By Professor Sarah Helene Duggin
The 2016 presidential election is more than three years away, but potential candidates and their supporters are already contemplating the next campaign. Senator Ted Cruz of Texas—now well-known for his role in the recent federal shutdown—and California’s celebrity former Governor Arnold Schwarzenegger are among those whose names are circulating. But neither Cruz nor Schwarzenegger was born in the United States, and the Constitution provides that “[n]o 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 President.”
For Cruz, Schwarzenegger, and a number of other potential candidates, the Natural Born Citizenship Clause raises a critical question: Is anyone born outside the United States constitutionally eligible to serve as president?
Senator John McCain, who was born in the Panama Canal Zone, faced the same question with respect to his natural-born citizenship status in his 2008 presidential bid, and purported concerns about President Obama’s constitutional qualifications led “birthers” to file lawsuits challenging his natural-born credentials on the basis of a variety of far-fetched theories during the last several years. A new natural-born citizenship debate is already simmering, and it seems likely to heat up a great deal before the 2016 election takes place.
The Constitution does not define the term natural born citizen. Even so, Governor Schwarzenegger is clearly out of the running. Given that he was born in Austria to Austrian parents, there is no basis for arguing that he is a natural-born citizen of the United States.
For Senator Cruz—who was born in Calgary, Alberta, to an American mother and a Cuban father—the question is more complicated. There is a strong argument that anyone who acquires United States citizenship at birth, whether by virtue of the 14th Amendment or by operation of federal statute, qualifies as natural born. The Supreme Court, however, has never ruled on the meaning of the natural-born citizenship requirement. In the absence of a definitive Supreme Court ruling—or a constitutional amendment—the parameters of the clause remain uncertain.
The origins of the Natural Born Citizenship Clause date back to a letter John Jay (who later authored several of the Federalist Papers and served as our first chief justice) wrote to George Washington, then president of the Constitutional Convention, on July 25, 1787. At the time, as Justice Joseph Story later explained in his influential Commentaries on the Constitution, many of the framers worried about “ambitious foreigners who might otherwise be intriguing for the office.”
“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,” Jay wrote.
Washington thanked Jay for his hints in a reply dated September 2, 1787. Shortly thereafter, the natural-born citizenship language appeared in the draft Constitution the Committee of Eleven presented to the Convention. There is no record of any debate on the clause.
While it is possible to trace the origins of the Natural Born Citizenship Clause, it is harder to determine its intended scope—who did the framers mean to exclude from the presidency by this language? The Naturalization Act of 1790 probably constitutes the most significant evidence available. Congress enacted this legislation just three years after the drafting of the Constitution, and many of those who voted on it had participated in the Constitutional Convention. The act provided that “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.”
There is no record of discussion of the term natural born citizen, but it is reasonable to conclude that the drafters believed that foreign-born children of American parents who acquired citizenship at birth could and should be deemed natural born citizens.
Although subsequent naturalization acts dropped the natural born language, members of later Congresses proposed many bills and resolutions designed to clarify, limit, or eliminate the Natural Born Citizenship Clause; none succeeded. In April 2008, however, amid challenges to Senator McCain’s eligibility to serve as president, the Senate passed a resolution declaring that “John Sidney McCain, III, is a ‘natural born Citizen” under Article II, Section 1, of the Constitution of the United States.”
The resolution—co-sponsored by a number of McCain’s Senate colleagues, including rival presidential hopefuls Hillary Clinton and Barack Obama—undoubtedly offered Senator McCain some comfort, but it had no real constitutional significance.
Challenges to presidential qualifications are not new. In 1964, for example, questions arose as to the natural-born credentials of Republican nominee Senator Barry Goldwater, because he was born in Arizona prior to statehood. In 1968, legal actions were threatened against former Michigan Governor George Romney, who was born to American parents in Mexico, when he sought the Republican nomination.
Despite the shadow that lawsuits may cast over a presidential bid, the obstacles to successful litigation of natural-born citizenship challenges are formidable. These matters raise a wide array of justiciability concerns. Standing issues led to the dismissal of lawsuits filed in federal courts in New Hampshire and California challenging Senator McCain’s natural-born status in 2008 (Hollander v. McCain, Robinson v. Bowen), as well as to the dismissal of claims brought by a Guyana-born naturalized citizen who argued that the Fifth and 14th Amendments effectively repealed the natural born citizenship clause (Hassan v. Federal Election Committee).
Standing is not the only obstacle to adjudication of natural-born citizenship issues. Claims that a candidate lacks the requisite natural-born citizenship credentials are unlikely to ripen until a nominee is chosen, or perhaps even elected, and federal courts may be reluctant to delve into the merits of challenges to a candidate’s natural-born citizenship status on political question grounds.
What can we expect if Senator Cruz or another similarly situated candidate runs for president in 2016? Undoubtedly, the controversy will continue with passionate advocates on both sides of the issue. A scholarly consensus is emerging, however, that anyone who acquires citizenship at birth is natural born for purposes of Article II.
This consensus rests on firm foundations. First, given Jay’s letter and the language of the 1790 naturalization act, it seems evident that the framers were worried about foreign princes, not children born to American citizens living abroad. Second, the 14-year residency requirement Article II also imposes as a presidential prerequisite ensures that, regardless of their place of birth, would-be presidents must spend a significant time living in the United States before they can run for office.
Finally, the natural born citizenship clause is both an anomaly and an anachronism. The way in which the clause differentiates among United States citizens is contrary to the overall spirit of the Constitution; the risk that foreign nobility will infiltrate our government is long past; and place of birth is a poor surrogate for loyalty to one’s homeland in our increasingly mobile society and our ever more interconnected world. The best solution would be to amend the Constitution, as many legislators on both sides of the aisle have proposed over the years. In the absence of an amendment, the clause should be narrowly interpreted.
(Sarah Helene Duggin is a professor of law and director of the Law and Public Policy Program. Her article originally appeared on Yahoo! News.)