo What to Tell Your Constituents in Answer to Obama Eligibility
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  75. ^ Chin, Gabriel J. (2008), "Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship", 107 Mich. L. Rev. First Impressions 1
  76. ^ White, G. Edward (August 20, 2009). "Re-examining the Constitution's Presidential Eligibility Clause". University of Virginia School of Law. Retrieved February 27, 2012. 
  77. ^ a b McManamon, Mary (2015), "The Natural Born Citizens Clause as Originally Understood", 64 Catholic University Law Review 317
  78. ^ McManamon, Mary Brigid (January 12, 2016). "Law professor: Ted Cruz is not eligible to be president". Washington Post. Retrieved January 15, 2016. 
  79. ^ Elhauge, Einer (January 20, 2016). "Opinion: Cruz not really 'natural born citizen'". Chicago Sun-Times. Retrieved January 21, 2016. 
  80. ^ Clinton, Robert (January 27, 2016). "Ted Cruz Is Not A 'Natural Born' Citizen". U.S. News & World Report. Retrieved January 28, 2016. 
  81. ^ Posner, Eric (February 8, 2016). "Ted Cruz Is Not Eligible to Be President". Slate. 
  82. ^ a b Wachtler, Sol (February 13, 2016). "Constitutional history shows Cruz ineligible for White House". Newsday. 
  83. ^ Solum, Lawrence B. (2008), "Originalism and the natural born citizen clause", 107 Mich. L. Rev. First Impressions 22
  84. ^ Lawrence B. Solum, "Originalism and the natural born citizen clause", revised draft version, April 18, 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.
  85. ^ a b c Leary, Alex (October 20, 2011). "Birthers say Marco Rubio is not eligible to be president". Tampa Bay Times. 
  86. ^ Kornhaber, Spencer (September 22, 2010). "Chapman Constitutional Scholar Rebuffs Orly Taitz's Overtures". OC Weekly. 
  87. ^ Chin, Gabriel (April 20, 2011). "Who's really eligible to be president?". CNN. 
  88. ^ 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. 
  89. ^ Ankeny v. Governor of the State of Indiana, 916 NE 2d 678 (Ind. Ct. of Appeals November 12, 2009).
  90. ^ Rathgeber, Bob (September 20, 2010). "Exclusive: Now, 'birthers' have eye on Marco Rubio". News-Press. 
  91. ^ 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).
  92. ^ See 3 U.S.C. ch. 1.
  93. ^ a b Carl Hulse (February 28, 2008). "McCain's Canal Zone Birth Prompts Queries About Whether That Rules Him Out". The New York Times. Retrieved August 12, 2012. 
  94. ^ Spiro, Peter. "McCain's Citizenship and Constitutional Method", Michigan Law Review, Volume 107, p. 208 (2008).
  95. ^ a b "Who Can Be President?", Voice of America News (July 29, 2008). Archived February 20, 2009, at the Wayback Machine.
  96. ^ Reeves, Thomas C. "The Mystery of Chester Alan Arthur's Birthplace", Vermont History 38, Montpelier: Vermont Historical Society, p. 295
  97. ^ DeGregorio, William A. The Complete Book of U.S. Presidents, Random House: 1993, pp. 307–08, ISBN 0-517-08244-6
  98. ^ Thomas C. Reeves, Gentleman Boss. The Life and Times of Chester Alan Arthur (Newtown 1991), p. 5.
  99. ^ Hinman, Arthur P. (1884). How a British Subject became President of the United States. 
  100. ^ "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, though the election was eight years later. However, the author's introduction is dated 1925.)
  101. ^ Breckinridge Long (1916), "Is Mr. Charles Evans Hughes a 'Natural Born Citizen' within the Meaning of the Constitution?", Chicago Legal News vol. 49, pp. 146–148 (December 7, 1916). It does not appear that this issue was raised before the election day, which may indicate that the majority of voters or of legal authorities felt it was not an impediment to Hughes's eligibility.
