Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement (2024)

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 generally "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 and brought up in" the English common law, they "thought and spoke in its vocabulary," and that English common law was thus what the "statesmen and lawyers of the Convention" employed for the meaning of the terms in the Constitution "confident that they could be shortly and easily understood."⁴

The term "natural born" in the context of citizenship appears to derive from the British concept that those born with a "natural liege" (allegiance, tie, or connection) to the nation or to the sovereign, were (under English terminology) "natural born" subjects under the law in England and in the American colonies at the time of independence. There appears to be little scholarly debate that the English common law at the time of independence included at least all persons born on the soil of England (jus soli, that is, "law of the soil"), even to alien parents, as "natural born" subjects (unless the alien parents were diplomatic personnel of a foreign nation, or foreign troops in hostile occupation). As noted by the Supreme Court of the United States, this "same rule" was applicable in the colonies and "in the United States afterwards, and continued to prevail under the Constitution" with respect to "natural born" U.S. citizenship.⁵

Although the British common law at the time of independence with regard to jus soli was apparently clear, there were varying opinions as whether those born abroad of English subjects were "natural born" subjects under the common law, or were considered "natural born" subjects merely by long-standing statutory law. Some commentators have claimed that the statutory provisions of English law, first appearing during the reign of Edward III in 1350, were "incorporated" into, or in the alternative, "reflected" the already established English common law.⁶ Regardless of the technical state of the common law in England with respect to children born abroad, however, there appear to be significant arguments that the corpus of English law applicable within the American colonies, known to the framers and adopted in the states, was broader than merely the "law of the soil." Legal commentators have contended that the body of English law carried forward in the United States relating to citizenship included both the strict common law notion of jus soli, as well as that part of the law of descent (jus sanguinis) included in long-standing British law⁷ (including as "natural born" subjects those born abroad of an English father), and that this was part of the "common understanding" of the term "natural born" to the framers at the time of the drafting of the Constitution.⁸

Considering the history of the constitutional provision, the clause's apparent intent, the English common law expressly applicable in the American colonies and in all of the original states, the common use and meaning of the phrase "natural born" subject in England and the American colonies in the 1700s, and the subsequent action of the first Congress in enacting the Naturalization Act of 1790 (expressly defining the term "natural born citizen" to include those born abroad to U.S. citizens),⁹ 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 "by birth" or "at birth." Such interpretation, as evidenced by over a century of American case law, would include as natural born citizens those born in the United States and subject to its jurisdiction regardless of the citizenship status of one's parents,¹⁰ and would also appear to include those born abroad of one or more parents who are U.S. citizens (as recognized by statute),¹¹ as opposed to a person who is not a citizen by birth and is thus an "alien" required to go through the legal process of naturalization to become a U.S. citizen.¹²

The weight of scholarly legal and historical opinion, as well as the consistent case law in the United States, also supports the notion that "natural born Citizen" means one who is a U.S. citizen "at birth" or "by birth."¹³ The Constitution of the United States of America, Analysis and Interpretation, notes that "[w]hatever the term 'natural born' means, it no doubt does not include a person who is 'naturalized,'" and, after discussing historical and legal precedents and arguments, concludes that "[t]here is reason to believe ... that the phrase includes persons who become citizens at birth by statute because of their status in being born abroad of American citizens."¹⁴

History of the Qualifications Clause in the Federal Convention of 1787

Procedural History

The particular clause concerning presidential eligibility and citizenship was placed in the Constitution and approved at the Convention of 1787 with no debate, objection, or comment. The five-person Committee of Detail, appointed by the Convention delegates to report a draft Constitution containing issues and items agreed upon by the Convention up to that point,¹⁵ was instructed by the Convention, on July 26, 1787, to consider provisions requiring certain qualifications for Congress and the Presidency.¹⁶ Although the subsequent report on August 6 from the Committee of Detail contained qualifications for Senator and Representative, it did not offer qualifications for President.¹⁷ On August 20, the Convention adopted a motion by Mr. Gerry of Massachusetts that the "Committee be instructed to report proper qualifications for the President ...,"¹⁸ and on August 22, the Committee of Detail reported its recommendation that several additions be made to the report it had made, including the following concerning the qualifications of the President: "[H]e shall be of the age of thirty five years, and a Citizen of the United States, and shall have been an Inhabitant thereof for Twenty one years."¹⁹ The report of the Committee of Detail was then "considered" and "postponed" on August 22, so "that each member might furnish himself with a copy."²⁰

In the subsequent days, the provisions for the qualifications of President were not taken up and thus not agreed upon by the whole Convention, and on August 31, 1787, the delegates agreed to "refer such part of the Constitution as have been proposed, and such parts of reports as have not been acted upon to a Committee of a Member from each State,"²¹ which has been referred to as the (third) "Committee of Eleven," or the "Committee on Postponed Matters." On Tuesday, September 4, 1787, the (third) Committee of Eleven "partially" reported to the Convention several "additions and alterations," including the specific reference for the first time to a presidential qualification to be a "natural born" citizen:

No Person except a natural born Citizen, or a Citizen of the U.S. at the time of the adoption of this Constitution shall be eligible to the office of President: nor shall any Person be elected to that office, who shall be under the age of 35 years, and who has not been in the whole, at least 14 years a resident within the U.S.²²

The language proposed on presidential eligibility on September 4 was agreed to without objection and without debate on Friday, September 7, 1787.²³ Stylistic and grammatical changes were made through the Committee of Style to the clause on presidential qualifications to conform to the other phrasing and usage in the document, which resulted in the final language adopted by the delegates and sent to the states for ratification.²⁴

Apparent Purpose and Intent

Tracing the development of this clause through the Federal Convention of 1787 clearly indicates that there were no specific discussions or other explications within the Convention on the meaning of the specific term "natural born" citizen. This does not mean, however, that there were no discussions at all of the concept of a citizenship qualification for federal officers. In fact, the issue of citizenship for Members of Congress was one that garnered much consideration and debate in the Convention of 1787 and, it has been contended, it is within the framework of this discussion that the eventual citizenship eligibility requirement was adopted for President and may be analyzed.²⁵

In stating concerns regarding the citizenship of congressional officeholders, and the required length of such citizenship, George Mason argued that although he "was for opening a wide door for immigrants; ... [h]e did not chuse to let foreigners and adventurers make laws for us"; nor would he want "a rich foreign Nation, for example Great Britain, [to] send over her tools who might bribe their way" into federal office for "invidious purposes."²⁶ These arguments were echoed later by delegates at the Convention who were concerned with "admitting strangers into our public Councils,"²⁷ and feared that "foreigners without a long residency in the Country ... bring with them, not only attachments to other Countries; but ideas of Govt. so distinct from ours that in every point of view they are dangerous."²⁸ Thus, citizenship requirements of seven years for Representatives and nine years for Senators were eventually adopted, although the Convention did not act upon the wishes of Mr. Gerry "that in the future the eligibility might be confined to Natives."²⁹ When the citizenship eligibility requirements for President were eventually reported and recommended after the debates and discussion of congressional eligibility requirements, there were no further discussions of the issue in Convention.³⁰

Although there was no discussion concerning the precise meaning or derivation of the term "natural born," there is in the Documentary History of the Convention a possible clue from where the qualification for President to be a "natural born" citizen may have derived. The history of the Convention indicates that George Washington, the presiding officer, received a letter dated July 25, 1787, from John Jay, which appears to raise for the first time the issue of a requirement to be a "natural born" citizen of the United States as a requisite qualification to be President:

Permit me to hint, whether it would not be wise & 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.³¹

There is no specific indication as to the precise role this letter and its "hint" actually played in the adoption by the Convention of the particular qualification of being a "natural born" citizen. However, no other expressions of this particular term are evident in Convention deliberations prior to the receipt of Jay's letter, and the September 4 draft of the Constitution reported from the Committee of Eleven to the delegates, at a time shortly after John Jay's letter had been acknowledged by Washington, contained for the first time such a qualification.³² The timing of Jay's letter, the acknowledgment of its receipt by Washington on September 2, and the first use of the term in the subsequent report of the Committee of Eleven, on September 4, 1787, may thus indicate more than a mere coincidence. If this were the case, then the concern over "foreigners," without sufficient allegiance to the United States, serving as President and Commander-in-Chief, would appear to be the initial and principal motivating concern of the framers, in a somewhat similar vein as their concerns over congressional citizenship qualifications.³³

Such purpose of the "natural born" citizen qualification was expressed by Justice Joseph Story in his historic treatise on the Constitution in 1833:

It is indispensable, too, that the president should be a natural born citizen of the United States ... [T]he general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe.³⁴

"Ambitious foreigners" who may be "intriguing for the office" of head of state, which had been the unfortunate experience in Europe, appeared to be a generalized and widespread concern at the time of the drafting of the Constitution, as was the concern over the possibility of allowing foreign royalty, monarchs, and their wealthy progeny, or other relatives to control the government of the new nation. Max Farrand, in his treatise on the adoption of the Constitution, discussed these concerns and rumors during the Convention of 1787:

During the sessions of the convention, but it would seem especially during the latter part of August, while the subject of the presidency was causing so much disquiet, persistent rumors were current outside that the establishment of a monarchy was under consideration. The common form of the rumor was that the Bishop of Osnaburgh, the second son of George III, was to be invited to become King of the United States.³⁵

