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Who's a "natural born" citizen?


Article II, Section 1 of our Constitution lays out the qualifications for anyone who wants to be President of the United States:

  1. Must be at least thirty-five years old.
  2. Must have been a resident of the United States for at least fourteen years.
  3. Must be (with one exception) a "natural born Citizen" of the United States.

Lately that last one has been in the news a bit, as various people have claimed that our current President fails that qualification and so isn't eligible to be President. So what, exactly, makes someone a "natural born" citizen?

There's no precise legal definition of the term, but generally it's accepted to mean someone who acquired United States citizenship automatically at birth. Every country has its own particular set of rules for who gets this automatic citizenship, but in general there are two main approaches and each country chooses one or the other, or both. In legal terms they're referred to by Latin names: jus soli (which means "right of soil") and jus sanguinis (which means "right of blood").

Under jus soli citizenship is based on where you're born, and typically this means you're a citizen of the country you were born in. Under jus sanguinis citizenship is based on ancestry, so if you're descended from citizens of a particular country, you'll inherit their citizenship. How far back this stretches varies from country to country; some will grant citizenship only to children of citizens, others will allow claims to citizenship stretching back through grandparents or further.

So which approach do we use in the United States? Well, it turns out we have both. The Fourteenth Amendment to our Constitution states 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.

This gives us automatic citizenship at birth via jus soli: if you're born in the US, you're a US citizen (with one exception). Meanwhile, Title 8 of the United States Code provides, among other things, the implementation of the Fourteenth Amendment's citizenship clause, and also adds jus sanguinis by including a variety of situations where children born outside the United States receive automatic citizenship at birth.

This second part can get a bit complicated, because automatic citizenship for children born abroad varies depending on the parents. Covering all of the details in Title 8 would take quite a while, but a few general rules from the law will give an idea of how it works, and how to approach the conjectures being made in the news (most of the following are effective as of 1952, and so would apply to President Obama -- who was born in 1961 -- if necessary):

  • If the parents are married, and both are US citizens, then the child is automatically a US citizen from birth.
  • If the parents are married, and one parent is a US citizen, then the child is automatically a US citizen from birth.
  • If the parents are not married, and the mother is a US citizen, then the child is automatically a US citizen from birth.
  • If the parents are not married, and the father is a US citizen but the mother is not, the child is not automatically a US citizen (and cannot be a "natural born" citizen). However, children born in this way may have access to an expedited naturalization process for obtaining citizenship later in life.

That last point has been challenged as discriminatory (since it grants different rights based on a gender difference), but in Tuan Anh Nguyen v. INS the Supreme Court upheld it and said the distinction was reasonable: the identity of the mother is obvious to anyone who witnesses the birth, but the identity of the father is not.

It's clear, then, that President Obama is a "natural born" citizen of the United States. Available records indicate that he was born in 1961 in Hawaii, which was and is a state of the US. Thus, under jus soli and the Fourteenth Amendment, he would have "natural born" citizenship. But even if he was born elsewhere his mother, Anne Dunham, was a United States citizen. So under jus sanguinis as implemented in Title 8, he would still have "natural born" citizenship.

Can you lose citizenship by moving?

There's one other argument that's relevant here: in some cases, a US citizen who moves to another country and stays there can lose US citizenship by doing so. President Obama spent several years living in Indonesia as a child, and so some have argued that his birth citizenship should have been lost at that time. The most relevant bit of law here comes from another Supreme Court case, Perkins v. Elg.

Marie Elg was a citizen of the United States by birth, but her parents were naturalized immigrants from Sweden who returned to that country, and took her with them, when she was very young. At the time, the United States and Sweden had a treaty in place which stated that a US citizen who legally moved to Sweden and lived there for at least five years would cease to be a US citizen and become a Swedish citizen. When Marie Elg, as an adult, attempted to return to the US, immigration officials declared that under the treaty she had become a Swedish citizen and so was an illegal alien here and could be deported.

The Court disagreed with this reasoning, and ruled that since Marie Elg had no choice but to move back to Sweden when her parents did (she was only four years old at the time), her living abroad could not be counted against her. Since she had immediately returned to the United States on reaching adulthood, the Court said she was entitled to claim US citizenship from birth.

So although President Obama did spend several years living abroad as a child, under the precedent of Perkins v. Elg he cannot have lost his US citizenship by doing so.

Miscellaneous trivia

When I laid out the Constitutional requirements above, I mentioned that there is an exception to the "natural born" qualification. The exact text of the Constitution says:

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.

When the Constitution was adopted, the United States as a country hadn't existed long enough for any "natural born" citizen to reach the age of thirty-five. So the qualifications also allowed for someone who was a citizen at the time the Constitution was adopted, and it wasn't until 1837 that we had a President who fulfilled the "natural born" requirement (Martin Van Buren, who was born six years after the Declaration of Independence).

