Natural-born citizen

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Natural-born-citizen_clause 

 

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

The U.S. Constitution uses but does not define the phrase "natural born Citizen", and various opinions have been offered over time regarding its precise meaning. The consensus of early 21st-century constitutional and legal scholars, together with relevant case law, is that natural-born citizens include, subject to exceptions, those born in the United States. As to those born elsewhere who meet the legal requirements for birthright citizenship, the matter is unsettled.

The first nine presidents were all citizens at the adoption of the constitution in 1789, with all being born within the territory assigned to the United States by the Treaty of Paris. All presidents who have served since were born in the United States. Of the 44 men who have become president, there have been seven that had at least one parent who was not born on U.S. soil. 

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

Constitutional provisions

Part of the constitutional provision as it appeared in 1787

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

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

Under the original Constitution, members of the Electoral College cast two votes for president, with the runner-up elected vice president. Since it was assumed that presidential electors would be disinclined to cast votes for unqualified presidential candidates, an explicit set of constitutional qualifications for the office of Vice President was deemed superfluous and thus not included. The Twelfth Amendment nullifies the basis for this assumption since it stipulates that the vice president is to be elected separately, and for this reason concludes with the clause, "No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

The Fourteenth Amendment does not use the phrase natural-born citizen. It does provide, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

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

History

Antecedents in Britain

The use of the term "natural born" was not without precedent. An early recorded mention was in Calvin's Case (1608), in terms of birth within the jurisdiction of the sovereignty of the King. Statutes in Britain prior to American independence used the phrase "natural born subject". For example, clause III of the Foreign Protestants Naturalization Act 1708 provided:

That the Children of all natural born Subjects born out of the Ligeance of Her Majesty Her Heires and Successors shall be deemed adjudged and taken to be natural born Subjects of this Kingdom to all Intents Constructions and Purposes whatsoever

The Act was repealed (except for the quoted clause III regarding foreign-born children) by the Tories in 1711 by the statute 10 Anne c. 5.

Subsequently, the British Nationality Act 1730 provided:

for the explaining the said recited Clause in the said Act . . . [t]hat all Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively ... are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever.

Another use is in the Plantation Act 1740:

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

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

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

In 1775, however, Blackstone reversed his opinion and explained that the children "are now deemed to be natural-born subjects" rather than "are now natural-born subjects." Similarly, Francis Plowden initially explained that an early English statute made foreign-born children of English parents "in fact and law . . . true native subjects" and that the eighteenth-century British statutes made persons natural-born subjects by statute law just as others were natural-born subjects by the common law. However, after further consideration he also reversed his opinion and concluded in 1785 that the statutes did not make the children natural born subjects—rather, there remained a "relict of alienage in them." Prior to Blackstone, Edward Coke offered a narrower opinion in Calvin's Case. According to Coke: "[I]f any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions."

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

Between 1776 and 1789

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

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

Constitutional Convention

The Constitution does not explain the meaning of "natural born". On June 18, 1787, Alexander Hamilton submitted to the Convention a sketch of a plan of government. The sketch provided for an executive "Governour" but had no eligibility requirements. At the close of the Convention, Hamilton conveyed a paper to James Madison he said delineated the Constitution that he wished had been proposed by the Convention; he had stated its principles during the deliberations. Max Farrand wrote that it "was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton." Article IX, section 1 of Hamilton's draft constitution provided: "No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States."

On July 25, 1787, John Jay wrote to George Washington, presiding officer of the Convention:

Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen.

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

Constitutionality of the natural-born-citizen clause

In 2012, Abdul Karim Hassan filed several unsuccessful lawsuits that claimed the Equal Protection Clause of the Fourteenth Amendment had superseded the natural-born-citizen clause; he had argued natural-born citizenship was a form of discrimination based on national origin.

Proposed constitutional amendments

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

Rationale

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

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

Professor Akhil Amar of Yale Law School claimed that there had been a concern on the part of those drafting the U.S. Constitution that a member of the European aristocracy might immigrate and attempt to buy his way into power and that it made sense in this light to include a provision in the Constitution that would exclude immigrants from the presidency.

Interpretations of the clause

Naturalization Acts of 1790 and 1795

Because of the large number of Framers who went on to serve in Congress, laws passed by the early sessions of Congress have often been looked to as evidence of the Framers' intent. The Naturalization Act of 1790 stated that "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." This act was repealed by the Naturalization Act of 1795, which removed the characterization of such children as "natural born", stating that "the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States" while retaining the same residency restrictions as the 1790 act.

Interpretations by the courts

1800s

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

Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen.

And further:

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

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

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

The Lynch case was also cited as a leading precedent in the U.S. Supreme Court decision in United States v. Wong Kim Ark (1898), which similarly held a child born in the United States of two Chinese parents became "at the time of his birth a citizen of the United States". Similarly, in a 1999 Circuit Court decision, the U.S.-born children of two non-citizen parents were spoken of as "natural born citizens".

However, in 1875, Chief Justice Waite, in Minor v. Happersett, stated:

"The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first."

1900s

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

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

In 1951, the U.S. Court of Appeals for the Tenth Circuit noted in Zimmer v. Acheson that "[t]here are only two classes of citizens of the United States, native-born citizens and naturalized citizens", quoting a dictum by Justice Gray from Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The court ruled that Zimmer, who was born abroad in 1905 to a U.S. citizen father and a noncitizen mother, was himself a citizen under the nationality law in force at the time of his birth, but "his status as a citizen was that of a naturalized citizen and not a native-born citizen". In the 1956 case of Wong Kam Wo v. Dulles, the U.S. Court of Appeals for the Ninth Circuit quoted Zimmer v. Acheson and United States v. Wong Kim Ark in support of a ruling that the statute that was in effect prior to 1940 granting citizenship to foreign-born children of U.S. citizens was a naturalization law rather than a provision for nationality at birth. In 1940, the Nationality Act of 1940 (54 Stat. 1137), explicitly defined "naturalization" as conferring nationality after birth.

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

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

2000s

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

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

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

Government officials' interpretations

1800s

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

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

He reiterated his statement in 1866:

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

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

I conclude that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States. [italics in original]

In the course of that opinion, Bates commented at some length on the nature of citizenship, and wrote,

... our constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic. [italics in original]

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

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

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

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

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

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

1900s

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

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