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Relax, He Can Run: “Natural Born Citizenship” and Presidential Eligibility

19 Sep

By Gary Endelman

* This article is dedicated to the memory of Charles Gordon whose insight and scholarship has illuminated this issue and made it possible for all who follow in his footsteps to learn more about their nation’s founding charter.

The Dallas Morning News can relax. Senator Ted Cruz (R-TX) can run for President. Article II, Section 1, Clause 5 of the United States Constitution will not be a problem. Even though he was born in Calgary, Canada, Senator Cruz derived US citizenship at birth from his mother and, thereby, qualifies as a “natural born citizen,” a curious phrase that the Founders did not define nor use anywhere else in the Constitution. Had Senator Cruz acquired US citizenship after birth, then he would have been a naturalized citizen, as defined by Section 101 (a)(23) of the Immigration and Nationality Act, and out of luck. As fate would have it, both he and the Republic confront a different fate. Because he acquired American citizenship at birth, there was no legal necessity for him to renounce his Canadian citizenship, though the political imperative seems readily apparent.

Not only does the Constitution not tell us who a “natural born” citizen is, Congress used it only one other time Since the First Congress contained several (8) drafters of the Constitution, it is logical to assume they knew what the term meant. While we no longer look to Congress to tell us what the Constitution means, in the era before Marbury v. Madison, Founding Fathers such as Madison and Jefferson very much felt that Congress had a central role in constitutional exegesis. The notion of “natural-born” citizen was not a new concept but merely a rephrasing of the British Nationality Act of 1730 that had said virtually the same thing, save for the substitution of “citizen” for “subject”, a distinction without constitutional importance[1]. In fact, Blackstone’s Commentaries recognized the citizenship of children born abroad to British subjects: “Children of the sovereign were natural born subjects wherever their birth occurred.”[2] Seen from the perspective of common law, the concept of “natural born citizen” is hardly a novel one, so well understood, in fact, that the need to define it did not seem a real or pressing one at the time. That is precisely the conclusion that one draws from Justice Joseph Story’s celebrated treatise on the Constitution, Commentaries on the Constitution of the United States (1833). If Justice Story did not know what a “natural born citizen” was, he did not bother to share his doubts with us or attempt to offer even a modest clarification.

Interestingly, the presence of the “natural born citizen clause” in the Constitution should remind us that, while American law largely follows geography by emphasizing the place of birth (jus solis), it does not entirely ignore the relevance of descent as an organizing principle (jus sanguinis). Having noted this, we must also note that there is no constitutional right for American citizens residing outside the United States to transmit such citizenship to their children, as the Supreme Court recognized in Rogers v. Bellei[3] when it upheld the constitutional legitimacy of retention requirements as a condition precedent for children born abroad to United States citizen parents. To those who favor an expansive view of citizenship, Bellei does cast doubt on the citizenship status of children born abroad to American parents. Neither born nor naturalized in the United States, the Italian-born Bellei was not a 14th Amendment citizen. [4]

While it is certainly true that the records of the debates at the Constitutional convention do not illuminate the meaning of the “natural-born citizen” clause, it is worth noting that, during these proceedings, Alexander Hamilton submitted a draft plan for the outline of government. Article IX, section 1 of this outline can be viewed as an early iteration of the “natural-born citizen” clause and it advances two main concepts: first, that those now citizens could be elected President, and second, that the President must be a citizen from birth. Tellingly, Hamilton did not insist that the President be native-born. [5]

We would do well to remember that the only definition of citizenship found in the Constitution, namely that articulated in the Fourteenth Amendment, does not speak to the scope or purpose of the natural-born citizen clause. As the leading scholar of the natural born citizenship clause, the legendary Charles Gordon, reminds us in his seminal work on the subject, the Fourteen Amendment “did not purport to define of limit the presidential qualification or the naturalization clauses of the Constitution.” [6]

The Fourteenth Amendment was an act of constitutional restoration seeking to undo any lingering effect or lasting damage resulting from the infamous Dred Scott[7] decision, thereby placing the citizenship status of the freedmen and their progeny beyond the power of any subsequent Congress to overturn or negate it. Though the Supreme Court in its most famous pronouncement on birthright citizenship, United States v. Wong Kim Ark[8] sought to and did establish birth and naturalization as the only two sources of citizenship, it did not limit the acquisition of citizenship at birth only to those children born in the United States. The question of derivative citizenship and the attendant meaning of the “natural born citizen” clause were simply not before the Court. Indeed, not only did the majority in dicta appear to accept the long-standing common law acceptance of children born abroad as natural born citizens[9], but the two dissenters, Chief Justice Fuller and Justice Harlan, did so as well if we consider what Chief Justice Taft said in the latter case of Weedin v. Chin Bow[10]: “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…”

In 1968, the presidential candidacy of Michigan Governor George Romney, father of 2012 Republican nominee Mitt Romney, born in Mexico to American parents, gave this issue new currency, though the controversy faded when Governor Romney dropped out of the Republican race before the New Hampshire primary, having committed the cardinal sin of telling the truth, namely that he had been “brainwashed” into supporting the war in Vietnam.

