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May the people decide?

The question erupts from time to time in comments here whether a citizen of the United States, born abroad to American parents, is eligible to be president of the United States. I think that there is an affirmative majority view on this issue, but the Supreme Court has never ruled on it, and it remains a subject of debate among constitutional  scholars (most recently prompted by the candidacy of Senator John McCain who was born in the Panama Canal Zone).

They believe that the courts are the only place to resolve constitutional ambiguity

Recently, some extreme writers on citizenship, who espouse crackpot views about the eligibility of President Obama, think that the voice of the people is rising up to demand that the courts decide any ambiguity in the question of who is and who is not eligible to be president of the United States. While certain that their views must prevail, they also believe that the courts are the only place to resolve constitutional ambiguity.

The ambiguity undoubtedly exists in some eligibility instances (although not seriously about Obama), but notwithstanding we have had an election and we have a president. In my recent research, I have met the idea that perhaps in the case where the courts do not intervene, the people may decide.

E. Corwin in his book: The President: Office and Powers, pp 32-34 (4th rev. ed. 1957) wrote:

Should then, the American people ever choose for President a person born abroad of American parents, it is highly improbably that any other constitutional agency would venture to challenge their decision.

And E. Fincher in his book: The President of the United States, pp 3-5 (1955) wrote:

It is generally assumed, however, that should such a person become a candidate for the Presidency, few would question his eligibility…. Moreover, any doubts on that score would be settled by American voters, should he ever be nominated for the Presidency.

So while the courts have never ruled on a case to define who is a natural born citizen of the United States, the people have resolved that ambiguity  in at least one case.


The Fincher citation is taken from Charles Gordon, Who Can Be President Of The United States: The Unresolved Enigma, 28 MD L. Rev. 1, 1 (1968)

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7 Responses to May the people decide?

  1. avatar
    Jules July 17, 2010 at 5:08 pm #

    I am of the opinion that anyone who acquires US citizenship at the moment of birth is a natural born citizen of the US, provided that they do not relinquish that citizenship. (As a result of the Supreme Court rulings in Afroyim v. Rusk and Vance v. Terrazas and statutory changes to bring the INA into compliance with those rulings, it is quite rare for someone to lose their US citizenship.)

    Regardless of the above, I see no good reason for the requirement of natural born citizenship to continue. I would favour a constitutional amendment to abolish the requirement. People who have been naturalised as US citizens are just as capable of being loyal to the US as those born with US citizenship. If the people do not consider someone to be loyal enough to be worthy of the Presidency, then they can vote against the candidate.

    If most people still insist on an objective constitutional test of having a longstanding connection to the US, then I propose a compromise. We could pass an amendment to state that the eligibility criteria are that the candidate must have:
    a). Resided in the US for at least 14 years (no change from existing rules on minimum residence in the US); and
    b.) Been a US citizen exactly 35 years before election day and continuously remained a US citizen. (This would mean that any naturalised citizen running for President would have spent as much time living as a US citizen as the youngest possible candidate under the existing rules.)

  2. avatar
    Sef July 17, 2010 at 5:28 pm #

    Jules: Resided in the US for at least 14 years (no change from existing rules on minimum residence in the US)

    There is ambiguity in the 14 year requirement: it could be interpreted as 14 non-continuous years, or even 14 years in the U.S. followed by 21 years of absence. This needs to be firmed up. Also you say 35 years exactly. That would mean that they would need to have been born on election day 35 years previous or been naturalized then. I think you mean “at least 35 years”.

  3. avatar
    Jules July 17, 2010 at 6:07 pm #

    Sef:
    Also you say 35 years exactly.That would mean that they would need to have been born on election day 35 years previous or been naturalized then.I think you mean “at least 35 years”.

    I should have said “must have been a US citizen on the date that is exactly 35 years prior to the date of the election” to clarify the matter. Someone who was born or naturalised as a US citizen 40 years prior to the election day will have been a US citizen on the date that is exactly 35 years prior.