Others have noted that rumors were extant concerning colonial statesmen approaching or making inquiries of other foreign royalty about seeking the chief executive's position of the United States, including rumors involving Price Henry of Prussia, and the ascension of King George's second son, Frederick, Duke of York. Presidential scholar Michael Nelson has commented:

The presidency they were creating was, the framers realized, the closest analog in the new constitution to a king, just by being a separate, unitary executive. Even before the convention assembled, von Steuben had disseminated a rumor that Nathaniel Gorham, president of Congress under the Articles of Confederation and a convention delegate from New Hampshire, had approached Prince Henry of Prussia about serving as America's King. Similar stories involved the ascendancy of King George's second son, Frederick, Duke of York. During the summer, these rumors gained new currency. The story spread that the convention, whose deliberations were secret, was advancing the plot behind closed doors.³⁶

The question of not only "foreign influence" of wealthy persons immigrating to the United States to become President, but also the issue of an American monarchy, were thus very real concerns of the populace, as well as the framers, and appeared to establish the context in which the role, qualifications, duties, and powers of an American chief executive were developed.³⁷ As noted by constitutional scholar Akhil Amar, the concerns and anxieties over ambitious and duplicitous foreigners, and the "possibility that a foreign earl or duke might cross the Atlantic with immense wealth and a vast retinue, and then use his European riches to buy friends on a scale that no home-grown citizen could match," led the framers to incorporate Article II's "most questionable eligibility rule."³⁸ Amar also agrees that the framers' aversion to hereditary monarchies appeared to play an additional role in erecting a barrier to immigrants being President within the Constitution—a document that was otherwise, for its time, enlightened as permitting immigrants to weave their way into the fabric of American political and social life:

These anxieties had been fed by England's 1701 Act, which inclined early Americans to associate the very idea of a foreign-born head of state with the larger issue of monarchial government. Though England banned foreigners from all other posts, it imposed no natural-born requirement on the head of state himself. In fact, the 1701 Act explicitly contemplated foreign born future monarchs—the German House of Hanover, in particular. By 1787 this continental royal family had produced three English kings named George, only the third of whom had been born in England itself. Article II's natural-born language squarely rejected the 1701 idea of future foreign-born heads of state, in no small part because many republicans had come to link the idea (perhaps more sociologically than logically) with hereditary succession and foreign intrigue. Foreign-born princes might be good enough to rule in the Old World but should be kept out of the New World order—or at least the New World presidency.³⁹

The apparent purposes of this citizenship clause were thus to assure the requisite fealty and allegiance to the nation from the person to be the chief executive of the United States, and to prevent wealthy foreign citizens, and particularly wealthy foreign royalty and their relatives, from coming to the United States, becoming naturalized citizens, and then scheming and buying their way into the Presidency or creating an American monarchy. The possibility of satisfying these purposes would appear to be as likely from an interpretation of the term "natural born" citizen which would include one who is a citizen "at birth" by either common law principles of jus soli, that is, being born on the soil, or by the operation of statutory law of the principles of jus sanguinis, that is, through the law of descent by being born to U.S. citizens abroad. That is, one who is a citizen of the United States "at birth" by descent under federal law could develop the requisite allegiances and reverences for the United States passed down, inculcated, and taught by one's parent-citizens, and would have a lifetime of allegiance to the United States at least as strong, in a theoretical sense, as one who was born a citizen within the geographic boundaries of the country.⁴⁰ Those who are born "in" the country, and who are subject to its jurisdiction, regardless of the nationality or citizenship of their parents, have always under British common law, as well as under the laws of the original states, and then the United States since its founding, been considered to have the "natural" allegiance and ties to the nation.⁴¹

Common Law Meaning of the Term "Natural Born" Citizen or Subject

Common Law and the Constitution

If the term "natural born" with respect to citizenship conveyed a concept clearly within the English common law, there would then be a strong implication that such term and its legal meaning would either have been incorporated into, or at least would strongly influence the framers in using such phrase, as well as subsequent interpretive construction by the courts of the relevant provision of the U.S. Constitution.⁴² As noted by the Supreme Court,

There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.⁴³

Many of the terms used in the U.S. Constitution were not specifically defined in that document (such as "natural born" citizen, the privilege of the writ of "habeas corpus," and the prohibitions against "bills of attainder" and "ex post facto" laws, for example), and thus referral to the English common law, "well known" to the framers and applicable in the American colonies, must be made for a definitional reference for such terms. The Supreme Court has explained with reference to the constitutional prohibition on "ex post facto" laws, for example, that the meaning of such term, not defined in the Constitution, requires some explanation, and that "the necessary explanation is derived from English common law well known to the Framers":

The proscription against ex post facto laws "necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing." Calder v. Bull, 3 Dallas 386, 390 (1798) (Chase, J.). In Calder v. Bull, Justice Chase stated that the necessary explanation is derived from English common law well known to the Framers: "The expressions 'ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors." Id. at 391; see also id. at 389.⁴⁴

Similarly, Chief Justice (and former President) Taft explained (in a Supreme Court decision dealing with the parameters of the offenses to which the "pardon" authority of the President extends) that the meaning of the language and phrases in the Constitution, when they are not specifically defined in that document, can only be discerned and interpreted by reference to the British common law in place at the time of the drafting of the Constitution. The Chief Justice, writing for a unanimous Court, found that the British common law was what the framers "were born and brought up in," that the framers "thought and spoke in its vocabulary," and was thus what the "statesmen and lawyers of the Convention" employed for the meaning of the terms in the Constitution "confident that they could be shortly and easily understood":

The language of the Constitution cannot be interpreted safely except by reference to the common law and to the British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.⁴⁵

Justice Joseph Story explained in his celebrated work on the United States Constitution, Commentaries on the Constitution, that the British common law formed the "foundation" upon which American jurisprudence stands:

The universal principle (and the practice has conformed to it) has been that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law.⁴⁶

The British common law was, in fact, regularly adopted or recognized as in force expressly in the constitutions, or in the early acts of the legislatures, of the original thirteen states after independence had been declared in July of 1776. The original Constitution of Delaware, for example, stated,

The common law of England, as-well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention.⁴⁷

The experience and the wording of the constitutions, or original statutes, adopted in most of the other original states were similar to that of Delaware quoted above.⁴⁸ Those immediately involved in framing constitutions for the states in the 1770s, many of whom were also prominent in framing the Constitution for the United States in 1787, were thus not only intimately familiar with, but also expressly recognized the continued application of the British common law within this country.

Similar to the concept expressed in the original constitutions and enactments of the new states, Justice Story has also noted in a Supreme Court decision that we did not necessarily, however, adopt all of the British common law, but rather adapted it to our own situation.⁴⁹ An analysis of the term "natural born" citizen which begins with the British common law meaning of the phrase might thus not necessarily end there, but must also take into consideration the unique American experience, and the application and interpretation of the underlying concepts involved by the courts in the United States. ⁵⁰

Common Law and Persons Born "In" the Country

There appears to be very little scholarly or legal dispute as to the British common law applicable in England and in the American colonies with respect to those born "on the soil." As to those children born in the geographic boundaries of the country, even of alien parents, the Supreme Court of the United States in United States v. Wong Kim Ark, citing the British decision in Calvin's Case reported by Lord co*ke,⁵¹ found that such persons were, under British common law, considered "natural born" subjects (with minor exceptions for children born of foreign diplomatic personnel or of hostile military forces in occupation, that is, those not "under the jurisdiction" of that host country). This rule of law, noted the Court, applied to the American colonies at the time of the Declaration of Independence and, significantly, "in the United States afterwards, and continued to prevail under the Constitution ...."⁵²

The premiere treatise on British law at the time of the drafting of the Constitution, which was well-known and well-used in the colonies, was Blackstone's Commentaries on the Laws of England (1765). Blackstone explained that "[t]he first and most obvious division of the people is into aliens and natural-born subjects,"⁵³ and that the "natural" allegiance due of "natural-born" subjects, as opposed to merely "local" allegiance of aliens and sojourners, "is such as is due from all men born within the king's dominions immediately upon their birth."⁵⁴ Blackstone traced the development of the concept of "natural-born" allegiance to the reciprocal duties of protection and allegiance (fealty, or "ligamen" (tie)), that developed concerning land ownership and use under the feudal system, eventually understood to encompass the reciprocal protection/allegiance of all English subjects with respect to the crown.⁵⁵

In 1844, in a probate case in New York State, Assistant Vice-Chancellor Lewis Sandford authored a detailed and scholarly opinion, later cited and relied upon by numerous federal courts and legal treatises, on the legal history of natural born citizenship status in the United States.⁵⁶ The opinion in Lynch v. Clarke found that one of the litigants, Julia Lynch, who was born in New York to alien parents who were merely on a "temporary sojourn" in this country, was a natural born U.S. citizen who had the legal capacity to inherit. Sandford concluded that all persons born in the United States, even of alien parents who were only here temporarily, had "natural born" citizenship status under English common law, carried forward in the laws in all of the original thirteen states after independence, and then under the laws and constitutional provisions of the United States:

My conclusion upon the facts proved is, that Julia Lynch was born in this state of alien parents, during their temporary sojourn. That they came here as an experiment, without any settled intention of abandoning their native country, or of making the United States their permanent home....