Two decades later, when Arizona Senator John McCain won the GOP presidential nomination, his birth in the Panama Canal Zone where his father was on active military service brought the controversy back into the political arena. While Congress acted in 1937, the year after Senator McCain’s birth, to make anyone born in the Canal Zone to American parents since February 26, 1904, now codified as Section 303 of the Immigration and Nationality Act [11] , that seemed to settle the matter, though skeptics question whether this change in the law should be applied retroactively. Indeed, Senator McCain’s camp was sufficiently concerned to commission an opinion in support of his citizenship from Harvard Law Professor Laurence Tribe and former U.S. Solicitor General Theodore Olson that, upon release, was made part of the Congressional Record Comforted by this study, the United States Senate resolved to ratify its conclusion and endorse Senator McCain’s presidential eligibility. As we know from INS v. Chadha[12], such a resolution, absent bicameral concurrence, lacks constitutional legitimacy. In the end, leaving aside questions of standing, a federal district court in Northern California found Senator McCain to constitutionally qualified to serve as President.

After all this, the solid majority of scholarship comes down in favor of accepting derivative citizens born outside of the United States to American parents as coming within the settled meaning of the “natural born citizen” clause. Logic suggests that, by not restricting presidential eligibility to native-born citizens, the Founding Fathers were intentionally opting for an expansive definition of citizenship.[13] This preference is also the reason why Article II, Section I allows anyone, regardless of birth, who was “a Citizen of the United States, at the time of the adoption of this Constitution” to serve as President. This included 7 signers of the Constitution.

Naturalized citizens remain outside the charmed circle. Equal in all else to their fellow citizens, they cannot become President: “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.”[14] This exclusion reflects what may be the true intention of the natural-born citizen clause, namely to limit foreign influence over the decisions of the chief executive in the new republic.[15] Indeed, this is precisely what motivated Alexander Hamilton in Federalist No. 68 while promoting the virtues of the electoral college to warn against “the desire in foreign powers to gain an improper ascendant in our councils.” When we realize that the natural-born citizen clause is infused with a distrust of the foreign-born, its’ presence in the founding charter for a nation of immigrants seems oddly incongruous, though very much in keeping with the popular prejudices of the time. What is surprising is not that the Founders sought to limit presidential eligibility but that they did not seek to impose the same “natural born requirement” on congressional eligibility, which, at the time, and until the 20th Century, was considered as a far more consequential repository of government authority. Fear of disloyalty was behind it all:

Rather than fear of monarchy, the Natural-Born Citizen Clause seems motivated by fear that foreign-born, naturalized citizens’ loyalty could not be assured. Anti-immigrant sentiment among the founding fathers was not unusual or isolated, and much of that sentiment seems based on fears that foreigners were disloyal.[16]

Birth to an American parent who has satisfied any applicable residency requirement or birth in the United States itself are two complimentary but equally valid ways to be considered as a natural-born citizen.[17] So, Senator Cruz can toss his hat into the presidential ring with dreams of the Rose Garden. He is a natural-born citizen of the United States:

On the question of restricting presidential eligibility only to those born within the territorial United States, most observers now seem to consider it settled that a presidential candidate can qualify as a natural born citizen even if born outside the United States proper…[18]

For those who do not welcome this conclusion, we who advance it hope to escape the fury of your reprisal. We take Shakespearean refuge in the maxim: “Don’t Shoot the Messenger.”[19]

[1] Hennessy v. Richardson Drug. Co., 189 U.S. 25, 34-35 (1903)

[2] Rogers v. Bellei 401 U.S. 815 (1971)

[3] Lawrence B. Solum, Originalism and the Natural Born Citizen Clause , 107 Mich.L.Rev. First Impressions(2008)

[4] J. Michael Medina, The Presidential Qualifications Clause in This Bicentennial Year: The Need To Eliminate The Natural Born Citizen Requirement , 12 Oklahoma City University Law Review 253, 265 (1987)

[5] Jill A. Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty . 97 Yale L.J. 88, 889 (1988).

[6] Charles Gordon, Who Can Be President of the United States: the Unresolved Enigma, 28 Md.L.Rv.1, 14-15(1968).

[7] Dred Scott v. Sandford 60 U.S. 393(1857)

[8] United States v. Wong Kim Ark, 169 U.S. 649 (1898)

[9] United States v. Wong Kim Ark, 169 U.S. at 655-671

[10] Weedin v. Chin Bow, 274 U.S. 657, 670 (1927)

[11] Immigration and Nationality Act, 8 U.S.C. 1403

[12] INS v. Chadha, 461 U.S. 919(1983)

[13] Alexander Peter Morse “Natural-Born Citizen of the United States: Eligibility for the Office of President ,” Albany Law Journal, vol. 66(1904), pp.99-100.; See also Christina S. Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizenship Clause , 36 Gonz.L.Rev. 349, 369(2000): “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.”

[14] Luria v. United States – 231 U.S. 9 (1913)

[15] http://faculty.maxwell.syr.duc/jyinger/citizenship/history.htm

[16] Malinda L. Seymore, The Presidency and the Meaning of Citizenship , 2005 Brigham Young Law Review No. 4, 927, 939 (2005)

[17] United States v. Carlos Jesus Marguet-Pillado ,648 U.S. F.3d 1001, 1006 (9th Cir. 2011)

[18] Peter J. Spiro, McCain’s Citizenship and Constitutional Method, 107 Mich.L.Rev. First Impressions 42, 43 (2008.)

[19] Charles Gordon, Who Can Be President of the United States: the Unresolved Enigma, 28 Md.L.Rv.1, 14-15(1968): “I must concede that the picture is clouded by elements of doubt. These doubts will unquestionably persist until they are eliminated by a constitutional amendment, a definitive judicial decision, or the election and accession of a President who was ‘natural-born’ outside the United States.