    I don’t think that my statement differs from the existing requirement that someone eligible to be president must have “been fourteen Years a Resident within the United States”. I suppose my drafting would allow someone who was present within the US as a non-citizen for 14 years and then left immediately after naturalisation to meet the residence requirement, which some may dislike. It would help to clarify matters and state that the candidate’s total periods of physical presence within the United States as a citizen must add to at least 14 years.

    Of course, the above is all a compromise that still imposes requirements that go further than I consider necessary. I would prefer to state that any adult US citizen is eligible to be elected to the Presidency or either house of Congress. It would be very unlikely that they would elect someone who was very young or who had not been a US citizen and resident for a long time. If they did so, then they would do so based upon a conclusion that the candidate’s qualities and the circumstances warranted electing that person.

  4. avatar
    AnotherBird July 17, 2010 at 8:26 pm #

    Jules
    b.) Been a US citizen exactly 35 years before election day and continuously remained a US citizen. (This would mean that any naturalised citizen running for President would have spent as much time living as a US citizen as the youngest possible candidate under the existing rules.)

    I don’t think the addition requirement is needed. The 14 years residency is ambiguous though. However, the voters are the people who will ultimately decide.

  5. avatar
    Dr. Conspiracy July 17, 2010 at 9:49 pm #

    Keep in mind that there was no debate over the natural born citizen clause in the Constitution. That means we really don’t know what they were thinking, nor did they necessarily know what each other was thinking. There’s no reason to think that there was a common understanding of the phrase in the first place!

    I’ve poked and prodded the historical sources and at least in the case of citizens born overseas, there is some uncertainty. If we have no evidence that an originalist interpretation even exists, why not let the voters decide within the confines of that uncertainty.

  6. avatar
    brygenon July 18, 2010 at 1:22 am #

    Jules: I should have said “must have been a US citizen on the date that is exactly 35 years prior to the date of the election” to clarify the matter.

    Even that leaves cases undefined. Not all Presidents and Vice Presidents are elected. What is the eligibility requirement on those in the order of succession?

    The 25’th Amendment has a bit of the same ambiguity. It says, “No person shall be elected to the office of the President more than twice,” but does not explicitly bar a two-term President from subsequently acquiring the office by succession.

  7. avatar
    Jules July 18, 2010 at 5:54 am #

    My earlier postings were rather intended to express ideas about possibly doing away with the natural born citizen requirement, not the full drafting of the constitutional amendment. As the discussion has ventured into dealing with the drafting not only of my proposals, but also correction of ambiguity in the existing constitution, I suggest the following language for an amendment:

    1. The requirements to be eligible to become President of the United States shall be that the person:
    a. Held United States citizenship on the date that is exactly 35 years prior to the date on which he becomes President and has continuously held United States citizenship since that date; and
    b. Resides in the United States on the date on which he becomes President and as of that date has been physically present within the United States as a United States citizen during his lifetime for such period or periods as amount to at least 14 years,

    2. The requirements to be eligible to become Vice President of the United States shall be that the person:
    a. Held United States citizenship on the date that is exactly 35 years prior to the date on which he becomes Vice President and has continuously held United States citizenship since that date; and
    b. Resides in the United States on the date on which he becomes Vice President and as of that date has been physically present within the United States as a United States citizen during his lifetime for such period or periods as amount to at least 14 years.

    3. If a person who is President or Vice President of the United States relinquishes his United States citizenship, then he shall be deemed to resign his office at the time when he relinquishes his United States citizenship.

    4. The foregoing provisions do not prejudice the procedures established under this Constitution for election of a President or Vice President of the United States, replacement of a President or Vice President of the United States, or provision for someone to act as President in the event of the incapacitation of the President of the United States, not shall it affect the oaths of office that shall be required for someone to be or act as President or Vice President of the United States.

    Of course, we are probably going to get some birther arguing here that my proposal to eliminate the natural born citizenship requirement shows agreement with their contention that Obama is not eligible under the existing rules. For the avoidance of doubt, I think it has been well established that Obama is a natural born citizen and eligible under the existing rules. I merely think that it would make sense to open up the field of possible future presidents to include naturalised citizens who have a strong connection to the United States.