It is indisputable that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States ... By the common law, all persons born within the ligeance of the crown of England, were natural born subjects, without reference to the status or condition of their parents....

***

At the formation of our present national government, the common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation....

I need not dwell more at large upon this unquestionable proposition....

Common Law and Persons Born Abroad to Citizen-Parents

In United States v. Wong Kim Ark, the Supreme Court, in examining an immigration question not dealing specifically with the meaning of the presidential eligibility requirement, provided a lengthy examination of the English common law of citizenship at the time of the drafting of the Constitution, and whether such citizenship was obtained by the place of birth (jus soli) only, or also by descent (jus sanguinis). As noted above, the Court found that the common law of England was that of jus soli, that is, derived from the feudal notion of the reciprocal responsibilities of allegiance and protection of an individual that was established in England by the place of that person's birth; and that the latter principle of citizenship by descent (because of the citizenship or nationality of one's father—jus sanguinis) was, as a general matter, the law in England by statute, and thus not necessarily as part of the "common law," even though there existed a long-standing statutory recognition (since 1350) of the rights of "natural-born subjects" who were born abroad to British parents or a British father.⁶⁷

As pointed out by the Supreme Court in Wong Kim Ark, however, there was not necessarily unanimity in legal scholarship concerning a narrow reading of the British common law with regard to the children of subjects/citizens born abroad.⁶⁸ Some legal scholars in England and in the United States have argued that the long-standing statutory and parliamentary recognition of children born abroad to English subjects as "natural-born" was merely "declaratory" of the existing common law principles and understandings in England, although this was disputed in dicta by the Supreme Court in Wong Kim Ark:

It has sometimes been suggested that this general provision of the statute of 25 Edw. III. [1350] was declaratory of the common law. See Bacon, arguendo, in Calvin's Case, 2 How. St. Tr. 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch. Div. 243, 247; 2 Kent, Comm. 50, 53; Lynch v. Clarke, 1 Sandf. Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N. Y. 536. But all suggestions to that effect seem to have been derived, immediately or ultimately, from one or the other of these two sources: The one, the Year Book of 1 Rich. III. (1483) fol. 4, pl. 7, reporting a saying of Hussey, C. J., "that he who is born beyond sea, and his father and mother are English, their issue inherit by the common law, but the statute makes clear," etc., - which, at best, was but obiter dictum, for the chief justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer's Reports, 224a, stating that at Trinity term 7 Edw. III. Rot. 2 B. R., it was adjudged that children of subjects born beyond the sea in the service of the king were inheritable, - which has been shown, by a search of the roll in the king's bench so referred to, to be a mistake, inasmuch as the child there in question did not appear to have been born beyond sea, but only to be living abroad.⁶⁹

The position of the dissenting Justices in Wong Kim Ark was characterized and discussed by the Court in the later case of Weedin v. Chin Bow: "The attitude of Chief Justice Fuller and Mr. Justice Harlan was, that at common law the children of our citizens born abroad were always natural-born citizens from the standpoint of this Government...."⁷⁰ A detailed law review article in 1921 by the assistant solicitor of the Department of State noted that a number of legal scholars and historians contend that the English common law specifically included jus sanguinis, as well as jus soli, and noted that the "question has been a subject of controversy for six centuries or more…."⁷¹

Other legal scholars have contended that long-standing and commonly accepted principles incorporated into English law by statute over several centuries, even if they did not merely "declare" already-existing English common law, actually modified the corpus of the common law to incorporate such principles, and that this body of law was the one known to the framers, such that the provisions of the Constitution must be interpreted in that light. Charles Gordon, who was then general counsel for the United States Immigration and Naturalization Service, explained in 1968 that in addition to recognizing birthright citizenship as to the place of birth (jus soli), "the consistent practice over several centuries, in England and the United States, [was] to recognize citizenship status by descent."⁷² Gordon thus concluded that "[t]he common law, as it had developed through the years, recognized a combination of the jus soli and the jus sanguinis," ⁷³ and that the English common law adopted by the United States had been expanded by the long-standing statutory inclusions over the centuries in England:

[T]here were doubts concerning the applicability of the jus sanguinis under the early common law. But those doubts were eliminated by statutes enacted in England before the American Revolution, which became part of the body of law followed in England and passed on to this country. It can be argued ... that this total corpus was the common law which this country inherited, and that it persevered unless specifically modified.⁷⁴

This position was further implicated in an 1896 Digest of the Law of England with reference to the Conflict of Laws, by Albert Venn Dicey, as cited by the Supreme Court in Wong Kim Ark.⁷⁵ Mr. Dicey states in that treatise that "'Natural-born British subject' means a British subject who has become a British subject at the moment of his birth," which expressly includes those born abroad whose British nationality passes to the child by descent.⁷⁶

That the United States was not confined to only the narrowest interpretation of the common law of England in our usages and applications of concepts and terms in this country, was noted by the Supreme Court in an opinion authored by Justice Story in 1829:

The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted, only that portion which was applicable to their situation.⁷⁷

It was, in fact, common in the states after independence, upon the adoption of their constitutions and statutes, to incorporate both the common law of England, as well as the statutory laws adopted by Parliament and applicable in the colonies up until a particular date.⁷⁸ There is thus some argument and indication that it was common for a "modified" English common law—modified by long-standing provisions of English statutory law applicable in the colonies—to be among the traditions and bodies of law incorporated into the laws, applications, usages, and interpretations in the beginning of our nation.

Common Understanding in 18^th Century of the Term "Natural Born" Citizen

In addition to examining the common law meaning of the term "natural born" as it related to citizenship, there are other interpretive analyses that might be employed in an attempt to understand the "meaning to the framers" of the term "natural born" citizen when the term was adopted in the Constitution in 1787.⁷⁹ If, as noted by the Supreme Court in an opinion authored by Justice Story, the "common law of England is not to be taken, in all respects, to be that of America," ⁸⁰ there may be accorded some significance to an analysis of what the term "natural born" citizen was commonly understood to mean in the American colonies at the time of the revolution and framing of the Constitution.

It is, of course, always a somewhat speculative exercise to attempt to discern the "common understanding" of a group of individuals who may be geographically, professionally, and politically diverse, particularly during a period many years removed from the current time.⁸¹ The fact that no discussion appears in the notes of the Federal Convention of 1787 on the presidential eligibility clause, and the fact that the actual debates and discussions in the Convention were held in secret with no official journal of the debates being kept (other than for recording votes) highlight the problems in such speculation. That being said, however, one might argue that there existed what might be called a "common" or "general understanding," or at least common "usage" of the term "natural born," as it related to those who were considered "natural born" subjects of England in the American colonies at the time of independence, and "natural born" citizens at the time of the adoption of the Constitution. The "state of the law" in colonial America concerning who was a "natural born" subject of England under English laws, both common law as well as statutory laws, was certainly known to the framers since, as noted by the Supreme Court, "These statutes applied to the colonies before the War of Independence."⁸²

From examination of historical documents, it appears that the term "natural born" as it related to citizenship under English law and jurisprudence was a term widely known and used in the American colonies in the 1700's, and was employed in the context and understanding of British common law as well as British statutory law. For example, more than a decade before John Jay had employed the term in his "hint" to General Washington at the Convention of 1787, the First Continental Congress of the American colonies, meeting in Philadelphia beginning in September of 1774, adopted a resolution asserting that the common law of England was fully applicable to the colonies in America, as were such statutory laws of England as would be relevant to their circ*mstances, and expressly included in the resolution an assertion of the rights of their ancestors to be considered "natural-born subjects within the realms of England." As noted in Elliot's compilation and analysis of documents related to independence,

On the same day [14^th of October, 1774], Congress unanimously resolved, "that the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law." They further resolved, "that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they have, by experience, respectively found to be applicable to their several and local circ*mstances." They also resolved, that their ancestors, at the time of their immigration, were "entitled to all the rights, liberties, and immunities, of free and natural-born subjects within the realms of England."⁸³

It is thus clear that the delegates to the First Continental Congress in 1774, among whom were several framers of the Constitution at the Federal Convention of 1787, as well as other notable "founding fathers" (including John Jay),⁸⁴ were already familiar with and employed the term "natural born" in the context of and within the understanding of British common law and statutory law concepts of the rights and privileges of citizenship.