There's one other important exception to automatic citizenship, which I also alluded to above: the Fourteenth Amendment grants citizenship to people who are born in the United States "and subject to the jurisdiction thereof". This means that children born in the US to foreign diplomats are not US citizens by birth, since diplomatic personnel are subject to the jurisdiction of their home countries. Originally, this was also construed to mean that children of Native American nations were not US citizens by birth, and this was the standard interpretation until 1924, when Congress passed legislation which granted them automatic citizenship.

And a few final bits of trivia: President Obama wasn't the only candidate in the 2008 election to be subjected to citizenship questions. An independent-party supporter filed a federal lawsuit against John McCain alleging that -- since he was born in Panama (where his father was stationed as a naval officer) -- he was not a "natural born" citizen and so was ineligible for the Presidency. At the time of Senator McCain's birth, the blanket overseas-birth citizenship provisions of Title 8 weren't in effect and a series of separate laws covered children of US citizens in the Panama Canal Zone, so the legal situation there is somewhat complex. However, a bipartisan legal review and a (non-binding) Senate resolution affirmed McCain's citizenship and eligibility, and the lawsuit was eventually dismissed by a federal judge. A similar suit which challenged the eligibility of three candidates (Obama, McCain and Socialist Workers Party candidate Roger Calero) was filed, but the US Supreme Court declined to hear it.


Alia Ahmed 8 years, 9 months ago

Thanks, explainit. That is very thorough.

Leslie Swearingen 8 years, 9 months ago

I come from an army family and I remember an aunt worried that her daughters baby would not be American if born in Germany where the son-in-law was stationed. I would assume that any child born to military personal born abroad would be citizens. However, you can quote the constitution until you are blue in the face, and give the evidence of the Presidents birth, and the birthers will deny it.

puddleglum 8 years, 9 months ago

what's this 35-year old crap anyway?

I bet the henry brothers could do a better job than bush.

where is Marioni? did he go back to China?

verity 8 years, 9 months ago

Thanks for this blog, Explainit.

There is one thing that you didn't mention that has been used by the birthers. Does it make a difference if the mother is underage when she gives birth outside of the United States? (I know Obama was not born outside the country, but that is a point I've wondered about.)

Kryptenx 8 years, 9 months ago

You mean I'll never be President because I was delivered via c section!?

Alia Ahmed 8 years, 9 months ago

Well, here is one birth certificate conspiracy theorist's view on all things Obama. This may help you understand how dysfunctionally their minds work.


sinverguenza 8 years, 9 months ago

Great blog, explainit.

Perhaps you could enlighten us on another subject - the 14th Amendment.

I was listening to NPR a couple of weeks ago during a story about a representative from/running in California advocating the state cut its TANF (temp assistance for needy families) program, which up to this point, has provided benefits for children, be they the children of US citizens or children of illegal immigrants.

The rep started to argue about what these kids are entitled to and the reporter said - "but these children are US citizens" and the rep proceeded to argue with her about what the 14th means when it says "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."

What the man drew into question was the phrase "subject to the jurisdiction thereof." What I don't get is, why would these children born in America, albeit to illegal immigrants, NOT be subject to the jurisdiction of the US and therefore eligible to all the rights and protections of US citizens?

Off subject, but I figured if you can shed light on Article II Section I you might also be able to delve into the 14th Amendment.


Ralph Reed 8 years, 9 months ago

I agree explainit, well done blog.

I have the same question as sinverguenza because I heard the same program. It sounded like the CA Rep was mind-locked (like someone else was recently on the LJW forums) and didn't want to hear what the NPR reported was saying.

ednoonan 8 years, 9 months ago

This is BS!

Were you asleep in your 9th grade Constitution Class? Everyone except you (and those who have attended government run schools) (i.e. public schools of today) know that a NATURAL BORN CITIZEN is one whose PARENTS ARE BOTH CITIZENS (both Mom and Dad).

Mr. Soetoro (aka Obama) had a pappy that was a British Foreign National...he was NEVER a citizen of the US. Whereas Mr. Soetoro MAY BE A NATIVE CITIZEN (if his granny was not a pathological liar) and he was NOT BORN IN KENYA and if he indeed was born in Hawaii (I am not convinced he was) he then may be a "native" citizen...MAYBE....

Then we have the matter of his citizenship in Indonesia. When did he rebuke his Indonesia citizenship and when did he reapply for citizenship back to America? He is supposed to have traveled as an Indonesian Citizen and attended Occidental College and Columbia College as a foreign student. Show me his 1980-1990 passports...show me AN AMERICAN PASSPORT. Why is he hiding his passports?

