Not Everyone Can Grow Up To Be President

by Dar ul Harb, Esq.

Even as the Democrats’ bold campaign lawfare strategy seeks to disqualify President Trump from the 2024 ballot using a bogus 14th Amendment “insurrection”argument¹, in effect adding eligibility requirements to those present in the Constitution, attorney Paul Ingrassia, in a recent Substack (and a series of X posts), has taken a look at the “natural born citizen” clause of the Constitution (Art. II, §1), which actually is one of the Constitutional requirements for running for President. While Ingrassia focuses primarily on the eligibility of Republican contender Nikki Haley, this question has certainly cropped up in past years with other candidates, and it’s a legal argument that can’t be easily dismissed.

Childhood photos of Barack Obama, Nikki Haley, Kamala Harris, and Ted Cruz (photo illustration by yours truly). All had their eligibility to be President challenged under the “natural born Citizen” requirement.

The eligibility requirements for being able to run for President (or Vice-President) are set forth in Article II, Section 1 of the Constitution, which established the office of President. It provides 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.

As the original meaning of “natural born Citizen” would be an issue of first impression for the U.S. Supreme Court (i.e. they’ve never ruled on it), this is an area of the law that’s up for debate. By the canons of constitutional interpretation, one would try to give legal effect to all the words used by the authors of the Constitution —so at first glance, it would seem that specifying “natural born” citizens implies something beyond merely being a “citizen.”

The typical contemporary interpretation seems to consider “natural born Citizen” to be an antonym of “naturalized” citizen, so that all one must be to qualify as a “natural born” citizen is to be born here (a legal theory called jus solis, L. “right of the soil”). Mr. Ingrassia is arguing that “natural born” citizenship, in a manner similar to a hereditary status (something which would be quite familiar to the Framers), passes from your parents (jus sanguinis, L. “right of the blood”). So it's a category or level of citizenship that has no exact counterpart in current naturalization law, since current law considers everyone born in the United States to be a citizen automatically, under a jus solis theory, regardless whether their parents are U.S. citizens or not².

While it might seem that “natural born Citizen” may be one of those historical artifacts of Constitutional language which has rather sparse contemporaneous documentation, because at the time, everyone knew what was meant by it, and now the people who knew what was intended are long dead, we do actually have some evidence for the original meaning of the term.³

In the comments on X, I found a link to the text of the Naturalization Act of 1790⁴, passed by the First Congress, which uses the term "natural born citizens" when explaining how children of U.S. citizens born outside U.S. territory are citizens. At the time, of course, only white people were eligible to be citizens, and only men could vote, and thus "natural born citizenship" descended from the father.⁵ But, the law provided that the “right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”

It’s pretty short as laws go, so I’ll include it in full here:

Chap. III. --- An act to establish an uniform Rule of Naturalization.

SECTION 1. Be it enacted by the Senate and House of Representtattives of the United States of America in Congress assembled, That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the states wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the constitution of the United States, which oath or affirmation such court shall administer; and the clerk of such court shall record such application, and the proceedings thereon; and thereupon such person shall be considered as a citizen of the United States. And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, That no person heretofore proscribed by any state, shall be admitted aforesaid, except by an act of the legislature of the state in which such person was proscribed.

APPROVED, March 26, 1790.

(emphasis added)

So textually, at least, being a “natural born citizen” under the 1790 Naturalization Act required that your father was a (white) citizen, and had at least at one time resided in the United States. Remember, at the time, there were a lot of people who had become U.S. citizens by operation of law, having been born as subjects of the British Crown.⁶

The text of the 1790 Act distinguishes between “naturalized” and “natural born citizens,” so it looks like considering “natural born” to be an antonym for “naturalized” has some plausible support, but “natural born” is clearly used to refer to a heritable status (in a way similar to the postbellum “grandfather clause” was used in many states against the voting rights of the freedmen).

Under the 1790 Act, if your father was a U.S. citizen who at one time resided in the U.S., then you were a “natural born citizen” regardless where you were born.

I should add, I'm not making any determination as to Nikki Haley's eligibility as a “natural born citizen,” which is a question of fact (were either or both of her parents citizens at the time she was born?). I’m just considering the legal meaning of the term “natural born Citizen.”

This contrast in Article 2 §1 between “citizen(s) ...at the time of the adoption of [the] Constitution” and “natural born Citizen” also textually supports that being a “natural born citizen” requires something more than being a “citizen.” Combined with the text of the 1790 Naturalization Act, which distinguished “naturalized” from “natural born” citizens, I'd say Mr. Ingrassia's legal and historical argument has pretty good support.

How one would make a Constitutional challenge to a candidate's eligibility under the "natural born citizen" clause, is another interesting question. It’s also not clear whether one would require two U.S. citizen parents to be a “natural born Citizen” for the purposes of Presidential eligibility, or just one.⁷

—end—

1. Which seems to be completely falling apart …but that’s another column.

2. …or even whether they’re legally present in the United States or not!

This is a result of the 14th Amendment’s provision in §1 that “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.” The 14th Amendment only addresses two categories of citizenship: jus solis (“born… in the United States”) and naturalized, but doesn’t address what “natural born” citizen means as a legal term of art, which is probably the source of the confusion which considers “natural born” citizenship as an antonym of “naturalized.”

3. Similar to the problems people have in understanding the meaning of “well-regulated” in the 2nd Amendment, which doesn’t have anything to do with government regulation in a contemporary sense.

4. U.S. Statutes at Large, Vol 1, p.103 (Caution: a rather large PDF file containing the entirety of Volume 1).

5. Historically, women’s citizenship status often derived from that of their husbands, and women could lose their U.S. citizenship by marrying a foreigner.

6. There's a specific carve-out provided for presidential eligibility of "a Citizen of the United States, at the time of the Adoption of this Constitution," primarily to cover those who were born as subjects of the British Crown, but were not “natural born citizens” of the United States, because, until the Constitution, the United States didn't yet exist, so it wouldn’t havc been possible for one’s father to have been a citizen of it, and resident there.

7. Current immigration law applicable to the children of U.S. citizens born abroad suggests that only one U.S. citizen parent is required.

Interestingly, if you turn the argument around, and you had a person whose parents were from a country whose naturalization law recognized this type of “natural born citizenship,” then they would be a “natural born citizen” of that country (through their parents), even though born in the United States, and under U.S. birthright citizenship law, they would also be a citizen of the United States.

U.S. law requires naturalized citizens to “absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which [they] have heretofore been a subject or citizen” (on taking the citizenship oath). In the traditional view, you could only have allegiance to one sovereign, so, to be consistent, we probably really ought to require a similar legal declaration from persons who are eligible for dual citizenship as “natural born citizens” of a foreign state.