…or a Citizen of the United States…


So… all this birther talk was recently getting to my head. I realized that I had not really taken a look at the part of the Constitution that talked about US citizenship and eligibility for the presidency… at least, not since 8th grade, or so. And so, I checked out Article II of Section 1 of the US Constitution and found the following text (all emphasis is mine):

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…

That second grammatical clause kind of stood out, because it seems to clearly be an alternative condition to the first: either someone born in the US or someone who has become a citizen. I immediately became confused as to why what seemed like such a clear and direct interpretation was not currently possible, and so I figured that maybe there was some other part of the Constitution that clarified that Presidents must be physically born in the US. However, my attention was later turned to Amendment XIV, which it seems was added to the document to clarify what exactly a Citizen of the United States was. The distinction appears to be quite clear:

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.

All of this leading one to logically conclude that one who was either born or naturalized in the US, naturalization commonly understood as the process by which aliens become citizens, is considered a citizen of the United States. If this is true, then why is it popularly understood that the so called “natural-born citizen” clause only refers to people who are natural-born citizens? That clause clearly includes people who were not naturally born, but were naturalized: natural born Citizen, or a Citizen of the United States…. We have a classic logical OR here where if either condition is true, that is if you are either a natural born citizen or you are what the Constitution would call “a citizen of the United States” (again, a term clarified in Amendment XIV Section 1), then you fulfill that qualification for presidency.

I thought I’d see what our good friends at Wikipedia (a community which I proudly support) had to share about this topic. The article, in its current state, hardly brushes at the issue, but provides sources with interesting insights on the whole debate. It encouraged me to look at a USA Today article that talked about the debate surrounding the consideration of Schwarzenegger for President.

First of all, USA Today quotes Article II Section 1 in a way that it appears virtually every lawmaker and justice is reading it:

No person except a natural born citizen … shall be eligible to the office of president.

Hmmm… what was that text they replaced with an ellipsis? What completely irrelevant and inconveniently placed words did they decide to omit? The very words that show why the whole debate is completely confusing. Only by reading the clause with those words removed could one believe that this should be interpreted as meaning only a natural born citizen can be President. If the words …or a Citizen of the United States… were removed, which they are not (nor, to my knowledge, have they ever been repealed in any way), then clearly this part of the Constitution would state that natural born citizenship is the only prerequisite of a presidential candidate’s citizenship (aside being fourteen Years a Resident within the United States).

Additionally, according to the USA Today article, The 12th Amendment says the vice president cannot be foreign-born, which is simply not true. It appears they are referring to the very last sentence of that amendment:

But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States

The constitutional ineligibility this part refers to is that stated supra in Article II, which I first quoted in this post. It does not explicitly name foreign birth as an ineligibility.

Profoundly confusing my investigation more was a Supreme Court case opinion (Schneider v. Rusk – 377 U.S. 163 (1964)) that a Yale Law Journal article pointed me to. The law journal article is called The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty and it begins by saying:

Despite its apparent simplicity, the natural-born citizen clause of the Constitution has never been completely understood. It is well settled that “native-born” citizens, those born in the United States, qualify as natural born. It is also clear that persons born abroad of alien parents, who later become citizens by naturalization, do not.

The last footnote of the last sentence names several Supreme Court cases that have clarified that the President can only be a natural born citizen, including Schneider v. Rusk. Page 165 of the opinion states the following:

We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1.

The second sentence immediately threw me for a loop. Justice Douglas is saying that Article II Section 1 says that only a natural born citizen can be President, but this is very clearly not what the text says. I was strongly hoping that he would address what exactly Article II Section 1 meant by Citizen of the United States, and to my utter shock, I found that he did address the equation of one who is a citizen of the United States to one who is born or naturalized in the United States. It appears he does see these terms as synonymous, but only in other parts of the Constitution. From page 177, Justice Douglas explains:

Distinctions between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President, Art. II, § 1. A naturalized citizen must wait seven years after he obtains his citizenship before he is eligible to sit in the House, Art. I, § 2. For the Senate, the waiting period is nine years, Art. I, § 3.

Surely, you’re initially compelled to think that there’s language in Article 1 Sections 2 and 3 that specifically distinguishes naturalized citizens from, say, a citizen of the United States, who according to Amendment XIV Section 1 is someone who was either born or naturalized in the United States. But here is the text of Article I Sections 2 and 3 that Justice Douglas refers to:

No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States

And so, why can Citizen of the United States mean “naturalized citizen” in Article I but somehow lose this meaning in Article II?

I’m still looking into what so many people have had to say about this issue, and it’s just impossible to believe that I’m the only one interpreting our Constitution like this. Those words …or a Citizen of the United States… are somehow being superseded, and so far, it’s oddly difficult to discover just how this came to be. So many law interpreters, even our Supreme Court justices, seem to just assume this is the case. There’s just no way I’m not going to find someone who talks about those specific words in that clause and why they are commonly ignored, or at least interpreted differently than when they appear elsewhere in the Constitution.

Update 11/09/12

I finally read Jill Pryor’s essay, or Note, I should say and I was pleased to see that it both educated me on the interpretation of the Natural Born clause’s grandfather clause, as well as offered an alternate reading of “natural born” that would include citizens “naturalized” at birth.

A potential president must be either natural born, or a Citizen of the United States, at the time of the adoption of this Constitution. This is understood to mean that anyone who was a citizen of the US once the Constitution was adopted was eligible for the presidency. My confusion stemmed from the phrase “at the time”, since it can mean either at a specific time or during a period of time. If the event is the “adoption of this Constitution”, then I can understand how they would be referring to that particular point in time when the articles were established as law.

As far as what “natural born” actually means, there is still debate. Pyror suggests we understand the framers to mean something like “naturalized born”, in order to acknowledge Congress’s 14th Amendment power to define the scope of circumstances that can result in a birth in which citizenship is “naturalized”.

Pyror also points to text in the Naturalization Act of 1790 that says ‘the children of citizens of the United States, that may be born beyond the sea, … shall be considered as natural born citizens…. ’. Although that provision had been deleted in a later act for unknown reasons (891), it was never challenged. She also cites concurring and dissenting Supreme Court opinions that acknowledge Congress’s power to determine who is a US citizen at birth, therefore determining their natural born status.

I still find it remarkable that Obama’s “natural born” status has been held in more scrutiny than John McCain, even though Obama was born in an actual state and McCain at a military base in Panama. If there is any controversy surrounding the natural born status of anyone born in US territories, not the faintest whisper emerged in the 2000 election. But hey, that’s all old news…

What say you?