Pray tell... How can you still claim Mr. Soetoro is a NATURAL BORN CITIZEN when he carries the baggage of being a citizen of four different nations? BRITIAN, KENYAN, AMERICAN, AND INDONESIA. Which country is he a Natural Born Citizen of? His daddy was British so no NATURAL BORN CITIZENSHIP TO AMERICA came from him. His ADOPTED daddy Mr. Soetoro was an Indonesian natural born citizen...so BarryO was last a natural born citizen of that country...not the USA. (We have school records showing him as a CITIZEN OF INDONESIA.)

PROVE TO ME THAT BarryO had a daddy that was a citizen of our country and I will cease being a birther. Else I would suggest you all take some night class on the Constitution and American Government. You do not know our countries history, laws and Constitution!

Edward C. Noonan

P.S. And for that matter, BarryO's mommie and daddy were never legally married. His daddy was already married in Kenya, so unless bigamy and polygamy was legal in Hawaii in 1961, then their marriage (if there was one) was never valid. So if BarryO was born out of wedlock, then that adds to the problem of his NATURAL BORN STATUS as well. This whole matter is a MESS!

Alia Ahmed 8 years, 9 months ago

Aw....proof positive of the rantings of the birthers, deeply mistaken but passionate. Ed is the one who needs a little more schooling, but truly it wouldn't matter.

jimmyjms 8 years, 9 months ago

"prove to me that BarryO had a daddy that was a citizen of our country and I will cease being a birther."

This statement alone renders you unable to recommend "classes" or any type of "education" to anyone, as you have identified yourself as a blithering idiot.

puddleglum 8 years, 9 months ago

ed, did you get past 9th grade? does missouri even have high schools?

explainit 8 years, 9 months ago


The 14th Amendment's provisions only except children born to diplomats; as noted, they did once exclude Native American children, but that's been changed by law.

The definitive case is from the 19th century: United States v. Wong Kim Ark. Wong Kim Ark was born in California to Chinese immigrants, and after a visit to China was detained by US officials who claimed he was not a citizen: as his parents were Chinese, they said he was born subject to the jurisdiction of the Emperor of China.

The Supreme Court disagreed, ruling that while his parents may have been Chinese subjects, the state of California was not part of the Emperor's domains and so the 14th Amendment made Wong Kim Ark a US citizen from birth. Thus the established interpretation of the Amendment now is that the nationality of the parents doesn't matter for children born in the US (and that only another Constitutional amendment could change this).

bad_dog 8 years, 9 months ago

"And for that matter, BarryO's mommie and daddy were never legally married. His daddy was already married in Kenya, so unless bigamy and polygamy was legal in Hawaii in 1961, then their marriage (if there was one) was never valid. So if BarryO was born out of wedlock, then that adds to the problem of his natural born status as well. This whole matter is a MESS!"-Mr. Ed

From the blog above:

"If the parents are not married, and the mother is a US citizen, then the child is automatically a US citizen from birth."

See there-not so messy after all.

Alia Ahmed 8 years, 9 months ago

logic, Perhaps you're right in that Noonan's comment was in jest. If not, Patricia Noonan should be very embarrassed to claim this man as her husband.

beatrice 8 years, 9 months ago

Time to abort this "birthers" nonsense.

explainit 8 years, 9 months ago


That's a good question, but as far as I can tell the questions about age are based on a misinterpretation of Title 8, 1401(g). That section of the law covers children born abroad to married parents, only one of whom is a US citizen, and lays out a requirement that the citizen parent must previously have been present in the US for a certain period of time. The exact wording is:

"a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years"

So at some point in her life prior to the birth of her son, Anne Dunham had to have spent at least five years in the United States, and at least two of those years had to come after her fourteenth birthday.

I suspect the claims you're referring to are based on an assumption that all five years must come after the fourteenth birthday, and thus she would have had to be at least nineteen years old to fulfill the requirement. But the law puts it differently: as you can see, only two years of US presence are required after the age of fourteen.

jumpin_catfish 8 years, 9 months ago

puddleglum said…I bet the henry brothers could do a better job than bush.

Of course they could and any idiot can get elected president twice except for John F Kerry or Albert Gore to name two.

verity 8 years, 9 months ago

Explainit, what I read was that Anne Dunham would have had to have been of age (18) for her child to become a citizen IF the birth happened outside the U.S. or territories and her husband was not a citizen.

