April 20, 2011 – Article II, Section 1, Clause 5 of the United States Constitution – Guest Essayist: James D. Best, author of Tempest at Dawn

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Article II, Section 1, Clause 5

5:  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.

The president of the United States must meet three eligibility requirements. He or she must be a natural born citizen, be at least thirty-five years old, and have resided within the United States for fourteen years.

The first eligibility requirement is that the president be a natural born citizen.

There is an obsolete way to meet the citizenship requirement. The office seeker could have achieved citizenship before nine states ratified the Constitution. With this proviso, the eight foreign-born delegates to the Federal Convention would be eligible. Before ratification could become a possibility, the Constitution had to make it out of the statehouse, so it was tactful to make every delegate eligible for the executive position.

If a modern candidate is less than two-hundred and twenty years old, he must be a natural born citizen. Someone born inside the United States is a natural born citizen. Although some disagree, persons born outside the United States to United States citizens are considered natural born citizens. The first Congress in 1790 declared that “the 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.” The only reason this did not close the argument is that a Congressional statute cannot alter or clarify the supreme law of the land, but it certainly can be used to determine intent of the framers.

What was the intent of the framers? It actually varied by individual, as it did on many issues. When they debated this clause, Benjamin Franklin said, “When foreigners after looking about for some other country in which they can obtain more happiness, give a preference to ours it is a proof of attachment which ought to excite our confidence and affection.”1

Gouverneur Morris disagreed. “As for those philosophical ‘citizens of the world,’ I don’t want them in public councils. I do not trust them. A man who shakes off attachment to his country can never love any other.”1

(The debates can enlighten on original intent, but in the end, it was the votes that determined what the Constitution meant.)

The president must also be at least thirty-five years old upon taking the oath of office. Today, thirty-five seems young. Theodore Roosevelt was the youngest president at forty-two, and John F. Kennedy was the youngest elected president at forty-three. In 1787, thirty-five was not young. Alexander Hamilton was still five years away from eligibility. His fellow delegates Jonathon Dayton, John Mercer, Richard Dobbs Spaight, and Charles Pinckney were all younger. Even the Father of the Constitution, James Madison, was only thirty-six.

The last eligibility requirement is that the president must have resided within the United States for fourteen years. Justice Story opined that “residence in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period; but such an inhabitancy, as includes a permanent domicil in the United States.” Due to draft wording of this clause and the precedent-setting election of Herbert Hoover, it is generally accepted that the fourteen years can be cumulative.

It is also interesting what is not included in this clause. There are no religious, property, hereditary, or military service requirements. Also, Fifty-five men framed a constitution that requires no amendment for a woman president.

1 The Franklin and Morris quotes have been changed to first person from the third person used by James Madison in his notes.

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.

12 replies
  1. K Smith
    K Smith says:

    The Founding Fathers relied upon Emerich de Vattel’s “Law of Nations” definition of natural born: “As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights; The country of the fathers is therefore that of the children; In order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.” This definition was based on natural law, which we know the Founders used as the base principle design of the Constitution.

    The original intent of the Founders was to ensure loyalty to the US and not allow for divided loyalties. Many use the 14th Amendment to define citizen; but “naturalization” in the 14th Amendment was intended to allow for former slaves to be considered citizens. It was not intended to replace the citizenship definition as stated in this Article of the Constitution.

    Reply
    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      By that “Law of Nations” definition, then President Obama is not natural born as his father was not a U.S. Citizen at the time of his birth; and his mother was on a student Visa at the time at the Honolulu univsersity, if I understand it right. That means he would have to be Naturalized to be a citizen and so ineligible for the office; regardless of the birth certificate issue, and Abercombe unable to find it. Now President Obama is running for re-election.

      Reply
  2. yguy
    yguy says:

    Although some disagree, persons born outside the United States to United States citizens are considered natural born citizens. The first Congress in 1790 declared that “the 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.”

    To put a little finer point on it, the sequent proviso that “the right of citizenship shall not descend to persons whose fathers have never been resident in the United States” seems to clearly imply that the citizenship of one parent sufficient to confer natural born citizenship on the child, which would pretty well dash the idea that presidential eligibility requires two citizen parents.

    The only reason this did not close the argument is that a Congressional statute cannot alter or clarify the supreme law of the land,

    Indeed; and in that vein it is perhaps worth asking how anyone can be a natural born citizen under color of the naturalization clause, which seems to be the only conceivable source of congressional authority to enact such a provision.

    but it certainly can be used to determine intent of the framers.

    Certainly the act is compelling prima facie evidence; yet it is only fair to point out that the provision (along with the rest of the act) was repealed 5 years later, and replaced with a version from which the “naturual born” modifier is conspicuously absent.

