What Does the Constitution Mean by ‘Natural Born Citizen’?

People hold U.S. flags while attending their Naturalization Oath ceremony for U.S. citizenship in Los Angeles, Calif., on May 25, 2022. Frederic J. Brown/AFP via Getty Images

Commentary

The Constitution says that only a “natural born citizen” may be president. Throughout history, political partisans have accused opposing candidates of not being “natural born citizens” and thus disqualified.

Opponents alleged that President Chester Alan Arthur (R) (served 1881–1885) was born in Canada and therefore not natural born. In 1964, some questioned the eligibility of Sen. Barry Goldwater (R-Ariz.), who, although an Arizona native, was born three years before that U.S. territory became a state.

Sen. John McCain (R), another Arizonan, faced similar questions because he first drew breath in the U.S. Panama Canal Zone. The qualifications of Sen. Barack Obama (D-Ill.) were attacked because his father was a Kenyan. In 2016, opponents of Sen. Ted Cruz (R-Texas) pointed out that Mr. Cruz was born in Canada. His mother was American, but his father was Cuban.

Political partisans usually define “natural born” to suit themselves. If the candidate is someone they like, they use a definition that renders their candidate qualified. If the candidate is someone they don’t like, they jigger the definition the other way.

None of the current presidential candidates faces this kind of controversy. Let’s take this opportunity to rise above partisanship. Let’s see what the Constitution really means.

The Constitution’s Words

The Constitution (Article II, Section 1, Clause 5) lays out the following qualifications for 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; 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.”

Later amendments affected this section. As I pointed out in a recent Epoch Times column, the 14th Amendment may disqualify an insurrectionist from the presidency—although some scholars disagree, and so has a Colorado court. More clearly, the 22nd Amendment disqualifies anyone who has already served two presidential terms or one term plus more than two years of a former president’s term.

The Supreme Court says these are the only qualifications. Neither Congress nor the states may add to them.

Why Does the Constitution Include the ‘Natural Born’ Rule?

A naturalized citizen may (although not necessarily) have conflicting loyalties. He or she may love America but retain ties of family or sentiment to the “old country.” If tyrants control the naturalized citizen’s native country and the citizen has family or other interests there, he or she may be vulnerable to blackmail or extortion.

English history taught the American Founders the risks of divided loyalty. William of Normandy (“the Conqueror”) (reigned 1066–1087) became king of England but favored his fellow Norman French over the oppressed English. Charles II (1660–1685), although born in England, spent his early manhood as a refugee in France. After coming to the English throne, he showed his gratitude to the country that had harbored him (and also yielded to his need for cash) by entering a secret treaty with France, betraying English interests.

King George I (1714–1727) was a German prince who was distracted by his holdings in Germany and never learned to operate within the English political system.

These issues didn’t change the English law of royal succession, but they did provoke some other legislation. Parliament decided that only “natural born subjects” could serve in the legislature or in certain other high offices.

All of the American Founders were aware of this history. Perhaps some would have liked to see a “natural born citizen” requirement for any federal office. However, when the Constitution was written, the United States had existed for only 11 years. No adults were then natural born American citizens. Further, many people born abroad had proven their loyalty to America by serving in the Revolution. And public opinion was too populist to accept a “natural born” requirement for all high offices.

The Constitution-makers compromised. They exempted existing American citizens from the “natural born” requirement. And they limited it to the president—the leader in the sensitive areas of foreign and military policy. In 1804, the founding generation adopted the 12th Amendment, which clarified that the “natural born” requirement applied to the vice president as well.

What ‘Natural Born Citizen’ Does Not Mean

If you Google the phrase “natural born citizen,” you will find inconsistent definitions. In part, this reflects the way political partisans abuse the phrase to suit themselves. But it also reflects some honest mistakes.

All of the Constitution’s framers and leading ratifiers were born and raised within the British Empire. Sometimes they invoked legal terms such as “habeas corpus” or “privileges and immunities” or “natural born.” When they did, they used the meaning derived from English law. This could be different from the meaning in common speech or in other legal systems.

The Constitution’s definition of “natural born citizen” is clear. But to find it, you have to go beyond such common sources as the Constitutional Convention debates or the Federalist Papers. You have to study 18th-century English law. That requires examining a series of 17th- and 18th-century English court decisions and parliamentary statutes.

And you have to know more than which sources to read. You also have to know how to read them. What makes the search even tougher is that the “natural born” concept was tied up with a related—and quite complicated—legal term called “allegiance.”

This also was common knowledge among the American Founders. But most people who write about the Constitution today—including law professors—simply don’t have the necessary background for researching 18th-century English law. They have made some highly publicized mistakes.

In 2016, for example, the media trumpeted a Florida law professor’s conclusion that no one born abroad could ever be natural born. The media also promoted an essay by two prominent constitutional attorneys. It claimed that any person who is a citizen at birth is natural born. Still another claim is “Only a person with two citizen parents is natural born.” Yet another is “The Founders adopted the international law definition of ‘natural born.’”

All of these claims are false.

What ‘Natural Born Citizen’ Does Mean

When you put together the legal sources, here’s what you get:

First: If a child is born either within the United States or within American territories and either parent is then in “allegiance” to America, the child is a natural born citizen. Most foreigners legally in the country are considered to be in temporary “allegiance.” But a foreign diplomat on American soil (and generally also the diplomat’s spouse) is in allegiance only to the sovereign employing him, not to the United States. His U.S.-born children are not U.S. citizens.

Invaders and illegal immigrants are not in “allegiance” to the United States, so their U.S.-bred children are not natural born citizens.

Both Barry Goldwater and John McCain qualified for the presidency because both were born in U.S. territory and their parents were loyal American citizens. Also qualified was Barack Obama, whose mother was American, whose Kenyan father was in the United States legally and therefore in temporary “allegiance” to the United States, and who was born in Hawaii. (Yes, I’m familiar with the arguments to the contrary.)

As for President Chester A. Arthur—his mother actually bore him in Vermont, not in Canada.

Second: A child born outside the United States and U.S. territories is natural born if his father is an American citizen in allegiance to the United States. If the father has betrayed his allegiance—by, for example, engaging in treasonous activities—then the child is not natural born.

Third: If a child is bred outside the United States and U.S. territories and the child’s father is foreign, the child is not natural born. This is true even if his mother was an American citizen in allegiance to the United States. Thus, in this instance the Constitution applies the unusual rule that the status of the offspring follows that of the father (partus sequitur patrem), not the more common legal rule that the status of offspring follows that of the mother (partus sequitur ventrem).

Federal law makes any foreign-born child of an American mother and a foreign father a U.S. citizen. But federal law can’t change the Constitution. For constitutional purposes, the child is a citizen, but not a natural born one.

Fourth: If a child is bred outside American territory but neither parent was an American citizen in allegiance to the United States, then of course the child is not a citizen at all. The child may be naturalized later but never becomes natural born.

For more information, consult this posting and these sources (pdf) (pdf).

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.