Of relevance to any meaning and "common understanding" of the term "natural born" within the American colonies and at the time of the drafting of the Constitution is the legal treatise on the laws of England referred to as "Blackstone," for its author William Blackstone. Published in 1765, this treatise was not only available, but was widely known to the framers at the time of the drafting of the Constitution.⁸⁵ As noted by the Supreme Court of the United States, "Blackstone's Commentaries was widely circulated in the Colonies ...," ⁸⁶ and that "undoubtedly the framers of the Constitution were familiar with it."⁸⁷ As discussed in the earlier section of this report on the common law, Blackstone explained that "natural born" subjects in England and the American colonies included all those born "in" the lands under British sovereignty. Concerning specifically the issue of children born abroad of English subjects, Blackstone explains clearly that such children are then (in 1765) considered under the law of England as "natural born" subjects, and have been considered as such for most purposes since at least the time of Edward III (1350), because of the development of statutory law in England to "encourage also foreign commerce." As stated by Blackstone in his 1765 treatise,

[A]ll 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.⁸⁸

The "commonly understood" meaning of the term "natural born" in the United States at the time of the drafting of the Constitution might thus be broader than the early, strict English "common law" meaning of that term.⁸⁹ As noted by Charles Gordon, former Chief Counsel of the Immigration and Naturalization Service, whether the body of English law in the 1770s was from early common law, from statutory law, or from the common law modified over the years by statutory law, these provisions "were part of the corpus of the English law in existence at the time of the Revolution, which was substantially recognized and adopted by our forefathers."⁹⁰ This common usage and popular understanding to the framers of the term "natural born" subject (as employed in England), and the term's apparent evolution and broadening of meaning through statutory law, has thus led several other legal commentators and historians to conclude: "The constitutional Framers had a broad view of the term 'natural-born' and considered all foreign- born children of American citizen parents eligible for the Office of the Presidency";⁹¹ or, as stated by another: "[T]he delegates meant to apply the evolved, broader common law meaning of the term when they included it in the presidential qualifications clause."⁹²

Presidential historian Michael Nelson has also averred that the term appeared to have a common meaning at the time of the drafting of the Constitution which involved within its concept both the common law definition and mode of acquisition of citizenship (through jus soli), as well as the common understanding of the long-standing broadening of such term by the operation of English statutory law to include those subjects who may have traveled abroad for purposes of commerce, or otherwise. As noted by Nelson (and pointed out by others), a more restrictive meaning to include only those born within the boundaries of the United States would mean that John Jay, who may have recommended the precise term to the Convention, would have intended to exclude from eligibility his own children who were born in Spain and France while Jay was representing the United States abroad:

The provision for "natural born Citizen" probably was aimed at immigrants, although the term is so unusual as to be vague.... [b]ut [it] had deep roots in British common law. In medieval times it had embodied the doctrine of jus soli: a natural born citizen was one born within the realm (on the soil, so to speak). But with increased commerce and travel, Parliament, starting in 1350, seemed to expand the definition of natural born to incorporate the doctrine of jus sanguinis. Now babies born of British citizens abroad or at sea were included as well. One can presume only that Jay and the delegates meant to apply the evolved, broader common law meaning of the term when they included it in the presidential qualifications clause. Certainly Jay did not mean to bar his own children born in Spain and France while he was on diplomatic assignments, from legal eligibility to the presidency.⁹³

With respect to the common or general meaning of the term "natural born" to the framers of the Constitution in the context of those born abroad to U.S. citizens, it may be significant to note that the first Congress, under its express constitutional authority "to establish an uniform Rule of Naturalization,"⁹⁴ enacted the Naturalization Act of 1790.⁹⁵ The first of several such acts, this 1790 statute stated that

[T]he children of citizens of the United States, that may be born beyond the 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....⁹⁶

This early congressional act provides some argument that the term "natural born" citizen was seen to include more than merely the "native born," that is, those born in the country (in accordance with the common law principle of jus soli), but also to include the long-standing English statutory recognition of citizenship by descent through one's father when an individual is born abroad, that is, all of those who are citizens "at birth" or "by birth." The significance of such a statute passed by the first Congress was, of course, the fact that many of the framers of the Constitution were Members of that first Congress, as well as the fact that the first Congress's understanding of the meaning of the terms of the Constitution was most contemporaneous in time with the document's adoption. One author has noted that of the "Committee of Eleven," which first proposed to the Convention of 1787 the eligibility requirement of being a "natural born" citizen, 8 of the 11 committee members were in that first Congress, and none stated objections to or disagreement with the characterization of the term "natural born" by statute by the Congress.⁹⁷ The Supreme Court has expressly noted the weight of authority of early actions of the first Congress in explicating portions of the Constitution because of the make-up of that Congress, and its proximity in time to the Convention. As noted by the Court, an act "passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, ... is contemporaneous and weighty evidence of its true meaning."⁹⁸

One of the more noted political and constitutional scholars on the American presidency, Edward S. Corwin, has explained that "natural born" citizens eligible to be President clearly include all of those born "on the soil" of the United States and subject to its jurisdiction, under the common law principles of jus soli applicable in the United States, but also would appear to include those born abroad of U.S. citizens under the principle of jus sanguinis, as adopted by Congress by statute. Corwin noted that Congress has the authority as the legislative body of a sovereign nation "to determine who shall and shall not be admitted to the body politic":

But who are "natural-born citizens"? By the so-called jus soli, which comes from the common law, the term is confined to persons born on the soil of a country; and this rule is recognized by the opening clause of the Fourteenth Amendment, which declares to be citizens of the United States "all persons born or naturalized within the United States and subject to the jurisdiction thereof." On the other hand, by the so-called jus sanguinis, which underlay early Germanic law and today prevails on the continent of Europe, nationality is based on parentage, a principle recognized by the first Congress under the Constitution in the following words:

The children of citizens of the United States that may be born beyond the sea, or outside of the limits of the United States, shall be considered as natural-born citizens of the United States; provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.

By succeeding legislation the general clause of this provision has been continued in force to this day. The question arises, whence did Congress obtain the power to enact such a measure? By the Constitution the Congress is authorized to pass "an uniform rule of naturalization," that is, a uniform rule whereby aliens may be admitted to citizenship; while the provision under discussion purports to recognize a certain category of persons as citizens from and because of birth. The provision must undoubtedly be referred to the proposition that, as the legislative body of a nation sovereign at international law, Congress is entitled to determine who shall and who shall not be admitted to the body politic.

Should, then, the American people ever choose for President a person born abroad of American parents, it is highly improbable that any other constitutional agency would venture to challenge their decision ....⁹⁹

It may be noted that some have argued that the relevant common meaning of natural born citizen that was prevalent in 18^th century America should not be the one that was actually applicable in the American colonies during that time from British statutory and common law, and which was adopted specifically by the states after independence in 1776 (and which, as noted by Justice Story, formed the "foundation" for American jurisprudence), but rather should be recognized as one derived from what has been described as a "philosophical treatise"¹⁰⁰ on the law of nations by a Swiss legal philosopher in the mid-1700s.¹⁰¹ This particular treatise, however, in the editions available at the time of the drafting of the U.S. Constitution, did not actually use, either in the original French or in English interpretations at that time, the specific term "natural born citizens."¹⁰² It was not until after the adoption of the Constitution in the United States did a translator interpret the French in Emmerich de Vattel's Law of Nations to include, in English, the term "natural born citizens" for the first time, and thus that particular interpretation and creative translation of the French, to which the Vattel enthusiasts cite, could not possibly have influenced the framing of the Constitution in 1787.¹⁰³

Furthermore, and on a more basic level, the influence of the work of Vattel on the framers in employing the term "natural born" in relation to domestic citizenship within the Constitution is highly speculative at best, is without any direct historical evidence, and is contrary to the mainstream principles of constitutional interpretation and analysis within American jurisprudence. Although it appears that there is one single reference by one delegate at the Federal Convention of 1787 to Vattel (in reference to several works of different authors to support an argument for equal voting representation of the states in the proposed Congress),¹⁰⁴ there is no other reference to the work in the entire notes of any of the framers published on the proceedings of the Federal Convention of 1787,¹⁰⁵ and specifically there is no reference or discussion of the work at all in relation to citizenship at the Convention, in the Federalist Papers,¹⁰⁶ or in any of the state ratifying conventions.¹⁰⁷

It would appear to be somewhat fanciful to contend that in employing terms in the U.S. Constitution the framers would disregard the specific and express meaning of those precise terms in British common law, the law in the American colonies, and subsequently in all of the states in the United States after independence, in favor of secretly using, without comment or explanation, a contrary, non-existent English translation of a phrase in a French-language treatise on international law. In a state case cited with approval by the U.S. Supreme Court, an extensive legal analysis of the question of natural born citizenship under the law of the United States by Assistant Vice Chancellor Sandford, in New York in 1844, found that the laws in all of the American colonies, and then in all of the states after independence, followed the English common law principles of jus soli, that is, that birth in the territory governed citizenship at birth, regardless of the nationality or citizenship of one's parents.¹⁰⁸ Sandford found that it would be "inconceivable" that the framers, in drafting the Constitution, would abandon without explicit comment or explanation in the document, the existing law in all of the colonies, and then in all of the states, of who were natural born citizens in favor of an "international" or "natural" law theory of citizenship by "descent" (through one's father), an argument pressed by one of the litigants relying, in part, on Vattel. Addressing specifically the question of the use of the term "natural born citizen" in the federal Constitution as one of the qualifications for President, Vice Chancellor Sandford found the following:

It is a necessary consequence, from what I have stated that the law which had prevailed on this subject, in all the states, became the governing principle or common law of the United States. Those states were the constituent parts of the United States, and when the union was formed, and further state regulation on the point terminated, it follows, in the absence of a declaration to the contrary, that the principle that prevailed and was the law on such point in all the states, became immediately the governing principle and rule of law thereon in the nation formed by such union.... The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section that defines the qualification of the President. "No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution shall be eligible to the office of President," &c. The only standard which then existed, of natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor that by the rule of common law, in force when the constitution was adopted, he is a citizen.

