Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
Legal Cases and Senator McCain
During the 2008 presidential campaign between Senators McCain and Obama, several lawsuits were initiated challenging the “natural born” citizenship eligibility of Senator McCain who was not born “in” the United States, but rather in the Panama Canal Zone in 1936. Because the place of birth is the concept that principally and traditionally governs common law natural born citizenship in the United States,[1] questions have arisen as to whether those born outside of the geographic boundaries of the United States to U.S. citizen-parents, and who thus are citizens at birth by descent, should also be considered “natural born” citizens eligible to be President. The legal and historical questions were summarized in the treatise Immigration Law and Procedure:
[c] Natural-Born Citizens
Under the Constitution, only “natural born” citizens are eligible to become President or Vice President of the United States. The Constitution nowhere defines this term, and its precise meaning is still uncertain. It is clear enough that native-born citizens are eligible and that naturalized citizens are not. The doubts relate to those who acquire U.S. citizenship by descent, at birth abroad to U.S. citizens.
“Natural born citizen” is an archaic term, derived from ancient British antecedents. Other than its use in the Presidential Qualifications Clause, its only other use was in the provision for citizens by descent in the naturalization statute enacted by the first Congress in 1790.
The uncertainty concerning the meaning of the natural-born qualification in the Constitution has provoked discussion from time to time, particularly when the possible presidential candidacy of citizens born abroad was under consideration. There has never been any authoritative adjudication. It is possible that none may ever develop. However, there is substantial basis for concluding that the constitutional reference to a natural-born citizen includes every person who was born a citizen, including native-born citizens and citizens by descent.[2]
It has been noted by certain proponents of a narrow interpretation of natural born citizen (to include only those born in the United States) that the Fourteenth Amendment now clearly provides that a U.S. citizen is one who is either “born or naturalized in the United States.” Under such reasoning, it is argued that a “citizen” of the United States would be a citizen only or exclusively by virtue of either being “born… in” the United States (under the common law principles of jus soli as reflected in the Fourteenth Amendment), or by virtue of being “naturalized” in the United States, which some argue means that one is made a citizen by the operation of statutory law. Earlier federal court cases gave credibility to this version of who would be a native or natural born citizen, as opposed to a “naturalized” citizen. As explained by the Supreme Court in Wong Kim Ark:
- ↑ Rogers v. Bellei, 401 U.S. 815, 828 (1971): “We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, the place of birth governs citizenship status except as modified by statute”; United States v. Wong Kim Ark, 169 U.S. supra at 693: “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country….”; Miller v. Albright, 523 U.S. 420, 434, n.11 (1998): other than as provided by statute “citizenship does not pass by descent”; Lynch v. Clarke, 3 N.Y. Leg. Obs. 236, 243–244 (1 Sand. ch. 583) (1844): “… at the Declaration of Independence, by the law of each and all of the thirteen states, a child born within their territory and ligeance respectively, became thereby a citizen of the state of which he was a native. This continued unchanged to the time when our National Constitution went into full operation”; 10 Op. Atty. Gen. 382, 394–395 (November 29, 1862).
- ↑ Immigration Law and Procedure at §91.02[4][c]. Emphasis added, footnotes omitted.