    Reply
    • James D. Best
      James D. Best says:

      Good comments, thanks. Thanks for also reminding me that the act was repealed. I still think an act passed within a few years of ratification by a congress that included delegates to the Federal Convention is indicative of intent.

      Reply
      • Nathanael
        Nathanael says:

        I agree that the Act strongly argues to original intent of the Founders. If it were inconsistent with the Founders’ intent, one might expect someone to have objected. (That is was passed, let alone not challenged, is also, to my mind, prima facie evidence that Vattel was not so strong an influence as some might suppose.)

        In light of the assertion that the law was repealed, with the implication that the provision that children born overseas to US citizens was dropped, what does one make of the assertion in Minor v. Happersett that “These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since.”?

        Reply
        • yguy
          yguy says:

          In light of the assertion that the law was repealed, with the implication that the provision that children born overseas to US citizens was dropped,

          It wasn’t dropped, just modified so that it didn’t refer to natural born citizenship.

          what does one make of the assertion in Minor v. Happersett that “These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since.”?

          But for the bolded phrase, one would have to say the assertion is erroneous.

          Reply
  3. Lady Liberty
    Lady Liberty says:

    Please define “natural born citizen”. To my knowledge there are 4 court precedents, 3 of which require the presidential candidate to be a U.S. citizen, but also for both of his parents to be U.S. citizens.

    Since this Constitutional requirement is simple and straight-forward, why do you think its fealty was ignored with the candidacy of Barack Obama? (McCain was asked to provide all legitimate documents as proof of eligibility.) And what do you suggest as legal process to validate future candidacies? (Who should validate? Do states have to pass laws and designate the verification process etc.?

    Lastly, why do you think there is such emotion heaped on the heads of those who expect such a simple Constitutional requirement to be honored?

    Reply
    • yguy
      yguy says:

      Please define “natural born citizen”. To my knowledge there are 4 court precedents, 3 of which require the presidential candidate to be a U.S. citizen, but also for both of his parents to be U.S. citizens.

      Which cases do you refer to?

      Since this Constitutional requirement is simple and straight-forward,

      If it is, why did the Naturalization Act of 1790 confer natural born citizenship on foreign born children who had one citizen parent?

      And what do you suggest as legal process to validate future candidacies? (Who should validate? Do states have to pass laws and designate the verification process etc.?

      I wouldn’t say they need to pass laws, but I would say they are consitutionally obligated to exercise due diligence in verifying constitutional eligibility.

      Reply
      • Lady Liberty
        Lady Liberty says:

        yguy, not sure why you are quoting the Naturalization Act of 1790 which requires that citizenship descend from the father. Pres Obama’s father did not qualify as resident or U.S. citizen. Also as stated below, free blacks and others didn’t qualify.

        Wikipedia: The original United States Naturalization Law of March 26, 1790 (1 Stat. 103) provided the first rules to be followed by the United States in the granting of national citizenship. This law limited naturalization to immigrants who were “free white persons” of “good moral character”. It thus left out indentured servants, slaves, free blacks, and later Asians. While women were included in the act, the right of citizenship did “not descend to persons whose fathers have never been resident in the United States….” Citizenship was inherited exclusively through the father. This was the only statute that ever purported to grant the status of natural born citizen.[1] [2]

        Reply
        • yguy
          yguy says:

          yguy, not sure why you are quoting the Naturalization Act of 1790 which requires that citizenship descend from the father.

          That interpretation only makes sense if “children of citizens of the United States” means both parents had to be citizens; but if so, the “resident father” proviso is mere surplusage unless there is some way a father could be a US citizen without ever having lived there.

          Reply
  4. Richard Monts
    Richard Monts says:

    A clarification of ‘natural born citizen’ is needed. In the first part of the same paragraph that speaks of the allegiance of a person born of a father clearly defines what is a nature born citizen all in one little sentence.

    This is an excerpt of a Letter to the Editor I submitted in Sept. of last year.

    “There has been much discussion about the Constitutional requirements for president of the United States. Quoting the Constitution in part: “No Person except a natural born Citizen,…” qualifies. What is a ‘natural born Citizen’ and where did the phrase come from? George Washington had a copy of ‘The Law of Nations’ written by the Swiss political philosopher Monsieur de Vattel. On page 101 of book I. in chapter XIX, paragraph 212 it says “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” This is the origin of the phrase in our Constitution…”

    It is clear that parents and citizens are both plural meaning both. It is not written “a parent who is a citizen.”

    The rest of the paragraph is supporting Vattel’s argument and is not a definition of ‘nature born citizen.’

    Reply

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