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Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

 * Congressional Research Service
 * Jack Maskell, Legislative Attorney
 * November 14, 2011
 * source url: http://www.fas.org/sgp/crs/misc/R42097.pdf

Title
 Qualifications for President and the “Natural

Born” Citizenship Eligibility Requirement Jack Maskell Legislative Attorney

November 14, 2011 Congressional Research Service 7-5700 www.crs.gov R42097 CRS Report for Congress Prepared for Members and Committees of Congress

Summary
 Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

Summary The Constitution sets out three eligibility requirements to be President: one must be 35 years of

age, a resident “within the United States” for 14 years, and a “natural born Citizen.” There is no

Supreme Court case which has ruled specifically on the presidential eligibility requirements

(although several cases have addressed the term “natural born” citizen), and this clause has been

the subject of several legal and historical treatises over the years, as well as more recent litigation.

The term “natural born” citizen is not defined in the Constitution, and there is no discussion of the

term evident in the notes of the Federal Convention of 1787. The use of the phrase in the

Constitution may have derived from a suggestion in a letter from John Jay to George Washington

during the Convention expressing concern about having the office of Commander-in-Chief

“devolve on, any but a natural born Citizen,” as there were fears at that time about wealthy

European aristocracy or royalty coming to America, gaining citizenship, and then buying and

scheming their way to the presidency without long-standing loyalty to the nation. At the time of

independence, and at the time of the framing of the Constitution, the term “natural born” with

respect to citizenship was in use for many years in the American colonies, and then in the states,

from British common law and legal usage. Under the common law principle of jus soli (law of the

soil), persons born on English soil, even of two alien parents, were “natural born” subjects and, as

noted by the Supreme Court, this “same rule” was applicable in the American colonies and “in the

United States afterwards, and continued to prevail under the Constitution ...” with respect to

citizens. In textual constitutional analysis, it is understood that terms used but not defined in the

document must, as explained by the Supreme Court, “be read in light of British common law”

since the Constitution is “framed in the language of the English common law.”

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.

Although the eligibility of native born U.S. 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 may have 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).

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.



Congressional Research Service

Contents


Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

Contents History of the Qualifications Clause in the Federal Convention of 1787 4 Procedural History 4 Apparent Purpose and Intent 5 Common Law Meaning of the Term “Natural Born” Citizen or Subject 9 Common Law and the Constitution 9 Common Law and Persons Born “In” the Country 11 Common Law and Persons Born Abroad to Citizen-Parents 14 Common Understanding in 18 Century of the Term “Natural Born” Citizen 16 Citizenship at Birth: Case Law and Interpretations 25 Legal Cases and Senator McCain 34 Legal Cases and President Obama 38 Allegations of Loss of Citizenship 43 Assertion of Two Citizen-Parent Requirement 44 Contacts Author Contact Information 50

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Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

he standing qualifications to be President of the United States are set out in the

Constitution, at Article II, Section 1, clause 5, and state three specific requirements: one

must be at least 35 years old, a resident “within the United States” for 14 years, and a

“natural born Citizen.” The constitutional provision states as follows:

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.

Questions from time-to-time have arisen concerning whether one who is a U.S. citizen “at birth”

because of the operation of federal law, is also a “natural born” citizen for purposes of the

presidential eligibility clause. Such questions often concern persons born abroad to parents who

are U.S. citizens, or persons born abroad when only one parent is a U.S. citizen who had resided

in the United States. Although such individuals born abroad may clearly be U.S. citizens “at

birth” by statute, would such persons also be “natural born Citizens,” or is eligibility to the

Presidency limited only to “native born” citizens? Additionally, questions have been recently

raised by some as to whether one born “in” the United States of one or more alien parents, and

who is thus clearly a U.S. citizen “at birth” by the Fourteenth Amendment, as well as by federal

law and common law, was intended to be considered a “natural born” citizen for purposes of the

presidential eligibility clause.

The Constitution does not define the term “natural born Citizen,” nor are the notes from the

debates at the Constitutional Convention of 1787 instructive as to any specific collective intent of

the framers concerning the meaning of the term. Furthermore, the Supreme Court has never

needed to address this particular issue within the specific context of a challenge to the eligibility

of a candidate under Article II, Section 1, clause 5, the only place in the entire Constitution that

the phrase appears, although federal courts have discussed the concept extensively with respect to

other issues of citizenship. Consequently, although there are numerous Supreme Court cases, as

well as other federal and state case law, discussing the phrase and its meaning from which

conclusions may be drawn, there has still been certain speculation on the scope of the language.

According to the Supreme Court, words and phrases used, but not defined, within the

Constitution, should “be read in light of British common law,” since the U.S. Constitution is

“framed in the language of the English common law.” Although the English common law is not

“binding” on federal courts in interpreting the meaning of words or phrases within the

Constitution, nor is it necessarily to be considered the “law” of the United States (as it is for the

individual states specifically incorporating it), it can be employed to shed light on the concepts

and precepts within the document that are not defined there, but which are reflected in the corpus

of British law and jurisprudence of the time. As noted by Chief Justice (and former President)

Taft, writing for a unanimous Supreme Court, the framers of the U.S. Constitution “were born

See 8 U.S.C. § 1401, for categories of persons who are deemed to be U.S. citizens “at birth.”

See, e.g ., Means, Is Presidency Barred to Americans Born Abroad? U.S., Vol. 39, No. 26,

December 23, 1955, at 26-30; Is Gov. George Romney Eligible to be President ? ,

October 16 and 17, 1967, p. 1; McCain’s Canal Zone Birth Prompts Queries About Whether That Rules Him Out, N.Y.

, February 28, 2008.

Smith v. Alabama, 124 U.S. 465, 478 (1888). See also, more recently, Carmel v. Texas, 529 U.S. 513, 521 (2000),

where the Supreme Court noted that the meaning of an undefined term in the Constitution “necessarily requires some

explanation,” and that “the necessary explanation is derived from English common law well known to the Framers.”

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