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

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

Pages[edit]


Title[edit]

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

Jack Maskell
Legislative Attorney

November 14, 2011
CRS Report for Congress
Prepared for Members and Committees of Congress

Summary[edit]

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[edit]

Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
Contents
History of the Qualifications Clause in the Federal Convention of 17874
Procedural History4
Apparent Purpose and Intent5
Common Law Meaning of the Term “Natural Born” Citizen or Subject9
Common Law and the Constitution9
Common Law and Persons Born “In” the Country11
Common Law and Persons Born Abroad to Citizen-Parents14
Common Understanding in 18th Century of the Term “Natural Born” Citizen16
Citizenship at Birth: Case Law and Interpretations25
Legal Cases and Senator McCain34
Legal Cases and President Obama38
Allegations of Loss of Citizenship43
Assertion of Two Citizen-Parent Requirement44
Contacts
Author Contact Information50

Congressional Research Service

Page 1[edit]

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

The 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.[1] 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?[2] 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.”[3] 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


^1  See 8 U.S.C. § 1401, for categories of persons who are deemed to be U.S. citizens “at birth.”
^2  See, e.g., Means, Is Presidency Barred to Americans Born Abroad? U.S. News and World Report, Vol. 39, No. 26,
December 23, 1955, at 26-30; Is Gov. George Romney Eligible to be President ? The New York Law Journal,
October 16 and 17, 1967, p. 1; McCain’s Canal Zone Birth Prompts Queries About Whether That Rules Him Out, N.Y.
Times, February 28, 2008.
^3  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.”


Congressional Research Service1

Copyright[edit]


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).