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Posted Aug. 20, 2009

Re-examining the Constitution's Presidential Eligibility Clause

White

By Professor g. edward white

Despite discussions in the media, the claim by so-called "birthers" that Barack Obama is ineligible to be president because of his "non-American" birth is not supported by any credible documentation.

There is, however, another dimension of the Obama birthplace issue that merits discussion. The issue surfaced, of course, because where Obama was born affected his eligibility to become president under the Constitution. The relevant constitutional provision, Article II, Section I, Clause 4 (the presidential eligibility clause), states that:

“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.”

Although the Constitution does not go on to define a “natural born Citizen,” the term is understood to mean a person born in the United States or born abroad to parents who are both American citizens. In Obama’s case, his father was not an American citizen. If he had been born abroad he would have been ineligible for the presidency.

But does the “natural born Citizen” presidential eligibility requirement make sense in today’s world? The first step in that inquiry is to recover the original understanding of the presidential eligibility clause. To do that, one needs to examine the Clause’s text against the backdrop of the historical context in which it was written.

At the time of the Clause’s passage, a number of American citizens had been born outside the United States, primarily in Great Britain. The United States had come into being because Americans had separated themselves from the British Empire and had fought a war to maintain that separation. American independence had been declared only 11 years before the presidential eligibility clause was drafted. The majority of the delegates to the 1787 constitutional convention were second-generation Americans, born in the United States, but some delegates had been born abroad, mainly to British parents.
The delegates wanted to make a clear distinction between two sets of persons who might seek the American presidency. They welcomed persons 35 or older, who had been residents of the United States for at least 14 years, and who had either been born in America or were American citizens when the Constitution was adopted. They did not welcome anyone else.

Alexander Hamilton, born on an island in the British West Indies to parents who were not American citizens, was not a “natural born” citizen, even though he was a delegate at the 1787 convention. Some have claimed this barred him from the presidency, and have even suggested that the clause was drafted with Hamilton in mind. But Hamilton had been a resident of New York well before the Declaration of Independence was issued and the Articles of Confederation ratified. Those documents made him, and all similar residents of the new America states, “citizens of the United States.”

George Washington, John Adams, Thomas Jefferson and James Madison were all “natural born” citizens whose families had lived in America for at least two generations.

Thus “presidential Americans” were not adults who had just established residency in the United States when the Constitution was framed and ratified. They were also not children born abroad of foreign parents. The framers did not want any latecomers to the United States running for president, and, given America’s recent hostilities with Great Britain, they were especially concerned about latecomers from that nation. Presidential Americans needed to show that they had fully separated themselves from the Crown, Parliament and the Empire. Foreign birth, to even one foreign parent, cast doubt on one’s ability to make that separation.

Is the set of attitudes originally animating the presidential eligibility clause when it was drafted one that should be perpetuated today?

“We are a nation of immigrants” has been a bipartisan chant of recent candidates for office. If so, why should having been born outside the United States to at least one foreign parent still disqualify a person from seeking the presidency? The United States no longer has a critical mass of citizens born in a nation from which we formally separated, and with whom we fought a war to finalize that separation.

Should future prospective candidates for the presidency from multinational families, born outside the United States to at least one foreign parent, who get the chance to become long-term American residents and citizens and do so, continue to be constitutionally prevented from seeking presidential office?

Amending the Constitution is difficult, and rightly so. The great respect we place in the Constitution comes in part from its continuity over time. Even so, the framers built the amending process into the document, so when a constitutional provision comes to be perceived as an historical anachronism, there is an opportunity to consider whether it should be retained in its original form. It seems time to subject the presidential eligibility clause of Article II to a re-examination.

Professor G. Edward White teaches constitutional law at the Law School. His many books include "The American Judicial Tradition: Profiles of Leading American Judges" and biographies of Chief Justice Earl Warren and Justice Oliver Wendell Holmes. In 2003, he became David and Mary Harrison Distinguished Professor of Law.