Moreover, the absence of any avowal or expression in the constitution of a design to affect the existing law of the country on this subject, is conclusive against the existence of such design. It is inconceivable that the representatives of the thirteen sovereign states, assembled in convention for the purpose of framing a confederation and union for national purposes, should have intended to subvert the long-established rule of law governing their constituents on a question of such great moment to them all, without solemnly providing for the change in the constitution; still more that they should have come to that conclusion without even once declaring their object.¹⁰⁹

The treatise in question by Emmerich de Vattel was a work concerning the "law of nations," which we would now classify generally as "international law." However, the concept of citizenship within a particular country is one governed not by international law or law of nations, but rather is governed by municipal law, that is, the internal law of each country.¹¹⁰ Vattel's writings on citizenship by "descent" reflected in many circ*mstances what the law or practice may have been in certain European nations at the time—that is, that citizenship followed the nationality or citizenship of one's father, as opposed to the place of birth.¹¹¹ This concept, although prevalent on the European Continent was, even as expressly noted in Vattel's work itself, clearly not the law in England or thus the American colonies,¹¹² and clearly was not the concept and common understanding upon which U.S. law was based. James Madison, often referred to as the "Father of the Constitution," expressly explained in the House of Representatives in the First Congress, in 1789, that with regard to citizenship the "place" of birth, and not "parentage" was the controlling concept adopted in the United States.¹¹³ Additionally, the Supreme Court in 1971 simply and succinctly explained, after citing historical legal precedent: "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."¹¹⁴ Again in 1998, the Supreme Court expressly recognized jus soli, the place of birth, as controlling in the United States, noting that in this country "citizenship does not pass by descent" except as provided by Congress in statute.¹¹⁵

The "common" understanding of the term "natural born" citizen during the revolutionary period, the time of the drafting of the Constitution, and in the generation after, was that of one who was a citizen "at birth" (and the principal factor in the United States, as in England, was the place of birth within the country, rather than that of ancestry, lineage, or descent, except as provided in statute). This common understanding and usage has continued up until this day as the term "natural born" citizen has entered the popular, legal lexicon as defined as: "A citizen by birth, as distinguished from a citizen who has been naturalized,"¹¹⁶ and the meaning of "natural born" in common, general usage as "having a specified status or character by birth."¹¹⁷

Citizenship at Birth: Case Law and Interpretations

The evidence of historical intent, general understandings, and common law principles underlying American jurisprudence thus indicate that the most reasonable interpretation of "natural born" citizens would include those who are considered U.S. citizens "at birth" or "by birth," either by the operation of the strict "common law" of jus soli derived from English common law (physically born in the United States and subject to its jurisdiction, without reference to parentage or lineage), or under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent, including those born abroad of U.S. citizen-parents. This general historical understanding and interpretation is supported, as well, by specific federal case law in the United States, and in official legal opinions of U.S. officers.

Legal Background and Historical Cases

Although the Supreme Court has not needed to rule specifically on the presidential eligibility clause, as discussed in more detail below, numerous federal cases, as well as state cases, for more than a century have used the term "natural born citizen" to describe a person born in this country and under its jurisdiction, even to parents who were aliens in the U.S.¹¹⁸ Additionally, several Supreme Court cases, as well as numerous constitutional scholars, have used the term "native born" citizen to indicate all of those children physically born in the country (and subject to its jurisdiction), without reference to parentage or lineage, and employed such term in reference to those citizens eligible to be President under the "natural born" citizenship clause, as opposed to "naturalized" citizens, who are not.¹¹⁹ In no currently controlling legal opinion in American jurisprudence has the citizenship or nationality of one's parents or forebears been considered a determining factor in the eligibility of a citizen born within the United States to be President, and no holding in any case in federal court has ever established a "two citizen-parent" requirement, or other requirement of lineage or bloodline, for such a "native born" U.S. citizen to be eligible for the Presidency.

Some of the legal arguments based on American jurisprudence forwarded by those who support an alternate and highly exclusionary reading of the term "natural born" citizen (including reading into the Constitution a requirement for one to have two U.S. citizen-parents) often begin with a citation to language in the 1857 Dred Scott decision, Scott v. Sandford.¹²⁰ The Dred Scott decision, in addition to denying that even freed slaves or their progeny could be "citizens" of the United States (and thus finding that the specific petitioner in that case did not have the capacity to bring the original suit under consideration), attempted to provide legal justification under the Constitution for human slavery in the United States and the resultant treatment of "negroes of the African race" as property and chattel without rights under the Constitution. In so doing, the Court fashioned a very exclusive understanding, eventually rejected and overturned by later Supreme Court decisions, of who were "citizens" of the United States, even if one were born to emancipated slaves in this country. The opinion of the Court, written by Chief Justice Taney, noted that the status of those "whose ancestors were negroes of the African race … imported into this country, and sold and held as slaves" was that of non-citizens.¹²¹ That is, that even "descendants of such slaves, when they shall be emancipated, or who had been born of parents who had become free before their birth" were "not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides…."¹²² The Court based such findings regarding citizenship and ancestry on the opinion that such persons did not make up, and were not thought to be part of the community or the "political body" of the "sovereign people" of the United States who ratified the Constitution, and were thus not "a constituent member of this sovereignty" since "they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority for, and had no rights or privileges but such as those who held the power and the Government might choose to grant them."¹²³

Legal Cases and Birth Outside of the United States

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 strict common law natural born citizenship in the United States,¹⁵⁵ questions have arisen as to whether those born outside of the geographic boundaries of the United States to United States citizen-parents ̶ and who thus are citizens at birth by descent (by way of statute)—should also be considered "natural born" citizens eligible to be President.

The legal and historical questions concerning those U.S. citizens who are born abroad and eligibility 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.¹⁵⁶

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:

Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.¹⁵⁷

Under such argument, a person who is born of American parents abroad, although clearly a "citizen" of the United States by law, is one who is not a citizen by virtue of being "born ... in" the United States,¹⁵⁸ and must, therefore, be one of those citizens who has been "naturalized" by the operation of law, even though such naturalization was "automatic" at birth. It is therefore argued that such citizen should not be considered a "natural born" citizen, but rather a "naturalized" citizen who is not eligible for the Presidency. Some earlier federal cases had, in fact, specifically held that a person who was born abroad of a father who was a naturalized American citizen, and who therefore was a citizen of the United States by virtue of a statutory provision, was himself a "naturalized" American citizen. In Zimmer v. Acheson, the United States Court of Appeals for the 10^th Circuit found that the appellant, who had been born in Germany to a father who had been a naturalized U.S. citizen, was himself a "naturalized" citizen who could be expatriated under the provisions and requirements of the then-existing federal law:

There are only two classes of citizens of the United States, native-born citizens and naturalized citizens; and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.

Revised Statutes § 1993, in force at the time of the birth of Harry Ward Zimmer [appellant], provided: "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."

If Werner Herman Zimmer [the appellant's father], by virtue of his naturalization on October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen.¹⁵⁹

In Rogers v. Bellei,¹⁶⁰ a case dealing with the expatriation of a U.S. citizen-by-descent (having been born abroad to a U.S. citizen mother), the Court found that the subsequent conditions Congress placed on such citizens-by-descent—requiring them to reside in the United States at some point to retain their U.S. citizenship—were not unconstitutional. In reversing what some analysts saw as a trend limiting Congress's authority to expatriate those who were United States citizens, the Court appeared to assume or imply that such persons born abroad to U.S. citizens became citizens at birth by way of naturalization:

Our national legislature indulged the foreign-born child with presumptive citizenship, subject to subsequent satisfaction of a reasonable residence requirement, rather than to deny him citizenship outright, as concededly it had the power to do, and relegate the child, if he desired American citizenship, to the more arduous requirement of the usual naturalization process.¹⁶¹

The existence of these earlier cases, including the Supreme Court's characterization in Wong Kim Ark of statutory citizenship of those born abroad, raise interesting contentions and considerations that have not necessarily been definitively resolved with regard to the "natural born" citizenship status ̶ for purposes of presidential eligibility—of those who have obtained U.S. citizenship by virtue of being born abroad to a U.S. citizen parent or parents.

