(American Greatness) The question of presidential eligibility under the Constitution has been a hot button one, especially in recent years with the controversial campaigns of John McCain, Barack Obama, Ted Cruz, and most recently, Kamala Harris. The controversy arises from the text of the Constitution itself. Article II, Section 1, stipulates 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.” The core issue centers on the meaning of the phrase “natural born citizen.” The Constitution explicitly lays out three requirements to run for president: (i) be at least 35 years old; (ii) have been a resident of the United States for at least 14 years; and (iii) be a natural-born citizen of the United States.
The question of natural born citizenship is crystal clear, though it often gets confused with the more controversial debate surrounding birthright citizenship. From the outset, it should be stressed that the two are entirely different constitutional issues. The question of natural-born citizenship as an eligibility requirement for president is well settled, whereas the issue of birthright citizenship is still up in the air.
There is a reason the Founding Fathers attached the requirement of being a “natural born citizen” to the President (and, with the passage of the Twelfth Amendment, the Vice President) only and no other federal offices. The idea was to elevate the threshold for the highest elected political office of the land; notably, that language is absent in Article I, which stipulates that lawmakers running for the House or Senate need only be “citizens” to qualify. The early debates surrounding the passage of the Constitution add support for the view that the Framers wanted to exclude “the admission of foreigners into the administration of our national government,” as John Jay wrote to George Washington in July of 1787.
A central concern for the architects of the nascent American republic was that only the most qualified statesmen be eligible for the country’s highest office. In his Commentaries, Joseph Story elaborated that “[i]t is indispensable… that the president should be a natural born citizen of the United States… [T]he general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman.” Joseph Story, who enjoyed over a thirty-year reign as Associate Justice of the Supreme Court, famously elaborated the principles of the republicanism of Alexander Hamilton and John Marshall well into the mid-nineteenth century. His Commentaries specifically distinguished between natural born and naturalized citizens, the latter of whom were ineligible to run for president, despite qualifying for the privileges of citizenship. This view is supported by the best legal commentary of the day, Emmerich de Vattel’s Law of Nature and of Nations, a contemporaneous authority for the Founding Fathers on questions of citizenship. de Vattel’s work states that “[t]he natives, or natural-born citizens, are those born in the country, of parents who are citizens.” The question of natural born citizenship is ergo fundamentally distinct from the ongoing issue of birthright citizenship, raised in the Fourteenth Amendment, which confers citizenship to “[a]ll persons born or naturalized in the United States.” The key word here is citizenship, not eligibility for the presidential office, which, as noted earlier, demands a much higher threshold for qualification.
Modern legal scholars have further elaborated on the meaning of the Presidential Eligibility Clause. For example, in a 2008 article published by the Michigan Law Review, Law Professor Lawrence Solum argued that the generally agreed-upon meaning of the relevant article was that “anyone born on American soil whose parents are citizens of the United States is a ‘natural born citizen’.”
John Eastman has also raised the issue of natural born citizenship in the related context of Kamala Harris’ eligibility to serve as Vice President. In a 2020 Newsweek article, Eastman argued that Harris would only qualify as a constitutionally eligible natural-born citizen if her parents were “lawful permanent residents at the time of her birth.” However, in the case of Harris, if her parents were “merely temporary visitors,” then she patently did not qualify as a natural-born citizen pursuant to Article II, Section 1. The logic of Eastman’s argument is straightforward, and I would maintain does not even need to implicate the Fourteenth Amendment or the outstanding question of birthright citizenship, which might otherwise detract from the fundamental soundness of the constitutional issue.
It makes sense that the constitutional Framers did not license the presidency to anyone born on U.S. soil. The specific requirement of natural-born citizenship, which is absent for both members of Congress and the judiciary, was intended to raise the threshold for presidential officeholders in particular. In Nikki Haley’s case, it is well documented that neither one of her parents were citizens, natural born or naturalized, at the time of her birth in 1972. It has been previously reported that a South Carolina-based newspaper included a quote from the Office of Nikki Haley, stating that “her parents were not U.S. citizens at the time of her birth in 1972 and did not become citizens until 1978 and 2003.” Thus, although the parents may have been lawful residents at the time of her birth on South Carolina soil, which may or may not confer her with the privileges of citizenship, it is important to note that she does not qualify for the Constitution’s higher requirement of natural-born citizenship.
