The Founding Fathers’ insistence that the presidency be limited to “natural born citizens” was based on their openly expressed fear that “foreigners were disloyal,” as law professor Malinda L. Seymore has written.
Odd, considering the fact that so many of those who helped craft the “natural born citizen” clause were themselves born in foreign lands: Alexander Hamilton in the West Indies; James Wilson in Scotland; Robert Morris in England; and the four delegates to the Constitutional Convention of 1787 who hailed from Ireland, William Paterson, James McHenry, Pierce Butler and Thomas Fitzsimons.
No worries. Before they finished their business the drafters exempted themselves, and most of their generation from the requirement they felt so crucial.
As Article II, Section 2 of the Constitution declared: “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 ….” (Italics added) A loophole for themselves, as Supreme Court Justice Joseph Story wrote 46 years later, was created “out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities.”
This from the same man who in the very next paragraph of his famous “Commentaries on the Constitution,” goes on to say that the need to exclude the foreign-born was so obvious as to be unchallenged by any “sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections.”
The debate continues to this day over what the words “natural born citizen” actually mean because the drafters chose not to be more specific. That’s why Republican presidential candidates Donald Trump and Sen. Ted Cruz (Tex.), who was born in Canada, could cite competing scholars in support of completely opposite opinions and everything in between.
Writing in the Harvard Law Review, two former top Supreme Court litigators, Neal Katyal and Paul Clement, said: “All the sources routinely used to interpret the Constitution confirm that the phrase ‘natural born Citizen’ has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.” The fact that Ted Cruz’s mother was a citizen, by this standard, means that despite his birth in Canada, he is eligible.
On the other end of the spectrum, Mary Brigid McManamon, of Widener University’s Delaware Law School, writing in the Washington Post Jan. 12, wrote: “The concept of ‘natural born’ comes from common law, and it is that law the Supreme Court has said we must turn to for the concept’s definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are ‘such as are born within the dominions of the crown of England,’ while aliens are “such as are born out of it.'”
Harvard Law Prof. Laurence Tribe, who Trump quoted during the debate Thursday night as raising “serious questions” about Cruz’s eligibility, said in response to an email from the Post after the debate that the answer depends on one’s approach to interpreting the Constitution. “The more of a genuine ‘originalist’ someone (like Cruz) is, the harder it becomes to resolve that ‘serious question’ in Cruz’s favor. The more of a ‘living constitutionalist’ someone (like me) is, the easier it becomes to conclude that ‘natural born citizen’ has gradually acquired the broader meaning on which Cruz necessarily relies.”
Scholars have found all sorts of reasons for the drafters’ vagueness in that and other clauses: Everybody knew what the words meant because they were familiar with the English common law definition; they did not want to tie the hands of future generations confronting circumstances different than those of 1787; they were in a hurry to finish off their work and get out of the unseasonable heat of the Philadelphia summer of 1787.
They felt that some things did not require further explanation or definition, like “natural born citizen.” On others they were very specific: The age of sufficient wisdom for a president was exactly 35 years old. The time of residence in the nation was exactly 14 years, no more, no less.
When it came to the presidency, the “framers” of the Constitution, as they came to be called, had only the vaguest idea what they were creating as there were few precedents. In addition to going back and forth on the question of the method of selecting the president — should it be the Senate or the people or the people filtered through an electoral college — they made some false assumptions.
The most famous and perhaps the most understandable in the pre-mass media era, was their belief that the decision on who would be president would invariably be made not by the people or even the Electoral College but by Congress.
Once George Washington, the only true national hero of the era, passed from the scene, most delegates believed that no single candidate would ever be sufficiently well-known throughout the country to get a majority of the electoral vote and that the contest would always wind up in the House of Representatives. The country was split by region and interest, not by two political parties. But elections have been thrown into the House only twice, in the elections of 1800 and 1824.
For their generation, the fear of “intrigue” by foreigners was widespread. “George Washington was sufficiently wary of foreign-born citizens that he ordered that no man could be appointed as a sentry during the Revolutionary War unless he be ‘Native of this Country, or has a Wife, or Family in it, to whom he is known to be atttached,” wrote Seymore in the Brigham Young Law Review.
After the Revolutionary War, fear of foreign powers nefariously attempting to divide the new nation or influence its decisions was rampant, just as it would become in post-colonial nations across the globe in the 20th century.
At the Constitutional Convention, George Mason spoke of “foreigners and adventurers” trying to “make laws for us” and “a rich foreign nation, for example Great Britain” sending “tools who might bribe their way” into federal office for “invidious purposes.”
Scholars have speculated that the actual “natural born citizen” wording in the Constitution came initially from John Jay, who would later become chief justice of the Supreme Court. Jay was not at the Convention but was corresponding with George Washington, who was presiding over it.
The first draft of the provision only required that the president be a citizen. But in a letter to Washington dated July 25, 1787, Jay wrote: “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 devolved on, any but a natural born Citizen.”
Washington, according to Seymore, wrote Jay “thanking him for the ‘hints contained in your letter.’” Seymore continued: “Two days later a second version of the presidential qualification clause was presented to the Convention,” which contained the “natural born” requirement. It passed without any discussion, or at least any discussion passed down through history.
“Considering Washington’s considerable presence at the Convention, it is entirely possible,” Seymore theorized, “that Jay’s reasons for including the natural-born requirement were the primary motivation behind the provision: namely, fear of foreign dominance of government.”
It produced no significant controversy in the ratification debates that followed because nobody cared about the fine print in the face of much larger burning questions about vesting so much power in a single person.
Was the presidency an embryonic monarchy or an open-door to tyranny? After the Convention, that was the question.
And while it arose again during the candidacies of Barack Obama and and now Ted Cruz, and was raised by those who thought Canadian-born former Michigan governor Jennifer Granholm belonged in the White House, the question of who is, and who isn’t, a “natural born citizen” has never been truly joined, either by Congress or the Supreme Court, and never definitively answered.
This post has been updated.