Those who support a broader, more inclusive reading of the Constitution to include as "natural born" citizens those born abroad to U.S. citizen-parents, note that these earlier decisions were based in large part on the more narrow language of the Fourteenth Amendment, but argue that the Fourteenth Amendment was adopted to rectify the wrongly reasoned and decided Supreme Court decision in the Dred Scott case,¹⁶² and was not intended to amend or necessarily even to address the issue of "natural born" citizenship under Article II, Section 1, cl. 5, relating to the eligibility for President.¹⁶³ The term "natural born citizen" in Article II, it is argued, should be interpreted not only in light of the later Fourteenth Amendment, and the reasons for adopting the Fourteenth Amendment, but also in light of the common law and common understanding and usage of the term at the time of the adoption of the Constitution.¹⁶⁴

It has been pointed out that more recent cases have held that the seemingly exclusive language of the Fourteenth Amendment of citizenship being limited only to those who are "born or naturalized in the United States," is applicable only with regard to Fourteenth Amendment first-sentence-citizenship, and is not necessarily the exclusive means of acquiring citizenship "at birth," since the category of "at birth" citizenship can clearly be expanded by law adopted by Congress. Such cases indicate that the Fourteenth Amendment establishes a "floor" for citizenship at birth, or for naturalization, which can be expanded by federal law.¹⁶⁵ The Supreme Court in Rogers v. Bellei explained that under the Fourteenth Amendment's citizenship clause the requirement that one would have to be either born in the United States or naturalized in the United States were designations for "Fourteenth-Amendment-first-sentence" citizenship only.¹⁶⁶ The category or designation of citizen "at birth" or "by birth" could, however, as expressly noted by the Court, be expanded and "modified by statute" (as it had been in England with respect to natural born subjects for more than 600 years): "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."¹⁶⁷

If it is assumed, as postulated by numerous scholars and discussed earlier in this report,¹⁶⁸ that the framers and ratifiers of the Constitution were influenced by or adopted the entire corpus of British law on the subject of "natural born" citizenship—that is, the law with which they were familiar and which applied at the time to the colonies in America—then it would not be inconsistent nor necessarily unintended that such status might be affected by legislation by Congress (i.e., "except as modified by statute"), as it had been in England by Parliament. It does not appear to be conclusive that merely because Congress could by law "expatriate" or take away citizenship of an individual (as in Bellei), that such individual was necessarily only a "naturalized" citizen, since the Supreme Court had upheld Congress's authority, under an earlier immigration law, to expatriate by statute an entire class of possible "native"/natural born citizens (women) who had married foreign men.¹⁶⁹

It is significant to note that in a more recent case, in 2001, the Supreme Court indicated that under current law and jurisprudence a child born to U.S. citizens while living or traveling abroad, and a child born in the geographic United States, had the same legal status. In Tuan Anh Nguyen v. INS,¹⁷⁰ the Court explained that a woman who is a U.S. citizen living abroad and expecting a child could re-enter the United States and have the child born "in" the United States, or could stay abroad and not travel back to this country and have the child born abroad, and that the child in either case would have the same status as far as U.S. citizenship:

[T]he statute simply ensures equivalence between two expectant mothers who are citizens abroad if one chooses to reenter for the child's birth and the other chooses not to return, or does not have the means to do so.¹⁷¹

Concerning the contention made in earlier cases that everyone who is made a citizen only by federal statute is a "naturalized" citizen (even those who are made citizens at birth by statute), it may be noted that the common understanding and usage of the terms "naturalized" and "naturalization," as well as the precise legal meaning under current federal law, now indicate that someone who is a citizen "at birth" is not considered to have been "naturalized."¹⁷² Justice Breyer, for example, dissenting on other grounds in Miller v. Albright, explained that "this kind of citizenship," that is, under "statutes that confer citizenship 'at birth,'" was not intended to "involve[ ] 'naturalization,'" citing current federal law at 8 U.S.C. Section 1101(a)(23).¹⁷³ The Supreme Court recently recognized in Tuan Anh Nguyen v. INS, that federal law now specifically defines "naturalization" as the "conferring of nationality of a state upon a person after birth."¹⁷⁴ Justice Thomas, in a recent opinion concurring in part and dissenting in part, similarly noted: "It [Congress] has determined that children born abroad to U.S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process. 8 U.S.C. § 1401(c)(d),(g)."¹⁷⁵ It could, therefore, be argued that by current definition and understanding in federal law and jurisprudence, one who is entitled to U.S. citizenship automatically "at birth" or "by birth"—even by statute—should not be considered to be "naturalized."

The United States Court of Appeals for the Ninth Circuit has specifically recognized in a recent case that one may be a "natural born" citizen of the United States in two ways: either by being born in the United States, or by being born abroad of at least one citizen-parent who has met the residency requirement. In United States v. Carlos Jesus Marguet-Pillado, a case dealing with the propriety of an appeal based on requested jury instructions not given, the court stated:

No one disputes that Marguet-Pillado's requested instruction was "an accurate statement of the law," in that it correctly stated the two circ*mstances in which an individual born in 1968 is a natural born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements.¹⁷⁶

Although the legal cases specifically concerning Senator McCain's eligibility were generally dismissed for want of subject matter jurisdiction (that is, the lack of legal standing of the plaintiff),¹⁷⁷ a federal district court for the Northern District of California did note that Senator McCain would qualify as a citizen "at birth," and thus was a "natural born" citizen, since he was born "out of the limits and jurisdiction of the United States" to U.S. citizen parents, as provided for in federal nationality statutes in force at the time of his birth.¹⁷⁸ The court found that the meaning of the phrase in the nationality statutes in force in 1936 (R.S. §1993 (1855) and 48 Stat. 797 (1934)), that is, the phrase "born out of the limits and jurisdiction of the United States" to citizen parents, was merely the reverse or "converse of the phrase 'in the United States, and subject to the jurisdiction thereof'" appearing in the citizenship provision of the Fourteenth Amendment, and that such phrase thus would include all those born abroad of U.S. citizen parents, such as Senator McCain:

Article II states that "No Person except a natural born Citizen, or a Citizen at the time of the Adoption of this Constitution, shall be eligible to the Office of the President." Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens by reason of birth (or naturalization proceedings, for that matter). Id. at 829-30, 91 S.Ct. 1060.

At the time of Senator's McCain's birth, the pertinent citizenship provision prescribed that "[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States." Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase "out of the limits and jurisdiction of the United States" in this statute to be the converse of the phrase "in the United States, and subject to the jurisdiction thereof," in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. [United States v. Wong Kim Ark, 169 U.S. 649, 687 (1898) ....] Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain's circ*mstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain's circ*mstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks. ¹⁷⁹

The federal court in Robinson v. Bowen thus implicitly adopted a meaning of the term "natural born" citizen in the presidential eligibility clause which would include not only the narrowest "common law" meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship "at birth" or "by birth" even if born abroad when such citizenship is transmitted from one's parent or parents (jus sanguinis).

Legal Cases and Birth Within the United States

In addition to the lawsuits concerning Senator McCain's eligibility, there have been several allegations and numerous lawsuits brought challenging the status of President Obama as a "natural born" citizen, based on various theories, assertions, and speculations. These cases have generally been summarily dismissed, either because of a lack of jurisdiction of the court—in that the plaintiff or plaintiffs did not have legal standing, or for a failure to state a claim upon which relief could be granted—or because the plaintiff seeking a stay or an injunction against some future event was deemed "not likely to succeed on the merits."¹⁸⁰

Some of the cases concerning President Obama, or the candidate then-Senator Obama, had alleged or speculated that the President was not born in the United States, but rather was born in some foreign country or another.¹⁸¹ Other cases put forth a unique legal theory that even if President Obama had been born in Hawaii, as officially certified and documented by the State of Hawaii,¹⁸² he would not qualify as a natural born citizen because his father was not a U.S. citizen at the time of his birth, or because President Obama had or was entitled to "dual citizenship," or had in some way "forfeited" his United States citizenship.

It may be noted that in addition to court dismissals based on lack of jurisdiction because of the failure of the plaintiff to show "standing" or to state a claim upon which relief may be granted, several of the cases regarding President Obama's "eligibility" were dismissed on the basis of the lack of subject matter jurisdiction because, as noted by the United States Court of Appeals for the 10^th Circuit, for example, the plaintiff's alleged claim was "wholly insubstantial and frivolous" such that "federal jurisdiction is not extant."¹⁸³ Similarly, in Stamper v. United States, the United States District Court noted in dismissing an "eligibility" challenge of President Obama, that a federal court may dismiss a complaint "for lack of subject matter jurisdiction" when the "allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit or no longer open to discussion," and in dismissing the case found that the court "is not required to accept unwarranted factual inferences."¹⁸⁴ The United States Court of Appeals for the Third Circuit in Berg v. Obama, in upholding the lower court's dismissal of plaintiff/counsel Berg's case, also noted "the obvious lack of any merit in Berg's contentions ...,"¹⁸⁵ and in Kerchner v. Obama, ruled that "[b]ecause we have decided that this appeal is frivolous, we will order counsel for Appellants to show cause why just damages and costs should not be imposed."¹⁸⁶

In dismissing eligibility cases some federal courts have gone so far as to find "Rule 11" violations by plaintiff's counsel.¹⁸⁷ A federal district court in Georgia fined plaintiff's counsel $20,000 for a "Rule 11" violation, that is, for filing "frivolous" motions and for "using the federal judiciary as a platform to espouse controversial political beliefs rather than as a legitimate forum for hearing legal claims."¹⁸⁸ In the United States District Court for the District of Columbia, in dismissing another challenge to the President's "eligibility" by an attempt to press an "interpleader" claim, the judge ordered plaintiff's counsel to "show cause" why he should not be fined under Rule 11 for frivolous filings, and eventually "reprimanded" the counsel for filing a frivolous lawsuit.¹⁸⁹

Allegations of Loss of Citizenship

In some of the cases filed, plaintiffs have argued that even if President Obama had been born in Hawaii, the move to Indonesia by his mother with him at the time he was a minor in some way "nullified" the citizenship "at birth" status of President Obama, even though as a minor he moved back to and resided within the United States.¹⁹⁰ It should be noted, however, that the Supreme Court has clearly ruled that a citizen at birth, such as one born "in" the United States, does not forfeit his or her citizenship-at-birth status because of removal as a minor to a foreign country, even a country in which one or both parents are or become citizens and nationals. Rather, citizenship may only be forfeited by a citizen of the United States by an affirmative action of renunciation by one having the capacity to do so (that is, as an adult):

It has long been a recognized principle in this country that if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties....

Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. [footnotes omitted] It has no application to the removal from this country of a native citizen during minority. In such a case the voluntary action which is of the essence of the right of expatriation is lacking.¹⁹¹

The Supreme Court in a subsequent decision, in Mandoli v. Acheson in 1952, confirmed the meaning of its earlier decision in Perkins v. Elg, explaining:

What it [Perkins v. Elg] held was that citizenship conferred by our Constitution upon a child born under its protection cannot be forfeited because the citizen during nonage is a passive beneficiary of foreign naturalization proceedings....¹⁹²

The Supreme Court concluded in that case: "[W]e think the dignity of citizenship which the Constitution confers as a birthright upon every person born within its protection is not to be withdrawn or extinguished by the courts except pursuant to a clear statutory mandate."¹⁹³ Simply stated, the Supreme Court noted that to expatriate and forfeit one's U.S. citizenship "there must be a voluntary action and such action cannot be attributed to an infant whose removal to another country is beyond his control and who during minority is incapable of a binding choice."¹⁹⁴

Dual Citizenship and Assertion of Two Citizen-Parent Requirement

Other lawsuits, which were also summarily dismissed, alleged that even if President Obama had been born in Hawaii, he was not a "natural born" citizen because his father was not a U.S. citizen, but rather was a citizen of Kenya and therefore a British subject. It was argued that President Obama at birth would thus have been entitled to British citizenship by operation of British laws. As one who had or was entitled to "dual citizenship," it was argued that President Obama could not be a "natural born citizen" of the United States.¹⁹⁵ Other arguments entailed the unique notion that under American jurisprudence parental citizenship or lineage is the determining factor for eligibility to the Presidency for native born U.S. citizens.

Dual Citizenship

Merely because a child born within the United States could have, under the operation of foreign law, been a citizen also of that foreign nation because of a parent's nationality, citizenship, or place of birth (i.e., "dual citizenship"), would not affect the status of that child as a U.S. citizen "at birth" under the Fourteenth Amendment, the federal nationality laws, nor under Article II of the Constitution. The citizenship laws, rights, or recognitions of other nations could not influence and impact the United States' own determination of who its citizens "at birth" would be, that is, who would be a "natural born" citizen, as the question of citizenship and categories of citizenship are a function of "municipal law"—the internal law of every country, as opposed to matters of international law or foreign law.¹⁹⁶

If allowing the recognition of citizenship under the law of foreign nations were determinative of natural born citizenship in the United States—as now argued by some advocates—then the operation of foreign law would, in effect, impact and be determinative of who is eligible to be President of the United States, a result wholly at odds with U.S. national sovereignty, that is, the "inherent right of every independent nation" to determine what classes of persons are to be its citizens.¹⁹⁷ As explained by the Supreme Court in 1939:

On her birth in New York, the plaintiff became a citizen of the United States. ... In a comprehensive review of the principles and authorities governing the decision in that case—that a child born here of alien parentage becomes a citizen of the United States—the Court adverted to the "inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship." United States v. Wong Kim Ark, supra, p. 668. As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality. [footnotes omitted] And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law, on the resumption of that citizenship by her parents, does not compel the conclusion that she lost her own citizenship acquired under our law.¹⁹⁸

The fact that a foreign country might recognize or allow a claim of dual citizenship or nationality of a child born in the United States because of the nationality or heritage of the child's mother or father, has never been determinative of "natural born" or other citizenship status in any case in American jurisprudence. The Court in Perkins v. Elg explained that dual nationality of a child does not affect the native-born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a "native-born American citizen," even one with "dual citizenship," who returns to the United States would qualify to be President:

One Steinkauler, a Prussian subject by birth, emigrated to the United States in 1848, was naturalized in 1854, and in the following year had a son who was born in St. Louis. Four years later Steinkauler returned to Germany taking this child and became domiciled in Weisbaden where they continuously resided.... On reviewing the pertinent points in the case, including the naturalization treaty of 1868 with North Germany, the Attorney General reached the following conclusion:

"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 twenty-one, and in due time, if the people elect, he can become President of the United States ... [even though] the father, in accordance with the treaty and the laws, has renounced his American citizenship and his American allegiance and has acquired for himself and his son German citizenship and the rights which it carries...."¹⁹⁹

Citizenship of Parents

Concerning specifically the reading into the Constitution of a two-citizen-parent requirement for "natural born" citizenship status, it should be noted that there is, significantly, no historical nor controlling legal holding in American jurisprudence to support the argument that parental citizenship governs and controls the eligibility of a native born United States citizen to be President. As indicated in the discussion of the history of the constitutional provision, there is also no justification for this unique theory, which would exclude an entire class of native born U.S. citizens from eligibility for the Presidency, in any of the statements or writings of the framers of the Constitution, or in the entire record of the ratification debates of the United States Constitution.²⁰⁰

In 1825, in a significant and widely recognized work on the Constitution, William Rawle specifically noted that the term "natural born citizen" as used in the Constitution would include "every person born within the United States ... whether the parents are citizens or aliens...."²⁰¹ Similarly, in his treatise on Citizenship of the United States, Frederick Van Dyne, Assistant Solicitor of the Department of State, explained in 1904 that the rule governing citizenship is not one derived from "international law" or the so-called "law of nations," but is rather municipal law which "[e]very nation determines for itself' and, in the United States, derives from the common law principle of jus soli, dependent "on the place of birth," as modified by statute incorporating the principles of jus sanguinis to include the children of citizens "born out of the jurisdiction of the United States."²⁰² In reviewing Supreme Court decisional material, the author in this treatise noted that the Fourteenth Amendment and the 1866 civil rights act "reaffirm the fundamental principle of citizenship by birth" which "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 to be natural born citizens thereof."²⁰³

Although the Supreme Court has never had to address the issue of "natural born" citizenship directly in the context of a challenge to the eligibility of one to be President, the federal courts have discussed the concept on numerous occasions for more than 200 years and have, other than in the Dred Scott decision, consistently relied upon the place of birth, without regard or reference to the status of one's parents, as the determining factor of natural born citizenship. A celebrated and frequently relied-upon state court ruling in 1844 provided a detailed explanation of the legal history of the citizenship laws and statutes in the United States, and provided the following conclusion with respect to natural born citizenship:

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 were the situation of his parents, is a natural born citizen.²⁰⁴

That the place of birth was principally the rule governing "natural born" citizenship under American jurisprudence, regardless of the status of one's parents (except for children of official diplomats or hostile armies), even before the adoption of the Fourteenth Amendment, was explained by the Supreme Court in United States v. Wong Kim Ark, in 1898, which noted that 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, including all children born here of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory ...."²⁰⁵ The Supreme Court in Wong Kim Ark cited with approval those previous judicial rulings which held that every child born on the soil of the United States, and subject to its jurisdiction, are "natural born" citizens of this country, without regard to the nationality or citizenship status of their parents.²⁰⁶ The Supreme Court, this time using the term "native born citizen" again explained in that case:

Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States. ²⁰⁷

As discussed previously, the Supreme Court has used the term "native born" citizens (as expressly used in Wong Kim Ark to mean those born in the United States "whether children of citizens or foreigners") as synonymous with, or at least included within the term "natural born," in subsequent references to eligibility to the Presidency. In United States v. Schwimmer, for example, the Court stated: "Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens"²⁰⁸ Similarly, in Luria v. United States the Supreme Court stated: "Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency,"²⁰⁹ and noted in 1931 that other than the one instance in the Constitution which provides a difference, that is, the eligibility to the Presidency, "[t]he alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born."²¹⁰

With regard to the citizenship of children born in the United States to recent immigrants, it is significant to note that in this country in the late 1800's, the public's economic fears and hostility to foreigners led Congress to—in the words of one historian—"legitimize[ ] racism as national policy"²¹¹ by adopting legislation to prevent immigration of Chinese laborers to the United States, and to prohibit anyone of Chinese nationality to obtain U.S. citizenship through naturalization.²¹² Despite this law and its extensions, commonly known as the Chinese Exclusion Act, the federal courts consistently held that children born "in" the United States of Chinese parents were "natural born" citizens of the United States, even if the parents may not have been United States citizens themselves and could not have "naturalized" under the Chinese Exclusion Act. In 1919, for example, the United States Court of Appeals for the 5^th Circuit ruled that the appellee, Low Hong, based solely on the fact that he was born in San Francisco, without any reference to the nationality of his parents, "is a natural-born citizen of the United States."²¹³