Thanks for the information.

mom_of_three 8 years, 9 months ago

Since he was born in hawaii, which was a U.S. state, it doesn't matter the nationality of his father (or his mother for that matter). There are newspaper birth announcements in Hawaii. Is that not enough for some people. Give it up already.

johnadams 8 years, 9 months ago

This is nothing more than a failure of the Democratic National Party to vet Obama before they placed his name on the primary ballot. Obama supporters want to ignore the fact he was not vetted, those that support the Constitution recognize the lack of proper vetting. The issue is that what Obama produced to factcheck does not prove or disprove he was born in Hawaii. In the 1960's Hawaii was rife with immigration fraud due to the lax laws required to obtain a birth certificate. Basically anyone could walk in off the street and on their word obtain a birth certificate. The announcement in the paper is also worthless as evidence.

There are only three sources of evidence to submit on this issue. Obama has claimed both in writing and in public that he was born in a specific hospital in Hawaii. That evidence is only contained in three sources. One is the original birth certificate issued in 1961 that would contain the name of the hospital, doctors and witnesses. Obama claims to have lost this document.

The second source is the vault birth records that the State of Hawaii has announced they are holding. Obama refuses to sign a release for these records. Contrary to what has been stated about these records, no official from Hawaii has said anything other than they have seen the records and they exist. They have not confirmed the birth in the hospital Obama has named.

The final source are the records from the hospital that Obama has named. Obama has refused to sign a release to allow these documents to be made public.

So what we have here is a failed attempt to vet Obama. The COLB on its own, due to the rampant fraud in Hawaii in the 1960's (these laws were changed in the 1970's and the birth certificates issued before these laws were changed are suspect for the reasons stated above).

The vault birth records will either confirm that Obama was born in the hospital he claims, or if the records state that his parents said he was born at home or some place where there were no witnesses it will require further proof to finish the vetting process. It raises questions like where was he actually born? Why would Obama, an attorney, lie about this?

The liberal press continue to try and provide cover on this issue for Obama and the Democratic party. But the fact is Obama was never fully vetted and the question of his eligibility for the office remain as a result.

Obama needs to stop the bobbing and weaving and step forward and produce the actual evidence that would prove that he was born in Hawaii, or answer the questions if those records do not confirm his statements.

johnadams 8 years, 9 months ago

I would like to point out that at the time of Obama's birth his mother would have had to have lived in the US for five years after her 14th birthday. If Obama was born outside the US he is not eligible: So, as I now read 8 U.S.C. § 1401, "a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States" before Nov. 14, 1986 is a natural-born citizen only if the citizen parent "was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years" — the same rule that was in place in the early 1960s. See also United States v. Flores-Villar, 497 F. Supp. 2d 1160, 1162-64 (S.D. Cal. 2007) (taking the same view and concluding the change from ten years/five years to five years/two years only applied to people born after 1986), aff'd, 536 F.3d 990 (9th Cir. 2008) (so assuming but not discussing it in detail); Rico-Ibarra v. Mukasey, 281 Fed. Appx. 694, 695 n.1 (9th Cir. 2008) (not precedential). www.volokh.com/posts/1227910730.shtml...

johnadams 8 years, 9 months ago

As to the issue of the age of Obama's mother if Obama were born overseas. Based on the law at the time Obama's mother would have had to be 19 when he was born. She was 18, so if Obama were born overseas he is not eligible.

The newspaper announcements are worthless as the health department would send over the names of all babies registered. It does not prove anything on their own. If the vault records confirm the birth in the hospital as claimed by Obama then they would support that. The announcements are circumstantial at best.

Again, Obama needs to sign the release and produce the vault records that State of Hawaii has announced they are holding. We all know they are there and the importance of those records. This issue will continue to build for that reason. Should Obama try to run in 2012 this issue will be brought up the instant his name appears on a primary ballot.

The vault for this issue lies with Obama and the Democratic party who put their interests over the Nation by placing what they knew to be a potentially ineligible candidate on the primary ballot. Everyone that voted for Obama assumed he had been thoroughly vetted, he was not.

MyName 8 years, 9 months ago

ZOMG, the birther "argument" doesn't need a wall of text to explain. They have three points:

1) President Obama was not actually born in the US.

This point is contrary to the fact that he has a valid birth certificate saying he was born in Hawaii, that he had numerous birth announcements attesting to that fact, and that there were people who were present at the occasion asserting that he was born in Hawaii.

2) His father isn't an American, and his mother was underage which means, by some magic formula, he's an ALIEN.

The problem with that is that there is no legal age limit on citizenship. If you're born in the U.S. at age, one hour, you're a citizen. Just because his mom wasn't old enough to vote, doesn't mean she's an alien. And the law clearly states that if the mother is a citizen, then the child is one.

But hey, don't let a well reasoned blog post that addresses even the most nutty arguments with logic explanation of the legal issues stop your fun. Put out another wall of useless text! This is the 21st Century! We've got bandwidth to burn, baby!!

MyName 8 years, 9 months ago

Sorry, I forgot to clearly delineate the 3rd point:

3) I have a huge wall of text! So I must be right!!

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