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.
Those who argue that US Presidents must be born in the country to two US Citizen parents (“twofers” herein below) make representations about what the writers of the US Constitution intended. They typically focus on a letter from John Jay to George Washington, written while the Federal Convention of 1787 was considering the qualifications of the Presidency. Jay wrote:
Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen. [underlining in the original]
The twofers then apply the logical fallacy of begging the question, something like:
- Since Jay said “natural born citizen” he must have intended that only the most pure form of citizen be Commander in Chief.
- The purest form of citizenship is being born in the country to two US Citizen parents
- Therefore a natural born citizen is one who is born in the country to two US Citizen parents.
However, Jay didn’t say anything about extremes or purest forms. (Jay himself had three children born overseas before 1787, two in Spain and one in France.) Twofers use what they think he meant to define what he meant. The only hint Jay gives is “not a foreigner” and no one today, and I think not in 1787, would consider anyone born in the United States to be a “foreigner,” but rather than what I think, let’s examine next who the Framers thought a foreigner was.
The second bit that we have from the Framers is part of the debate over the seating of William Smith in the first Congress. Smith’s eligibility was challenged over the issue of when the Charleston-born Smith became a citizen. James Madison, the principal author of the Constitution, rose to defend Smith saying:
It is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but in general place is the most certain criterion; it is what applies in the United States; it will, therefore, be unnecessary to examine any other.
Congressman Smith was seated with only one dissenting vote.
In Federalist 62 we see this theme continued where Madison equates foreign influence with “foreign birth and education,” writing:
“. . . the nature of the senatorial trust, . . . participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils.”
It is abundantly clear that for Madison determining who is a foreigner and who has loyalty to the country is circumstantially determined by place of birth in the United States and that in the United States parentage doesn’t matter.
We have the statement of Charles Pinckney, the last delegate to the 1787 Federal Convention to remain in Congress, who also speaking before that body said:
They [the framers] well knew, that to give to the members of Congress a right to give votes [as presidential electors] in this election, or to decide upon them when given, was to destroy the independence of the Executive, and make him the creature of the Legislature. This therefore they have guarded against, and to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible. . . .
The twofers then put words in Pinckney’s mouth to change “attachment” to “greatest possible attachment” but that is not what he said. Madison explained that allegiance (i.e. attachment) is determined by place of birth and that examination of parentage is “unnecessary”.
Readers here will have seen all this before. What some may not have seen is the material from which Pinckney’s remarks come, Max Farrand’s The Records of the Federal Convention of 1787. Farrand’s 4-volume work contains the official records of the convention, along with the notes of James Madison who diligently recorded the proceedings, and an assortment of letters and other documents.
The twofers make one essential error in interpreting the historical material, reading their own notions of “foreign influence” as being those of the Framers. They say that a foreign parent is a foreign influence, and therefore every concern that the Framers expressed about foreign influence (and there were many) equates to a concern about foreign parents. The historical record contradicts that view.
Pinckney and Col. Mason argued before the Convention the qualifications of a Senator. Madison records the debate on a motion to change the draft time that a Senator must be a citizen from four to fourteen years:
Mr. Pinkney. As the Senate is to have the power of making treaties & managing our foreign affairs, there is peculiar danger and impropriety in opening its door to those who have foreign attachments. He quoted the jealousy of the Athenians on this subject who made it death for any stranger to intrude his voice into their legislative proceedings.
Col. Mason highly approved of the policy of the motion Were it not that many not natives of this Country had acquired great merit during the revolution, he should be for restraining the eligibility into the Senate, to natives.
The concern with “foreign attachments” focused on those who were not natives or not recent immigrants rather than those with foreign parents. In fact, the word “parent” never appears anywhere in the papers of the Federal Convention relating to eligibility for anything or gauging foreign influence. (In fact, the word “parent” only appears six times and five of those deal with institutions, leaving only one human parent reference, and it is in the context of a parent being a responsible member of society who should be able to vote.)
Continuing this theme, the debate over qualifications to the House of Representatives also considered a native-born requirement. Again Madison records:
Mr. Wilson & Mr. Randolph moved to strike out “7 years” and insert “4 years,” as the requisite term of Citizenship to qualify for the House of Reps. Mr. Wilson said it was very proper the electors should govern themselves by this consideration; but unnecessary & improper that the Constitution should chain them down to it.
Mr. Gerry wished that in future the eligibility might be confined to Natives. Foreign powers will intermeddle in our affairs, and spare no expence to influence them. Persons having foreign attachments will be sent among us & insinuated into our councils, in order to be made instruments for their purposes. Every one knows the vast sums laid out in Europe for secret services–He was not singular in these ideas. A great many of the most influential men in Massts. reasoned in the same manner.
Mr <Madison> seconded the motion. He wished to maintain the character of liberality which had been professed in all the Constitutions & publications of America. He wished to invite foreigners of merit & republican principles among us. America was indebted to emigration for her settlement & Prosperity. That part of America which had encouraged them most had advanced most rapidly in population, agriculture & the arts. There was a possible danger he admitted that men with foreign predilections might obtain appointments but it was by no means probable that it would happen in any dangerous degree. For the same reason that they would be attached to their native Country, our own people wd. prefer natives of this Country to them. Experience proved this to be the case. Instances were rare of a foreigner being elected by the people within any short space after his coming among us– If bribery was to be practised by foreign powers, it would not be attempted among the electors, but among the elected; and among natives having full Confidence of the people not among strangers who would be regarded with a jealous eye.
Here again we see the notion of attachment tied to ones native country, not parentage.
Despite the fact that the natural born citizenship clause itself was not debated by the Convention and no records survive of the committee discussion where it was added, we nevertheless have extensive records of the extended and contentious debate over the office of President. Col Mason noted:
In every Stage of the Question relative to the Executive, the difficulty of the subject and the diversity of the opinions concerning it have appeared. Nor have any of the modes of constituting that department been satisfactory.
Presidential eligibility was one of the last items to be decided. After debate, the draft constitution was turned over to the “Committee of Detail” to put their consensus into proper language. On August 22, the Committee of Detail added for the first time language that the President should be a citizen: “he shall be of the age of thirty five years, and a Citizen “of the United States, and shall have been an Inhabitant “thereof for Twenty one years.”
Historian and Secretary of the Navy George Bancroft wrote in his History of the Formation of the Constitution of the United States (1884) (Volume 1 Page 346):
The idea then arose that no number of years could properly prepare a foreigner for the office of president
I frankly do not know the source for Bancroft’s statement; he had access to manuscripts that I do not. However, I have no reason to question the statement, and it shows that the concern expressed by the Framers was to an attachment to the country defined by time in the country; “no number of years” clearly means one who has been a citizen his whole life.
I tried to find authentic sentiment from the Framers in support of the “two citizen parent” theory, but it is just not there. Yes, they were very concerned about foreign influence, but they never tied foreign influence to parentage. It was the place of birth that mattered in the United States.