Similarly, in a case in 1920 concerning the identity of a petitioner, the Supreme Court of the United States explained that "[i]t is not disputed that if petitioner [Kwock Jan Fat] is the son" of two Chinese persons who were physically in the United States when petitioner was born, then the Court would accept the characterization of him as "a natural born American citizen ...."²¹⁴ The Supreme Court recognized that it had been alleged in earlier immigration proceedings that the father of Kwock Jan Fat had been born in the United States and, as averred by one witness, had voted in some election. The Supreme Court, however, made no finding, did not rely upon, nor did the Court even make a passing reference to the citizenship of the father of Kwock Jan Fat.²¹⁵ Furthermore, it is significant that there was no evidence, no argument, nor even any discussion in the decision of the Supreme Court, or in the reported lower court decision,²¹⁶ concerning the citizenship of the mother of Kwock Jan Fat. Neither the briefs for the petitioner, nor the brief for the respondent made any assertions or allegations concerning the citizenship of, or provided any argument or evidence concerning any naturalization of the mother of Kwock Jan Fat, but rather merely noted that she had been born in China and came to the United States as a child.²¹⁷ It is, of course, well known to those familiar with U.S. immigration laws that during the time of the Chinese Exclusion Act a woman who was a Chinese national, and not a citizen of the United States at birth, could not have been naturalized as a United States citizen even if she married someone who was a United States citizen.²¹⁸ However, the Supreme Court never discussed, referenced, or made any finding or conclusion concerning the citizenship of either the father, or the citizenship or naturalization of the mother of Kwock Jan Fat because the citizenship of one's parents is not and was not relevant to the determination of "natural born" citizenship of one born in the United States. The relevant factor cited and determined by the Supreme Court of the United States was not the citizenship of both the father and mother, but rather—citing to the Wong Kim Ark precedent—was the physical presence of the parents in the United States (that is, that the parents were "domiciled" here) at the time of Kwock's birth in this country. Concerning the issue of balancing the considerations of fairness and justice in such identity cases of one born to Chinese parents in the United States, the Supreme Court, in an oft-quoted statement, expressly said:

It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.²¹⁹

In a case that preceded the Supreme Court's Wong Kim Ark decision, the United States Court of Appeals agreed with the petitioner's claim to be "a natural-born citizen of the United States" because of his place of birth, that is, within the United States, even though his parents were both "aliens" of Chinese nationality who were in the United States privately and "not here in any diplomatic or other official capacity under the emperor of China."²²⁰ That federal court in 1884, relying on precedents including Assistant Vice-Chancellor Lewis Sandford's opinion in Lynch v. Clarke, explained the concept in American jurisprudence that one is a "natural born" citizen when born in the United States, and subject to the jurisdiction of the United States,²²¹ and that such was the state of American law even before the adoption of the Fourteenth Amendment (for other than those brought into the United States under slavery):

Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship. This subject was elaborately considered by Assistant Vice-chancellor Sandford in Lynch v. Clarke, found in the first volume of his reports. [1 Sandf. 583.] In that case one Julia Lynch, born in New York in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country and always resided their afterwards. It was held that she was a citizen of the United States. 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.²²²

More recent federal cases expressly recognize the principle explained in the nineteenth century and early twentieth century cases that one born in the United States and under its jurisdiction, even when one or both parents were "aliens," is considered a citizen of the United States by birth, and thus a "natural born" citizen of the United States. The court in Dos Reis ex rel. Camara v. Nicolls, for example, accepted the findings of fact that "The relator was born in the City of Fall River, Massachusetts, on December 31, 1921. His father was a native and citizen of Portugal, and his mother was a native of Brazil," and that, as found by the Commissioner of Immigration and Naturalization, affirming the decision of the Board of Special Inquiry, "that the relator was a natural-born citizen...."²²³ In Loo Goon Hop v. Dulles, the court found that a person "having been born in this country," without any reference to, finding, or identification of the citizenship of that person's parents, is a "natural born citizen of the United States."²²⁴ In Yamauchi v. Rogers, the federal court in reciting "findings of fact and conclusions of law," found that the plaintiff, born in California of a "Japanese national" who had married another "Japanese national," "is a natural born citizen of the United States...."²²⁵ A federal court in 1974 similarly explained and held: "The plaintiff was a native of Biafra, now a part of the Republic of Nigeria. His wife and two older children are also natives of that country, but his third child, a daughter, is a natural-born citizen of the United States."²²⁶ In Diaz-Salazar v. INS, the court there noted that children born in the United States, even to an "illegal" (or undocumented) alien father, "are natural-born citizens of the United States."²²⁷ Similarly, in Mustata v. U.S. Department of Justice, the United States Court of Appeals, in reciting the facts of the case, noted: "Petitioners Marian and Lenuta Mustata are citizens of Romania. At the time of their petition, they resided in Michigan with their two minor children, who are natural born citizens of the United States."²²⁸

Recent Eligibility and "Ballot Access" Cases

Despite the existing questions of jurisdiction, as well as the issue of the applicability of a particular state protest or challenge statute to a presidential election (where only "electors" are actually voted for), numerous courts or administrative bodies in several states have rendered decisions relating to or at least addressing the merits of the arguments concerning the eligibility of a presidential candidate in challenges to ballot access in the state.

In 2008, a U.S. district court discussed the concept of "natural born" citizenship specifically with respect to the eligibility to be President as applying—since the founding of the Nation—to all who were born in and subject to the jurisdiction of the United States:

Those born "in the United States, and subject to the jurisdiction thereof," U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674-75, 18 S.Ct. 456, 42 L.Ed. 890 (1898), and thus eligible for the presidency, see, e.g., Schneider v. Rusk, 377 U.S. 163, 165, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964)(dicta).²²⁹

Similarly, in dismissing an eligibility case concerning President Obama's birth in Hawaii, a state appellate court in Indiana, after a thorough review of federal case law, concluded that anyone born in the United States and subject to its jurisdiction, regardless of the citizenship of that person's parents, was a "natural born" citizen eligible to be President:

Based on 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. Just as a person "born within the British dominions [was] a natural born-born subject" at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance of the United States [ ] natural-born citizens."²³⁰

Almost all of the cases in the 2012 election cycle had challenged the eligibility to office of the incumbent President, Barack Obama. To date, every court or administrative body dealing with ballot access issues has ruled against the challenges to the eligibility of President Obama.²³¹

Numerous court decisions or administrative rulings have expressly addressed the merits of the issues before them and found that since Hawaii has certified and verified that President Obama was born there, he is a "natural born" citizen of the United States eligible to be President. The Arizona Superior Court found, for example, that: "[P]recedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President."²³² An administrative law judge in Georgia, in an opinion adopted by the Secretary of State and in which the appeals were dismissed (on jurisdictional grounds), ruled that President Obama, born in the United States, "... became a citizen at birth and is a natural born citizen."²³³ In Illinois, after a formal hearing, the elections board ruled that President Obama's birth certificate "clearly establishes" his eligibility for office as a "Natural Born Citizen."²³⁴ Citing to the 1898 Supreme Court case of Wong Kim Ark,²³⁵ in which the Supreme Court found over 100 years ago that those born in the United States and subject to its jurisdiction are "natural born" citizens, a circuit court in Maryland noted that "the issue of the definition of 'natural born citizen' is thus firmly resolved by the United States Supreme Court in a prior opinion," and held that President Obama is eligible to run for President in Maryland.²³⁶ A federal court in Virginia, similarly citing to Wong Kim Ark, found: "It is well settled that those born in the United States are considered natural born citizens. ... Moreover, 'those born 'in the United States, and subject to the jurisdiction thereof,' ... have been considered American citizens under American law in effect since the time of the founding ... and thus eligible for the presidency.'"²³⁷

Courts have also specifically considered and found to be "without merit" and devoid of "any legal authority" the argument that "natural born" citizenship in the United States requires that one must at the time of birth have parents who are both United States citizens themselves. In New Jersey, for example, in a decision upheld on appeal, the court explained: "... [T]he status of 'natural born Citizen' for Mr. Obama has not been denied by any court or administrative agency that has addressed the merits of the issue. ... The petitioners' legal position on this issue, however well intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a 'natural born Citizen' regardless of the status of his father."²³⁸ A court in Florida also held that: "... [P]ersons 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."²³⁹ In New York, a court explained that "anyone born in the United States is a natural-born citizen, irrespective of parentage."²⁴⁰ Similarly, the Vermont Superior Court, citing to Supreme Court and state court precedents, held: "The common law of England, the American colonies, and later the United States, all support one interpretation only: '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.'"²⁴¹

Conclusion

The constitutional history, the nearly unanimous consensus of legal and constitutional scholars, and the consistent, relevant case law thus indicate that every child born in and subject to the jurisdiction of the United States (that is, those who are not children of diplomatic personnel representing a foreign nation or military troops in hostile occupation), is a "natural born Citizen" eligible to be President under the qualifications clause of the Constitution, regardless of the nationality or citizenship of one's parents. The legal issues regarding "natural born" citizenship and birth within the United States without regard to lineage or ancestral bloodline have been well settled in judicial decisions in this country for more than a century, and such concepts date back to, and even pre-date, the founding of the nation.

The weight of more recent federal cases, as well as the majority of scholarship on the subject, also indicate that the term "natural born citizen" would most likely include, as well as those native born citizens born in the U.S., those born abroad to U.S. citizen-parents, at least one of whom had previously resided in the United States, or those born abroad to one U.S. citizen parent who, prior to the birth, had met the requirements of federal law for physical presence in the country.²⁴²

The technical constitutional meaning (influenced by the corpus of British law, both common law and long-standing statutory law), as well as the meaning of the term in both the general legal lexicon and its common usage, appear to have converged on a seeming consensus that "natural born" means having a particular attribute or nature "at birth," as opposed to subsequently obtaining such attribute.