  102. ^ Lipsky, Seth (2009). The Citizen's Constitution: An Annotated Guide. (Basic Books). p. 126.
  103. ^ a b Heard, Alexander and Nelson, Michael (1987). Presidential Selection. (Duke University Press) p. 127.
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  105. ^ Powell, Stewart (August 14, 1976). "Weicker May Not Be Eligible to Serve in High Position", Nashua Telegraph. United Press International.
  106. ^ 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
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  109. ^ Parish, Matt (2010), "How Old Is John McCain?", Politics Daily, AOL. Retrieved April 13, 2011
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  111. ^ Fagan, Kevin (September 21, 2008). "McCain: A profile in courage and adaptation". San Francisco Chronicle. Retrieved April 13, 2011. 
  112. ^ Hollander v. McCain et al, Justia Dockets & Filings
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  115. ^ 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".
  116. ^ A book written by the U.S. Navy includes the same reference: Link to relevant page in the book via Google Books: https://books.google.com/books?id=pxooAAAAYAAJ&dq=panama%20canal%20colon&lr=&pg=PA192
  117. ^ This map clearly shows 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/)
  118. ^ "Foreign Affairs Manual 7 FAM 1110 Acquisition of U.S. Citizenship by Birth in the United States". United States Department of State. Retrieved December 13, 2015.  7 FAM 1113(c)(1): "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."
  119. ^ "Lawyers Conclude McCain Is "Natural Born", CBS News, Associated Press, March 28, 2008. Retrieved May 23, 2008.
  120. ^ 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".
  121. ^ 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". U.S. Constitution Online. Retrieved November 25, 2008 .)
  122. ^ 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)
  123. ^ "Foreign Affairs Manual 7 FAM 1120 Acquisition of U.S. Nationality in U.S. Territories and Possessions". United States Department of State. Retrieved December 13, 2015. 
  124. ^ SCOTUS 401 U.S. 815, 828 (1971)
  125. ^ "Constitutional Topic: Citizenship". U.S. Constitution Online. Retrieved June 7, 2009 
  126. ^ Lawrence B. Solum, "Originalism and the natural born citizen clause", Michigan Law Review: First Impressions 107, September 2008, p. 30.
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  128. ^ "Obama's Kenyan Citizenship?". FactCheck.org. September 3, 2009. Retrieved September 14, 2013. 
  129. ^ "British nationality by virtue of citizenship". British Nationality Act 1948. Her Majesty's Government. Retrieved September 14, 2013. 
  130. ^ "UK and Colonies". Home Office. 
  131. ^ "The Truth About Barack's Birth Certificate (archived web cache)". Fight the Smears (Obama for America). Archived from the original on March 9, 2011.  (Retrieved March 9, 2011), quoting in excerpts from: "Does Barack Obama have Kenyan citizenship?". FactCheck.org (Annenberg Foundation). August 29, 2008. ; see also: "Obama hits back at Internet slanders". Agence France-Presse. June 12, 2008. ; 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).
  132. ^ Leo C. Donofrio v. Nina Mitchell Wells (SCOTUS 08A407) and Cort Wrotnowski v. Susan Bysiewicz (SCOTUS 08A469)
  133. ^ Ankeny v. Governor of the State of Indiana (Ind.App., 12 NOV 2009), Appeals Court Decision, 11120903
  134. ^ Farrar v. Obama (Office of State Administrative Hearings State of Georgia 2012). Text
  135. ^ Tisdale v. Obama (United States District Court for the Eastern District of Virginia 2012). Text
  136. ^ Statement by Dr. Chiyome Fukino, Department of Health, October 31, 2008
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  140. ^ Allen v. Obama (Arizona Superior Court, Pima County February 24, 2012). Text
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  143. ^ "Cruz, Rafael Edward (Ted), (1970 – )". Biographical Directory of the United States Congress.
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